Court of Appeal (Qld)|2000-03-24|Before: McMurdo, P, Pincus JA, Thomas JA, Separate reasons for judgment of each member of the Court, McMurdo P and Pincus, JA concurring as to the orders made, Thomas JA dissenting
McMurdo, P, Pincus JA, Thomas JA, Separate reasons for judgment of each member of the Court
Catchwords
CRIMINAL
LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES
AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING
DANGER TO LIFE OR BODILY
Source
Original judgment source is linked above.
Catchwords
CRIMINALLAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCESAGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSINGDANGER TO LIFE OR BODILYHARM - SENTENCINGCRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL ANDNEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTEDPERSONS -APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCESAGAINST THE PERSON - GENERALLY - convictionsfor attempted murder and grievousbodily harm with intent to do grievous bodily harm - whether sentences imposedwere manifestlyexcessive - consideration of youth, lack of prior convictions,prior good character, cooperation with authorities and early pleaof guilty -whether too much weight was placed on sexuality of the applicants and theirinvolvement in Satanism - effect of seriousviolent offender declaration onlength of sentence, particularly where operation of Part 9A Penalties and
Sentences Act 1992 makes declaration mandatory
Corrective Services Act 1988 (Qld), s 166.
Penalties and Sentences Act 1992 (Qld), s 9(1)(e), s 9(4), s 9(4)(h), s
13, s 161B(3)
R v Byers CA No 430 of 1994, 28 February 1995, discussed
R v Bojovic CA No 4 of 1997, 9 May 1997, considered
R v Booth [1999] QCA 100
CA No 338 of 1998, 30 March 1999,
considered
R v Campbell CA No 187 of 1994, 8 August 1994, discussed
R v Corrigan [1993] QCA 417
[1994] 2 QdR 415, applied
R v Daley [1999] QCA 332
CA No 201 of 1999, 18 August 1999,
discussed
R v Doyle [1996] 1 QdR 407, discussed
R v Griffin & Dunkerton [1999] QCA 71
CA No 309, 318, 352 of 1998,
19 March 1999, considered
R v Hardie [1999] QCA 352
CA No 178 of 1999, 24 August 1999,
discussed
R v Hewitt CA No 405 of 1993, 3 December 1993, discussed
R v Leishman CA No 418 of 1994, 9 December 1994, discussed
R v Lepp CA No 229 of 1998, 4 December 1998, discussed
R v Lovell [1998] QCA 36
[1999] 2 QdR 79, applied
R v Macaulay CA No 540 of 1994, 11 April 1995, discussed
R v MacCartney [1999] QCA 238
CA No 13 of 1999, 22 June 1999,
considered
R v Nguyen [1999] QCA 258
CA No 151 of 1999, 9 July 1999, considered
R v Robinson CA No 72 of 1998, 26 May 1998, considered
R v Sielaff CA No 349 of 1995, 24 October 1995, discussed
R v Staines [1999] QCA 311
CA No 462 of 1998, 10 August 1999,
considered
R v Streeton CA No 99 of 1997, 4 June 1997, discussed
Judgment (99 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM - SENTENCING
[2]
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 - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - GENERALLY - convictions for attempted murder and grievous bodily harm with intent to do grievous bodily harm - whether sentences imposed were manifestly excessive - consideration of youth, lack of prior convictions, prior good character, cooperation with authorities and early plea of guilty - whether too much weight was placed on sexuality of the applicants and their involvement in Satanism - effect of serious violent offender declaration on length of sentence, particularly where operation of Part 9A Penalties and Sentences Act1992 makes declaration mandatory
R v Macaulay CA No 540 of 1994, 11 April 1995, discussed
[18]
R v MacCartney[1999] QCA 238; CA No 13 of 1999, 22 June 1999, considered
[19]
R v Nguyen[1999] QCA 258; CA No 151 of 1999, 9 July 1999, considered
[20]
R v Robinson CA No 72 of 1998, 26 May 1998, considered
[21]
R v Sielaff CA No 349 of 1995, 24 October 1995, discussed
[22]
R v Staines[1999] QCA 311; CA No 462 of 1998, 10 August 1999, considered
[23]
R v Streeton CA No 99 of 1997, 4 June 1997, discussed
[24]
Director of Public Prosecutions (Queensland) for respondent
[25]
[1] McMURDO P: The applicant Bird pleaded guilty to attempted murder and was sentenced to 20 years imprisonment. The applicant Schipper pleaded guilty to grievous bodily harm with intent and was sentenced to 11 years imprisonment. They each apply for leave to appeal against their sentences.
