SUPREME COURT OF QUEENSLAND

1. McMURDO P:  Muir J in his reasons sets out the relevant facts and issues so that I can briefly state my own reasons for reaching a different conclusion and allowing the appeal.

2. I agree with Muir J that self-defence was raised on the evidence and should have been left for the jury's consideration. It follows that the appeal against conviction must be allowed and the appellant's convictions on burglary with circumstances of aggravation and grievous bodily harm quashed unless this Court considers the appeal should be dismissed because no substantial miscarriage of justice has actually occurred: s 668E(1A) Criminal Code 1899 (Qld):  Weiss v The Queen.^[1]

3. The appellant pleaded guilty to wilful damage. He pleaded not guilty to and went to trial on the offences of burglary and grievous bodily harm. The count of burglary contained two circumstances of aggravation: first, that the appellant was armed with an offensive instrument and second, that he used actual violence. The learned trial judge finally redirected the jury in respect of the first circumstance of aggravation to the effect that this required proof that the appellant was armed with a baseball bat at the time of entering the complainant's home. The jury found the appellant guilty of burglary. The associate asked whether that was guilty or not guilty to the circumstances of aggravation. The jury's speaker replied "Guilty". The remaining jurors then indicated their agreement with the speaker in the usual way. This jury in returning their verdict of guilty on the count of burglary with the circumstances of aggravation must be taken to have been satisfied beyond reasonable doubt that at the time the appellant entered the complainant's home he was armed with a baseball bat, a conclusion well open on the evidence.

4. I am nevertheless unpersuaded that a reasonable jury would inevitably have convicted the appellant of either or both offences if self-defence had been left for their consideration. In Stevens v The Queen^[2] McHugh J^[3] and Kirby J^[4] recognized that a jury is entitled to refuse to accept both the cases put forward by the prosecution and the defence and instead work out the facts for themselves;  a jury's view of the facts may not entirely represent the case of either party.  Before counsels' addresses, the primary judge ruled that self-defence was not raised on the evidence.  In directing the jury as to the offence of grievous bodily harm, his Honour said that as the defence admitted grievous bodily harm, there was no authorization, justification or excuse in respect of it.  The jury was likely to have commenced their deliberations on the basis that the offence of grievous bodily harm was established.  Had the issue of self‑defence been a live one before the jury their deliberations may have taken a quite different course.  They may not have been so prepared to prefer the complainant's version to the appellant's account or they may have found facts which did not represent either account but which may have resulted in a not guilty verdict on either or both counts.  It follows that, despite the strong prosecution case, I am not persuaded that, had the appellant received his constitutional right to a trial according to law and self-defence been left to the jury, a reasonable jury would inevitably have convicted him of either or both offences.  I am unpersuaded that no substantial miscarriage of justice has actually occurred in this case.  I would allow the appeal against conviction, set aside the convictions on burglary and grievous bodily harm and order a retrial.

5. It would not then ordinarily be necessary to deal with the sentence application. But in case the appellant is again convicted after a retrial I should deal with it. I agree with Muir J's reasons for concluding, and with the respondent's sensible concession that, the sentencing judge's order under s 35 Penalties and Sentences Act 1992 (Qld) created a manifestly excessive sentence.

6. The appellant was sentenced to four years imprisonment for the offences of burglary and grievous bodily harm with a declaration that he was convicted of serious violent offences so that he must serve 80 per cent of that four year period before becoming eligible to apply for post-prison community-based release. His Honour rightly recognized the offences were a serious example of a planned home invasion. The complainant has been, unsurprisingly, seriously affected by the offences. He was unable to work for six months and has paid over $11,000 for dental repairs. The appellant was 28 years old at the time of the offences and almost 30 at sentence.  He did not co‑operate with the authorities;  nor did he have the mitigating benefit of an early plea of guilty.  He showed no remorse nor insight into what is, if he is convicted, deplorable violent conduct.  He had some concerning relevant prior history.  The offending involved the use of a weapon to inflict multiple blows upon the complainant.  On the facts as they emerged at the trial the subject of this appeal, the sentence of four years imprisonment, including the declaration, was not manifestly excessive.

