R v Pascoe

[1996] QCA 6

IN THE COURT OF APPEAL	[1996] QCA 006
SUPREME COURT OF QUEENSLAND	C.A. No. 459 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Mackenzie J.
[R. v. Pascoe]

T H E Q U E E N

v.

DAVID LESLIE PASCOE (Applicant)

FITZGERALD P.
DAVIES J.A.

MACKENZIE J.

Judgment delivered 09/02/1996

REASONS FOR JUDGMENT - THE COURT

Application for leave to appeal against sentence refused.

CATCHWORDS: SENTENCE - grievous bodily harm - whether 5½ years’

imprisonment manifestly excessive - applicant sought

recommendation for consideration for release on parole after 18-24 months - applicant 25 years of age with extensive criminal history - intoxicated - remorseful and cooperative - mitigating psychiatric considerations

Counsel:	Applicant appeared on his own behalf M. Byrne Q.C. for the Crown
Solicitors:	Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	31 January 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 09/02/1996

This is an application for leave to appeal against a sentence imposed on the applicant in the District Court at Ipswich on 2 November 1995. On 4 August 1995, the applicant was convicted of grievous bodily harm on 2 December 1994, and he was sentenced to imprisonment for five and a half years. He contends that his sentence was manifestly excessive.

The applicant was born on 16 March 1969, and was aged 25 years when he committed the offence and 26 years when he was sentenced. His offending behaviour had commenced early in 1987. He has convictions for breaking, entering and stealing, unlawful use of a motor vehicle, breaking and entering a dwelling house with intent, obscene language, breach of a domestic violence order, failure to provide treatment for an injured animal, two offences of carnal knowledge of a girl under the age of 16 years, two offences of assault occasioning bodily harm (on 13 February and 3 March 1992), wilful and unlawful damage to property in the night-time, and wilful and unlawful damage to property.

On the date of the present offences, the applicant was drinking and playing pool at an hotel when he became angry with another person who was also playing pool. He struck the other person and dragged or threw him out of the hotel and, once in the carpark, punched and kicked him knocking him to the ground. The victim managed to reach his car and was seated in the driver’s seat when the applicant came up to the car, dragged him out and landed a forceful and vicious flying kick to his head, effectively ruining his life. The result of the attack was to leave the victim with a severe closed head injury, significant lung disease, marked weakness in his left side, and a severely impaired mental state and associated behavioural problems.

The applicant appears to have given a fictitious account of events to the consultant psychiatrist who interviewed him for the purpose of placing a report before the sentencing judge. Even though that decreases the value of the report, it provides him with some assistance. As is regrettably common, the applicant came from a broken family and was physically brutalised by his step-father. It seems that the applicant was intoxicated at the time of the offence and, according to the psychiatrist, “... problematic alcohol abuse has continued since age 16 for ten years to date”; apparently, the alcohol mis-use commenced at about the time the applicant left home and was effectively banned from the family home by the step-father. The psychiatrist saw the applicant’s present personality and attitude as shaped by his background, and considered that the tragic damage to the victim was unintended and that the applicant is remorseful, although the trial judge did not share that opinion.

The psychiatrist made a number of other favourable comments concerning the applicant which should also be noted. He said:

“... He has shown signs in recent years of growth and will outgrow the worst of the downside effects by age 30 which is a common view of observers of the client-base of the Courts (the types of people and types of offences are progressively different from age 30 years (approximately) onwards). ...

... The mitigating psychiatric matters that have been outlined in the report and

add up to:

·	anti-sociality of less severe type than apparent;
...
·	the maturing-out already underway;
...
·	it is to be hoped that his strength/energies might be channelled into sufficient rehabilitation to break the unemployment cycle and to educate him (via the Alcohol and Drug Programme and Anger Management Programme) to control himself and his assets with more care;
·	in summary there are still good prognostic signs in this young man.”

The applicant represented himself before this Court, and gave some indication that the psychiatrist’s optimism might be justified. He sought only a modification of his sentence by the addition of a recommendation that he be eligible for consideration for release on parole “... after a period of between 18 months to two (2) years ...”. In support of that submission, he drew our attention to notes which he had obtained from the Legal Aid office (Queensland) Library of a number of decisions involving offences which he contended were comparable in which lesser sentences were imposed.

It cannot be said that the applicant’s point is without any substance. While sentences comparable to his can be found, for example Dickinson (C.A. No. 110 of 1992, unreported judgment dated 22 October 1992), there are other cases in which lower sentences have been imposed, for example Amituanai (C.A. No. 524 of 1994, unreported judgment dated 28 March 1995) and John Frederick Anderson (C.A. No. 434 of 1995, unreported judgment dated 1 February 1996). The sentencing remarks of the District Court Judge in the latter case referred to earlier decisions involving heavier penalties, while the joint judgment of Thomas and White JJ. in Amituanai referred to cases involving even lighter penalties than that which was there held on an Attorney’s appeal not to be manifestly inadequate. Their Honours expressed the view that it was impossible to reconcile all the decisions to which they had referred. Reference to the additional cases brought to our attention by the applicant and the prosecutor in this matter and to those mentioned in the District Court by the Judge who sentenced John Frederick Anderson compounds the difficulty.

In Amituanai, Thomas and White JJ. said that the “mean average sentence” in the decisions to which they referred in which substantial penalties were imposed “is a little over two-and-a-half years with a recommendation for parole after a little over twelve months”. However, such a sentence cannot be accepted as indicative of the appropriate range, or as a starting-point, for sentencing an offender who has committed an offence for which the maximum penalty is 14 years, at least if the victim has been seriously injured. As the applicant here conceded, at least implicitly, the sentence of imprisonment for five and a half years which was imposed on him was not excessive.

In circumstances such as the present, a lower sentence, or a recommendation for early parole, could only be justified by considerations personal to the offender, including his attitude and behaviour subsequent to the offence such as remorse and cooperation. Nothing can be said for the applicant on this basis.

It follows, in our opinion, that his application must be refused.