[26]
[2] The applicants met and became friends in Year 10 at a Sunshine Coast school. Bird travelled to Melbourne with her family at the end of 1996 and in early 1998 Schipper joined her. During their relationship they dabbled with Satanic beliefs, although Bird appeared more deeply involved than Schipper. Material found amongst their belongings at the time of arrest demonstrated a sexually orientated Satanic lexicon in which Bird was the Antichrist, directly beneath Satan; Schipper was third in the hierarchy as Satiryn, the Angel of Sorrow.
[27]
[3] They left Melbourne on 22 June 1998 and reached Noosa two days later with neither money nor accommodation. A bus passenger overheard them discussing a mutual suicide pact, which included throwing themselves off the cliffs in the Noosa National Park and barbecuing someone like marshmallow. Although Bird's writings demonstrated that she fantasised about cruelly killing others, there was no plan to ritualistically kill or torture the victim in this case.
[28]
[4] They decided to get money by robbing someone in the Noosa National Park. The victim was a vulnerable elderly woman walking alone in daylight hours through the tranquillity and beauty of the Tanglewood Track. They taunted her before their attack and enjoyed knowing that she was frightened of them. Bird first attacked the victim with a knife, intending to kill her. She slashed the full circumference of the victim's throat and inflicted additional knife wounds to the cheek, right shoulder and two deep penetrating wounds to the back, one of which penetrated the right lung.
[29]
[5] Schipper then joined in the attack, not intending to kill the victim but to rob her and cause her grievous bodily harm. Schipper tried to knock the victim out by hitting her with considerable force about 20 times with heavy nunchakus.
[30]
[6] They stole a bum bag containing $1.00 and a few items of no particular value, but later buried all the stolen items, including the $1.00, nearby. They left the victim not caring whether she was alive or dead; indeed, Bird had hoped to kill her. It was no fault of these applicants that the victim survived.
[31]
[7] They avoided helicopters as they walked to Noosa where they got rid of their clothes and sold a Walkman to raise money. They travelled to Maroochydore by bus and then to Gympie where they were spoken to by police before continuing north to Hervey Bay where they were interviewed eight days later. The applicants described their actions to police with chilling frankness in videotaped interviews, parts of which I have viewed; their immaturity was plain; Bird seemed to have a nervous and inappropriate laugh; Schipper was tearful at times as she described the horrific crime. Bird complained that the knife was not sharp enough to effect her intention of killing and described stabbing the victim in her side as "probably the best part of the whole thing". She said, "I tried to stab her in the throat to stop her from screaming, but the knife was a really shit knife, which I should have known, and it bent, so then that was a bit difficult. So I decided to cut her and that's when she started screaming, 'What are you doing? You can't chop off my head.' Sorry, my friend and I had jokes about that. I actually wasn't trying to chop off her head." When told the victim had received about 22 stab wounds to her body, she responded, "That's pretty cool - well, that would be probably about right, the frustration was in ... she wouldn't die and I knew - I knew - I knew what was wrong was because I - you know, with the - frigging knife was too blunt and it was too bendy."
[32]
[8] Schipper told police she watched Bird attack the woman with the knife: "Sarah said she stabbed her in the side and it went right in really easily and I went, 'oh, that's nice.' " This comment was made by Schipper with irony.
[33]
[9] No medical evidence of the victim's injuries was placed before the court but in a tendered statement the victim described her 26 physical injuries. These included nunchucka slashes to her skull, a pierced right lung and a slashed throat which damaged her vocal cords, requiring surgery and leaving her with voice tremors; muscle damage to her neck affected her balance for some weeks; she required very extensive medical and paramedical treatment; she continues to suffer unpleasant sensations in the back of her head and her concentration and coordination have been impaired; everyday physical activities are now more difficult; slashed nerves and muscles in her face have required expensive surgery which has not prevented a residual tic in her right cheek; she will require five plastic surgery procedures over the next two years to improve her neck, throat and facial scars; injuries to her fingers have affected her fine motor skills.