7. Because the appellant pleaded guilty to the offence of wilful damage, that conviction stands even though I would order a retrial on the remaining counts. The appellant was sentenced to 12 months concurrent imprisonment. If that sentence is considered on its own and not as part of a global sentence for a series of offences involving a violent home invasion it is manifestly excessive. Because I would set aside the other convictions constituting the home invasion I would also grant the application for leave to appeal against the sentence imposed for the offence of wilful damage, allow that appeal and set aside that sentence. The sentence for the offence of wilful damage should be remitted to the District Court to be dealt with at the conclusion of the appellant's retrial. If the appellant is ultimately acquitted of the burglary and grievous bodily harm offences, the facts before this Court suggest that a non-custodial sentence would be within the appropriate range for the offence of wilful damage; otherwise a concurrent sentence in the range proposed by Muir J of about six months imprisonment would be appropriate.

8. I would make the following orders:

1. Allow the appeal against conviction; set aside the verdicts of guilty of burglary with circumstances of aggravation and grievous bodily harm; and order a new trial.

2. In respect of the application for leave to appeal against the sentence imposed for the offence of wilful damage, grant the application for leave to appeal against sentence, allow the appeal and remit the sentence to the District Court for determination at the conclusion of the retrial.

9. JERRARD JA:  In this appeal I have had the benefit of reading the reasons for judgment of Muir J, and the orders proposed by His Honour.  I respectfully agree that Mr Duncan’s evidence was capable of raising a plea of self defence for the jury to consider, and that the learned trial judge erred in not leaving that defence to the jury for their consideration. 

10. I also agree that that error should not result in the convictions on counts 1 and 2 on the indictment being set aside. Count 1 charged that on or about 21 July 2004 at Halifax Mr Duncan entered the dwelling of Mark Morzone with intent to commit an indictable offence in the building with the three circumstances of aggravation that the offence was committed at night, that Mr Duncan was armed with an offensive instrument, and that he used actual violence. Count 2 was the count alleging that Mr Duncan unlawfully did grievous bodily harm to Mr Morzone; the count to which the plea of self defence was relevant. The learned trial judge had ruled that self defence had not been raised by Mr Duncan’s evidence, because of the passages quoted by Muir J in the latter’s reasons.

11. Mr Duncan conceded in those passages that when he first hit Mr Morzone with the baseball bat (after Mr Morzone had allegedly produced it, and swung it at him, and after Mr Duncan had punched Mr Morzone and gotten the bat), Mr Morzone was uninjured and in his own home, and that Mr Morzone had earlier asked Mr Duncan to leave. Mr Duncan admitted his dominant emotion then was anger and aggression, when he then hit Mr Morzone with the bat. Further, when Mr Morzone then attempted to tackle Mr Duncan (after being hit with the baseball bat) Mr Duncan’s other blows, which he landed on Mr Morzone with the baseball bat, were administered when Mr Morzone was sitting. Mr Duncan claimed he felt some fear at that time. The learned judge held, and I agree with Muir J that the learned judge erred, that that evidence could not raise self defence. It was a weak claim to it, but the argument was available for Mr Duncan that – as Muir J puts it – his assaults with the bat were committed in an “adrenalin rush”, experienced after Mr Morzone had initially allegedly attempted to hit Mr Duncan with the baseball bat, before Mr Duncan got possession of it.

12. The problem Mr Duncan faces on his appeal is that the jury convicted him on count 1, as well as on count 2. They were told in respect of count 2 that Mr Duncan had no defence, but the learned judge certainly drew the jury’s attention to the complete difference in the accounts given by each man, describing them, and those differences were relevant to count 1.

