R v Sielaff

[1995] QCA 606

[1995] QCA 606

COURT OF APPEAL

DAVIES JA
DOWSETT J
LEE J

CA No 349 of 1995

THE QUEEN

v.

LAINE DESMOND SIELAFF                   Applicant

BRISBANE

..DATE 24/10/95

JUDGMENT

DAVIES JA:  This is an application for extension of time within which to apply for leave to appeal against sentence.  The application is only one day out of time.  However, there is an additional question of course in cases such as this as to whether there are any real prospects of success on appeal.  In those circumstances, we reserved our decision on the question of extension of time to permit argument upon the application for leave to appeal.

The applicant was convicted and sentenced on 14 June this year on two counts: armed robbery and grievous bodily harm with intent.  He was sentenced in respect of those offences to an effective term of 10 years imprisonment with a recommendation that he be eligible for parole after serving three years of that term. 

The circumstances of the offence are extremely serious.  The complainant was a 30 year old mentally retarded deaf man who was obviously the worse for drink, standing outside the Royal Hotel at Caboolture.  The applicant was driving past with two women.  One of them said to him, "Let's roll him".  They drove around the block and then came back and picked up the complainant, took him to a remote area in the State Forest and then set about beating him very badly, including - and this was the worst part of the offence - beating him about the head and body with an iron bar, this being done initially by one of the women, Barnett, but subsequently  and substantially by the applicant.  In the end they took only a belt and wallet and little or no money was taken.

The complainant was left very seriously injured and, for all the applicant knew, dead.  He had a compound left occiputal skull fracture and another fracture at the base of his skull with a 10 centimetre laceration, a laceration under his eye, and large bruises over his back and body.

The applicant and Barnett returned to the forest the next morning and observed the complainant still motionless and huddled by the side of the track appearing to be dead, his body was bruised and bloodied, there was dried blood about his face and in his hat.  They then visited friends and discussed the matter, not with a view to helping the complainant if he was alive but rather to, as it was said, brag about the occasion.  The only concern which was expressed by the applicant was concern that the complainant might still be alive with the consequence that the applicant might be identified.

They in fact made a third trip back to the State Forest, this time disguised in a uniform which they thought might make them look less suspicious and, to their surprise, found that the complainant's body was not still there.  He had in fact apparently crawled to a house where an ambulance was called and he ended up, of course, in hospital.  The applicant's subsequent conduct is no more commendable.  He did not assist the police in their initial investigation and in fact threatened certain friends whom he had told of his exploit that they "were dead" if they informed the police and told the woman, West, another person to whom the story had been told, that if she disclosed anything she would be "shot in the cunt".

There are therefore in my view no redeeming features of the circumstances of the offences or of those which occurred subsequently.  The only things which can be said, in my view, in the applicant's favour are his youth.  He is now only 20 years of age, having been born on 21 October 1974.  And he was only 18 at the time of the offences.  He had no criminal convictions at the time and had only one subsequent conviction for assault.  Those, however, are the only things that can be said, in my view, in the applicant's favour.

At the sentence hearing before the learned sentencing Judge, a schedule of previous sentences was tendered and in the light of that the submission which was made on his behalf before the learned sentencing Judge was that the range was seven to 10 years.  The submission was made that an appropriate sentence in view of the applicant's youth should be eight years, a sentence which Mr Rafter commended to us as the appropriate sentence and it was submitted below that there should have been a recommendation for parole after three years; the recommendation which was in fact made in this case.

In my view notwithstanding the applicant's youth and the absence of prior convictions the circumstances of this case, namely the callous disregard for the complainant's life and the brutality of the assault upon him, justified the sentence which the learned sentencing Judge imposed.  For those reasons I would refuse the application for an extension of time within which to appeal.

DOWSETT J:  I agree.

LEE J:  I agree.

DAVIES JA:  The order is as I have indicated.

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