[34]
[10] Not unexpectedly, her psychological scars are even more severe. She has suffered post-traumatic stress disorder and has bravely fought against depression and anxiety in her efforts at rehabilitation. One of her counsellors noted, "I have been impressed by her inner strength, determination and fortitude, and it is to her credit she has recovered as much as she has."
[35]
[11] Crimes such as these take their toll, not only on the victim but also on the victim's family. This is vividly demonstrated by statements tendered by the victim's daughter and partner.
[36]
[12] Neither applicant had any prior convictions. Bird was 17 years and 9 months and Schipper 18 years and 1 month at the time of these offences. They cooperated with police and made frightening and brutally frank admissions. They pleaded guilty at an early stage and the committal proceedings were conducted without cross-examination. Favourable references suggesting the offence was out of character were tendered on Schipper's behalf. Schipper has had death threats in jail and is on anti-depressants and tranquillisers. Bird's counsel at sentence submitted she had become a Christian and was now genuinely remorseful; the friendship with Schipper has ended and she plans to undertake studies in prison to assist her rehabilitation.
[37]
[13] The strange circumstances of the offence and the interviews with police suggest that psychiatric reports may have been of benefit to the court in the difficult task of sentencing in this case, but none were tendered or ordered by the court.
[38]
[14] This Court has the task of reviewing the exercise of the learned sentencing judge's discretion in what was a most difficult case. On the one hand, the applicants committed a heinous and evil crime; on the other, they were only 17-18 years old; they admitted their guilt, cooperated with the authorities and entered timely pleas of guilty. Whilst there is no question that lengthy terms of imprisonment must be imposed to punish, to deter, to denounce and to protect the community, some consideration must still be given to their youth, prospects of rehabilitation and other mitigating circumstances.
[39]
[15] Mr Moynihan, who appeared for Bird in this application, submitted that the learned sentencing judge placed too much weight on the lesbian relationship between the applicants and the fact that they held some Satanic ideations or precepts.
[40]
[16] In her sentencing remarks her Honour set out the shocking facts of the attack on the victim, the injuries suffered by the victim and sentencing principles before noting: "These appalling offences were committed in the context of a lesbian relationship between you and a shared commitment to a Satanic precept." The learned trial judge next referred to material, tendered during the sentencing proceedings without objection or contest, which demonstrated that the applicants joined in a Satanic ideation which her Honour briefly outlined. Each applicant had signed a Satanism confirmation certificate welcoming Satiryn (Schipper) as Bird's "Satanic, sadistic, sexual ritual partner". The judge noted that the applicants' interest in Satanism extended over some years and quoted from some of the tendered material, concluding: "It was a vile and malevolent creed." Her Honour commented that Bird's involvement with the Satanic precept was considerably greater than that of Schipper, acknowledging the submission that Bird had now forsaken that creed and become a Christian, adding:
[41]
"Be that as it may, the nature and circumstances of these offences, including the fact that you both embraced the Satanic precept, leave me in no doubt that substantial custodial terms are necessary to protect members of the community from the risk of physical harm."
[42]
[17] There is nothing in her Honour's sentencing remarks to suggest that a heavier sentence was imposed because of the applicants' sexuality; it was merely a relevant factor explaining the relationship between the applicants leading up to the commission of the offences. Although there were many serious factors warranting a substantial and salutary penalty, the applicants' sexuality was not amongst them. The applicants' involvement in the Satanic ideation was a relevant fact in comprehending this horrific crime and was rightly viewed with concern by the learned sentencing judge when considering the protection of members of the community from the risk of physical harm.