13. On that count the judge directed the jury that the circumstances of aggravation were that the offence was committed at night, that Mr Duncan was armed with an offensive instrument, and that that involved the possession and use by Mr Duncan of the baseball bat used for offensive purposes, and that that offensive purpose would be established if the bat was taken for the purpose of using it as a weapon.^[5]  The judge also directed the jury that the offence in count 1 required that at the time of entering Mr Duncan intended to commit an indictable offence inside that dwelling, and that an assault was an indictable offence.

14. The learned judge summed up his directions on count 1 in these terms:

“Now it is said here that the accused was armed with a baseball bat; that he entered the dwelling of Mr Morzone intending to assault him because of what he had done in relation to the lady, Kim.  It is also said that this occurred at night and that Mr Duncan was armed with an offensive instrument being the baseball bat which he intended to use as a weapon and that he did use it and use actual violence towards Mr Morzone.  So what is required for that offence is entering of the dwelling of Mr Morzone with intent to unlawfully assault him at night armed with an offensive instrument and using actual violence to Mr Morzone with the offensive instrument namely the baseball bat.”

15. I agree with Muir J that, strictly construed, the terms of the offence described in s 419 of the Criminal Code 1899 (Qld) – that constituting count 1 on the indictment – do not require proof that at the time of entering an offender is armed, and that the offence could be committed by an offender who armed himself after entering premises.  But the case the learned judge put to the jury was restricted to the allegation that Mr Duncan was armed with the baseball bat when he entered the premises, intending to use it as a weapon and that he did so use it.  The learned judge expressly so directed the jury in re-directions, explaining that it was not sufficient if Mr Duncan got hold of the baseball bat after he entered.  In those circumstances the conviction on count 1 makes it clear, as was submitted for the Crown on the appeal, that the jury necessarily rejected Mr Duncan’s account beyond reasonable doubt and accepted that of Mr Morzone, namely that Mr Duncan came into Mr Morzone’s house armed with the bat, intending to use it, and did.  Mr Rafter SC, counsel for Mr Duncan, agreed on the appeal that the verdict on count 1 necessarily meant a finding that Mr Duncan entered with intent to assault, and when already armed with the bat. 

16. The learned judge also put count 1 to the jury in these terms:

“It would appear to me that if you – and this seemed to be conceded by the defence – that if you accept Mr Morzone in his evidence and reject the evidence of the accused there is more than enough to convict of both offences.

If you accept the evidence of the accused you would find the accused not guilty of the first count.  As I said, there is no authorisation, justification or excuse relied on in the second count.  If you had a doubt about what the position was in relation to the first count you would give the benefit of that doubt to the accused.  There is no room for any doubt in relation to the second count.”

17. It must follow from those directions that the jurors did accept Mr Morzone’s evidence and reject that of Mr Duncan, and that means that he would have inevitably been convicted of count 2, even had the directions to the jury included directions on a possible case of self defence raised by Mr Duncan’s evidence. The error in not putting that defence would have had no significance in determining the verdict that was returned (Weiss v R [2005] HCA 81 at [43]).  Accordingly I would hold that no substantial miscarriage of justice resulted from the misdirection on count 2 which was followed by a conviction, and dismiss the appeal against the conviction.

Application for leave to appeal against sentence

18. I agree with the orders proposed by Muir J, for the reasons His Honour gives.

19. MUIR J: The appellant was convicted on 13 September 2005 of burglary and grievous bodily harm after a trial in the District Court at Townsville.  He was also convicted, on his own plea of guilty, of wilful and unlawful damage.  He appeals against his grievous bodily harm and burglary convictions on the grounds that the learned trial judge erred in: (1) ruling that his counsel not be permitted to address the jury on self-defence; and (2) not leaving self-defence for the jury’s consideration.

20. The central issue for determination in this appeal is whether self-defence should have been left for the jury. If that issue is decided in favour of the appellant, the respondent argues for the application of the proviso contained in s 668E of the Criminal Code 1899 (Qld).

