SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and I agree with all that is said therein.

[2] The offences arose out of an attack on three young men in a public place by three young men acting in company and each being armed.  In my view the offences were made more serious because of the nature of the weapons with which the two applicants and their associate, Jonathon Fortnum, armed themselves: a piece of timber six centimetres in diameter, 75 centimetres long, and with protruding nails; a baton approximately two feet long; and a baseball bat. What is even more concerning is that, after an initial verbal confrontation between the two groups, the applicants and their associate went away to arm themselves and then returned to carry out the vicious assault.

[3] In all the circumstances the sentences imposed were well within range and the applications for leave to appeal should be dismissed.

[4]  JERRARD JA:  This proceeding is the hearing of applications for leave to appeal against sentence by each of Peter and Michael Fortnum, who each pleaded guilty on 3 March 2006 to two counts of assault occasioning bodily harm whilst armed and in company, and one count of assault occasioning bodily harm whilst armed. Peter Fortnum was sentenced to 12 months imprisonment, to be suspended after six months with an operational period of 18 months. Michael Fortnum was also sentenced to 12 months imprisonment, to be suspended for an 18 month operational period after Michael Fortnum had served three months.

[5] Peter Fortnum was 25 years old when those offences were committed on 13 March 2005 and 26 when sentenced.  He had prior convictions for traffic offences and one for breaching a bail condition.  Michael Fortnum was 22 when he offended, 23 when sentenced, and had no prior convictions. They are brothers; as it happened they stood charged with their younger brother Jonathon Fortnum as a co-offender, and also with a Charlotte Clark. Jonathon Fortnum and Charlotte Clark also pleaded guilty on 3 March 2006 to those same offences, and they have not sought leave to appeal.  Jonathon Fortnum was sentenced to 12 months imprisonment to be served by way of an intensive correction order, and Charlotte Clark to nine months imprisonment to be wholly suspended for 12 months. 

Background events

[6] The circumstances of the offences arose out of a visit by the complainants Shaun Kimler and Mitchell Owen to a convenience store in Redcliffe Parade at about 2.15am on 13 March 2005. Before entering the store Mr Kimler approached Jonathon and Michael Fortnum, who were outside the store and described by the Crown Prosecutor as “playing around”, and Shaun Kimler told them “that they might want to rethink their actions as there were surveillance cameras operating in the area.”[1]  What the two Fortnums were actually doing was never explained. 

[7] Whatever it was, they took exception to being spoken to in that fashion by Shaun Kimler, and a confrontation started between the two groups of males in which blows were struck.  Police arrived shortly afterwards and broke it up, telling Mr Kimler and Mr Owen to leave.  They did but waited in a nearby car park for the police to go.  While they were waiting they noticed Ms Clarke and Peter Fortnum arrive in a car, and that Jonathon and Michael Fortnum pointed them (Mr Kilmer and Mr Owen) out to Peter Fortnum. The complainants then telephoned the third complainant Nathan Bowtell, and asked him to go there.

[8] Before Mr Bowtell arrived Peter Fortnum came up to Mr Kimler and Mr Owen, and said words to the effect:

“I’m not happy.  I was in bed and I get a phone call from my brother to come and deal with you, faggots.”[2]

Mr Kimler attempted to defuse the situation, unsuccessfully.

[9] The police returned to the area and again told Mr Kimler and Mr Owen to leave, and this time they did walk off, with Mr Bowtell who had arrived at that stage.  While the complainants were walking along, the car driven by Ms Clark and carrying the three Fortnum brothers pulled up some two to three metres away from where the complainants were.

[10]  Peter, Michael and Jonathon got out of the vehicle, each carrying a weapon. Peter was armed with a piece of timber approximately six centimetres in diameter and 75 centimetres long, with protruding nails; Michael had an extended ASP baton approximately two feet long, and Jonathon had  a baseball bat. The Crown case was that the Fortnum brothers had returned to Michael Fortnum’s residence, obtained those weapons, and returned to attack the three complainants. Michael Fortnum approached Mr Kimler and attempted to strike him with the baton on the legs. Mr Kimler was hit on the left ankle, left lower leg, and left forearm.  Jonathon Fortnum attacked Mr Bowtell and hit him in the calf and hamstring with the baseball bat, and Peter Fortnum attacked Mr Owen, who ran away.  Peter Fortnum gave chase and hit Mr Owen in the right knee with the nail studded timber, and Mr Owen fell to the ground.  Peter Fortnum continued to strike him while he was on the ground, and Michael and Jonathon Fortnum joined in the attack on Mr Owen. Michael Fortnum hit him with the baton, and Jonathon Fortnum punched Mr Owen in the head several times with his fists.