[43]
[18] Mrs McGinness, who appeared for Schipper, submitted that it was wrong of the sentencing judge to take into account as a circumstance of aggravation Schipper's involvement in Satanism. Her Honour noted that Schipper's involvement in Satanism was less than that of Bird and that Schipper pleaded guilty on the basis that she was involved in a plan to rob the victim and then to do grievous bodily harm with intent. Her Honour was entitled to consider that Schipper's involvement in Satanism demonstrated anti-social beliefs and explained her involvement in such a wicked offence; it was a relevant concern when considering the protection of the public.[1]
[44]
[19] Mrs McGinness joined with Mr Moynihan in submitting that where Part 9A of the Penalties and Sentences Act1992 ("the Act") has mandatory operation removing the entitlement to remissions and requiring an offender to serve 80 per cent of the sentence before becoming eligible for parole,[2] a sentencing judge must sentence at the lower end of the range: see R v Bojovic,[3]R v MacCartney[4] and R v Staines.[5] Those cases involved the exercise of a discretion as to whether to declare an offender to be convicted of a serious violent offence under s 161B(3) of the Act. Counsel submitted the principle was equally applicable to sentences where Part 9A has mandatory operation and does not have the effect of artificially reducing an otherwise appropriate sentence to defeat the purpose of the legislature, an approach condemned in R v Booth,[6]R v Robinson[7] and R v Nguyen[8] and R v Griffin and Dunkerton.[9] The former line of cases relied on by the applicants do not require a sentencing judge to sentence at the lower end of the range where a declaration is made that the conviction is of a serious violent offence, either discretionarily or mandatorily. The effect of any declaration is simply that it is one of many competing factors for the sentencing judge to consider in fixing a sentence within the appropriate range; this is not to design a sentence to avoid or reduce the effect of , an approach forbidden by the latter line of cases. The question for this Court is whether the sentences imposed were outside the appropriate range.
[45]
[20] Thankfully and unsurprisingly, there are no closely comparable sentences. Some assistance can nonetheless be gained by reviewing other sentences for like offences. In respect of Bird, the following cases have some relevance. In R v Macaulay,[10] Macaulay was 20 years of age and was convicted after a thirteen day trial of armed robbery with violence, attempted murder and other lesser offences. He was sentenced to 20 and 25 years imprisonment respectively and to concurrent lesser sentences on the remaining charges; because he was already serving a term of imprisonment, the effective sentence was a further 21 years imprisonment. Macaulay had escaped from prison with another. They stalked and robbed a shopping centre security guard of $70,000. A concerned citizen pursued them, ramming his car into the getaway car. Macaulay fired three shots at close range, hitting the citizen. The reasons do not reveal the extent or permanency of his injuries. Macaulay had a prior conviction for a similar armed robbery. Macaulay's sentence was varied only by adding a recommendation for parole eligibility after 10 years. Macaulay was older than the applicant Bird, had a serious prior criminal history, was an escapee at the time of the offences and did not plead guilty.
[46]
[21] In R v Leishman,[11] Leishman pleaded guilty to two counts of attempted murder, two counts of rape, two counts of indecent assault and one count of burglary. He was sentenced to life imprisonment for attempted murder and to lesser periods of imprisonment in respect of the remaining charges. He broke into the home of a woman with whom he had been in a de facto relationship and forced her to perform oral sex on a visiting school girl; he then raped them both before attempting to kill them with a hammer, causing skull fractures to both women. The victims suffered permanent injuries which included, in one case, partial loss of vision affecting both eyes and, in the other, headaches, hearing impairment and dizziness. Leishman was 27 and had previous convictions for breaking and entering, motor vehicle offences and minor drug offences. The court concluded that the sentence of life imprisonment was not outside a proper range. Leishman was older than Bird, had prior convictions; committed the offences upon two victims and the attempted murder offences were coupled with burglary and serious sexual offences.
[47]
[22] In R v Streeton,[12] Streeton, who was 27, was convicted and sentenced to life imprisonment after a trial of attempted murder of a six year old boy who was unknown to him. He purchased fuel and a cigarette lighter, poured the petrol over an innocent child playing tiggy with other Grade 1 children in his school playground and set the child alight. He then surrendered to police. The child suffered 70% full thickness burns to his body, arms, legs and scalp and was probably only saved from death by the quick action of the Deputy Principal. Streeton said he chose a child "because that would hurt the parents more than if I sort of attacked an adult ... also I know I'm not very physically strong and I sort of wanted to succeed." This Court noted the penalty was appropriate for the heinous crime. Streeton, like Bird, had no previous convictions but was 10 years older than Bird, and did not plead guilty.