The complainant’s version of events

21. The complainant’s account of the circumstances surrounding the commission of the offences and of the events leading up to them was as follows. He and the appellant had known each other for about two years. Friction arose between them over whether the complainant had commenced a sexual relationship with a female with whom the appellant had been in such a relationship. About three weeks before the date of the offences a discussion had occurred between the two young men about the matter and, at the committal hearing, the complainant admitted that he had said to the appellant on that occasion, “look, if you have a problem with it we can sort it out now.”

22. On the evening of 21 July 2004 at about 9 pm, the complainant was asleep in his upstairs lounge room when he was awoken by a noise downstairs. He went to the door of the rumpus room area on the ground floor where he was set upon by the appellant with a baseball bat. After being struck about 15 times, mainly to the head, he fell to the ground. He managed to get into a crouched position, lunged at the appellant and brought him to the ground. The baseball bat broke but the appellant used the broken bat to deliver a further blow to the complainant’s leg. The appellant then smashed the complainant’s stereo with the broken bat. The complainant’s injuries included a fractured right elbow, fractured ulna between the wrist and elbow and the loss of three teeth.

The appellant’s version of events

23. The appellant’s version of events, except in relation to the discussion about three weeks prior to the events in question, is radically different from that of the complainant. He asserts that at about 9pm on 21 July he telephoned the complainant’s mobile phone and received no answer. He then drove to the complainant’s house, where he noticed a flickering light upstairs that appeared to be coming from a television set. He rang the doorbell and, not receiving any answer, spoke to the complainant on his mobile phone. The complainant said he would come down and let him in, which he did. An argument then ensued over the appellant’s former female friend.

24. The complainant, who had requested that the appellant leave the premises, walked to a gym bench, picked up a baseball bat and walked slowly towards the appellant. The appellant declined to leave, saying that he wanted to work things out. The complainant swung the bat at the appellant, who avoided it, punched the complainant in the jaw with his left fist and managed to take the bat from the complainant. At this stage the appellant feared for his life. He struck the complainant three or four times across the arms with the bat whilst asking if he had slept with the female. The complainant then lunged at the appellant and “sort of tackled” him. The bat fell to the floor. The appellant, thinking that the complainant would take up the bat and attack, picked up the bat and struck the complainant a few more times on the body. The complainant asked him to stop and he did. The appellant then smashed the stereo system, smashed the bat on the floor and left, taking the thick end of the bat with him.

The trial judge’s ruling

25. The trial judge’s ruling in relation to self-defence was:

“Well, I do not think there is sufficient evidence to raise a defence under section 271 subsection (1) or subsection (2) in the circumstances.  The evidence establishes, at best for the accused, that it was the swinging of the baseball bat by the complainant which caused him to react as he did.  His conduct thereafter, once he had the baseball bat, on both occasions, could not in my view raise either of the defences.

There is, in my view, no evidence sufficient for a reasonable jury properly directed to consider in relation to either defence, so I will not allow you to address on self-defence and I will not lead it to the jury, Mr Bassett.”

Relevant passages from the transcript

26. The evidence which appears to have led the trial judge to his conclusions was that elicited in the course of the appellant’s cross-examination. The appellant said that he was still fearful after having punched the complainant. The cross-examiner then drew attention to the appellant’s having taken the bat from the complainant. The following exchange occurred:

“Now are you still experiencing this fear now? – – No, I wouldn’t say fearful then, no, once you got the bat in your hand, no.

…
 

And is it fair to say that the dominant emotion now is one of anger and aggression? – Yes.

And it’s fair to say, isn’t it, that that’s really reflected in what you do next, isn’t it, because what you do next is to begin to hit him with the bat? – Strike Mark, yes.

Do you hit him on the head?  You said you swung at what you thought was his shoulder height? – My shoulder height.

Sorry, your shoulder height, which, would you agree with me that that would correspond to about his head height? – Yes.

You’re a taller man than he is? – Yes, that’s correct.

Did you make contact with his head? – Honestly, I cannot remember.

You’re aware that on his evidence he sustained a cut to the back of his head and had some stitches? – Yes.