[11]  The complainants Mr Bowtell and Mr Kimler then came over to intervene, and the three brothers then left in the vehicle, still parked a short distance away.  One of the brothers attempted to bend its registration plate to avoid detection, but the number had been obtained by a security officer working at a nearby RSL, and police arrived at Michael Fortnum’s residence at 4am the next morning.  Ms Clark is his girlfriend. They located the baseball bat and the baton. 

[12]  There was a full “hand-up” committal hearing, and each of the four co-offenders entered a timely plea of guilty.  Mr Glynn SC stressed on the appeal that although the brothers were all armed, they had not attacked the head or upper body of the three complainants with their weapons. That is accurate regarding the three initial assaults, but thereafter all three brothers hit Mr Owen when he was on the ground.  There would be a degree of chance as to what part of Mr Owen’s body was hit with weapons then, and Jonathon Fortnum certainly punched Mr Owen in the head.

[13]  Michael Fortnum was described in material presented to the learned sentencing judge as a hard working electrician who had recently purchased his own home and started a business.  He had previously considered a career in the Queensland Police Service. Peter was also described as a hard working and qualified plasterer tradesman, working in partnership with his father. Those excellent work and personal backgrounds presented the learned sentencing judge with a difficult task.  Both applicants had pleaded to three offences of assault occasioning bodily harm with circumstances of aggravation.  In R v Middleton and Johns [2006] QCA 92 this Court recently had occasion to review sentences for offenders who plead guilty to assault occasioning bodily harm, where there are aggravating circumstances.  Those can include the motive for the assault, its severity, or the circumstances of being armed and in company.  The judgments in that matter demonstrate that even for first offenders actual imprisonment, while not mandated, will be within the proper exercise of a sentencing discretion where there are those aggravating circumstances.

[14]  There were aggravating circumstances here, namely that each applicant was armed with and used a weapon, and each by his plea admitted three separate offences.  Mr Glynn SC suggested that the information put to the learned sentencing judge may have not fully justified charging each brother and Ms Clark with each assault, but the applicants did not challenge the charges. Each applicant’s conduct aided and encouraged each other applicant’s assault on each complainant, and that each intended to be available in support of the others is demonstrated by the group attack on Mr Owen. 

[15]  The other aggravating circumstance is that the applicants had acted out of revenge.  They could have stayed home rather than hunt for the complainants. As the learned sentencing judge remarked:

“[I]t is far too frequent that such violence occurs in the streets and the Courts must impose sentences which will deter such conduct.”[3]

[16]  It is unnecessary to repeat in this case the analysis of other sentences undertaken in R v Middleton and Johns.  It suffices to say that the comparison does not show that these sentences were manifestly excessive.  For example, in R v Abednego [2004] QCA 377 that applicant was 20 years old at the time he assaulted another, causing bodily harm whilst armed and in company.  He too had no prior criminal history and a good employment record.  He was sentenced on the basis that although he had armed himself with part of a metal steering-wheel lock prior to entering the complainant’s yard, his purpose in doing that was not with the intention of using it in an aggressive manner, but because he wanted to deter potential aggression towards himself.  Nevertheless, this Court approved a sentence of six months imprisonment suspended after Mr Abednego had served three months. His victim suffered worse injuries than any of the three complainants in these matters, in that Mr Abednego’s victim suffered a fractured left jaw, the loss of some teeth, and a minor closed head injury. But these two applicants did take weapons for offensive and not defensive purposes, making that aspect of their conduct worse than Mr Abednego's.

[17]  In the result the applicants have not established that the sentences imposed on them were manifestly excessive. The learned trial judge could have imposed shorter terms of actual imprisonment, actual imprisonment being justified, but that does not establish that the terms imposed were manifestly excessive. The problem for each applicant is simply the number of serious offences each admitted by his pleas.

[18]  I would dismiss the applications for leave to appeal.

[19]  MULLINS J: I agree with Jerrard JA.