[48]
[23] In R v Byers,[13] Byers was convicted after a trial of attempted murder of her husband, shooting him in the head with a .22 calibre rifle to benefit from a number of insurance policies she had taken out in respect of him. She was sentenced to 12 years imprisonment with a recommendation for parole after three years. The Attorney-General appealed only in respect of the parole recommendation which this Court removed. Pincus JA and Thomas JA noted in their joint reasons:
[49]
"A recent decision of this Court (R v Hewitt, CA No 405 of 1993, 3.12.93) suggests a range of between 12 and 18 years imprisonment for offences of this type and seriousness. The head sentence may therefore be thought to lie at the lower end of an appropriate range."
[50]
Byers, unlike Bird, went to trial and, although the reasons do not mention her age, it seems she must have been older than Bird.
[51]
[24] In R v Hewitt,[14] Hewitt pleaded guilty on the morning of his trial to attempted murder and was sentenced to 15 years imprisonment. He had no previous convictions. He was an in-patient at St Vincent's Hospital in Toowoomba where the complainant, a 49 year old woman, worked as a domestic. The complainant was kind to him and he sought to continue the relationship after his discharge. She tried to discourage him but he visited at her home bringing coffee and sugar, later returning to put strychnine in her sugar bowl. The next day she put some of the poisoned sugar in her coffee, noticed its bitter taste and spat it out. She told her daughter, who was fortunately staying with her. She convulsed and her daughter immediately phoned an ambulance. The complainant suffered excruciating pain over a considerable period and was in intensive care for three days. She was lucky to survive, made a full physical recovery but remained psychologically traumatised. The offence was a carefully planned premeditated attempt to kill. The sentence was found not to be manifestly excessive. Although his age does not appear from the reasons, it seems Hewitt must have been older than Bird, and his plea of guilty was not an early one.
[52]
[25] In R v Hardie,[15] Hardie was convicted after a trial of attempted murder. Hardie went to the victim's home and obtained a knife from the kitchen, threatening first to stab her in the eye and then to kill her. He forced the complainant to leave the house and, renewing his threat to kill her, grabbed her and cut her throat from left to right and stabbed her in the back of the head and in the back left shoulder area. After the offence, he boasted about his actions; when he heard she was not dead he showed no remorse and threatened to finish her off. He was sentenced to 14 years imprisonment. He was intoxicated, of below average intelligence, emotionally unstable and had a drug dependence problem. The sentence imposed of 14 years imprisonment was held not to be manifestly excessive, despite the application of Part 9A of the Penalties & Sentences Act 1992. Hardie was 23 years of age, 5 years older than Bird, had a significant criminal history and did not have the benefit of a guilty plea.
[53]
[26] In R v Lepp,[16] the applicant was convicted after a trial of attempted murder and was sentenced to 16 years imprisonment. The complainant was an officer with the Department of Families Youth and Community Care with responsibility for the applicant's case management. Lepp had an extensive criminal history for offences of dishonesty and violence. She had an irrational, unjustified grievance with the complainant and frequently threatened to kill her, even after Lepp was no longer answerable to her. She threatened to burn the complainant's office and to one day kill her. On the day of the offence she said she was going to kill someone and that there were "a couple of people that she had to fix up". She accosted the complainant at the Ipswich Court House with a carving knife taken from her handbag, placing the knife on the complainant's chest. A policeman told her to drop the knife. She then twice stabbed the complainant with considerable force below the right breast, penetrating the chest wall, fracturing two ribs and penetrating the lung. The complainant fell to the ground and Lepp shouted, "I hope you die. I'm coming back to finish you off." Muir J, with whom McPherson JA agreed, noted:
[54]
"... Lepp's conduct lacks some of the features which tend to mark the worst acts of attempted murder such as a sustained and remorseless attempt at taking a victim's life, the existence of a motive for personal profit or gain and the display of deliberate cruelty. In imposing the sentence, the learned trial judge appears to have been particularly influenced by two factors -
[55]
(a) his conclusion that the appellant 'is a grave threat to society'; and
[56]
(b) the desirability of providing 'protection for the public'.
[57]
[20] There is ample evidence to support the conclusion that the appellant, whilst her present mental condition remains, poses a continuing threat to [the complainant] and other members of society."
