R v Evans; R v Pearce

[2011] QCA 135

SUPREME COURT OF QUEENSLAND

CITATION:

R v Evans; R v Pearce [2011] QCA 135

PARTIES:

R
v
EVANS, Chris
(applicant)

R
v
PEARCE, Jacob Gary
(applicant)

FILE NO/S:

CA No 14 of 2011
CA No 15 of 2011
DC No 31 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

21 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Fryberg J
Separate reasons for judgment of each member of the Court, Margaret McMurdo P dissenting, Chesterman JA and Fryberg J concurring as to the orders made

ORDERS:

APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – judge did not place excessive weight on victim impact statement and general deterrence

Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 15
Victims of Crime Assistance Act 2009 (Qld), s 15

R v Singh[2006] QCA 71, considered

COUNSEL:

The applicant Evans appeared on his own behalf
D A Funch for the applicant Pearce
D R Kinsella for the respondent

SOLICITORS:

The applicant Evans appeared on his own behalf
L M Searing of Odens Legal applicant Pearce
S T Gillies of the Department of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P:  Fryberg J has set out the relevant facts which I will not repeat.  The sentence imposed on each applicant, two years imprisonment with parole release fixed after nine months, was not manifestly excessive.  It gave proper but not excessive weight to the requirement of general deterrence. 

1. In submitting that the sentencing judge gave too much weight to the victim impact statement, the applicant Pearce’s counsel, whose submissions the applicant Evans also relied, emphasised the ex tempore dicta in R v Singh[1] where Fryberg J stated:

"In his sentencing remarks the judge referred to the “consequences not only to [the complainant] physically but to his mental and emotional and psychological health and the impact it has also had on his wife and children." The information upon which his Honour made that finding came from a victim impact statement prepared by the complainant.  Sentencing judges should be very careful before acting on assertions of fact made in victim impact statements.  The purpose of those statements is primarily therapeutic.  For that reason victims should be permitted, and even encouraged, to read their statements to the court.  However, if they contain material damaging to the accused which is neither self-evidently correct nor known by the accused to be correct (and this includes lay diagnoses of medical and psychiatric conditions) they should not be acted on.  The prosecution should call the appropriate supporting evidence.  It is unfair to present the accused with the dilemma of challenging a statement of dubious probative value, thereby risking a finding that genuine remorse is lacking, or accepting that statement to his or her detriment."