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

BRIAN DARREN ZERAFA

(Appellant)

BRISBANE

... DATE 24/2/92

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Zerafa

Details

AGLC: R v Zerafa [1992] QCA 61
Case: [1992] QCA 61
Decision Date: 24/02/1992

CaseChat Overview and Summary

The case before the Court of Appeal involved an application for leave to appeal against a sentence imposed on Brian Darren Zerafa by the District Court. Zerafa had been charged with breaking and entering a dwelling house with intent to commit an indictable offence, and with unlawfully assaulting Andrew Bradley Adams while armed with a dangerous weapon, a rifle. The District Court sentenced Zerafa to two years' imprisonment for the first offence and 18 months' imprisonment for the second, to be served concurrently.

The legal issues before the Court of Appeal were whether the sentence imposed by the District Court was appropriate given Zerafa's criminal history and the nature of the offences. The Court had to consider whether the sentence was sufficiently severe to deter Zerafa from reoffending, and whether it reflected the seriousness of the crimes committed. The Court was also required to determine whether the sentence was disproportionate when compared to similar cases.

The Court of Appeal, comprising Pincus JA, McPherson JA, and Thomas J, found that the sentence imposed by the District Court was appropriate. The judges noted Zerafa's extensive criminal history, which included multiple breaches of probation and community service orders, and concluded that a custodial sentence was necessary to deter him from further offending. They emphasised the seriousness of the offences, which involved Zerafa arming himself with a rifle and engaging in a violent assault on his neighbour over a trivial dispute. The Court concluded that the sentence imposed was not disproportionate and dismissed the application for leave to appeal.

The final orders of the Court of Appeal were that the application for leave to appeal be refused, and that the sentence imposed by the District Court stand.

Orders