[58]
The sentence was found not to be manifestly excessive, although Pincus JA noted it was not a light one and Muir J (McPherson JA agreeing) noted that: "... it may be thought to be at the high end of the spectrum."
[59]
[27] Bird's conduct contained those features noted by Muir J as marking the worst acts of attempted murder. On the other hand, unlike Lepp, Bird had no prior convictions and entered a timely plea of guilty.
[60]
[28] In Schipper's application, the following cases are of some assistance in determining the proper sentencing range. In R v Sielaff,[17] Sielaff and others picked up a drunken mentally retarded deaf man outside an hotel at Caboolture and took him by car to a remote area where they badly beat him about the head and body with an iron bar and stole his property. He was seriously injured and left for dead. He suffered a compound left occipital skull fracture and another fracture at the base of the skull with a 10 cm laceration, a laceration under his eye and large bruises over his back and body. Sielaff revisited the scene to observe the effect of his crime on the unconscious complainant, not to assist him. He and his co-offenders bragged to friends about their actions and made a third trip to the crime scene, this time to find the body gone. The victim had crawled away for assistance. The offenders threatened acquaintances with death or violence if information was disclosed to police. Sielaff was 18 at the time of the offence, had no prior convictions, although he had a subsequent conviction for assault, and pleaded guilty. This Court did not interfere with his sentence of 10 years imprisonment with a recommendation for parole after three years. Schipper's case is in many ways comparable to Sielaff.
[61]
[29] In R v Doyle,[18] Doyle and another attempted to escape from custody by hitting a prison officer on the back of the head, knocking him unconscious. Doyle then attacked a second prison officer with iron bars, causing serious injuries, including grossly defective vision, orthopaedic disabilities, and other disastrous consequences. The attack was so savage that he was fortunate to survive. Doyle pleaded guilty to assault occasioning bodily harm whilst armed and in company in respect of the first prison officer and grievous bodily harm with intent in respect of the second prison officer. In respect of the second offence, he was sentenced to 12 years imprisonment to be served cumulatively with a sentence of three years imprisonment in respect of the first offence. Doyle was 20 years of age and had a significant criminal history. This Court noted the offences demonstrated cold blooded brutality and did not interfere with the effective sentence of 15 years imprisonment. Doyle's offence was even more serious than Schipper's as it was combined with another offence in the course of an attempted escape from custody. Schipper was younger than Doyle and had no prior convictions.
[62]
[30] In R v Campbell,[19] the applicant pleaded guilty to one count of attempted rape and one count of grievous bodily harm with intent and was sentenced to 11 years and 13 years respectively with a recommendation for parole after six years. The offence was described as "particularly vicious and serious". Around daybreak, a young Swiss tourist, holidaying at Point Lookout on Stradbroke Island, went onto the rocks to view the sunrise. The applicant attacked her, armed with a knife or a barbecue fork. He savagely beat her about the head. She suffered a major injury to her cheek and jaw penetrating through the skin to the depth of the jawbone; she permanently lost her sense of smell; her teeth were smashed, requiring over $10,000 in corrective treatment; her earrings were ripped out of her ear lobes which were severely damaged. Extensive blood was found in the region of her vagina; she was a 17 year old virgin and her hymen had been ruptured and penetrated by an unidentified object. Traces of the complainant's blood were found on the applicant's penis when he was apprehended some hours later. Campbell was tying and gagging the complainant when a passerby raised the alarm. Campbell was 48 years old; had no prior convictions and was a sergeant in the RAAF; reports tendered suggested he was suffering from chronic depression. He pleaded guilty a few days before trial, after the complainant had travelled from Switzerland to give evidence. This Court noted that the sentence was not manifestly excessive when regard was had to the recommendation for eligibility for parole. Campbell's offence was even more serious than Schipper's as it was coupled with rape; unlike Campbell, Schipper was youthful and pleaded guilty at an earlier stage.
