R v Withers

[1992] QCA 452

COURT OF APPEAL [1992] QCA 452

PINCUS JA
McPHERSON JA

de JERSEY J

CA No 276 of 1992

THE QUEEN

v.

ROSS DAVID WITHERS	Applicant
BRISBANE ..DATE 11/11/92
JUDGMENT

1

McPHERSON JA: The applicant for leave to appeal against
sentence in this matter is Ross David Withers. He was
convicted on his own pleas of guilty in the District Court at
Brisbane to charges of having committed a number of offences.
The offences with which he was charged and convicted and the
sentences imposed in respect of each of them were as follows:
Count 1, assault occasioning bodily harm 18 months
imprisonment; count 2, stealing 3 months
imprisonment; count 3, unlawful use of a motor vehicle 8
months imprisonment; count 4, attempted unlawful use of a
motor vehicle 6 months; count 5, which is described in the
notes as "serious assault", 12 months imprisonment.

The sentences were concurrent, so that the effective sentence having regard to the most extensive sentence, imposed was 18 months imprisonment. The applicant, it may be said, had, before sentence was imposed on 25 September 1992, already spent two months in custody on remand. For one month of that period he was in the John Oxley Hospital in circumstances that will become apparent later in these remarks, and a further month represented remand in a prison environment.

I think I should add at this point that a few days after he was convicted and dealt with in the District Court for the charges described, he was prosecuted in the Magistrates Court

2

on 2 further charges arising out of the same incident. He was
admitted to probation for 3 years in respect of those 2
offences.

The circumstances of the offences committed can, I think, be briefly but accurately explained by reference to the notes in the outline of the Crown's submission on this appeal. The offence of assault occasioning bodily harm was committed against a woman aged 43, who was, it appears, the applicant's landlady and a person with whom there had been some sexual intimacy on the part of the applicant. He, on the occasion in question, wished to persuade her to continue the relationship and make it more permanent, whereas she, it seems, wished to end it.

Some kind of difference ensued over this matter. The applicant in the end became provoked by what had happened or by the complainant's attitude to him. He grabbed her throat. He held her tightly. He then produced a knife and stabbed her in the hip. It seems to have been a potato knife, and it resulted in what is described as only a minor laceration. There was a struggle, in the course of which the applicant punched the complainant twice in the face; and he is also said to have attempted to strangle her, although the medical evidence did not disclose any clear signs of this having taken place. She said that he had repeatedly

3

threatened to kill her. Eventually she broke free and escaped.
Apart from the terrifying experience, the only physical injury
she appears to have sustained was the minor laceration to
which I referred.

The applicant left the complainant's house taking with him $39 from her purse. He then took a car which was in the complainant's possession, and had been lent to her by a friend of hers. He drove the vehicle some 500 metres before colliding with a tree. Evidently a truck driver then stopped to assist him, and the applicant thereupon attempted to take his truck. Those 2 offences represent the charges in counts 3 and 4 of unlawful use and attempted unlawful use of a motor vehicle. The truck driver in the latter instance was successful in preventing the applicant from taking his vehicle by removing the keys.

So far as count 5 is concerned, what happened was that after these 2 experiences with motor vehicles, the applicant entered an empty house nearby. The police had been summoned. When they arrived he made threats to kill them and made menacing gestures with a second knife which he had. A constable radioed for assistance. The applicant approached him with the knife raised, and he was eventually persuaded to put the knife down. That incident gave rise to count 5 in the indictment against the accused.

4

It is evident that his behaviour on this occasion was by no means rational, and it is not surprising to learn that he was considerably under the influence of alcohol. His blood alcohol content was subsequently found to be .25. The Judge, rightly in my opinion, treated this series of offences as constituting a single continuing incident and he sentenced the applicant on that basis. He is a man who, at the time of sentencing, was aged some 26 years. He has a prior criminal record, but for the most part it does not include offences of any great seriousness.

