R v Vachon - [1998] QCA 185

[1998] QCA 185

COURT OF APPEAL
de JERSEY CJ
HELMAN J

CHESTERMAN J

CA No 1 of 1998
THE QUEEN
v.

DUANE ALLEN VACHON Applicant

BRISBANE
..DATE 17/06/98
170698 T2/SJ3 M/T COA143/98

CHESTERMAN J: On 16 December 1997 the applicant pleaded guilty to a total of sixteen counts arising out of the pre-meditated, sustained and degrading attacks on two women who were attacked on separate occasions by the applicant and an accomplice.

Two of the offences to which the applicant pleaded guilty carried a maximum sentence of fourteen years imprisonment. The learned sentencing judge in fact imposed the maximum for those offences and lesser terms of imprisonment for the other offences to be served concurrently.

The applicant seeks leave to appeal against the sentences imposed on the ground that they are manifestly excessive.

The application raises only one point.

When the matter first came before this court on 19 March this year, counsel for the applicant conceded that, but for the one point, no challenge could be mounted to the imposition of the head sentence of fourteen years imprisonment.

The point which the applicant submits makes the sentence manifestly excessive is that, by reason of his health, imprisonment will be a harsher punishment for him than for the average prisoner.

170698 T2/SJ3 M/T COA143/98

The legal principle has been expressed in these terms by
King CJ in R v. Smith (1987) 44 SASR 587 at 589:

"Generally speaking, ill health will be a factor tending

to mitigate punishment only when it appears that
imprisonment will be a greater burden on the
offender by reason of his state of health or when
there is a serious risk of imprisonment having a
gravely adverse effect on the offender's health."

The same point was expressed by the Court of Criminal
Appeal in New South Wales in R v. Vachalec (1981) 1
NSWLR 351 at 353:

"It is obvious that imprisonment will always impose

physical and emotional hardships and deprivation
upon the person imprisoned. But there can be cases
where that hardship and deprivation would be
particularly aggravated by matters subjective to
the prisoner and this is a proper consideration to
be taken into account by a sentencing judge."

It was submitted to the sentencing judge by counsel who
then appeared for the applicant that he:-

.Had suffered three strokes, the most recent of which

occurred while he was held in custody in
October 1996.

.In 1995 was diagnosed as suffering a melanoma of the

right optic nerve as a result of which he lost
sight in that eye. The cancer was treated by
radium and chemotherapy, a side effect of
which was that he suffered dermatitis to his
head and feet.

.Suffers from diabetes which has led to hypertension.

The treatment of his diabetes given in prison was not optimal.

.Was losing the sight in his left eye.
.Had developed malignant tumours in his groin and his

chest which were painful and the first of
which interfered with his mobility so that he

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Vachon

Details

AGLC: R v Vachon [1998] QCA 185
Case: [1998] QCA 185
Decision Date: 17/06/1998

CaseChat Overview and Summary

The Court of Appeal in Queensland heard an application from Duane Allen Vachon, who sought leave to appeal against the sentences imposed for his involvement in pre-meditated attacks on two women. Vachon pleaded guilty to sixteen counts related to these attacks, with the maximum sentence for two of the offences being fourteen years imprisonment. The sentencing judge imposed the maximum sentence for these offences and lesser terms for the others, to be served concurrently. Vachon's application for leave to appeal focused solely on the claim that the sentences were manifestly excessive, particularly due to his health conditions, which he argued would make imprisonment a harsher punishment for him than for the average prisoner.

The central legal issue before the court was whether the sentencing judge erred in not considering Vachon's health conditions as a mitigating factor. Legal precedents established that ill health would only be a factor tending to mitigate punishment if imprisonment would impose a greater burden on the offender by reason of their state of health or if there was a serious risk of imprisonment having a gravely adverse effect on their health. Vachon's counsel had submitted that he suffered from multiple severe health issues, including strokes, melanoma, diabetes, and malignant tumours, which would make imprisonment particularly burdensome. However, a report from the Health Services Co-ordinator of the correctional centre where Vachon was detained indicated that many of these claims were unfounded or exaggerated.

The court examined the evidence and concluded that Vachon's health conditions did not substantiate the claims made. For instance, while Vachon walked with a stick, he was fully mobile and had no residual symptoms from his strokes. His cancers had been successfully treated with no evidence of recurrence, and his hypertension and diabetes were adequately managed. The court found that Vachon's health did not impose aggravated hardships beyond those ordinarily endured by prisoners. Consequently, the sentencing judge's decision not to consider Vachon's health as a mitigating factor was upheld, and the application for leave to appeal was refused.

Orders