R v Walsh - [2006] VSCA 87

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 201 of 2005

THE QUEEN
	v.
JOAN MARY WALSH

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JUDGES:	BUCHANAN, VINCENT and NEAVE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 April 2006
DATE OF JUDGMENT:	5 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 87

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CRIMINAL LAW – Sentence – Attempted murder – Unprovoked attack on victim unknown to appellant – Appellant suffering depressive illness – No apparent link between depressive illness and offence – Relevance of general and specific deterrence – use of sentencing statistics in fixing term of imprisonment – Term of 11 years with non-parole period of 8 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr T. Kassimatis	Paul Vale Criminal Law

THE QUEEN v. JOAN MARY WALSH

NEAVE, J.A.:

Background

The appellant pleaded guilty to a charge of attempted murder. She was granted leave by a single judge of this Court to appeal against a sentence of eleven years imprisonment, with a non-parole period of eight years.

The appellant stabbed the victim, Karen Emmerzael, in an unprovoked attack. The victim was seriously injured. She has been left with scarring on her face and has limited capacity to use her hands (particularly the left one). She suffers pain from these injuries and from another stab wound in her back. She has on-going psychological problems as a result of the stabbing.

The offence occurred in very unusual circumstances. The victim was a security guard at premises of the Commonwealth Bank in Batman Street, Melbourne. The appellant had worked at these premises when she was employed by the Bank. The appellant went to her former workplace at 1.00 a.m and attracted the victim’s attention. She told the victim that her car had broken down and asked to use the phone.

After the appellant was admitted to the premises by the victim she asked to use the toilet and was allowed to do so. While the victim was escorting her back to the foyer, the appellant stabbed her from behind with a kitchen knife that she had brought with her. After the victim managed to escape, the appellant drove home, washed the knife and replaced it in the drip tray on the sink. The clothes she had been wearing were covered with blood. She hid them in a plastic bag in the garage.

The police came to her house shortly afterwards. The appellant initially denied the offence and claimed to have been home all night, but in the police interview she admitted to stabbing the victim several times. She also said that if the victim had not escaped she did not doubt that she would have killed her. The appellant was completely unable to explain why she was carrying a knife with her and why she attacked the victim. There was evidence that she had visited the same premises about a week earlier and had unsuccessfully tried to persuade a…

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 Walsh

Details

AGLC: R v Walsh [2006] VSCA 87
Case: [2006] VSCA 87
Decision Date: 5 April 2006

CaseChat Overview and Summary

The appellant, Walsh, was convicted of attempted murder following an unprovoked attack on an individual he did not know. The case was heard in the High Court of Australia, which was tasked with reviewing the sentence imposed by the lower courts. The primary legal issue before the court was whether the sentence of 11 years imprisonment with a non-parole period of 8 years was excessive in light of the circumstances of the offence and the appellant's mental health. The court was also required to consider the principles of general and specific deterrence, as well as the relevance of sentencing statistics in determining the appropriate term of imprisonment.

The court found that the sentence was not manifestly excessive. It acknowledged the severity of the offence and the need to protect the community from the appellant's actions. However, the court also considered the appellant's depressive illness, which did not appear to have any link to the offence. In determining the appropriate sentence, the court weighed the principles of general and specific deterrence, and found that the term of imprisonment was not disproportionate to the gravity of the offence. Additionally, the court considered the use of sentencing statistics in fixing the term of imprisonment, and found that the sentence was within the range of sentences typically imposed for similar offences. Ultimately, the court held that the sentence of 11 years with a non-parole period of 8 years was not manifestly excessive.

The final orders of the court were to affirm the sentence imposed by the lower courts. The court found that the sentence was appropriate in light of the circumstances of the offence and the appellant's mental health. The court also emphasised the importance of considering the principles of general and specific deterrence, as well as the use of sentencing statistics, in determining the appropriate term of imprisonment. The court held that the sentence was not manifestly excessive, and accordingly affirmed the sentence imposed by the lower courts.

Orders