The Queen v Wood[1998] QCA 29

PINCUS JA:  The applicant was convicted in the District Court, after a trial, on a charge of having on 14 January 1996 at Oyster Point, wilfully and unlawfully damaged a boat in the night-time.  The learned District Court judge sentenced him to imprisonment for 3 months.  The damage done was not great, the cost of its repair being $83.  According to the evidence of the complainant, one Williams, he was in his aluminium 17 foot boat tending to some crab pots when the applicant approached in another boat at some speed.  Williams took evasive action and thus avoided being run into.  There was a heated conversation in which the applicant accused Williams of having taken the applicant's crab pots.  Williams replied that Williams's pots and Williams' son's pots were gone as well.  He said that the applicant threatened to kill him and said he would ram Williams' boat, which he proceeded to do, twice.  The applicant gave evidence at his trial to the effect that the contact between the boats was accidental and the jury must have rejected that. 

The three months' imprisonment may be argued to be too heavy for $83 worth of damage.  In the reasons given on sentence, the learned District Court judge made remarks which, as I read them, implied that the prison sentence was imposed to discourage the applicant from engaging in further criminal behaviour; the most relevant sentence is:  "If you engage in further criminal behaviour, Mr Wood, you are going to start getting very hefty sentences, but I will start the ball rolling."

I have mentioned that this offence was committed on 14 January 1996. 

The justification for the sentence, in view of the small amount of the damage, must be sought in the applicant's criminal history.  He is now 40 years of age.  He was sentenced to imprisonment in 1986 for having wilfully set fire to a motor vehicle and then in 1989 was given probation for an assault occasioning bodily harm.  I am selecting from the record only those offences which seem to involve violence or destruction; there are a few others.  In January 1995 there was another assault occasioning bodily harm, for which the applicant was convicted shortly after he committed the offence here in question.  In December 1995 the applicant committed the offence of operating a ship in an unsafe manner and, again, he was convicted in relation to that after he committed the present offence.  The next offence was this offence, committed in January 1996, a few weeks after the offence of operating a ship in an unsafe manner to which I have just referred.  Four months later, in May 1996, the applicant committed a further offence of causing a ship to be operated unsafely and for that he was convicted and sentenced to a suspended term of imprisonment.

In his submission on sentence the prosecutor below said, in relation to the offence committed in May 1996 (that is the last one to which I have referred) that it was committed while the applicant was on bail for this offence.  He said it was a situation where a man and a woman were fishing in the Moreton Bay area near one of the applicant's crab pots and he travelled at excessive speed over some distance and rammed them.  They had to jump from their boat to avoid a collision and he simply drove straight over the top of their boat.  Then, referring to the offence of having operated a ship in an unsafe manner on 23 December 1995, the prosecutor said that that incident involved a professional fisherman again.  The prosecutor said "he rammed that particular boat at speed in the Moreton Bay area".  In her submissions to the primary judge, counsel who appeared for the applicant below referred to the applicant's criminal history and put forward a correction of it, of no present consequence; but counsel for the applicant below did not dispute the prosecutor's version of the nature of the two offences in December 1995 and May 1996 which are of a rather similar character to the present. 

It is thus seen that there is a pattern of fairly recent violent behaviour, the dates of the offences being January 1995, an assault occasioning bodily harm which resulted in a substantial fine and compensation order; December 1995, a ramming, producing a fine of $300; the present offence, January 1996; and then a particularly bad incident, May 1996, four months later.  The primary judge appears to have imposed the penalty which she did on the basis that a prison sentence was necessary to bring home to the applicant that the law will not permit him to continue with such aggressive behaviour. 

The substantial basis upon which Mr Hunter for the applicant seeks to attack Her Honour's decision is that he says the applicant was charged with the wrong offence.  That appears to me to have no substance whatever.  I think he was charged with the offence which he committed and that the judge substantially did what she did because of the pattern of violence to which I have referred.  I think the course taken by the judge was not an unreasonable one in order to deter the applicant, and to deter others who might think that lawless and violent behaviour will be treated benignly in the Courts.  I would refuse the application.

DAVIES JA:  I agree.

BYRNE J:  I agree.

DAVIES JA:  The application is refused.