Court of Appeal (Qld)|2006-07-28|Before: McMurdo P, Jerrard JA and Jones JSeparate reasons, for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as, to the orders made, Jones J dissenting, in part
McMurdo P, Jerrard JA and Jones JSeparate reasons, for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as, to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED– GENERALLY – applicantpleaded guilty to unlawful killing, rape androbbery with circumstances of aggravation – Mental Health Court ruledthat applicantsuffered from diminished responsibility when he killed thedeceased – applicant was sentenced to 13 years imprisonment formanslaughter, six years imprisonment for rape and six years imprisonment forrobbery and declared a serious violent offender –sentences to be servedconcurrently – whether trial judge erred in concluding that applicantwould be guilty of murder butfor his diminished responsibility – whethertrial judge erred in concluding that a felony murder was as serious, or moreseriousthan, murder with intent to kill or do grievous bodily harm –whether trial judge erred in assessing the future danger posed
by the applicant
to the community and the impact of that assessment on the sentencing process
– whether sentence was manifestly
excessive
Criminal Code 1899 (Qld), s 302(1)(a), s 302(1)(b)Mental
Health Act 2000 (Qld), Pt 3 of Ch 3Penalties and Sentences
Act 1992 (Qld), s 9(4)R v Duong, Nguyen, Bui and Quoc
[2002] QCA 151
CA Nos 343 of 2001, 338 of 2001, 336 of 2001, 344 of 2001, 30
April 2002, consideredR v Milini [2001] QCA 424
CA No 190 of 2001, 9
October 2001, consideredR v Neumann
ex parte A-G (Qld) [2005] QCA 362
CA No 186 of 2005, 30 September 2005, distinguishedR v Schuurs
[2000] QCA 72
CA No 403 of 1999, 15 March 2000, consideredVeen
v The Queen [No. 2] [1988] HCA 14
(1988) 164 CLR 465, considered
Judgment (30 paragraphs)
[1]
The applicant was commenced on antipsychotic medication in January 2004 but by April 2004 declined to continue with it saying he felt better without it and that he did not accept the diagnosis of paranoid schizophrenia.[17]
[2]
[49] Dr Woolridge, visiting psychiatrist to the Correctional Centre, where the applicant is detained, has seen the applicant on nine occasions both for treatment and for the purposes of providing reports. In the latest of his reports tendered before the learned sentencing judge, Dr Woolridge expressed his opinion in the following terms:-
[3]
"The recurrence of Mr Beacham's symptoms after approximately nine months off medication makes a diagnosis of schizophrenia more likely. However I retain reservations about this diagnosis. These reservations are based on the absence of any reported behavioural change during the period leading up to the recurrence of symptoms and the intactness of Mr Beacham's personality. I think only the passage of time will clarify Mr Beacham's diagnosis."[18]
[4]
[50] Consistent with the approach adopted by the High Court in Veen v The Queen [No. 2][19] and the Court of Appeal in R v Neumann;ex parte A-G (Qld)[20] it was necessary for his Honour to make an assessment not only of how mental impairment affected the level of the applicant's criminality but also "how any impairment should affect the sentencing process".[21] In Veen [No. 2] the majority decision includes the following passage:-
[5]
"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."[22]
[6]
Referring to the decision in Veen [No.1] the judgment continues:-
[7]
"But all justices other than Murphy J accepted that, in a case where a verdict of manslaughter is returned on the ground of diminished responsibility, the risk that the offender's mental abnormality may lead him to kill again is a material factor in determining the sentence to be imposed."[23]
[8]
[51] In Neumann, Fryberg J (then sitting as a member of the Court of Appeal, with McPherson JA agreeing) said at [30]):-
[9]
"In my judgment it cannot be doubted that a sentencing judge in Queensland may now take the protection of the community into account in a case involving violence. He or she may do so not only in determining whether a sentence of imprisonment should be imposed but also in determining how much imprisonment to impose. However it must be remembered that protection of the community is not a mantra to be chanted automatically in every case of violence. There must be evidence from which a threat to the community can be inferred. Such an inference is not to be drawn without a foundation of substance. This is particularly the case when consideration is given to the question whether the threat will exist at the end of a lengthy determinate sentence. Account must be taken of what is likely to occur during the course of the sentence, for example attendance at anger management programs and sexual offender treatment programs."
[10]
[52] The learned sentencing judge was required to sentence the applicant having regard to s 9(4) of the Act. He said:-
[11]
"In the present case, section 9(4) of the Penalties and Sentences Act requires that in sentencing you, I must have regard primarily to a number of factors, the first two of which are the risk of physical harm to any members of the community if a custodial sentence were not imposed, and the need to protect any members of the community from that risk. That is the second edge of the sword to which Justice Brennan referred. There is, in my judgment, no doubt that you constitute a very considerable threat to the community. I reject your counsel's submission that there is no positive evidence of future danger.
The problem in sentencing you is that nothing has happened to alleviate that threat. In contrast to Neumann, no involuntary detention order has been made in relation to you. As your counsel pointed out there is a mechanism in existence under the Mental Health Act, but it seems to me that, by itself, is not enough to enable me to be satisfied that I have performed the duty which the law casts upon me in sentencing you. It is not my position to defer the task or to hand it on to some other authority. I am obliged to take the protection of the community into account, and I must do so on the basis of the threat as it now stands and the evidence as it now is."[24]
[12]
[53] Though his Honour's regard for paragraphs (a) and (b) necessarily ended once he determined to impose a term of imprisonment[25] it was highly relevant in this case to consider the future risk to the community.
