R v Mahoney

[1997] QCA 323

[1997] QCA 323

COURT OF APPEAL
McPHERSON JA
DAVIES JA

WHITE J

CA No 132 of 1997
G OGLE
v.

DANNY MAHONEY	Applicant
BRISBANE ..DATE 05/08/97
JUDGMENT
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WHITE J: The applicant for leave to appeal against sentence pleaded guilty to two assaults occasioning bodily harm and one assault occasioning bodily harm with a dangerous weapon on 1 April 1997 at the Magistrates Court at Mt Isa. The offences all occurred around midnight on 4/5 February 1997.

The applicant was sentenced to six months imprisonment suspended after three months with an operational period of 12 months in respect of the first assault. One month's imprisonment in respect of the second and 12 months imprisonment suspended after three months for an operational period of two years in respect of the third.

The applicant was born on 13 April 1977 and was thus 19 years at the time of committing the offences and 20 when sentenced. He has no previous convictions.

The applicant is a traditional Aboriginal man who lives in Camooweal and is from the Lake Nash country. He lived in a defacto relationship with Desley George in Camooweal and worked at Lake Nash. They have a young child.

The applicant was much affected by the excessive consumption of alcohol when these offences occurred. They were said to be quite out of character. About midnight Desley George was approached by the applicant after leaving her sister's residence at Camooweal. After a brief conversation the applicant punched her twice in the stomach with his right fist. When she attempted to fight back he attacked her more vigorously punching her several times in the face and stomach resulting in her being

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knocked to the ground.

Whilst she was on the ground the applicant kicked her three or four times in the area of the lower back and then jumped on her with both feet. He was wearing shoes. The applicant desisted from further violence against her, but subsequently approached her again armed with a boning knife and a hatchet. He threatened to stab her and yelled abuse. She received bruising to the face, stomach and lower back. The applicant said later that he was very angry with Desley George.

A short time after, the applicant approached two men who are the complainants in respect of the other two counts who were cooking at a camp site in a street in Camooweal. He was still armed with the knife and hatchet. The applicant threatened the complainant, David Toby, and then kicked him to the right side of his face and punched him twice in the upper torso. Toby suffered swelling to his face and some bleeding.

The applicant then raised the hatchet and struck the other complainant, Wally Moreton, on the left side of his forehead. This caused bruising, swelling and a three centimetre gash which required stitches.

The applicant struck him a second blow with the back of the hatchet above the left arm pit which caused a six to seven centimetre gash to his body. The notes made on the bench charge sheet reflect this dimension to the gash rather than the reference to 60 centimetres in the transcript and the prosecutor told the Court when the sentence was being considered that that

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gash required only a few stitches.

The applicant had no recollection of striking either of these men. He was taken into custody and allowed bail on the condition that he not return to Camooweal pending the resolution of the charges. He returned briefly to attend a funeral with leave of the Court and when there expressed remorse to the complainants.

The solicitor who appeared for the applicant sought a wholly suspended sentence on the ground that although serious assaults had been committed the applicant had been punished by being banished from his country for almost two months and had been forgiven by Desley George and the two men during his return for the funeral. Further, the pleas were suitably early and he had no previous convictions.

The learned Magistrate concluded that the assaults were so serious that imprisonment was the only appropriate sentence with some part to be actually served. The applicant spent one month in prison prior to being released on bail on an unopposed application pending appeal. He has returned to Camooweal to be with his people and to await the outcome of his appeal. He apparently has work to return to at Lake Nash.

The respondent has emphasised in the written outline the serious nature of the assaults, particularly, that he continued to attack Miss George while she was on the ground and attacked the two men gratuitously and whilst both were seated and unable adequately to protect themselves and points to the use of a

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dangerous weapon in the last assault. The respondent has further contended that principles of deterrence and protection were of importance.

In his oral submissions Mr Ridgeway has conceded that events, have in a sense, overtaken the sentence and that it may well be the case that the appropriate course is to allow the appeal.

While there is no doubt that these were serious assaults, particularly the use of the hatchet, the injuries were not as serious as they might have been and there was no suggestion before the learned Magistrate that there were any enduring consequences for the complainants.

Given all the factors favourable to the applicant it would, in my view, have been within the range for the learned Magistrate to have wholly suspended the terms of imprisonment which he imposed. When one considers those favourable factors together with the release of the applicant on bail back into his community after serving one month of his sentence I am of the view that it would now be inappropriate to require the applicant to be taken out of his community and returned to Townsville Prison for a further two months.

The penalty which he has suffered including the banishment from his own country for the period from February until April, prior to being sent to prison, must also be regarded as a significant punishment to him and would fulfil the deterrence requirement.

In all the circumstances I would grant the application, give
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leave to appeal and allow the appeal to the extent only of wholly suspending the terms of imprisonment imposed by the learned Magistrate below.

McPHERSON JA: I agree.

DAVIES JA: I agree.

McPHERSON JA: The order will be as Justice White stated it.

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