R v Ambrose [1995] QCA 122

Court of Appeal (Qld)|1995-03-21|Before: Dr J, Fitzgerald P, Davies JA, Byrne J

The applicant seeks leave to appeal on the ground that the sentence is manifestly excessive in that the sentencing Judge declined to make an early recommendation for parole. The offences occurred on 10 February 1993. The applicant and the complainant had, two days earlier, been involved in an altercation at a hotel which arose out of a dispute over a pool game. The applicant suffered some injuries as a result of that dispute. Then two days later, on 10 February 1993, the applicant and a friend, with whom he was again drinking at the hotel, decided to pay the complainant a visit, and the applicant would seek his revenge.

The applicant went to his own home first where he armed himself with a length of chain attached to a metal padlock. He also armed himself with a Phillips head screwdriver under the belief that the complainant was armed with a firearm. The applicant's friend, who was armed with a 12 inch piece of wood, accompanied him to the address of a Mr Walker where the complainant was staying. As Mr Walker was answering the door, the applicant pushed him aside and confronted the complainant and struck him across the shoulders and back with the chain.

The applicant is 41 years of age and possesses a criminal record extending back to 1978, but apart from two offences of malicious wounding at that time, there is little in his criminal record which is of any present relevance. The sentencing Judge referred to the applicant's problem with alcohol, his need to overcome that problem while in prison, and his potential to be violent on occasions. He made reference to the psychiatric report of Dr J Gomes and stated that although he did not consider the applicant a definite danger to the community, he felt that the Community Corrections Board should examine the applicant's behaviour carefully before they release him into the community.

It is not clear to me that that recommendation was necessarily called for but it is appropriate to have regard to what Dr Gomes said in his report. Reading from pages 7 and 8 of that report, he said:

"In regard to the offences, although he was then intoxicated with alcohol, he was in full control of his behaviour as evidenced by the degree of planning and organisation leading up to them. His brain damage may have made it difficult for him to change his mind and impaired his judgment as demonstrated by his arming himself with a screwdriver in the belief that the victim had a gun, however, he had full knowledge of what he was doing and the ability to know that it was wrong.

He admits that his intention was to assault his victim, but denies any homicidal intent and has no memory of the alleged threats to this effect during the altercation with Mr Pollard. In my opinion, on entering Mr Walker's house, Mr Ambrose was in a vengeful frame of mind and when Mr Pollard called for a gun this changed to a fearful attitude because he thought his life was in danger. He regrets the consequences of his actions for his family and himself but expressed no remorse for his victim who he states injured him two days before the offences."

"With regard to his potential for re-offending in a similar manner, factors that need to be taken into account are his past history of alcohol dependence, violent offending whilst intoxicated, and his brain damage which may be irreversible. Additionally, his childhood experiences of violence may have influenced the development of aggressive tendencies when under stress.

However, I must stress that on the information currently available to me I cannot confirm that violent or impulsive behaviour is an integral facet of his behaviour and personality. I would be happy to review further information if that is available to the Court in witness statements or other depositions.

Factors that would decrease the possibility of re-offending include his past claimed ability to abstain from alcohol for prolonged periods and to maintain long-standing heterosexual relationships and steady work. This has not been confirmed by independent corroborating evidence.

He has some insight into the risks of continuing alcohol abuse and whilst on remand he has worked towards his aim of remaining abstinate by attending Alcoholic Anonymous and alcohol and drug counselling. He also has reasonable plans for altering his social environment in the future to reduce the risk of relapse. His participation in various other courses might also improve his coping skills. "

Essentially, it was submitted for the applicant that his plea of guilty, belated though it was, and his willingness to overcome his problem of alcohol abuse whilst in custody, should be taken into account. Emphasis was given to his efforts towards rehabilitation while he was in custody awaiting sentence and it was submitted that the sentencing Judge failed to give adequate weight to these matters, and in particular his attempt to overcome his alcohol dependency.

It was not submitted that the head sentenced was outside the permissible range and I agree that it was not. Further, I can see no reason whatever why, in these circumstances, the Judge was required to make a recommendation for early consideration for release on parole. The course which he took was, in my opinion, well within his sentencing discretion. Accordingly I would refuse the application.

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