There are 2 convictions for driving a motor vehicle while under the influence of liquor or a drug, one of acting in a disorderly manner; and one, which is more serious, of possessing a firearm in a public place. He has a satisfactory work record in the sense that he was a member of the regular Army for some years.

His personal history and background are of importance to the sentencing process in this case. He was an adopted child and he appears to have a problem with excessive consumption of alcohol. It is not always easy to determine the cause of such tendencies, but there is evidence before us that the applicant suffered a quite serious head injury some years ago in a motor cycle accident. It is referred to by Dr Fama in a report that

5

he gave when the applicant was examined by him. After
recording that the applicant himself attributes much of his
personal maladjustment to the injuries received in the motor
cycle accident in 1987, Dr Fama goes on to say that in his
opinion the history of the past head injury could suggest some
underlying vulnerability. He says, "Theoretically residual
brain damage caused by trauma could both predispose to
excessive drinking and aggravate the behavioural effects of
that drinking." He adds that in practice he had no evidence to
support a process of this kind.

The applicant's response to his circumstances once he was arrested, calmed down and found what~ he had done, was one of extreme remorse. He first attempted to commit suicide. It was for that reason that he was kept at the John Oxley Hospital, where he spent a month. Dr Fama has remarked on the efforts of the applicant toward his own rehabilitation since he emerged from custody on remand. He describes the applicant's attempt at rehabilitation as creditable and adds that, if the applicant was to be convicted, a non-custodial sentence would assist in continued social stability. He also says that the risk of resumption of heavy drinking remains significant, but it would not be reduced by or after a term of imprisonment.

The offences involved were certainly serious. There is no point in trying to diminish their significance. The sentence

6

imposed by the Judge was certainly not excessive when viewed
in relation to the circumstances of the particular offence.
However, this is the case where in my view some effort is
called for in order to ensure that the applicant receives
proper treatment that may enable him to overcome his drinking
habit and offset its dire influence upon the head injury if
that is a cause of his problems.

My view is that the Judge perhaps placed too little emphasis in this particular case on the rehabilitative aspect of the sentencing process; and that he ought to have catered for the continuing rehabilitation of the applicant and encouraged his efforts to remove himself from the effects of alcohol abuse by admitting the applicant to a period of probation as part of the full sentence to be imposed.

The applicant was, as I have already said, dealt with in the Magistrates Court shortly after these offences by being admitted to probation for a period of 3 years on terms which included a condition that the applicant undergo such medical, psychiatric or psychological examination and treatment as might be deemed necessary.

Having regard to all the matters to which I have referred, the case is one where I think the proper course would be to reduce the sentence, but add provision for a period of probation

7

coextensive in duration with that already imposed in the
Magistrates Court, in an effort to provide some form of
treatment for this applicant in the expectation, or at any
rate the hope, that his condition may be improved to the point
where there will be no repetition of offences of this kind.

I would therefore grant leave to appeal and allow the appeal; set aside all of the sentences and impose sentences of 6 months imprisonment in respect of each of the 5 counts to which I referred. I would also admit the applicant to probation for a period of 3 years coextensive in duration with the period of probation to which the applicant was admitted on 28 September 1992.

I favour inclusion in that probation order of the same conditions, including that to which I referred specifically as to treatment, that were included in the order made by the stipendiary magistrate on 28 September 1992 in the Cleveland Magistrates Court when the applicant was sentenced there. Those are the orders that I would make in this case.

PINCUS JA: I agree, and I particularly agree with Mr Justice McPherson's view that the applicant is a person who needs treatment for his alcoholism and his psychiatric condition generally. He does not, on the whole of the record, seem to be an utterly worthless person but may be a person who is capable

8

of rehabilitation.

de JERSEY J: I also agree.

PINCUS JA: The order will be as indicated in the reasons of Mr
Justice McPherson.

McPHERSON JA: I should perhaps have said or recorded that your client had given you instructions to consent to an order in those terms. Having said that, it will now be recorded.

9