R v Pesnak & Anor

[2000] QCA 245

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pesnak & Anor [2000] QCA 245

PARTIES:

R
v
PESNAK, Jim Vadim
(applicant)
PESNAK, Eugenia
(applicant)

FILE NO/S:

CA No 411 of 1999
CA No 416 of 1999
SC No 75 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 June 2000

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2000

JUDGES:

McMurdo P, Davies JA, Mackenzie J
Judgment of the Court

ORDER:

Applications for leave to appeal against sentence granted.  Appeals allowed. Vacate the sentences imposed below.  The male applicant is sentenced to four years imprisonment with a recommendation that he be considered eligible for release on parole after serving 18 months.  The female applicant is sentenced to two years imprisonment with a recommendation that she be considered eligible for release on parole after serving nine months.  In each case it is declared that seven days spent in pre-sentence custody between 19 November 1999 and 26 November 1999 be deemed time already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – conviction for manslaughter – criminal negligence – applicants adherents to Breatharianism – deceased in applicants’ care – deceased died after fast – applicants failed to seek medical attention - whether sentence manifestly excessive – whether applicants’ remorse relevant where there has been a trial

R v Clissett CA (Vic) No 117 of 1997, 15 October 1997, distinguished
R v Hall [1999] NSWSC 738, considered
R v Hile [1999] QCA 17, CA No 341 of 1998, 5 February 1999, compared
R v Sogunro [1999] 2 Cr App R (S) 89, distinguished
R v Stone; R v Dobinson [1977] 1 QB 354, considered
R v Streatfield (1991) 53 ACrimR 320, compared

R v Vollmer & Ors Supreme Court of Victoria, CCA 95 of 1995, 7 September 1995, compared

COUNSEL:

A J Glynn SC for the applicants
A J Rafter for the respondent

SOLICITORS:

Robertson O'Gorman for the applicants
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  The applicants, husband and wife, were convicted of manslaughter after a trial.  The male applicant was sentenced to six years imprisonment; the female applicant was sentenced to three years imprisonment.  They claim their sentences were manifestly excessive.

1. The case is most unusual. The applicants and the deceased, who were all tertiary educated, shared the spiritual beliefs of Breatharianism. Breatharians believe that the atmosphere contains an energy force, prana, which is scientifically undetectable but which replaces the need for normal minimal requirements of food and drink.

1. The deceased, a 53 year old woman, voluntarily commenced a 21 day spiritual cleansing program conducted by the male applicant, in which he was assisted by the female applicant. The male applicant claimed to have successfully completed a similar…