R v Pesnak & Anor

Case [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…

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AGLC
R v Pesnak & Anor [2000] QCA 245
Case
[2000] QCA 245
Decision Date

CaseChat Overview and Summary

In the case of R v Pesnak & Anor, the applicants, Pesnak and another, appealed against their sentences imposed following convictions for manslaughter by criminal negligence. The deceased, under their care, died after a period of fasting as part of their adherence to the Breatharianism lifestyle. The applicants did not seek medical attention for the deceased, leading to their criminal convictions. The legal issues before the court were whether the sentences imposed were manifestly excessive and whether the remorse shown by the applicants should be considered given that they had been tried. The court had to weigh the nature of the offence, the applicants' adherence to a controversial lifestyle, and their lack of action in seeking medical assistance against the severity of the sentences.

The court considered the principles of sentencing for manslaughter by criminal negligence and the particular circumstances of the case. It examined the degree of negligence involved and the extent of the applicants' remorse. The court recognised that the applicants' adherence to Breatharianism and their failure to seek medical help were significant factors in the severity of the sentences. However, it also acknowledged the applicants' expressions of remorse and the impact of the loss on their lives. The court concluded that the sentences were indeed manifestly excessive given the circumstances and the applicants' remorse.

Accordingly, the appeals were allowed, and the sentences were vacated. The male applicant was sentenced to four years imprisonment with a recommendation for parole eligibility after serving 18 months, and the female applicant was sentenced to two years imprisonment with a recommendation for parole eligibility after serving nine months. The court also declared that the seven days spent in pre-sentence custody be deemed time already served under the sentences. This outcome reflects a balanced consideration of the severity of the offence, the applicants' lifestyle choices, and their remorse.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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