R v Walton

[1992] QCA 192

COURT OF APPEAL  [1992] QCA 192

FITZGERALD P
McPHERSON JA
DEMACK J

CA NO 75 OF 1992

THE QUEEN

v.

STEPHEN JOHN WALTON  Applicant

BRISBANE

... DATE 3/6/92

JUDGMENT

THE PRESIDENT:  The applicant has applied for leave to appeal against a sentence of imprisonment for eight years imposed on 2 March 1992 in respect of an offence of manslaughter committed by him on 14 April 1990.

The applicant was 42 years old when the offences were committed and 44 years of age when he was sentenced.  Both the applicant and his victim were alcoholic derelicts who had been drinking together on the day of the offence.  The applicant was grossly affected by alcohol at the material time.  He was seen to kick his victim, an elderly man of fragile build, quite a few times round the head using, it seems, his unshod feet.  He was also observed dragging his victim from the park bench where they had been seated on to a muddy river bank.

When police officers arrived the applicant was sitting on the chest of his victim whose head was towards the water's edge.  The applciant had to be led from his victim who died the next day in hospital of massive head injuries which were consistent with his having been struck by a blunt instrument while his head was against a firm object such as a park bench.  The applicant's victim also had rib fractures and bruising to his arms.

The applicant, who has suffered serious psychiatric disorders for many years, had an extensive criminal record commencing in 1965.  However, none of the offences in the decade prior to the offence of manslaughter, for which the applicant was sentenced, were of particular relevance for present purposes.  A psychiatric report indicated that the applciant requires ongoing treatment for chronic paranoid schizophrenia.  The applicant was literally found unfit to plead by the Mental Health Tribunal but following an appeal to the Review Patients Tribunal determined that he was fit to plead.

A period of approximately 22 months elapsed between the time of the offence and the applicant's conviction on 28 February 1992.

During the whole of that period the applciant was in custody.  It is accepted by the respondent in this Court that the period is about the equivalent of four years of a normal sentence.  It is common ground that on that basis the sentence imposed upon the applciant falls to be considered as one of approximately 12 years' imprisonment, which was the basis upon which the sentencing Judge proceeded.  There was no evidence of the circumstances which led up to the applicant's attack on his victim other than that they had been drinking together for some time and no reason emerged for what occurred.  The beating was brutal but there was no weapon involved and there is nothing to indicate that the violence was premeditated or such as that it was likely to cause death.

The respondent did not really dispute that the sentence imposed upon the applciant was at the upper end of the range for such offences.  While that seems to be so it cannot be said to be manifestly excessive when regard is had to the circumstances which attended the sentence imposed in other cases put forward by both parties as comparable.  The application should be refused.

McPHERSON JA:  The sentence is not so high as to warrant intervention.  I agree with what has been said by the President and with the order he prosposes.

DEMACK J:  I agree.

THE PRESIDENT:  The order of the Court tis that the application is refused.

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