R v Simone

[1999] QCA 44

99.44

COURT OF APPEAL

McMURDO P THOMAS JA WILSON J

CA No 454 of 1998
THE QUEEN
v.

FRANCIS SIMONE	Applicant
BRISBANE ..DATE 26/02/99
JUDGMENT
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THE PRESIDENT: The applicant pleaded guilty by way of one count of unlawful assault, one count of entering a dwelling with intent to alarm, one count of going armed so as to cause fear and one breach of a domestic violence protection order.

ex officio indictment on 24 November 1998 in the

He was sentenced in total to an effective sentence of three years imprisonment suspended after 12 months. The 35 days pre-sentence custody was appropriately declared as part of the sentence.

The applicant, who represents himself today, is 46 years old. His prior criminal history consists of one aggravated assault committed on his ex de defacto wife on 16 November 1996. His relationship with his ex de facto wife is at the centre of these offences, the facts of which are as follows.

The applicant had a sad life in Samoa where he was born, after his mother's death when he was only 13. It seems he was a victim of violence from his older brothers. At 17 he left for New Zealand and in 1990 came to Australia where he soon formed a relationship with Joanne Kapani.

There are five children, the youngest being only two years old. The relationship was stormy, and Ms Kapani had taken out a domestic violence order against the applicant.

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The applicant was distraught that three of his children had been placed in care without Ms Kapani consulting him. At about 10.45 a.m. on 17 October 1998, the applicant who was heavily intoxicated arrived at Ms Kapani's residence uninvited. He drove into the driveway, blowing the horn of his car. A car belonging to Mr Elsworth was blocking the driveway. Mr Elsworth went out of the house and saw that the applicant had driven into the rear of his car and was pushing it forward.

Mr Elsworth then moved his car onto the street and an argument started. The applicant was brandishing a large knife, or part of a knife, and smashed it into the boot of Mr Elsworth's car, causing chipping to the paintwork.

The applicant then went to the front of the car and hit the windscreen with the knife, causing a number of cracks.

The applicant then chased Mr Elsworth down the street for a short distance before returning to Ms Kapani's house. The police were called. The applicant went into the premises uninvited and noticed that Ms Brown, a friend of Mr Elsworth, was present. The applicant had had a brief relationship with Ms Brown in the past.

He swore at Ms Brown and told her to get out. When she tried to leave, he terrorised her with the knife, threatening a number of times to kill her and slashing the knife about in front of her. She was cornered in

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the lounge room in this manner for about two or three
minutes.

The police arrived at about 11.15 a.m. and distractions allowed Ms Brown to climb out of the lounge room window.

The two women in the house appeared hysterical and panic stricken. The police told the women to move and the applicant came out of the front door, holding the knife in front of him at chest height. He moved quickly towards the police, who retreated. They then drew their guns.

They called on the applicant on five occasions to drop the knife but he kept moving towards them, daring them on a number of occasions to shoot him. He came very close to the police, holding the knife out in front of him until he finally threw the knife aside. The police were in fear for themselves and the women and had considered shooting the applicant. After throwing the knife away, he kept coming towards the police, daring them to shoot him. The police tackled him to the ground. His conduct breached the domestic violence order earlier taken out by Ms Kapani.

The applicant, in his submissions to this Court today, has apologised to the Court for his actions, but his submissions indicate a lack of insight into his conduct.

He submits that these offences were Ms Kapani's fault. He is keen to be released so that he can care for his

children about whose whereabouts and welfare he is

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uncertain. He is concerned that Ms Kapani is not caring
for them properly.

A psychological report tendered below and the applicant's submissions here demonstrate the applicant loves his children. The case is a sad one. The offences were undoubtedly serious. The applicant was angry and intoxicated and was armed with a knife. He created a frightening situation for the complainants, the police who dutifully attended the scene and anybody who had the misfortune to be in the area at the time. The serious aspect of these offences, especially where weapons are involved and people are angry and intoxicated, is their potential to cause grave injury or even death.

The learned sentencing Judge noted that domestic violence was a problem in the Beenleigh area and rightly thought a deterrent sentence was called for. The offences constituted a breach of a domestic violence order, and as this Court said in R v. Wood CA184 of 1994, delivered 16 August 1994:

"Domestic violence orders imposing restraints of the
kind involved here are practically speaking the
only available means of curbing in advance conduct
in the domestic context that is violent or likely
to lead to violence. Unless breaches of such order
are, and are well known to be, visited with
appropriate severity, they will quickly lose their
value in the minds both of those who obtain them
and of those who are subject to them."

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Although the applicant had a limited criminal history, his prior conviction related to an assault on Ms Kapani who had then taken out a domestic violence order. He had apparently not learnt from those experiences. He was 46 years old. Although when sentencing such offenders there is merit in making a parole recommendation rather than merely suspending the sentence so that upon release into the community the offender has the benefit of suitable programs aimed at preventing future domestic violence, I can see no error on the part of the learned Judge below.

The sentence is within the proper range in all the circumstances. His Honour gave the applicant credit for his guilty plea by way of ex officio indictment by suspending the sentence after twelve months, six months earlier than he would ordinarily become eligible for release on parole. If the applicant is serious in his wish to care for his children, he should use his time in custody to gain insight into his behaviour and complete whatever courses are available to him on alcohol and substance abuse, domestic violence prevention and anger management.

I would refuse the application.

THOMAS JA: And I agree.

WILSON J: I agree.

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THE PRESIDENT: The order is the application is refused.

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