[63]
[31] In R v Daley,[20] after committing a housebreaking and stealing and whilst heavily intoxicated, Daley broke into the victim's home at night and viciously assaulted her with a rock which he brought for that purpose. A nearby resident investigated the noise and was assaulted by Daley as he fled. The victim was found naked except for a pair of panties hanging around her right ankle. She suffered severe head injuries, including deep lacerations to the scalp and forehead, facial lacerations, a broken nose, gross swelling to the left eye, a fractured eye socket and jaw, dental injuries including the loss of a tooth, and a compound fracture of a finger. She was hospitalised for over a week and needed extensive reconstructive dental surgery. She was left with permanent and prominent scarring to the face, ongoing loss of sensation to parts of her face, head and fingers and psychological problems. Daley was 24 years old and had prior convictions for drink driving, assault and possession of property suspected of being stolen. He was sentenced to 8 years imprisonment for grievous bodily harm with intent and was declared to be a serious violent offender; lesser penalties were imposed in respect of the remaining offences. This Court declined to interfere with the sentence. Schipper was younger than Daley, had no prior convictions and had committed a single offence.
[64]
[32] Determining the appropriate sentence in this case was a difficult task for the learned sentencing judge who, I note, gave careful consideration to the appropriate sentence, reserved her decision for a week and delivered detailed and careful reasons. The same difficulties which were faced by her Honour confront this Court.
[65]
[33] It is impossible not to be affected and repulsed by the wickedness of this savage and revolting crime. Bird's violent actions, her merciless intention to kill and her subsequent chilling lack of remorse demonstrate greater moral culpability than that of many murderers. Whilst there is no doubt that the applicants must each serve substantial terms of imprisonment, this Court must also recognise that, through no fault of the applicants, the victim survived and is courageously and doggedly restoring her life. Although the Satanic ideations of the applicants, especially Bird, give cause for concern as to the applicants' genuine rehabilitation and whether the public will need protection from them in the future, this was not a case where there was a premeditated plan to ritualistically and satanically kill; the plan was to rob and during the course of the robbery Bird determined to kill the victim and Schipper to do her grievous bodily harm. The courts have long recognised that youth and the absence of prior convictions are significant mitigating factors; this remains so, despite the 1997 amendments to the Act: see R v Lovell[21] and s 9(4) (especially s 9(4)(h)) of the Act). Early cooperation with the authorities and a timely plea of guilty are also important mitigating factors: see s 13 of the Act and R v Corrigan.[22]
[66]
[34] A careful and objective review of the cases set out earlier in these reasons[23] persuades me that the sentence imposed upon Bird was outside the appropriate range when proper consideration is given to her admissions to police, hand-up committal avoiding the necessity of cross-examination of the complainant, early plea, youth and lack of prior convictions. Although it is easy to be cynical of such claims, the court was told at sentence that she had become a Christian and was genuinely remorseful for her actions. It cannot be said there is no prospect of her rehabilitation. I would substitute a sentence of imprisonment of 16 years for the 20 years imposed at first instance. The declaration that the conviction is of a serious violent offence must remain.
[67]
[35] Similarly in Schipper's application a review of the cases set out earlier in these reasons[24] demonstrates that insufficient weight was given by the learned judge to Schipper's youth, lack of prior convictions, prior good character, cooperation with the authorities and early plea of guilty and that the sentence imposed was outside the appropriate range. I would substitute a sentence of 9 years imprisonment; the declaration that the conviction is of a serious violent offence should remain.
[68]
[36] I would grant the applications for leave to appeal against sentence, allow the appeals and vary the sentences, in Bird's case by substituting 16 years imprisonment instead of 20 years imprisonment, and in Schipper's case, by substituting 9 years imprisonment instead of 11 years imprisonment. The sentences at first instance are otherwise confirmed.
[69]
[37] PINCUS JA: I have read the reasons of the President and agree that the sentences imposed were excessive. Plainly Bird's case is substantially worse than Schipper's, because Bird tried to kill the victim. Under the sentences which will replace those set by the learned primary judge, Bird, who was 17 years old when the offences were committed, will be 30 before she can hope to obtain parole; under a life sentence she could apply for parole at the age of 32. Schipper's sentence must be reduced for the reason that, apart from any other consideration, it is necessary to preserve relativity with Bird's.
[70]
[38] I express my general agreement with the reasons given by the President. I desire to express my particular agreement with her Honour's view that a survey of comparable sentences in other bad cases of attempted murder dictates a reduction in Bird's sentence, especially considering her youth, the absence of prior convictions and her plea of guilty - all mitigating factors.
