R v Kalotai

[1992] QCA 191

COURT OF APPEAL	[1992] QCA 191
PINCUS JA McPHERSON JA DEMACK J
CA NO 120 OF 1992
THE QUEEN
v.
SHAUN VINCENT KALOTAI	Applicant
BRISBANE ... DATE 2/6/92 JUDGMENT

McPHERSON JA: The applicant seeks leave to appeal against concurrent sentences of three years' imprisonment imposed on him for two counts of assault occasioning bodily harm, both committed in company, and one while armed with an offensive weapon, namely a steel bar.

The offences were committed against Alan John Page on 1 June 1991 at his home address in Marsden where he was living with his wife and two children. Mr Page is a truck driver who was working on his truck at the back of his house at about 9.30 p.m. on the night in question. His wife was out for the evening and he had care of the children.

He heard his dog barking and saw someone run down the side of his house. He chased this person on the footpath and grabbed him. A second person then grabbed Page from behind and a third attacked him. Page was knocked down and after striking one of the attackers with a piece of brick his assailants dispersed.

The complainant page then went into his house and while telephoning the police he heard someone outside saying, "Let's kill the so-and-so". He went outside and saw four young men armed with lengths of timber and steel fence pickets, or the like. He told them to leave his property but they started to attack him in the driveway inside the boundary of his yard. He was hit about the head many times with the steel picket and the other weapons. He sustained blows on the centre and right side of the top of his head and also on the face across or over the right eye and elsewhere. He suffered lacerations to the face, bruising to the chest, to the hip, to the back and abrasions to his arms. He suffered a degree of loss of memory for a time after this event.

There was a difficulty in identifying his assailants as the attack had occurred during the night-time. The other three involved were evidently not sufficiently identified to enable them to be charged. The applicant's wallet, containing a bankcard or driving licence and other like documents, was found at the scene. There is some reason to suppose the applicant may have been the oldest of the group and that he was the person who wielded the metal star picket that was used to beat the complainant about the head. In any event, whether he was or not, he was, as His Honour remarked, equally responsible with the person who actually used that weapon, all four assailants having knowingly been party to its use. 2

The applicant is a young man aged 20 at the time of the trial and sentence, and only 18 at the time of the offence. It is said that he had a reasonable work history and there is some evidence that he was affected by alcohol on the occasion in question.

However, his record shows convictions for or in respect of two counts of attempted break and enter in October 1990 and for another break and enter and steal in February 1991. In respect of that offence he was placed on probation for a year. He re-offended within about a month in March 1991, being found without excuse in the enclosed yard of a dwelling house. The offence he committed and which gave rise to this application was also committed while he was under probation in respect of the offence for which he was sentenced in February 1991.

3

His Honour rightly regarded the offences as serious instances of their kind. The law has always dealt severely with armed bands of thugs who attack peaceful citizens. The present case to my mind is made much worse because it involved what was, at the time it took place, an unprovoked attack on a man who was peaceably occupying his house, and who came out to attempt to defend the integrity of his home and yard from what might fairly be seen as an armed incursion at night.

The applicant's history shows to my mind a persistent disregard of the rights of others, as well as a contempt for the law, as His Honour considered it. He has not taken the opportunity offered to him, when leniency was extended to him in the past, and the material suggests that at no time did he show any remorse for what he did. Certainly he did not plead guilty, so that that factor cannot be taken into account in mitigating or discounting the sentence imposed.

We were pressed with the submission on behalf of the applicant that the sentence in this case was beyond the range, and we were referred to the case of R v. Flavell (CA 196 of 1990). However, in my view, Flavell was a quite different case. It was one in which the offence was not committed while the accused was on probation. The applicant in that case pleaded guilty. The offence was committed by him on his own and not with a band of others, and there was evidence that the injury that resulted from it was not the consequence of an intention to cause deliberate harm. None of that can be said in this case. Furthermore, this is an instance in which the applicant, having, it might be thought, been worsted in the original encounter, or perhaps honours being equal, then returned with a band of his companions, armed in order to carry out what can only be described as a violent assault on the complainant if he attempted to defend himself or his home. I take the most serious view of that kind of behaviour. If ordinary people are not able to regard themselves as secure within the precincts of their own home, then there is nowhere I know of in which they can expect to be safe from attacks of this kind. 4

In all the circumstances, the sentence, although certainly not light, seems to me to be appropriate to the seriousness of the circumstances in which it was committed. It is a case in which a deterrent effect may perhaps be expected to result from a sentence of some degree of severity, and in the circumstances, I do not regard the sentence as excessive. The Judge made no error of principle in the way he approached the matter, with the consequence that, in my opinion, the application for leave to appeal should be refused.

PINCUS JA: I agree.
DEMACK J: I agree. 5

McPHERSON JA: The application for leave to appeal is refused.

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