R v Hay

[1992] QCA 178

COURT OF APPEAL	[1992] QCA 178
FITZGERALD P DAVIES JA DEMACK J
CA NO 65 OF 1992
THE QUEEN
v.
BRENDAN RONALD HAY	Applicant
BRISBANE
... DATE 9/6/92 JUDGMENT

THE PRESIDENT: The applicant pleaded guilty in the District

Court at Cairns on 30 January 1992 to one count of assault

occasioning bodily harm, with a circumstance of aggravation, that is that it was carried out in company and one count of

stealing. He was jointly charged with one Jason Rory O'Brien who was similarly charged. They also pleaded guilty to both offences at the same time.

In respect of the first count, the assault occasioning bodily

harm in company, each was sentenced to 18 months' imprisonment

and in respect of the second count, stealing; each was sentenced to 12 months' imprisonment to be served concurrently. The

applicant and his co-accused O'Brien, together with at least two other men, one of whom was named Brettschneider, went in the evening of 2 April 1990 to the Cairns home of the complainant at the urging of Brettschneider who claimed to the applicant and

others that the complainant had an item of property belonging to him and when the complainant opened his door he was set upon by

members of the group who were urged on by Brettschneider to

attack him.

The complainant was punched, kicked, threatened by the co-

accused with a knife, dragged around the room and had his head rammed through a fibro wall. The attack ceased when one of the group gave an alarm that someone was coming.

Brettschneider took a number of gold ornaments from the person

of the complainant and the group left the complainant dazed and

injured on the floor of his house when they fled.

The applicant was in possession of some of the gold ornaments

the following day, and actually gave one piece to a female

friend. The applicant was interviewed by the police in Brisbane

on 3 March 1991 and denied any involvement. He actually lodged a notice of alibi in connection with this matter. The applicant's decision to enter a plea of guilty did not follow until after he had been implicated by the co-accused O'Brien.

The learned sentencing Judge correctly described the offences as

the act of thugs and gangsters, consisting of a cowardly attack

by a gang of men on an unarmed, and partly unsighted man, in his

own home in the night involving extreme violence and force.
On the other hand, His Honour gave weight to all the factors

mentioned in mitigation on behalf to the application before him, including his good work history and prospects, and that

Brettschneider was the ring-leader, and had not himself faced

charges over the incident, and that the applicant had belatedly

cooperated with the police.

However, His Honour decided that there should be a parity of

sentencing between the applicant and the co-accused after taking into account that O'Brien had spent time in custody; that

O'Brien had cooperated with the police, that O'Brien had shown

some willingness to put a bad start behind him, and that, on the other hand, O'Brien was not guilty of the worse conduct, in that he had wielded the knife with which the complainant was

threatened, an aspect which His Honour regarded correctly as one

of the worst aspects of the attack.

It was not submitted that any error or principle was discernible

in the remarks of the sentencing Judge. The applicant is 35

years old and he has no previous history of any materiality for

present purpose. However, in the absence of any error of

principle, it is impossible to say that the sentence which has

been imposed upon him is outside the range which is demonstrated

by other sentences in comparable matters, and it is certainly

not manifestly excessive. Accordingly I would refuse the
application.
DAVIES JA: I agree.

DEMACK J: I agree.

THE PRESIDENT: The application is refused.

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