Are you able to explain how he might have got that injury? – The bat could have deflected off his elbows, off his forearms, when he had his arms up.

…

He didn’t get up I mean? – Beg your pardon?

He did not get up? – No.

…

Were you aware at this point that – of any injuries that he might have had? – No.  No.”

27. The appellant’s evidence in cross-examination was that his initial striking of the complainant occurred whilst the complainant was standing “pretty much in the open” and not moving towards the appellant. The appellant said that he lowered the bat and the complainant lunged forward and tackled him, bringing them both to the floor. The cross-examiner established that the appellant got up with the bat and that the complainant remained in a sitting position. The cross-examination continued as follows:

“Now he’s – you’re standing and he’s sort of semi-standing I supposed you’ve said? – No, he was sitting.

Sitting? – Yes.

Now you struck him again at this point, didn’t you? – That’s correct.

On the – what part of the body or head? – Body.

How many times? – Two to three.

Now fear played no part in that particular part of the assault either, did it? – Oh, there would have been a bit of fear there, yes.

Was the fear coming back, was it? – Yes.

So it’d gone away and now ………? – Oh, he lunged towards me.  I thought he wanted to continue.

So you’re saying that now you felt a bit scared yourself? – Yes.  Well he lunged towards me.

How many times did you strike him while he was sitting? – Two to three times I would have struck him.

…

You took the tip of the bat with you when you left after the incident? – Correct.

And you’ve said that that was because you were still concerned for – you were concerned that you might be jumped or something;  is that right? – Correct.”

28. In re-examination the appellant’s counsel referred to the evidence that the complainant was not armed when he initially asked the appellant to leave. The
    re-examination then proceeded as follows:

“When did Mr Morzone pick up the baseball back? [sic] – After he asked me to leave and he punched the gym bench and he came back with it in his hands.

Now at that time how did you feel? – I was frightened then.  Yes.

Now when you were getting up after what I might refer to as the second occasion, the occasion when you were tackled – you were tackled by Mr Morzone, you both go down to the ground, the bat has fallen out of your hand? – Yes.

Then you start to get up and you pick the bat up as you’re getting up? – Correct.

How are you feeling then? – I was still scared, yes.

Now, you got up, you turned around to see Mr Morzone, what was – you described that he was sitting, what – what – what was he actually doing? – Well, he was sitting down basically and it looked like he was trying to get up.

What did you think was going to happen? – I thought he was going to get up and attack me again.

HIS HONOUR:  At that time you could’ve left the house? – That’s correct.

And why didn’t you? – I honestly can’t answer that question.  It just happened so quick, your Honour.

MR BASSETT:  How quickly did it happen? – Matter of minutes.

When you got up and he was on the floor, you said it looked like he was trying to get up, what – what did he do in relation to you? – Just basically trying to stand up, get up.

As so, what did you do? – I struck him a couple of times.”

The respondent’s submissions

29. It is conceded by Mr Copley, who appeared for the respondent, that on the appellant’s evidence the bat was swung at him and he feared for his life. Mr Copley also conceded that on the appellant’s evidence the complainant’s initial conduct with the bat was such as to cause a “reasonable apprehension of death or grievous bodily harm”. The appellant was thus entitled to use such force as was “reasonably necessary to make effectual defence against the assault”^[6] or even apply deadly force to repel the assault.^[7]  It is submitted, however, that upon the complainant being disarmed his “unlawful assault” on the appellant had ended and the appellant’s conduct thereafter was not in circumstances of reasonable necessity to make an effectual defence or to preserve the appellant from death or grievous bodily harm.  The appellant had the bat and could easily have left the premises through the nearby door but chose to stay.   He also elected to stay after the complainant had tackled him and the appellant then proceeded to strike the unarmed complainant three or so blows to the chest and shoulder area whilst the complainant was sitting.  The appellant conceded that he could have left the house even if he thought the complainant might attack him.  The availability of this exit or escape route “meant that the appellant’s further assault with the bat could not possibly have satisfied the terms of either limb of s 271.” 

