R v Leach

[1994] QCA 571

[1994] QCA 571

COURT OF APPEAL
MACROSSAN CJ
DAVIES JA

McPHERSON JA

CA No 358 of 1994
THE QUEEN
v.

RUSSELL JOHN LEACH

BRISBANE
..DATE 23/11/94
THE CHIEF JUSTICE: The applicant had been charged with murder
committed in August of 1993. The jury, after a trial, found
him not guilty of murder, but guilty of manslaughter, and he
was sentenced to a term of 10 years imprisonment. No
recommendation for parole was made by the Judge. The
applicant is described as a 30 year old and he had some minor
criminal history, not particularly relevant to the present
conviction.

In 1984 and 1986, he had been convicted and fined for certain drug offences and in 1987 for certain driving offences also. The circumstances in which the present offence was committed are described in the material in this fashion. The applicant and the deceased met at a hotel and both went back to the deceased person's flat where they were intended to arrange to meet others.

The applicant was intoxicated and fell asleep on the lounge. It is said that the applicant was woken by the deceased to find him standing over him, obviously engaged in making an explicit homosexual advance. It is said that the deceased was then fully naked and his penis was partially erect. He had his arm around the applicant's shoulders and invited the applicant, obviously enough, to participate in homosexual activity.

The applicant was aware that the deceased was a homosexual. The applicant told the deceased to desist but apparently the deceased did not, or did not immediately do so. The killing occurred when the applicant then took a knife from his back pocket and stabbed the deceased. The wound, which was sizeable and deep, was described in the evidence, and a drawing of the knife in its fully opened position was before the Court and we have looked at it. It clearly enough appears to be a weapon capable of inflicting considerable damage to the human frame if used to stab a person. It was Exhibit 16 below. The applicant, having left the deceased's premises after the stabbing, did not take any steps to arrange whatever assistance the deceased might obviously have benefited by in the condition in which he was left. He was simply left there, and it seemed he died then in the flat.

The sentencing Judge, interpreting the jury's verdict, said that a human life had been taken and that was a matter which must be regarded seriously. He interpreted the jury's verdict as proceeding on the basis that the applicant was revolted by a homosexual approach and reacted in an extreme fashion, it is true, but not having adjusted his thoughts to think of the consequences; that is, not intending to kill the deceased or to do him grievous bodily harm. That must have been the approach that the jury took and one could agree with the learned Judge in considering that that was the effect of their verdict.

That simply left a case of manslaughter in serious circumstances. An angry and extreme step was taken with a knife capable of inflicting great harm and it resulted in a stabbing in an area of the deceased's body which caused him to die from the wound, and the applicant exhibited, in the circumstances, what the Judge said with considerable justification, a rather callous approach to his victim.

He accepted that it was a serious case of manslaughter and that view of the matter cannot be regarded as inaccurate. He particularly considered whether he should make a recommendation for consideration for parole. He clearly regarded the case as a relatively straightforward one where the desirable sentence could be decided without too much difficulty and where it would be artificial to impose a recommendation to modify it.

The approach which the Judge took cannot be regarded as in any way inappropriate. The actual sentence which resulted, namely one of 10 years not modified by a recommendation, is not out of line with other sentences in manslaughter cases to which we have been referred. In particular, reference can be made to R v. Whiting CA 324/94, which was a case where the sentence originally imposed was altered on the Attorney's appeal to one of 11 years, and R v. Couch 37/92, where the sentence imposed was one of 10 years and it was not interfered with in the Court of Appeal.

In all the circumstances it appears to me that it does not
seem open to say that the verdict was one which was manifestly
excessive and I would refuse the application.
DAVIES JA: I agree.
McPHERSON JA: I agree.
THE CHIEF JUSTICE: The application is refused.

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