[71]
[39] I agree with the orders proposed by the President.
[72]
[40] THOMAS JA: Bird was sentenced to 20 years imprisonment for attempted murder. Schipper was sentenced to 11 years imprisonment for causing grievous bodily harm with intent to cause grievous bodily harm. The question is whether these sentences are manifestly excessive.
[73]
[41] It is difficult to come to grips with the actions of these two young women particularly their sheer sadism. The circumstances of these crimes have been set out in the President's reasons which I have had the advantage of reading. The commitment of the applicants to satanic values articulated by Bird gives the only real insight that is available into their actions. Sadistic pleasure in causing harm to another clearly underlay their actions despite the addition of a more conventional motive of robbery. The circumstances included preparatory stalking of the victim for probably about 20 minutes, walking and running both behind and in front of her, in what was described by the Crown prosecutor as "wry amusement" at the growing anxiety and visible distress on the part of the intended victim.
[74]
[42] Bird's case reveals an attempt to murder an innocent victim essentially for the pleasure of doing so. Schipper's case reveals an attempt to cause grievous bodily harm to an innocent victim for the same reason. It is true that Bird was the driving force, but Schipper was a totally committed supporter. Bird was plainly frustrated that the victim would not die. Her account includes "I stabbed her in the side. I remember watching her. That was good". Schipper's account includes "She was screaming, 'Help'. She ... said that she could go back to the hotel and get us money and it's kind of like you can't go back to the hotel and give us money when you've got your throat slit and you're standing there bleeding everywhere".
[75]
[43] Neither applicant has proffered any credible explanation of their actions. If an explanation existed which would enable their advisers to place a less sinister interpretation upon their actions, or which might give some basis for thinking that in the long term they will not again threaten other members of the community, one would expect it to have been forthcoming. The total absence of remorse or regret for what had happened is at odds with treating the incident as an aberration unlikely to recur. The lack of remorse was not confined to leaving behind the seriously wounded victim. More than a week later during the police interviews they revealed not a hint of feeling for the victim or of ordinary conscience. Bare assertions of the existence of remorse from the bar table at the time of sentence are not at all persuasive. It is true that Schipper during part of her interview with the police seemed to be slightly upset, but on my interpretation that seems to have been a consequence of her having been taken into police custody. She showed no particular difficulty or aversion in describing the assaults and their consequences. She certainly revealed no feeling of sympathy for the victim or regret for what she and her companion had done. There is no suggestion that drugs or stimulants played any part in this incident.
[76]
[44] The learned sentencing judge's reasons were careful and detailed. No error is shown in them. The submission that the applicants were given heavier sentences because they were lesbians and committed to satanic precepts is gratuitous and insupportable. The President's reasons adequately deal with those submissions.
[77]
[45] The question then is whether the learned trial judge imposed sentences which were in all the circumstances manifestly excessive. It is true that courts are tender towards young persons in exercising powers of sentencing. But youth cannot be raised as a universal shield. I have attempted, by reference to previous sentences to find a comparable point against which to measure the present sentences, but do not find any of the cases to which reference has been made comparable. In the present case the plain moral wickedness of the applicants' actions is far worse than one finds in most cases of murder. Contrary to all probabilities, and to the sustained desire of the applicant Bird, the victim survived. Schipper had a sustained desire to inflict grievous bodily harm and gave unquestioning support to her companion and inflicted a considerable number of blows with her nunchaku in an attempt to knock the victim out.
[78]
[46] This crime has contributed to making other members of the community feel less safe in public places where they should be able to proceed without fear of harm. This was a very serious crime. In each instance the crime might be regarded as falling within or very close to the worst category of the prescribed offence. Such a situation opens up the maximum penalty (in each case life imprisonment) as an available option[25].
[79]
[47] In my view occasionally there is a case where the conduct of the criminals is so bad that comparison with other decisions is virtually impossible, and where attempts at reconciliation are likely to lead to error or to an inappropriate result. Without suggesting that Leishman[26], Streeton[27] and Lepp[28] are in themselves comparable cases, they suggest to me that the response of the learned sentencing judge in the present matters was not manifestly excessive despite the youth of the offenders. Indeed, the circumstances were such as to justify sentences close to the legislative maximum. I would refuse the applications.