R v Lane

[1998] QCA 167

[1998] QCA 167

COURT OF APPEAL
PINCUS JA
DERRINGTON J

WHITE J

CA No 74 of 1998
THE QUEEN
v.

JOY-ANNE LANE

BRISBANE
..DATE 08/05/98
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DERRINGTON J: The applicant was charged with two counts
essentially of unlawfully attempting to kill the
complainant with subsidiary alternative charges and
another count of assaulting him, doing him bodily harm.

The first two counts related to two shots which were fired by her which struck the complainant and of those she was acquitted. She was, however, convicted of the count of unlawful assault occasioning bodily harm. The learned trial Judge recorded a conviction and released her upon a recognisance of $1,000 to be of good behaviour for two years.

The applicant now appeals against the recording of the conviction. That is opposed by the Crown.

The applicant was 41 years of age at the time of the offence and without any prior convictions. She had a career in the public service in association with the complainant. After the breakdown of her first marriage she lived in a violent relationship with the complainant although they did not permanently occupy the same premises.

For a number of years he subjected her to serious psychological and physical abuse. This had re-occurred on the night before the offence.

The offence was committed while the complainant was
asleep. She hit him on the head with a heavy mortar
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bowl and when he awoke and lay dazed she attempted to
strike him with the same object again. He suffered a
head wound which required 10 to 12 sutures. He said he
was dying and she said he was not.

Being in fear of his retribution she took a shotgun from her bedroom and then shot him in the stomach. There was then a struggle for the gun but the complainant weakened and let it go. He walked towards the shed where he kept firearms whereupon the applicant shot him in the back. As I say the shooting charges resulted in an acquittal by the jury but she was convicted of the count in relation to the striking with the mortar bowl.

The applicant's family, friends, workmates and police had been aware of the complainant's domestic violence. Over time there had been firm offers of assistance which the applicant had declined. It was alleged that the complainant had previously promised she would never escape him. He denied this and it was for the jury and on sentencing the learned sentencing Judge to decide the strength of this factor.

The complainant complains that his injury has limited
his ability to gain new skills and has therefore affects
his ability to perform his job in the taxation
department. In other words it is suggested that there
are some permanent sequelae of the injury, but it must
be recognised that the circumstances of assault
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associated with the offence is simply of doing bodily
harm.

The verdicts of the jury should be interpreted as finding beyond a reasonable doubt that the applicant had not any basis in self-defence for the first attack; but that in respect of the shooting there was a reasonable doubt as to whether the defence was available out of a reasonable fear of an attack of a serious nature by the complainant in the circumstances that then existed. It should not be lost sight of that the jury convicted her on this first count.

This is the significant feature. It is consistent with the plain view of the learned sentencing Judge. It was a major question at the trial and he had the valuable advantage, which this Court has not, of seeing and hearing the witnesses' evidence in its full context.

There is no reason to believe that he was obliged to accept all the applicant's excuses with all the force that is now exerted and it might be inferred that he did not. He made full allowance for the applicant's suffering at the hands of the complainant and for all other features favourable to her. With this approach I agree unreservedly.

The complainant's conduct was appalling. However, the learned trial Judge also correctly saw that there were other considerations particularly that persons should be

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deterred from violence as a way out of their problems
when self-defence is not relevant.

He saw the recording of a conviction as a desirable and suitable deterrent in this case, noting that it would probably have no adverse effect on the applicant's employment. He was of the opinion that there was little purpose in withholding a conviction, and he obviously believed that that course was inappropriate.

He showed proper leniency which reflected the
applicant's valid claims for imposing only a

recognisance of good behaviour for what was a serious assault. He said this and I cite from his sentencing remarks from page 535 of the record:

"The offence of which you were convicted involved you

striking the man, Stannard on the head with a
ceramic bowl whilst he was asleep. Clearly the
jury accepted on the evidence that you were not
entitled in relation to that incident to rely on

self-defence.

The evidence satisfies me that over a period of years

you had been subjected to a deal of stress,
psychological assault and indeed, on occasions
physical assault, emanating from your partner, the
complainant. It is disturbing that friends,
relatives and associates of yours were aware of
what was happening and offered you assistance but
you declined it. You must realise that one of the
reasons that people in society have relatives,
friends and associates is that at some stage in

almost every person's life outside help is needed.

When it is offered, in circumstances such as this,

it should be taken up. If you had heeded some of
the advice then almost certainly you would not have
had to go through the trauma of the trial which you

did just over a week ago.

The jury's verdict clearly reflects the accepted view of

all reasonable people in our society that the law
must be maintained and individuals in society
cannot take the law into their own hands. Once it

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is recognised that individuals can mete out justice
without the necessity of a matter going through a
Court of law then the whole fabric of our society
will break down. That applies even in situations

such as that in which you found yourself.

For that reason there must always be a deterrent aspect

in the element of sentencing in a case such as
this. The prosecution has conceded that because of
the background events leading up to the commission
of the offence, the fact that you have no previous
convictions, and your age, a custodial sentence is

not called for."

But from line 45 he said:

"The matter that you counsel raised in the course of

submissions was whether or not a conviction should
be recorded. It is obvious from the publicity that
the trial received that your employer, the
Commonwealth of Australia, would be aware of all
relevant facts. If they are not aware of those
through the publicity then they are at least aware
of sufficient facts to enable them to obtain full

transcripts of the trial if necessary.

Little point, it seems to me, would be served at this
stage by not recording a conviction. There is a
discretion apparently in the Commonwealth Public
Service as to how a conviction may affect an
employee but in a situation such as this there is
no doubt that the employer would take into account
the background of domestic circumstances which led
to the commission of the offence.

As I have said it seems to me that there must be an element of deterrence in the sentence which is imposed by the Court. Given the overall circumstances, in my view, that element of deterrence can be satisfied in this particular case by the recording of a conviction. In consequence you will be convicted of the offence of assault occasioning bodily harm."

His Honour took into account everything that was
relevant and did not rely on anything that was not.
This exercise of his discretion in respect of the
contested feature is not shown to have miscarried in any
way, so it is unassailable. It is suggested he did not
take into account the suggested punishment to the
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applicant of having to make an explanation as to the
circumstances of the offence to this employer or perhaps
some future employer or in an application for a visa

It would be a simple matter for her to have obtained a copy of the sentencing remarks and that should have been ample in the circumstances of any such inquiry.

Having regard to those matters I cannot see anything that would entitle this Court to impose upon His Honour's exercise of his discretion a simple review of that discretion. Rather, it would seem to me that, with respect, his discretion was exercised quite correctly.

The application should be dismissed.

PINCUS JA: I agree with the order proposed and with the reasons and I would add two things. First of all, I have taken into the account the full submissions made by Mr Boe on behalf of the applicant, both written and oral, and have found them helpful. But I have also found help from a judgment (to which Mr Boe refers) of this Court in Gallagher (CA No 352/97, judgment delivered 19/12/97) in which McPherson JA discusses, in what is with respect an informative way, considerations relevant to the exercise of this discretion.

So far from thinking that the learned primary Judge
erred in the exercise of his discretion, in my opinion
the conclusions at which His Honour arrived were correct
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and I would therefore, like Mr Justice Derrington,
refuse the application.

WHITE J: I agree with the proposed order and also with the remarks of the learned presiding Judge and Mr Justice Derrington but might add that whatever another Judge might have done by way of recording a conviction or not His Honour the learned trial Judge did do so and it has not been demonstrated to my satisfaction that he erred in any appealable way in determining to record a conviction against a background of all the evidence in the trial and the submissions that were made on sentence.

PINCUS JA: The application is refused.

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