R v Dempsey[2001] QCA 141

COURT OF APPEAL

McPHERSON JA

WHITE J

HOLMES J

CA No 356 of 2000

THE QUEEN

v.

LIONEL PATRICK DEMPSEYAppellant

BRISBANE

DATE 17/04/2001

JUDGMENT

WHITE J:  Mr Dempsey appears on his own behalf in his appeal against conviction and his application for leave to appeal against sentence.

When he made his submissions, he focused almost completely upon his application for leave to appeal against sentence but in the course of discussion he was able to make some further reference to the grounds as set out in his grounds of appeal as to why the conviction was good for an appeal.

The appellant was convicted after a trial of one count of grievous bodily harm with intent to do grievous bodily harm on 22 November 2000 in the District Court at Mount Isa.  He was sentenced to a term of imprisonment of seven years on 27 November and 20 days presentence custody were declared as time already served.

The circumstances of the offence were that the complainant was the appellant's ex de facto wife and the mother of two of his children.  On the date of the offence, 20 November 1998, he had visited the complainant's home in Mount Isa, it would appear, to spend some time visiting his daughters.

He went into the lounge room of the home and made some comment to the complainant's young son, David, who was aged nine.  As a result of this comment, there was an argument between himself and the complainant during which she hit the appellant on the face.  He then got up, grabbed her by the hair, commenced hitting her and the complainant said that he said that he was going to kill her. 

He forced her into the kitchen and whilst he was holding her head down he took a knife from the kitchen drawer and stabbed her six times in the back and in the side.  He continued to attack the complainant who then had sought shelter under the ironing board in the kitchen and he inflicted two further wounds to her shoulder.  There was also a wound inflicted to her left hand as she attempted to defend herself.  The attack came to an end when the complainant kneed the appellant in the groin.

As a result of the wounds from the knife, both the complainant's lungs collapsed and she spent three days in intensive care at the hospital and a further two weeks in hospital following that.

In the appellant's written grounds of appeal, he said that the learned trial Judge erred in failing to direct the jury in respect of the circumstantial nature of the Crown case, that he had failed to direct the jury adequately or at all with respect to the drawing of inferences and that the learned trial Judge had failed to correct a submission made to the jury by the Prosecutor to the effect that the defence case was based on an appeal for sympathy for the appellant.

There really is nothing to be said about the first two grounds.  This was a case in which there was direct evidence of a serious assault upon the complainant, and in quite lengthy passages to the jury his Honour explained what intent meant and how they should go about seeking to ascertain what the appellant's intent was at the time when he attacked the complainant.

There was an issue of alcohol raised on the evidence in this case and his Honour, in careful directions, explained to the jury how that may affect their approach to the issue of whether or not the appellant had the requisite intent to do grievous bodily harm when he attacked the complainant.

Accordingly, in my view, there was no basis upon which his Honour was called to tell the jury about circumstantial evidence or, indeed, the drawing of inferences.  As his Honour concluded, to do so would have unnecessarily complicated what was a very straightforward issue for the jury.

As to the last ground, that the Prosecutor was suggesting to the jury that the effect of the defence case was based on an appeal for sympathy, this really did not call for any response from his Honour.  It was what might be called an adversarial flourish which is sometimes engaged in by counsel but certainly did not need the intervention of the trial Judge.

The applicant for leave to appeal against sentence had a serious criminal history but of particular significance was a conviction in 1995 for assault occasioning bodily harm committed on another female with whom he had been in a relationship.

Before us, the applicant urged a recommendation for early parole.  His reason for seeking this mitigation of his sentence was that he has a one year old son (whose mother is different from the complainant in this matter) who is seriously afflicted with asthma. 

He tells us that child has now been abandoned by his mother.  When the applicant appeared before the learned sentencing Judge he raised his concerns about this child with his Honour at record 138.  He explained to his Honour that the child's mother had a drinking problem and he said he did not know how long she was going to last, as he put it, "off the grog".

Since that time he has learnt that the child's mother has abandoned him and his son is now being looked after by sisters whom he says similarly abuse alcohol and he is deeply concerned about the welfare of his son.  This child has been brought to him on visiting days in the Townsville prison where he is presently incarcerated and he notes that the child has sores on his body and shows all the signs of neglect. 

He is particularly concerned that if the child has an asthma attack whilst those who are looking after him have been drinking there may be tragic consequences if they are unable to deal with his predicament at the time.

In view of the very serious nature of the assault upon the complainant in this case, the use of the knife and the fact, of course, that without immediate medical treatment she was at real risk of death and in view of a previous conviction for an attack upon a female, it seems to me that the sentence of seven years was not manifestly excessive. 

There were no other factors which would cause his Honour to make a recommendation for parole eligibility earlier than the statutory scheme and although he, no doubt, was conscious of the difficulties for the applicant's small child, nonetheless there was no proper recommendation that could have been made which could have accommodated those concerns.

It seems to me that there is nothing which can be done as far as this Court is concerned about the applicant's concerns save to request counsel for the respondent to have the transcript of these proceedings drawn to the attention of the relevant government department that looks after such children wherein the names of the sisters of the applicant are made clear as well as their addresses should they be of the view that something should be done.

Accordingly I would dismiss the appeal against conviction and would refuse to grant leave to appeal against the sentence.

McPHERSON JA:  I agree.

HOLMES J:  I agree.

McPHERSON JA:  The order is that the appeal against conviction is dismissed.  The application for leave to appeal against sentence is refused. 

Mr Heaton, could you take steps to see that the welfare of Nanke Dempsey is referred to the Department of Family Services or other appropriate authority for inquiry?

MR HEATON:  Certainly.

McPHERSON JA:  Thank you.