R v Dack - [2002] QCA 44

[2002] QCA 44

COURT OF APPEAL

McMURDO P
THOMAS JA
WILLIAMS JA

CA No 340 of 2001

THE QUEEN

GEOFFREY THOMAS DACK Applicant

BRISBANE

..DATE 20/02/2002

JUDGMENT

THE PRESIDENT: This is an application for an extension of time within which to appeal against sentence. The applicant and his co-accused Real both pleaded guilty to charges of torture and robbery in company. The applicant was sentenced to an effective term of eight years' imprisonment with a recommendation for parole after three years. Real was sentenced to an effective term of imprisonment of six years with a recommendation for release on parole after serving two years.

Real successfully appealed against his sentence and an effective sentence of five years' imprisonment suspended after serving two years with an operational period of four years was substituted (see R v. Real [2001] QCA 422 CA No 92 of 2001, 5 October 2001).

The applicant claims the effect of Real's successful appeal has the result that there is a marked disparity between he and Real in that the applicant has little or no prospect of release from prison for some years despite his parole recommendation under the present parole regime whilst his co-accused is certain to be released after two years' imprisonment.

This disparity only came into existence upon Real's successful appeal, which was delivered towards the end of last year. This application was filed on 30 November 2001. Although the applicant has given no sworn explanation for
the delay this seems to be the primary cause for the delay in filing the application for leave to appeal.

The offences occurred in this way. Real befriended the complainant and they jointly hired a caravan in Gympie. About a week later the applicant met up with Real, who introduced him to the complainant. About 9 p.m. the three went to a hotel at Gympie to drink. The complainant became involved in a dispute and returned to the caravan. Later the applicant and Real joined him and a heated argument ensued resulting in the commission of these offences.

The details of the offences are set out in this Court's judgments in R v. Real at [8] to [14]. I will repeat only those necessary to outline the role of each offender and the seriousness of the offences. Real took the complainant's wallet and demanded his pin number. Unbeknown to Real the applicant took a knife from a cupboard; he cut the complainant's nose, causing extensive bleeding. The applicant then made threats and abusive comments towards the complainant, calling him a dog and causing the complainant to lick up his own blood. Joint acts of violence included burning the complainant with a lighted cigarette, hurting the complainant's ear with a fish hook and locking him in a cupboard. The complainant was an asthma sufferer. The offenders forced his mouth open and sprayed in a large amount of asthma spray. Other acts of violence included threatening the complainant with a knife and cutting him on the back of the…

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 Dack

Details

AGLC: R v Dack [2002] QCA 44
Case: [2002] QCA 44
Decision Date: 20/02/2002

CaseChat Overview and Summary

In the case of R v Dack, the applicant, Geoffrey Thomas Dack, sought an extension of time to appeal against his sentence. Dack and his co-accused, Real, had both pleaded guilty to charges of torture and robbery. Dack was sentenced to an effective term of eight years' imprisonment with a recommendation for parole after three years, whereas Real's sentence was reduced on appeal to an effective term of five years' imprisonment suspended after serving two years. Dack argued that there was a marked disparity between his sentence and Real's reduced sentence, which put him at a disadvantage despite his parole recommendation.

The Court of Appeal was required to determine whether Dack's sentence was manifestly excessive and whether there was a parity issue between Dack and Real's sentences. The Court noted that there was no basis for distinguishing between the conduct of Dack and Real during the offences, and that the sentences imposed on both were quite high for the nature of the conduct. The Court also considered Dack's extensive criminal history in reaching its decision.

The Court of Appeal found that Dack's sentence was manifestly excessive, taking into account the comparable sentences and Dack's guilty plea. The Court also found that the disparity between Dack and Real's sentences raised a question of parity. As a result, the Court allowed the application for an extension of time to appeal, granted leave to appeal, and substituted a sentence of seven years' imprisonment for the eight years imposed at first instance. The Court otherwise confirmed the sentence imposed below.

In conclusion, the Court of Appeal reduced Dack's sentence from eight years to seven years, finding that the original sentence was manifestly excessive and that there was an issue of parity between Dack and Real's sentences. The Court's decision highlights the importance of considering both the excessiveness and parity of sentences when reviewing appeals against sentence.

Orders