[13]
[54] By reason of the requirement that the applicant serve 80 per cent of his sentence in actual custody, the period for review whilst on parole is relatively short. Whilst in custody and whilst at large on parole there are ample means of assessing the appellant's mental state and if necessary having him classified under the Mental Health Act 2000. When the term of imprisonment expires the applicant will be in the community unsupervised. The Court has to assess the risk to the community by having regard to the circumstances prevailing at the time of sentencing. A relevant fact is the provision of Mental Health services in the community and the court's assessment of their effectiveness in meeting the risk as perceived by the Court. The only protection provided by the present regime under the Mental Health Act at the end of the applicant's term of imprisonment, unless he is further detained, is limited to his being made an involuntary patient pursuant to Chapter 4 of the Mental Health Act.
[14]
[55] The applicant's pre-offence history shows that he had enforced hospitalisation and treatment between November and December 2000 and was treated again at the Cairns Community Mental Health Service between February and July 2001 a few months prior to his commission of this offence. He was at the time also subject to a probation order made on 19 July 2001. He is a non-complying patient with respect to taking medication, a feature which occurred again whilst he was in custody. Dr Kingswell assesses him as being at "greater risk of recidivism than most".[26] In the latest of the many reports from psychiatrists, there are details of the applicant's continuing delusional episodes which caused Dr Woolridge to suggest that a diagnosis of schizophrenia was more likely. Such a diagnosis coupled with the applicant's life history of poor self control, and the risk of not taking medication, caused his Honour to identify a need for a "firm determination of [his] status and for [his] habituation into a socially acceptable mode of behaviour".[27] To allow time for this to occur was a proper consideration in assessing the term of imprisonment. This consideration justifies a sentence at the higher end of the sentencing range.
[15]
[56] Whilst it is accepted, as Mr Durward SC submits, that many long term prisoners have mental health problems arising from personal deprivations and drug abuse, not often is there available such direct and frank evidence of risk to the community. By adopting the approach he did, the learned sentencing judge was simply exposing his reasoning for the sentence imposed. I do not regard the approach as constituting an error.
[16]
[57] Having regard to all these considerations it cannot, in my view, be said that the sentence imposed by the learned sentencing judge was outside the range of proper sentencing discretion. I would therefore dismiss the application.
[29] Against that background the learned sentencing judge, in assessing the overall criminality of Mr Beacham's combination of offences, described them as an appalling display of thuggery and predatory behaviour. The judge referred to the planning involved in the offences, to Mr Philpot being only a minor drug trafficker who would be helpless in the face of Mr Beacham's superior strength, weight and height; and the judge concluded that if sentence was being imposed after a contested trial, ignoring all discounting factors, the range of sentence would be in the order of 15 to 18 years imprisonment. The judge reached that conclusion, in part, by reference to the sentence imposed after a plea - 12 years imprisonment - in the matter of R v Duong, Nguyen, Bui and Quoc [2002] QCA 151.[7] I respectfully agree with that assessment of the range of sentence after a trial, not challenged on the application by Mr Durward SC for Mr Beacham, and accepted by Ms Keegan for the Director. Orthodox sentencing practice in this State allows a reduction of an otherwise appropriate sentence of imprisonment, by between one-quarter and one-third, to reflect an appropriately early plea of guilty. On that basis the appropriate range for the manslaughter sentence here, after an early indication of a plea, would have been 10 to 12 years.
[39] Had Mr Beacham's delusional beliefs responded to the medication he took for a relatively short period in custody, and if he had both taken medication as prescribed and remained free of the psychosis for at least two years prior to being sentenced, then his diminished responsibility when he offended would have justified a very substantial reduction in the otherwise appropriate sentence, such as the sentence this Court imposed in R v Milini [2001] QCA 424.[11] That reduction would reflect both his diminished responsibility and the considerable lessening in the risk he would pose on release. Whatever that risk will be, the mental health system provides some protection, and the risk is not shown to be so significant as to warrant what is essentially preventative detention.
[40] While Mr Beacham's moral culpability for his offences is significantly reduced because of his substantially reduced capacity to know that he ought not to act as he did, and while it is accordingly inappropriate that his sentence should be used as a deterrent to others, the need to protect the community is just as relevant when sentencing Mr Beacham as when sentencing other deprived and disadvantaged people who have suffered the effects of significant drug abuse and who have committed violent, dangerous, and dishonest acts. Two relevant cases to which Mr Durward referred this Court support the (11 year) sentence first suggested by the sentencing judge. One matter is the decision of this Court in R v Schuurs [2000] QCA 72.[12] That offender was sentenced for manslaughter after a trial. He was one of three people who went armed to the home of a drug associate, to demand payment of a debt. The victim, on seeing them arrive, armed himself with two knives, and Mr Schuurs called upon one of the accomplices to shoot the victim in the leg. The accomplice fired, on Mr Schuurs' instruction, but shot the victim in the chest, and he died. Mr Schuurs had supplied the rifle and the ammunition, and the jury returned a verdict of manslaughter. This Court's judgment records that Mr Schuurs had shown no remorse, and described it as a serious example of the offence of manslaughter, while upholding the sentence of 10 years imprisonment. In that offender's favour was that he was not the person who fired the weapon, and this Court's judgment does not refer to his having any prior convictions. Then there is the 12 year sentence imposed in the case of Duong described earlier.