R v Dempsey [2001] QCA 141

Court of Appeal (Qld)|2001-04-17|Before: Pherson JA, White J, Holmes J

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: 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?

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