30. The respondent asserts that even if self-defence should have been left to the jury the proviso should be applied. The conviction on count 1 meant that the jury was satisfied beyond reasonable doubt that the appellant entered the dwelling at night whilst armed. A guilty verdict could only have been returned if the jury was satisfied that the appellant took the bat into the dwelling. If self-defence had been left for the jury’s consideration it would have been rejected.

Should self-defence have been left to the jury?

31. In R v Corry^[8] Keane JA, with whose reasons McPherson JA and Holmes J agreed, said, referring to R v Muratavic^[9] and Zecevic v DPP (Vic)^[10]:

“But it is well established that once it is accepted that there is evidence, however weak or tenuous it may be, on which the jury might find the plea of self-defence to be made out, it is for the jury to resolve any questions of fact arising in relation to that evidence.”

32. On the appellant’s evidence, he was threatened by the complainant such as to cause a reasonable apprehension of grievous bodily harm and so as to believe, on reasonable grounds, that he was called upon to strike the complainant with the bat in order to preserve himself from that harm. His evidence was that he was afraid and that things all happened very quickly.

33. It was open to the jury to conclude, in relation to the initial episode of striking with the bat, that it occurred in an adrenalin rush whilst the appellant was reacting to the complainant’s assault.

34. The second episode of striking is capable of being viewed in a similar light. Again the appellant referred to the speed of events and to his fear of further attacks by the complainant. McHugh J confirmed in Stevens v The Queen^[11]:

“A jury is entitled to refuse to accept the cases of the parties and ‘work out for themselves a view of the case which did not exactly represent what either party said.’”

That observation and the following passage from the reasons of Kirby J in the same case^[12] serve to illustrate the existence of a substantial risk of error if a defence or exculpatory circumstance is not left to the jury as a result of a particular view being taken of the evidence of a witness or of witnesses by the trial judge:

“Once it is accepted that there was evidence that engaged the Code provision in this respect, it was prima facie for the jury, and not the judge, to determine the application of the Code to the facts. …  But in a jury trial, that [where there are other provisions of the Code which better responded to the appellant’s case, as it had been presented] was an assessment ordinarily reserved to the jury, so long as there was some evidence to attract the Code provisions.  It was the jury that was called upon to make assessments of the facts.  They were not required to accept, in its entirety, either the prosecution or defence cases.  They were entitled to form their own opinions about the facts, so long as their resulting verdict was not appellably unreasonable.”

35. For these reasons I am of the view that the trial judge erred in not leaving self-defence for the jury’s consideration despite the obvious weaknesses in the appellant’s case.

The application of the proviso

36. Count 1 is:

“That on or about the 21^st day of July 2004 … you entered the dwelling of [the complainant] with intent to commit an indictable offence in the dwelling and the offence was committed at night and you were armed with an offensive instrument and you used actual violence.”

The offence charged was that of burglary under s 419 of the Criminal Code.  It is not a necessary element of the offence that the accused be armed with a dangerous or offensive instrument when entering the dwelling and the offence charged did not allege that the appellant was armed upon entry into the subject premises.  In summing up the trial judge explained the elements of the offence of burglary and correctly stated that it was not an element of the offence that the appellant be armed with the bat upon entry into the complainant’s premises.

37. However, his Honour proceeded to give further amplification and stated, in effect, that it was the Crown case that the accused was armed with a baseball bat upon entering the subject premises. He continued:

“So what is required for that offence is entering of the dwelling of [the complainant] with intent to unlawfully assault him at night armed with an offensive instrument and using actual violence to [the complainant] with the offensive instrument namely the baseball bat.”

38. His Honour subsequently redirected the jury to the effect that being armed with an offensive weapon, the circumstance of aggravation in the first count, “required proof that the appellant was armed with a baseball bat” at the time of entry. The redirection did not affect the trial judge’s directions on the other circumstances of aggravation.

