R v. Rachow

[2008] QCA 300

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rachow [2008] QCA 300

PARTIES:

R
v
RACHOW, James Alfred
(applicant)

FILE NO/S:

CA No 197 of 2008
SC No 43 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

30 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2008

JUDGES:

Keane JA, Jones and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for extension of time granted1.   

Time for the filing of the application for leave to appeal against sentence extended until 30 July 20082.   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where the applicant was convicted upon the verdict of a jury of unlawfully doing grievous bodily harm – where the applicant was sentenced to five and a half years imprisonment with parole eligibility fixed after serving half of the sentence – where the applicant sought to apply for leave to appeal against sentence five weeks after the expiry of the time limitation – where the applicant's explanation for the delay is not particularly satisfactory – where the Crown is in no way prejudiced by the delay – where it is not entirely clear from the material before the Court whether the learned sentencing judge took into account all appropriate circumstances in mitigation when sentencing the applicant – whether the circumstances are such as to warrant the granting of an extension of time within which to apply for leave to appeal against sentence

COUNSEL:

The applicant appeared on his own behalf
G J Cummings for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. KEANE JA: 

   On 22 May 2008 the applicant was convicted upon the verdict of a jury of unlawfully doing grievous bodily harm.  He was sentenced to five and a half years imprisonment.  His parole eligibility date was fixed at 22 February 2011,

   
   

   ie, when he had served half of his sentence.

1. The applicant did not seek to appeal against his sentence until 29 July 2008, that is, about five weeks late.  The applicant now seeks an extension of time within which to seek leave to appeal against his sentence.  Mr Rachow was obliged to represent himself on the hearing of this application.

1. If an extension of time were granted, the applicant would argue that the sentence imposed was outside the proper range, and that the learned sentencing judge did not take into account that he had no relevant criminal history, was unlikely to re-offend and had a full-time job to go to as soon as he is released. 

1. The applicant's explanation for his delay in commencing proceedings to challenge the sentence imposed on him is not particularly satisfactory, but the period of the delay was relatively short, and the Crown is in no way prejudiced by the delay.  In these circumstances, whether or not the application for an extension of time should be granted depends largely on the prospects of the arguments advanced by the applicant being upheld on appeal.

1. Before I discuss the prospects that these arguments would ultimately result in an amelioration of the applicant's sentence, I propose to summarise briefly the circumstances of the applicant's offence.

The circumstances of the offence

1. The applicant was tried for attempted murder as a result of his stabbing the complainant.  The jury acquitted the applicant of the charge of attempted murder, but convicted him of doing grievous bodily harm. 

1. On 18 May 2006 the applicant and the complainant, who was a 22 year old work colleague of the applicant at a work camp, had become embroiled in a heated argument which led to an exchange of blows in which the applicant came off second best with a cut to his cheek.  After the initial fracas had subsided, the complainant returned to his room where he could hear the applicant yelling that he was going to kill him.  The complainant decided to leave the camp site, and was walking towards his car when he saw the applicant running towards him.  The applicant had obtained a knife and attacked the complainant with it, inflicting serious injuries.  The applicant had to be restrained by another person. 

1. Happily, the complainant recovered from his wounds with no long term adverse physical problems.  He had suffered multiple stab wounds to his abdomen, as well as a 10 cm long laceration to his loin and a 7 cm long laceration to his hip.  He would likely have bled to death if he had not received medical treatment, having lost an estimated two litres of blood by the time his condition was stabilised.  These wounds were inflicted with a pocket knife with a 65 to 70 cm blade. 

The sentence 

1. The learned sentencing judge was told that this incident was out of character for the applicant.  A number of references were tendered on his behalf attesting to this.

1. The applicant is presently 42 years of age.  He is married with two dependent children who are seven and eight years old.  His work record is good.  He has no prior convictions for violence. 

1. It appears that a report from a psychiatrist was tendered on the applicant's behalf.  This report apparently suggested that the applicant does not suffer any psychiatric condition and that the applicant had no recollection of the incident after the complainant's initial assault upon him.  This report was not available to the Court on the application for an extension of time.

1. In fixing upon the sentence which was imposed, the learned sentencing judge referred to the serious nature of the offence and the circumstance that the applicant had shown no remorse for his offence.  These were clearly matters of great relevance to the fixing of the applicant's sentence. 

1. The learned sentencing judge referred to the applicant's apparent problem with anger management.  The applicant disputes the accuracy of this observation, but the circumstances of the offence obviously afford some basis for the learned sentencing judge's view.  In terms of the risk of a recurrence of the violent behaviour involved in this offence, though, the applicant's previous record and the psychiatrist's assessment of the applicant are also important.  And, as I have said, the psychiatric report is not presently available to this Court.

1. Another matter in mitigation is the circumstance that it would seem that the applicant did not initiate the physical violence which ultimately led to the offence of present concern.

1. It is not possible for the Court to be confident on the material before it that these circumstances in mitigation were fully taken into account, and there can be no doubt that the Court would be assisted in its consideration of these issues by submissions from Counsel on the applicant's behalf. 

1. In these circumstances, I consider that the appropriate course would be for the Court to grant the extension of time sought by the applicant to enable his application for leave to appeal against sentence to proceed.  That will enable the Court to consider the application for leave to appeal with the benefit of a complete record of the materials relevant to sentence and, hopefully, with the benefit of argument by Counsel briefed on the applicant's behalf by Legal Aid Queensland.

Order

1. I would grant the application for an extension of time and extend the time for the filing of the application for leave to appeal against sentence until 30 July 2008.

1. JONES J:  I agree with the reasons of Keane JA and with the orders he proposes.

1. ATKINSON J:  I agree with the reasons of Keane JA and the orders proposed by his Honour.