Frederick Herbert Plumstead v R [1997] TASSC 158; - TASSC 1997 case summary — Zoe

[37]

"MR MELICK: Your Honour, then there's the other matter of the concern expressed by my client which I can't articulate.

HIS HONOUR: I'm sorry?

MR MELICK: There's the other of the concern expressed by my client in that - and I certainly don't suggest that there's any intention on the Crown and Mr Jacobs has said he will try to avoid this occurring again, but my client is concerned that he's been cross-examined with one hand tied behind his back because he can't say anything to the jury about the fact that he was reasonably compliant in relation to an assault, admitting to an assault because he had a murder charge hanging over his head. And that's -

HIS HONOUR: Well what do you want me to do about that?

MR MELICK: Well I just bring it to the court's attention.

HIS HONOUR: Well I can't - well, I won't comment upon it as to its validity or its strength or any other aspect of it, Mr Melick. I'd just like to know what you want me to do as trial judge in relation to that difficulty.

MR MELICK: As I understand it, Mr Plumstead feels that he might have to mention the murder, I then become very concerned as to the prejudice that will cause, especially Mr Rudman. Now I don't think it's in your Honour's power to order that he doesn't undertake such a course.

HIS HONOUR: No. It might lead to certain undesirable consequences, Mr Melick, but I can't advise your client how he should answer his questions.

MR MELICK: No, no, I don't think -

HIS HONOUR: I would have thought there'd been ample legal advice about the undesirability of mentioning other matters well before this trial commenced.

MR MELICK: Yes. I can assure your Honour there certainly has been. I was instructed to raise the concerns, I can't take them any further, your Honour.

HIS HONOUR: Well. I don't think I can do anything about it, Mr Melick.

MR JACOBS: Could I just say on that, your Honour, certainly it's not my wish to be unfair to Mr Plumstead and I don't mind at all if he speaks to Mr Melick about it now or some other time, I'm happy for a brief adjournment if he would like to, but I assume he's got to consider his position, Mr Plumstead, if he, for example, wants to say 'I was confessing to more than I did because I wanted to be involved with this but not another matter' that they were also interested in that evening, well so be it, it's really up to him.

HIS HONOUR: Yes. Well look, it's not for me to comment on the validity of the proposition that's been and I refrain from doing so."

[55]

"The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court: R v Munday (1981) 2 NSWLR 177 at 178; R v Cartwright (1989) 17 NSWLR 243 at 257 per Hunt and Badgery-Parker, JJ; R v Many (1990) 51 A Crim R 54 at 61-2; R v Maslen & Shaw (1995) 79 A Crim R 199 at 206-7. So it was laid down in R v Dorning (1981) 27 SASR 481 that evidence of a prisoner's marked psychological reaction to imprisonment cannot be used to show that the sentence is manifestly excessive, the significance of that event occurring after sentence being a matter for the Executive, not the appellate court. See further R v O'Shea (1982) 31 SASR 129 and R v Smith (1987) 44 SASR 587.

These authorities recognise, as did two early decisions of the Court of Criminal Appeal in England (R v Green 13 CAR 200 and R v Ferrua 14 CAR 39) that where it is sought to establish that the sentence was excessive evidence of events occurring after sentence may be received by an appellate court in the exercise of its discretion in appropriate circumstances if those events may be said to be relevant, not, so to speak, in themselves, but for the light which they throw on the circumstances which existed at the time of sentence. So in Ferrua evidence from a warder of what had taken place after sentence showed how infirm the prisoner had already been at the time of sentence and in Smith the fresh evidence showed the extent and implications of the AIDS condition from which the appellant was already suffering at the time of sentence. A similar case is R v Bailey (1988) 35 A Crim R 458.

The decision most often cited in Victoria on the reception of evidence of events occurring after sentence in support of an application for leave to appeal is that of the Court of Criminal Appeal in R v Eliasen (1991) 53 A Crim R 391. That too was a case of AIDS, where the applicant was sentenced before the results of testing for AIDS were known and after sentence those results showed that at the time of sentence he was suffering from the disease. Crockett, J, speaking in effect for the Court, endorsed the view taken by the Court of Criminal Appeal of South Australia in Smith that when a sentence is attacked as excessive it is permissible to have regard to events occurring after sentencing for the purpose of showing the true significance of facts which were in existence at the time of sentence. Crockett, J went on to endorse also the view taken in Smith that generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk that imprisonment will have a gravely adverse effect on the offender's health. This has recently been called the second wing of Eliasen: R v Morgan (1996) 87 A Crim R 104 at 107-8 per Southwell, AJA. It need not be mentioned further in this case.

