R v Foster[2000] QCA 134

THE CHIEF JUSTICE:  The applicant pleaded guilty to doing grievous bodily harm to the complainant man whom he found in compromising circumstances with his, the applicant's, wife.  The applicant and his wife had very reasonably agreed to a trial separation following 10 years of marital cohabitation.

The applicant was upset about this.  He had suspected a relationship between his wife and the complainant but his wife had denied that.  On this evening or early morning the applicant was looking after their son who experienced an acute asthma attack.  The applicant rushed to the former matrimonial home to fetch the requisite nebuliser.

He found his wife and the complainant naked in bed together at about 2.00 a.m.  In fury, the applicant fetched a golf club and delivered nine or 10 blows to the head, body and arms of the complainant.  In the course of this the golf club broke.  The applicant then stabbed at the complainant's body with one of the broken ends. 

The applicant left the room but later returned with another club yelling at the complainant and his wife to leave.  Then the applicant obtained a shot gun and loaded it.  He did not threaten the complainant with it, however, but took it to the garage and commenced hitting the complainant's motor cycle with the butt of the rifle or shotgun.

The applicant was inspired to do that because of anger related to the circumstance that the motor cycle bore an insignia dedicated to the applicant's wife.  The complainant and the applicant's wife then left.

The complainant suffered a fractured left elbow which was in plaster for three weeks, a stab wound to the right side of the chest, lacerations to the scalp requiring sutures and bruising to the ribs and left arm.  The complainant's victim impact statement referred to continuing physical effects and emotional disturbance.

The cost of repairing the damage to the cycle on the complainants estimate is $6,250.00 although the applicant would put it at about $4,000.00.  Compensation, I should say, was offered.  The learned sentencing Judge accepted that the applicant had been provoked and said that it was little wonder he snapped but it was she said a vicious and cowardly attack although not premeditated and carried out in a sustained way in the early morning in a private home thereby calling for the serving of a term of actual imprisonment.

Mr Rafter, who appeared fo the applicant today did not dispute that a term of actual incarceration was warranted.  The learned Judge sentenced the applicant to 12 months' imprisonment to be suspended after six months for an operational period of three years.

For the related wilful damage charge she sentenced the applicant to a concurrent six month term.  The applicant contends that the sentence is manifestly excessive and points to his lack of relevant prior convictions, that he pleaded guilty to an ex officio indictment and the strength of the mitigating circumstances constituted by the supervening marital situation.

A psychiatrist reported that it was unlikely the applicant would offend again similarly.  In the written material the applicant relied on a number of cases where actual imprisonment was not required but they are readily distinguishable in my view.

This applicant was 38 years old when he committed the offences.  The applicable maximum term for doing grievous bodily harm is 14 years.  By contrast in the cases of Bennett 443 and 449 of 1998, Rowe v Talbot 149 and 152 of 1996 and Walsh, Sayer and Thomson 158, 159 and 160 of 1998 on which the applicant relied the maximum was seven years and the offenders were teenagers or in their early 20's.

In Yanner 296 and 297 of 1999 the maximum was again seven years but there were other distinguishing features of that case.  The prosecution, for example, had made undue concessions before the sentencing Judge and by the time the appeal came around the offender had substantially carried out his community service commitment.

Comprabar 194 of 1991 turns on the other hand to support this sentence on my assessment. Reference was made in the course of submissions to the relevance of deterrence in a case like this.  To my mind, it remains a significant consideration as was recognised in Blackett 227, 1990 per Justice Byrne as follows:

 "General deterrence is not so important a consideration in relation to offences committed on the spur of the moment either in hot blood or in drink or both."

Sergeant 1974, 60 Criminal Appeal reports 74 at 77.  Her Lord Justice Morton speaking fo the Court of Appeal;

 "But even in domestic conflict where outbursts of emotion or jealousy may, as in this case, lead to unpremeditated and uncharacteristic recourse to dangerous weapons deterrence is a factor which cannot be ignored."

There is no doubt that the use of the golf club leant this attack a vicious flavour.  It was cowardly as well.  As the Judge pointed out the attack commencing while the prone complainant was asleep.  It was not momentary either, not of appreciable duration.  It was the product of rage and other high emotion but that cannot save the applicant from paying the price which must ordinarily be paid for retaliating in this dangerously uncontrolled way.

Courts must be expected to respond in a salutary way to offences involving serious personal violence.  There was no error in her Honour's approach.  I note that she did not specifically say that she was taking account of the plea of guilty but that is without consequence.

She plainly took account of the plea appreciating that but for the plea a more substantial head term would have been completely justified.  The Judge was perfectly entitled, in my view, to impose the sentence she did and to require that one half of the term of imprisonment actually be served.

On no reasonable view could the sentence be described as manifestly excessive.  The term selected and the designation of the period to be served themselves, to my mind, adequately reflected the pleas of guilty and lack of prior convictions.  But for those considerations, as I say, a considerably longer term would have been justified.

To interfere with the sentences proposed by Mr Rafter would involved impermissible fine tuning.  I would refuse the application.

THE PRESIDENT:  I agree.  The community and the Courts are no longer prepared to tolerate violence in the course of a break down of a personal relationships.  I am not persuaded that the imposition of custodial sentences in such cases will not act as a deterrent.

The applicant used serious violence which he inflicted using a golf club as a weapon.  He then loaded a shot gun.  It was fortunate the complainant was not more seriously injured.  The sentence imposed was not excessive and does not support the submission that the learned Judge did not take into account the plea of guilty although she did not specifically say that she did in her sentencing remarks.

The learned Judge nevertheless mentioned the plea at the commencement of her sentencing remarks and referred to the appropriate principles mitigating the sentence in the course of discussion during the submissions on the sentence.

I agree that the application should be refused.

HELMAN J:  I agree that the application should be refused and I agree with the reasons of the Chief Justice and the President.

THE CHIEF JUSTICE:  The application is refused.

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