R v Pallas

[2000] QCA 240

[2000] QCA 240

COURT OF APPEAL

DAVIES JA
THOMAS JA
WHITE J

CA No 74 of 2000

THE QUEEN

v.

GILLES ROGER PALLAS  Applicant

BRISBANE

..DATE 16/06/2000

JUDGMENT

DAVIES JA:  The applicant who is 37 years of age committed two serious offences on 21 February 1999.  The first of these was unlawful wounding for which the maximum penalty is seven years' imprisonment and the second was wounding with intent to resist lawful detention for which the maximum penalty is life imprisonment.

On 20 March this year he was sentenced on the first of those offences to four years' imprisonment and on the second to 10 years' imprisonment with a declaration that it was a conviction of a serious violent offence.  The sentences were not made cumulative.

On the same day the applicant was sentenced in respect of a substantial number of offences committed between 14 July 1998 and 21 February 1999.  These were five of stealing, one of entering a vehicle with intent, two of wilful damage, two of housebreaking, one of entering premises with intent, one of unlawful use of a motor vehicle with a circumstance of aggravation, four of breaking and entering premises and stealing and one of unlawful use of a motor vehicle.  Many of these were serious offences of their kind. 

They resulted in an effective sentence of three years' imprisonment, those being the terms imposed for each of the housebreaking offences and each of the offences of breaking, entering and stealing.  They involved the stealing of property valued at over $1,000,000 and included the stealing of a substantial quantity of explosives, presumably for use by the applicant in his criminal activities.   The effective sentence for these offences was made cumulative upon the 10 year term to which I have just referred.

By his application the applicant sought leave to appeal against each of the sentences imposed for wounding, against the declaration that the second of these was a serious violent offence and against the totality of the 13 years' imprisonment.  However, by his outline and in his oral submissions today, Mr East abandoned the application so far as it relates to the four year sentence for unlawful wounding, the declaration and the offences which resulted in a total term of three years' imprisonment.

Of course, those sentences must still be looked at for the purpose of considering the totality of the offences for which the 13 year term was imposed as must also the applicant's prior criminal history.  The applicant had a substantial prior criminal history covering three States and numerous offences though none previously involved personal violence. 

An inadequate version of this history was placed before the learned sentencing Judge.  He received evidence only of the applicant's history in Queensland in consequence of which his Honour remarked on the applicant's criminal activity between 1980 and 1985 on the absence of any such activity from then until 1998.  That absence of criminal activity appears to have been because during that period the applicant carried out his criminal activities in New South Wales.  Nevertheless, the offences over the whole of this period were mainly of dishonesty or drug related.  Some resulted in terms of imprisonment although not substantial ones. 

On 21 February 1999 some police, including Constable Brosnan, arrived at the applicant's property having followed a trail of stolen property.  He was naked and asleep and was told to get dressed.  However, he not only dressed but armed himself with an automatic pistol plainly for the purpose of using it, if necessary, to aid his escape and he then escaped.

Constable Brosnan gave chase.  He was unarmed.  After a chase through very rough terrain Constable Brosnan tackled the applicant.  The applicant spun around, pointed the pistol at the constable and told him to turn around and "get down on your knees, cunt".  He then placed the barrel of the pistol in the middle of the Constable's back.  The Constable half turned, grabbed the barrel and pushed it away from him.  However, the gun discharged and the bullet entered the Constable's upper right leg travelling through the knee area and ending in his calf.

They continued to struggle, the applicant holding the officer in a headlock.  Both were holding the gun during which it discharged again twice; fortunately, on neither of these occasions, entering anyone.  During the struggle, which took place in a creek the applicant forced the officer's head under water for a time.  Fortunately, the officer managed to break free and pull the gun away from the applicant.  He attempted to fire it but it did not discharge.

The applicant then attacked the officer with a piece of wood or a rock striking him several times on the head.  During this he managed to take the pistol from the officer and to hit him about the head several more times with the pistol.  He then left the officer wounded and bleeding in the creek and escaped.

There does not seem to be any doubt that the learned sentencing Judge gave considerable discount for the sentences which he would otherwise have imposed for the dishonesty offences because of the applicant's plea of guilty which was to an ex officio indictment.

Before this Court, Mr Byrne, for the respondent, contended correctly, in my view, that the range of imprisonment for these offences might have been up to five or six year's imprisonment but for the pleas of guilty and the savings in Court time which they involved.  The pleas of guilty in the case of these offences were as I mentioned earlier.  In respect of the other offences it was only after indictment and after charges had been reduced.

Nevertheless, it was appropriate in respect of the wounding offences also to impose a sentence less than that which would otherwise have been imposed because of the pleas of guilty and that was what the learned sentencing Judge said he was doing.  He also took into account in imposing those sentences that there had been no prior convictions for offences of personal violence.

The questions are whether, in the circumstances which I have outlined, the 10 year sentence was manifestly excessive; and even if it was, whether in that event it rendered the totality of the 13 years' imprisonment manifestly excessive. Unless an affirmative answer is given to the second of those questions, the application must, in any event, be refused.

Neither party was able to place before this Court any authorities the facts of which were closely comparable to this.  The applicant relied on The Queen and Williams; ex parte Attorney-General, CA 383 of 1987, 21 November 1997, but the circumstances of that case are so remote from this as to make it useless as a comparison.  There the respondent was an 18-year-old Aboriginal youth in the Mornington Island Aboriginal Community who, after consuming an excessive amount of alcohol, behaved irrationally and lashed out at two police officers with a knife.

On an Attorney's appeal a non-custodial sentence was increased to a term of four years' imprisonment with a recommendation, because of the personal circumstances of the respondent, for consideration for parole after serving one year.  These circumstances are, as I said, remote from this case; a criminal apprehended for serious offences of violence, arming himself with a loaded pistol in order to aid his escape and later seriously battering an unarmed police officer.

The cases referred to by the respondent which were The Queen and Ambrose, CA 5 of 1995, 21 March 1995 and The Queen and Lynch; ex parte Attorney-General, CA 132 of 1995,  2 June 1995, are also of little help. 

There are, in my view, three important factual elements here; the first is that the applicant, when he knew or suspected that police had come to apprehend him for offences of dishonesty, cold bloodedly armed himself with an automatic pistol apparently with a view to using to aid his escape.  The second is the extent of the violence of the applicant's final attack on Constable Brosnan, beating him severely and leaving him possibly even to die and the third is that this occurred whilst attempting to escape apprehension by police.

The learned primary Judge, rightly, referred to the seriousness of attacks upon police officers and the importance of Courts upholding their authority in circumstances such as this by imposing substantial deterrent sentences.  Those circumstances, in my view, justified the apparently high sentence of 10 years for the more serious of the wounding offences which, it must be remembered, was a sentence imposed, in effect, for the totality of the wounding offences, the other sentence being imposed concurrently with it.

Moreover, the totality of 13 years for all of these offences was, in my view, plainly within range for the reason I have already mentioned that the sentence imposed for the dishonesty offences was a very low one.  For those reasons I would refuse the application.

THOMAS JA:  I agree.

WHITE J:  I agree.

DAVIES JA:  The application is refused.

‑‑‑‑‑