An anticipation of the view now accepted in Victoria will be found in R v Bruzzese (Court of Criminal Appeal, unreported, 8 December 1982), where McInerney, J, with the concurrence of the other members of the Court, spoke of an appellate court's looking at matters which properly raise questions canvassed before the sentencing judge and concerning which possibilities have become actualities subsequent to the date of sentence, an approach which the Court of Criminal Appeal was disposed to endorse in R v Prideaux (1988) 36 A Crim R 114. In that case at 116 Crockett, ACJ referred to s568(4) of the Crimes Act as in effect tying the sentence to the facts existing at the date of sentence. R v Prior [1966] VicRp 64; (1966) VR 459 was a case where the evidence was of events occurring after sentence but that evidence was relied on as bearing on the applicant's prospects of rehabilitation. That evidence may therefore be said to have thrown light on the circumstances which existed at the time of sentence. It is also possible to support on this ground the reception of evidence of restitution after sentence in R v Martin (Court of Criminal Appeal, unreported, 26 March 1990), a case in which the trial judge had evidently considered that there was no prospect of restitution."

[59]

"Frederick Herbert Plumstead, you have been convicted of committing an unlawful act intended to cause bodily harm. Implicit in this verdict is a finding by the jury that you intended to cause grievous bodily harm to Paul Atkins at the time that you assaulted him with a pick axe handle, striking him about the head and back, in August 1995. I accept that you were acting under the disinhibiting affect of alcohol and that you had been harbouring a smouldering resentment against Atkins for a long time as a result of your belief that he had stolen your property whilst ostensibly looking after your interests while you were in prison. However, you are no stranger to violence and I regard it as particularly relevant, despite submissions to the contrary by your counsel, that on 17 February 1993 you were sentenced by another judge of this Court to a term of imprisonment in respect of causing grievous bodily harm and assault with a pick axe handle at your son's home at Dodges Ferry in May 1992. On the same day as you were sentenced for those crimes, you were also sentenced for assaulting a male prostitute with a rifle and damaging property. You were sentenced to a total of two years' imprisonment for all these offences. The present crime was committed within a reasonably short period of your discharge from prison for these earlier crimes. Plainly the deterrent effect intended by that earlier sentence has not been achieved.

You involved both your wife and your friend Rudman in your quest for revenge against Atkins and as a consequence, both of them have been convicted of assault for their part in aiding and abetting you and Rudman also faces another very grave charge arising out of the same series of events. Whether or not Atkins stole from you, you were not entitled to take the law into your own hands.

You are 47 years of age, and in light of your prior history, including the offences to which I have already referred, a gaol sentence is plainly required. I am aware that you were remanded in custody for some 2.5 months after being charged in August last year and I have taken that period into account in assessing the sentence which I am about to pronounce."

Parties

Applicant/Plaintiff:

# Frederick Herbert Plumstead

Respondent/Defendant:

R \[1997\] TASSC 158;

Cases Cited (16)

Frederick Herbert Plumstead v R [1997] TASSC 158; (1997) 7 Tas R 206 (22 December 1997)

Criminal Law - Appeal and new trial and enquiry after conviction - Appeal against sentence - Appeal by convicted person - Powers of Appellate Court - New evidence on appeal - Applicant suffering severe bereavement subsequent to sentence - Whether new sentence ought to be passed. R v Maniadis [1996] QCA 242; [1997] 1 Qd R 593; R v Babic (unreported Victorian Court of Appeal, 27 May 1997), considered. (Aust Dig Criminal Law [1008]).

Subsequently, in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 609 - 610, Gibbs CJ remarked of the words in the Queensland equivalent section to s402(4) that:

Counsel for the appellant also submitted that the last portion of the passage reproduced in ground 1, being the portion which refers to Mr Jacobs, counsel who appeared for the Crown on the trial, offended the following principle laid down in McKinney v R (1990 - [1991] HCA 6; 1991) 171 CLR 468 at 476 - 477:

Ground 2 concerns the relevance of the appellant's state of sobriety to proof of the specific intent required. Clearly, the crime charged is a crime of specific intent and self-induced intoxication is relevant to the issue of whether an accused person actually formed the specific intent required to commit the crime charged (Criminal Code, s17(2) and Palmer v R [1985] TASSC 53; [1985] Tas R 138). The respondent submitted that the evidence was such that it was insufficient so as to require a direction under s17(2) because that provision is, as was said by Nettlefold J in Palmer v R (supra) at 146, a "blind drunk" provision and there was insufficient evidence to admit to the possibility that the appellant was "blind drunk" at any relevant time.

Even if the learned trial judge expressed opinions on matters of fact which were favourable to the prosecution case, it does not necessarily follow that the summing-up was unbalanced. With respect, I adopt what was said by the Judicial Committee of the Privy Council in Broadhurst v R [1964] AC 441 at 464:

(1997) 7 Tas R 206

(1984) 154 CLR 606

(1986) 44 SASR 587

(1986) 160 CLR 392

(1981) 2 NSWLR 177

(1989) 17 NSWLR 243

(1981) 27 SASR 481

(1982) 31 SASR 129

(1987) 44 SASR 587

(1992) 6 WAR 195

Frederick Herbert Plumstead v R [1997] TASSC 158;

At a glance

Court

Decision date

Before

Catchwords

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Catchwords

Judgment (62 paragraphs)

Parties

Cases Cited (16)

Frederick Herbert Plumstead v R [1997] TASSC 158; (1997) 7 Tas R 206 (22 December 1997)