39. Consequently, in order to convict on count 1 the jury would have had to have found that the appellant, when entering the complainant’s house, intended to unlawfully assault the complainant. In order to find the circumstance of aggravation concerning the baseball bat, the jury must have found that the appellant was armed with the bat at the time of entry. A guilty verdict was returned on count 1 and, in response to the question, “Is that guilty or not guilty with the circumstances of aggravation?”, the speaker said “guilty”.

40. On the jury’s findings, the appellant went to the complainant’s house armed with the baseball bat, intending to assault the complainant. That the appellant proposed to use the bat in his intended assault is an inescapable inference arising from the jury’s findings. The failure to leave self-defence to the jury could not have had any effect on the verdict returned on counts 1 and 2. The case substantially turned on credibility. The jury had the opportunity of assessing the competing versions of events and the jury rejected the appellant’s highly implausible version.

41. Even the appellant’s own account of the circumstances of his striking the complainant and the appellant’s lack of a satisfactory explanation for his failure to leave the complainant’s house when he was armed, renders self-defence extremely difficult to establish. I do not find the defence to be made out. In my view no substantial miscarriage of justice has actually occurred. I would apply s 668E(1A) of the Criminal Code and dismiss the appeal. 

Appeal against sentence

42. The appellant seeks leave to appeal against the sentences of four years’ imprisonment to be served concurrently and the declaration under section 161B of the Penalties and Sentences Act 1992 (Qld) that the appellant was convicted of a serious violent offence. The appellant seeks leave to appeal also against the order made in respect of counts 1 and 2 under s 35 of the Penalties and Sentences Act 1992 that the appellant pay compensation of $30,000 to the complainant by a payment of $4,000 within six months of 13 September 2005 and the balance within six years of 13 September 2005.  In default of payment the appellant was ordered to appear at 10am “on the first day of the first criminal sitting of this Court held after the expiration of six years from today.” Presumably his Honour had in mind that the appellant be dealt with in some way for his default.^[13] 

43. The respondent concedes that the order is capable of being regarded as manifestly excessive because failure to pay the sum ordered may result in the appellant returning to prison in 6 years time after having completed the prison term no later than 2 years earlier.

44. Default under the order could, in theory at least, expose the appellant to a lengthy term of imprisonment.^[14]  Default in this case would appear to be virtually inevitable, as the evidence revealed that the appellant’s total assets were worth about $4,000.  The terms of imprisonment imposed meant that the appellant was deprived of any real prospect of paying the further sum of $26,000 within six years.  That, in itself, strongly suggests that sentencing discretion miscarried. In my view the compensation order was manifestly excessive and should be set aside.

45. The appellant submits that a serious violent offender declaration was not warranted. However, the attack was premeditated, prolonged and perpetrated with a baseball bat, at night, in the complainant’s home. It could have been reasonably anticipated that serious injuries would result. Most, if not all of the blows were struck whilst the complainant was defenceless. I conclude therefore that there is no substance in the appellant’s complaint.

The sentence appeal in respect of count 3

46. The sentence imposed for count 3 was 12 months’ imprisonment to be served concurrently. It is submitted that it was manifestly excessive.

47. In submissions prior to sentencing the learned Crown prosecutor informed the trial judge that the value of the damage to the equipment the subject of count 3 was to the order of $600. Naturally the focus of submissions on penalty was on counts 1 and 2. Very little was said by either counsel about count 3 as the conduct the subject of count 3 adds little to the extent of the appellant’s criminality on the evening of 21 July.

48. The appellant was born on 23 October 1975 and has a relevantly minor criminal history which includes convictions in 1995 for breaking and entering dwelling houses with intent and for stealing. No convictions were recorded for those offences.

Conclusion

49. I would allow the application for leave to appeal against sentence and allow the appeal only to the extent of: (1) setting aside the sentence of 12 months’ imprisonment on count 3 and substituting for it a sentence of six months, to be served concurrently; and (2) setting aside the compensation order.