R v Zerafa

[1992] QCA 61

COURT OF APPEAL [1992] QCA 061

PINCUS JA
McPHERSON JA

THOMAS J

CA No 344 OF 1991

THE QUEEN

v.

BRIAN DARREN ZERAFA

(Appellant)

BRISBANE

... DATE 24/2/92

JUDGMENT

JUDGMENT

PINCUS JA: In this matter the application is for leave to appeal against sentence. The applicant was charged with two counts, the first of which was that on or about the 18th day of February 1991 at Loganlea in the State of Queensland, he broke and entered the dwelling house of one Bronwyn Dawn Adams in the night-time, with intent to commit an indictable offence therein. The second is that on the same date and the same place he unlawfully assaulted one Andrew Bradley Adams and thereby did him bodily harm and further at the time aforesaid was armed with a dangerous weapon namely a rifle.

The matter came before the District Court on two occasions. The reason was that on the first occasion it was suggested on behalf of the accused that he wished to call evidence to challenge something which was said by the Crown. In the end he did not pursue that and the version of events set out by the learned District Court Judge when sentencing appears to be, in those circumstances, accurate.

His Honour said:

"Brian Darren Zerafa, you are no stranger to the courts. You have been given several opportunities in the past by way of probation orders and yet you have not taken advantage of them. The last time you were charged with a break and enter offence you apparently failed to appear and a warrant had to be issued. In the light of your history and the seriousness of this present offence, there has to be a custodial sentence.

On this occasion you armed yourself at night with a rifle and for reasons which to any rational person would seem petty, you chose to approach the residence of your neighbour in the way which has been described. In the vicinity of the house you discharged the firearm and behaved in a violent fashion which is the substance of the charge. You assaulted one of the adult occupants, you threatened the children and generally terrorised the household, all on a flimsy piece of information which may or may not have been true. Not content with that, on leaving, you again discharged the firearm."

That is a broad summary of the account of fact which was put forward by the prosecution, and it is perhaps worth reading that also:

"It was about 11.40 p.m. and Mrs Adams was sitting in the lounge room watching television and she heard a loud noise outside which sounded like a gun being discharged and Mrs Adams ran down the hall yelling out 'Who is it?'. The front door crashed open. The accused entered pointing a rifle or shotgun at Mr Andrew Adams. Mr Adams had known the accused for about six months and apparently had sold the accused a dog which had gone missing. It seems the accused was of the opinion that Mr Adams had stolen the dog from him, and he was saying 'Where's my dog, where's my dog?'. Mr Adams said I'll show you the dog I got and I will show you my dog to distinguish it from the one missing. They walked out the front door and the accused was pointing the gun at Mr Adams and screamed 'where is the dog - get the dog.' As they reached the driveway of the house the accused fired a second shot. He said 'Get it now or I will take one of the kids', and he was indicating the children of Mr and Mrs Adams standing on the verandah. Mr Adams walked further in the back yard and the accused followed him, and continued to threaten to blow his head off. He fired another shot. He than

pushed - Mr Adams pushed the barrel of the gun away from him. The accused hit him in the left side of the chest with the rifle butt, and that caused a large bruise. That is the assault and the subject of count two. The accused as he walked away said, 'You don't know who I am. Don't say anything.' He fired another shot which hit a tree about a metre away from Mr Adams. He then walked out on to

the driveway on the street. Police arrived soon after."
On 25 January when offered the chance to be interviewed in
relation to that the accused declined. It is perhaps not
necessary to give much detail about what was said on behalf of
the applicant before the primary Judge except to say that there
was some mention of alcohol having taken a part.

The primary Judge took the view that the offence warranted a custodial sentence and with that one could not but strongly agree. His Honour in respect, of count 1, imposed a sentence of two years' imprisonment. In respect of count 2, he imposed a sentence of 18 months's imprisonment and ordered that the sentences be served concurrently. In my view, if the society in which we live is to have any pretence to be law-abiding, this sort of conduct must be very strongly discouraged. In my opinion, the sentence imposed was quite proper and I would dismiss the application for leave to appeal.

McPHERSON JA: I agree. I would only add this further feature. During the period of three and a half years preceding the sentence against which the appeal is now sought to be brought, the applicant suffered two convictions for breach of probation, two for breach of community service orders and one breach of bail. None of this encourages the conclusion that anything less than a sentence of imprisonment is likely to have an impact on his outlook and perhaps deter him from committing offences of this kind again. I agree with what my brother Pincus has said and with the order that the application be refused.

THOMAS J: I agree. I would also add that he has been leniently treated in respect of a moderately substantial criminal history over the last six years from age 17. This was not a transient aberration, although it was influenced no doubt by consumption of liquor. He went on with it over an extended period and it was nothing short of a terror campaign directed against people who did not deserve to be inflicted with it. It seems to me that the sentence should not be complained of and I agree with the orders proposed.

PINCUS JA: The order of the Court will be that the application for leave to appeal be refused.

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