R v Szamado

[1993] QCA 28

[1993] QCA 028

COURT OF APPEAL

MACROSSAN CJ
PINCUS JA

BYRNE J

CA No 294 of 1992
THE QUEEN
v

GENA LOUISE SZAMADO

BRISBANE
..DATE 05/02/93
..DAY 1

THE CHIEF JUSTICE: An appeal is brought against conviction and sentence on leave. The appeal as notified in the grounds and as argued in respect of conviction does not turn out to be a difficult matter. The only grounds taken were that the trial Judge should not have allowed cross-examination of the appellant as to an alleged previous conviction and further that the convictions were unsafe and unsatisfactory. The appellant was convicted after trial on one charge of assault occasioning bodily harm and another of receiving.

In the course of the trial, the appellant while being questioned asserted to the effect that she had never been in trouble before.

An application was then made for leave to put to the appellant that she had in fact been previously convicted in a certain matter. Leave was granted but when the questioning proceeded the appellant nevertheless denied the matter which was being alleged.

However, it appears to me that there is no real substance in the

appeal on that ground.

Counsel appearing for the appellant accepts that the test could be taken to be that the sole criterion is what fairness requires in the circumstance of the particular case. It is easy to understand why the trial Judge thought it might well be unfair to the prosecution that an accused person should be permitted to assert by volunteering the fact that he had or she had no previous convictions when it was not the truth.

Whatever the truth in this matter since the conviction was in any event denied by the accused, in my opinion leave was quite properly given or at least it has to be said that the discretion of the trial Judge did not miscarry. In respect of the further ground that the conviction was unsafe and unsatisfactory, against counsel appearing for the appellant found himself unable to add much to the bare ground of which it may be noted no particulars were given.

He referred although he was unable to argue the matter forcefully to the matter of identification but again it seems that there was a sufficient case on identification and that it could not properly be concluded that the conviction for that or any other reason which might appear should be regarded as unsafe and unsatisfactory. The complainant was a girl who happened to arrive on the scene in the mall in Brisbane and she saw a fight occurring between two opposing groups. In what I suppose should be regarded and could fairly be described as a civic-minded way, she endeavoured to interfere to discourage the fight and she was then set upon.

In any event, the version of the prosecution was that the
appellant was in a red T-shirt.
Evidence then was that a girl in a red T-shirt hit the
complainant with a clenched fist and another bystander described
how a girl in a red T-shirt and green shorts punched the
complainant several times to the face and the upper body, then
other person present joined in.

Those events constituted the assault in respect of which the appellant was duly convicted. The receiving count arose in this way. The appellant was separated from her handbag in the melee and Miss Shields, the bystander to whom I have already referred, told the appellant that the complainant’s bag was missing.

After that again, two men saw the girl in the red T-shirt and green shorts in the Myer Centre in company with others going through a wallet which was later identified as belonging to the complainant, and the girl - that is the one in the red T-shirt was seen to take something out of the wallet and place it on her person.

The wallet was subsequently recovered, but money and other items were missing from it. The appellant was found in possession of money, but that particular sum couldn’t be identified as being the property of the complainant. Nevertheless there was sufficient there to establish the case of receiving which the Crown presented and which the jury was satisfied upon.

In my opinion the appeal against the conviction should be dismissed. The learned Judge in sentencing the appellant imposed

a custodial term. He sentenced her to four months imprisonment and added a requirement that she serve two years probation. In sentencing her the Judge said this, and the force of these remarks must be conceded. He said, “It can’t be tolerated that people should be able to walk the streets safely without being set upon.” He said that the complainant had done nothing to deserve the treatment handed out to her. He added that he took no pleasure at all in sending young people to gaol and he leant over backwards to avoid that outcome.

However, he felt constrained to impose a custodial term saying that conduct of this sort, with which he had to deal, should not be permitted on the streets of Brisbane and that there must, in his view, be a gaol term. The Judge would no doubt have been influenced by the injuries which the complainant suffered. In fact he said in the course of submissions to him that it was a dreadful thing that a young woman should be set upon and that perhaps she was lucky to have got only a broken nose as the more substantial injury out of it. He spoke of the potential for serious and lasting injury form the style of the altercation.

However, there are some rather special circumstances in the case of the applicant. When sentenced she was five months pregnant. She was sentenced in early October last year and that would mean, and furthermore we are told this morning, that she is due to give birth in the very near future - within the next week or so is the time when her term is due. She suffers from some physical ailment as well: a liver and kidney condition.

Her background encourages one to think, as was submitted to the sentencing Judge, that the applicant’s behaviour on the night in question was out of character. She went through High School, studied dressmaking and had commenced a Business Management Degree Course at the Queensland University of Technology.

The most significant fact, however, presenting itself to my mind is the matter of the pregnancy. One may concede, perhaps expressly doing so again for this purpose, the fact that the behaviour of the appellant was reprehensible. The effects of the complainant were very regrettable and, of course, it added insult to injury that the appellant should have been guilty of the conduct that I have described in relation to the complainant’s handbag and should have been guilty of receiving. She is a 22- year-old and had to be dealt with as a first offender and it is proper to add that she was on bail pending appeal.

It is accepted that some significant penalty should be imposed upon the appellant, but counsel for the appellant contents himself with the submission that it should not involve a custodial term. I would be disposed to agree with that, particularly having in mind the matter of the pregnancy to which I have referred.

There is need for some significant punishment or penalty because of the nature of the injuries inflicted upon the complainant. The medical evidence was that she would have been in pain for about a week after her injuries and that the contusion or fracture of her nose would have taken four to six weeks to heal.

She had scratches around her neck and on her chest and on her left breast which would have interfered with her comfort for 10 days or so from the time they were inflicted.

In the circumstances, however, I think that matters can best be attended to by imposing a non-custodial sentence and in respect of the application for leave to appeal against sentence, I would allow that application and set aside the sentence imposed below and impose a requirement that the applicant serve a term of community service. I would order that she serve a term of 200 hours community service within a period of 12 months from this day.

Now, if we are to proceed in that fashion, Mr Herbert, I think you have to tell us that she has had explained to her the requirements of such an order which would otherwise be on standard terms. You can’t tell us that at this stage?

MR HERBERT: Could that be left until 2:15, Your Honour?

THE CHIEF JUSTICE: You’d have to get instructions?

MR HERBERT: Well, I’d want it specifically confirmed before I say
anything.
THE CHIEF JUSTICE: Yes, of course.

PINCUS JA: I agree with what the Chief Justice has said.

BYRNE J : I agree also.

THE CHIEF JUSTICE: Well, we’ll stand the matter down while you get necessary instructions. When do you think you’ll be able to get them by? She’s contactable, I hope.

MR HERBERT: 2:15

...

THE CHIEF JUSTICE: Szamado, yes. Yes, Mr Herbert?
MR HERBERT: It’s been explained to her and she consents.

THE CHIEF JUSTICE : She has agreed and she understands, you’re able to tell the Court?

MR HERBERT: Yes.

THE CHIEF JUSTICE: Well, then, we will formally pronounce the
order in the terms that we indicated before lunch.
BRISBANE

... DATE

JUDGMENT