R v Warmisham

[2008] QCA 223

[2008] QCA 223

COURT OF APPEAL

HOLMES JA
WILSON J
DUTNEY J

CA No 160 of 2008

THE QUEEN

v

WILLIAM WARMISHAM  Applicant

BRISBANE

DATE 07/08/08

JUDGMENT

APPLICANT conducted his own case

MR M J COPLEY (instructed by the Director of Public Prosecutions (Queensland) for the respondent Crown

HOLMES JA:  I'll ask Justice Wilson to give her reasons.

WILSON J:  On 7 April 2003, the applicant pleaded guilty to one charge of arson.  He was sentenced to 3 years' imprisonment suspended after 9 months for an operational period of three years.

On 9 June 2008, more than 5 years later, he filed an application for an extension of time within which to appeal against his conviction and a notice of appeal against his conviction.

The ground of his application for an extension of time is stated as follows:  "The verdict was unsafe and unsatisfactory.  Insufficient weight given to mental condition.  I was told that I did not suffer from a mental condition and I was not assessed.  I was subsequently assessed as having a brain injury."

By Section 671 of the Criminal Code, a notice of appeal against conviction is to be given within one calendar month of the date of conviction, but the time for appeal may be extended by the Court.  The Court's discretion to extend the time for appeal is unfettered.  It will consider whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  Relevant factors include the length of the delay, whether the prospective appeal would be a viable one, prejudice to the respondent, whether the application for an extension of time is made for some collateral and improper purpose and is thus an abuse of process, and whether the applicant made a deliberate decision not to appeal and changed his mind only after serving the bulk of his sentence.  See R v Tait [1999] 2 Qd R 667 at 668 and R v DAQ [2008] QCA 75 at paragraphs 8 to 11.

In the present case, the application has been made more than 5 years after the conviction and more than 2 years after the applicant completed serving his sentence.  The material contains no explanation for the delay.  It may be a fair interpretation of the oral submissions that the applicant was saying that his mental condition has been such that he has been unable to attend to this earlier; that may be being unduly charitable.

The Crown case against the applicant was a strong one.  His wife left him about 4 months before the offence.  He remained in the former matrimonial home and over the ensuing months telephoned her threatening to kill himself by pouring petrol over himself and setting himself alight.  On the day of the offence, he left several telephone messages on his wife's answering service saying that he had found a way to end his life.  In the first, he said he was going to take a bottle of Rivotril, an anti-psychotic drug, and inject air into his veins and to set her clothes alight in the house with flammable liquid.  In the second, he said he had carried out step 1 by taking the tablets.  In the third, he said he had set the clothes alight and that she would have nothing.
He also rang a friend and told him he was going to take his own life and burn the house down.  He had previously spoken about injecting air into his veins.  In a later call, he said the house was on fire.

After the house had started to burn, a neighbour saw the applicant running toward the back fence.  He tripped on a garden bed, hit his head, and fell.  When the fire brigade and police arrived, he was up against the rear fence.  He had a laceration over one of his eyes.  His speech was slurred and he smelled faintly of alcohol.  There was an empty syringe beside him.

Scientific examination of the house revealed that the fire had been started by setting alight two piles of clothing in the main bedroom.  No flammable liquids were detected in a sample of clothing tested, but it was possible that flammable liquid used to ignite the fire had been completely consumed by the fire.  The damage to the house and contents was quantified at $85,000.  The applicant made admissions to a fire officer and a loss adjuster.  Further, he told this Court today that he remembered throwing the match.

The applicant contends that insufficient weight was given to his mental condition and that accordingly the verdict was unsafe and unsatisfactory.  In his material he said that he had subsequently been assessed as having a brain injury, but he did not produce any medical evidence that that was so.  He told this Court in oral submissions that he had suffered a brain injury in 1967 and been assessed as such by the Department of Veterans Affairs.  He also said that he had been assessed by the Integrated Mental Health Service, as I understood his submissions since the sentence was imposed, and that he had seen a psychiatrist yesterday for the first time.  There is no report before the Court from any of these sources.

The sentencing Judge said "You suffer from psychiatric problems.  There is a report from a psychologist that indicates these problems."  The psychologist who gave that report was one Neil Crossland, who assisted the applicant in the present application by being present with him to give him moral support.

In his report that was before the sentencing Judge, Mr Crossland said that he thought that the applicant had been suffering from PTSD over a long period and that at the time of the offending he was experiencing an acute escalation of symptom severity.  He said in the report, "In my opinion Bill's impulsive act of setting fire to his wife's clothes was motivated by revenge and emotional pain.  His inability to prevent the fire from spreading can be attributed to extreme psychological stress.  This stress has its roots in a lifelong series of traumatic experiences involving his childhood, schooling, military career, marriage and work life, a condition that has been unrecognised up until now."

There was no evidence before the sentencing Judge of deprivation of any of the mental capacities referred to in section 26 of the Criminal Code, that is, the capacity to understand what he was doing, the capacity to control his actions or the capacity to know that he ought not do what he did.  Nor was there any evidence before the sentencing Judge to suggest that he was otherwise than fit to plead.  There is still no evidence before the Court to suggest incapacity at the time of the offence or unfitness to plead.

The applicant has also complained to this Court about his legal representation before the sentencing Judge.  I understood him to complain that his legal representation had changed more than once.  He told this Court that he was not taken through the Prosecution statements other than his ex-wife's statement, which he disputed at the time.  But of course, by his plea, he accepted that he had committed the offence with which he was charged.

In all of the circumstances, it seems to me that the appeal has no prospect of success.

I would dismiss the application.

HOLMES JA:  I agree.

DUTNEY J:  I agree.

HOLMES JA:  The application for an extension of time within which to appeal is dismissed.

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