R v Donohoe

[1992] QCA 482

COURT OF APPEAL [1992] QCA 482

MACROSSAN CJ McPHERSON JA DERRINGTON J

CA No 270 of 1992

THE QUEEN

v.

JOHN ERIC DONOHOE	Applicant
BRISBANE ..DATE 10/11/92
JUDGMENT

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101192 T 5/RB M/T 2537/93
THE CHIEF JUSTICE: This is an application for leave to appeal
against sentence. The applicant pleaded guilty to a number of
offences in which he took part on 2 occasions in May and June
of 1992. The first occasion involved his running amock in a
cafe. He was charged with wilful damage and also assault on a
number of police officers who came to the scene to restrain
him and a further assault on another customer who was present
in the cafe. Apparently the applicant in the cafe became
annoyed at some aspect of the proceedings there and worked
himself up, it would seem, into a state where he was not able
to restrain himself.

He caused damage to property and fittings to a value of some $2,400 and terrorised the customers or most of them there present and an all female staff. He assaulted one of the customers quite severely. He menaced a waitress while she was busy telephoning police. When the police arrived they had considerable difficulty calming the applicant, and he continued to resist. He had to be handcuffed and taken away

then after he was restrained in that fashion. It is said that
when the police arrived at the scene, the applicant, who had
cut himself, flicked blood, or caused blood to fly in the

direction of the police.

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He was then on bail for the offences involved in that episode when he re-offended in an extremely serious fashion in the following month. He and a co-offender robbed a convenience store in the early hours of the morning. The co-offender was a reluctant participant and had to be pressured by the applicant to take part or to continue to play his part. The incidents which occurred during the robbery were recorded on a store security camera.

The part which the co-offender played was to distract the shopkeeper, who was a 61 year old. The applicant then hit him

from behind, knocking him down with the first blow. The

applicant is a powerfully built young man. He is 20 years of
age. Having knocked the storekeeper to the floor, the
applicant, in an episode which cannot but attract attention,
continued to assault the shopkeeper victim ferociously. It is
said that he pounded the head of that victim 20 times.

This did not play any particular part in achieving the robbery which was the object. It was something superimposed gratuitously and gives an indication of a tendency to violence which is something to be reckoned with. A sum of money was taken, some $310. The offender was located and most of the money was, in fact, recovered.

The injuries to the shopkeeper were said to include

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lacerations and bruising to the face and skull and dental
damage. He is also said to suffer severe headaches and have
floating defect in the vision of one eye. He has to be treated
- or was treated by a psychiatrist and neurologist and had to
give up work at the time the information was taken which comes
to us.

Now, the penalties imposed, which are the subject of the appeal are these; in respect of the episode in the cafe, the applicant was sentenced to 2 years imprisonment for the wilful damage, 2 years in respect of the assaults on the 3 police officers and 6 months in respect of each of the assaults on a customer.

In respect of the robbery which took place in the next month, the applicant was sentenced to 3 years for assault occasioning bodily harm and 8 years for the offence of robbery in company with the other attendant circumstances. No recommendation for parole which would shorten his time in custody beyond the usual was made in the applicant's case.

The co-offender in the robbery, who himself did not commit any of the violent actions and who had to be pressured into taking part or continuing as a participant was sentenced to custodial term, but a recommendation was made in his case. That recommendation was that he be considered for release on parole

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after serving 18 months of the 5-year sentence.
The Judge who sentenced that co-offender said, amongst other
things, that it seemed to her that the present applicant
should receive a substantially more serious penalty than
the co-offender then before her, and that was because of the
violence that the present applicant perpetrated on the victim
For that reason the sentencing Judge on that occasion thought
it was appropriate to sentence the co-offender to 5 years with
a recommendation for release after 18 months.

Now, these episodes are chilling in the extent of the violence involved in them. It has, however, to be said that the applicant is a 20 year old and his previous criminal history considered in isolation is not extensive. There was an obscene language charge, another occasion of wilful and unlawful damage to property for which he was fined and obscene language and resisting police.

However, it is a fact that should be mentioned that on the occasion of the robbery, the second offence with which we are concerned, the applicant was on bail.

We have received a report which has been made by a consulting psychiatrist, a Dr Walsh, who refers to the applicant's disturbed family background and difficult early life, but offers the opinion that the applicant has very poor impulse

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control and is liable to re-offend unless he brings his
explosive personality disorder under control.

The question is, what should then be done? In view of the circumstances of the present offences it is difficult to consider doing anything at all. The applicant, in the course of his address to us, conveyed, as I thought, that he felt disappointment because the prediction of his solicitor that his head sentence would be only 6 years was not met. That is hardly the point.

In my opinion, considering the circumstances of the 2 present offences, it cannot be adjudged that the penalties imposed are manifestly excessive, in any of the instances including the case where a term of 8 years was imposed, and I would dismiss the application.

McPHERSON JA: I agree. In considering whether the sentences are too high it may be useful to add, simply by way of emphasis upon some of what the Chief Justice has said, that there were involved in the charges that gave rise to the sentences imposed 2 quite separate episodes, separated by some the other on 3 June 1992 after the applicant had been released

Both sets of offences were serious, but I think one needs to read for oneself the account of the behaviour involved in the

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cafe in order to obtain a full and accurate impression of it.
One circumstance that strikes me as making it appear more
serious is that after the applicant had engaged in a
considerable degree of violent behaviour he left the shop, and
then later returned to it and the violent episode was resumed.

He was ultimately subdued, first with the assistance of a bus driver who was a customer having breakfast in the cafe, and ultimately with the assistance of 3 police officers. It was not without some considerable effort that it proved possible to subdue him.

The circumstances of the robbery on 3 June have also been set
out in some detail by the Chief Justice. It is again, I
think, useful to add that the Judges who imposed the sentences
in respect both of the applicant here and of his co-offender
Robertson were able to view a visual record of the affair

on a film taken by a security camera.

There is nothing in anything that we have seen to persuade me
to suppose that we can be sure that there will be no further
conduct of this kind in the future from the applicant. I
would therefore take the course proposed by the Chief Justice.

DERRINGTON J: I agree, but if only to emphasise what has been said before me, I would add a few words.

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The applicant is to be given some credit for the fact that despite his unfortunate upbringing his criminal history is relatively not very bad. The answer to that is that in this sentence he was given credit for that to some extent, because if it had been otherwise the sentence would have been much more severe.

With violence of this seriousness a very heavy sentence must be imposed, particularly where there is violence on top of previous violence -----

APPLICANT: What are you going to do? Are you going to drop
it or are you going to leave it?
THE CHIEF JUSTICE: Just a moment; just a moment.
DERRINGTON: -----particularly when there is violence on top
of previous violence, and I regret to say that the applicant
is going to have to learn that violence will only bring him
further pain and suffering in his life if he does not do

something about it.

APPLICANT: So why not send me home? It's not going to happen
again.
THE CHIEF JUSTICE: All right; all right.
APPLICANT: Is it going to stay like that, is it?

THE CHIEF JUSTICE: That's it, Mr Donohoe. Thank you. All

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right.
APPLICANT: Yeah. But I was recommended for parole after 4
years.
THE CHIEF JUSTICE: That's right. That stays; after 50
percent of the sentence is served, which is, as you say, 4
years. That stays in place.
DERRINGTON J: That will, of course, depend upon your conduct

in the meantime. It's in the hands of the Parole Board.

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