R v Bojovic [1999] QCA 206

4 His Honour summed up on the footing that s271(1) was fairly raised, but that the evidence did not provide any basis upon which s271(2) could apply.

(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

(2) If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm."

6 Although the punch that was thrown by the other man apparently failed to connect, it was an assault in law and obviously s271(1) was fairly raised. However it is not readily apparent how a defence under s271(2) could be said to have been raised on the evidence in the case.

7 The difficulty faced by the trial judge (and by this court) lies in the introductory words of s271(2), namely:

"If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm..."

The appellant did not give evidence. Indeed he had declined to give any account to the police and consequently there was no version at all of events from him. There was evidence however from eyewitnesses and objective evidence of the findings at post-mortem, but this evidence does not suggest any basis for belief on the appellant's part that he was in serious danger. Plainly there has to be some basis in the evidence for thinking that the actions of the deceased man were such as to cause at least a reasonable apprehension of grievous bodily harm on the part of the appellant, and of the existence on his part of a belief on reasonable grounds that he could not otherwise preserve himself from grievous bodily harm than by proceeding in the way he did[1].

8 When the violence of the attacker is sufficiently serious to support the inference of a reasonable belief on the part of the accused person of serious danger, s271(2) might reasonably be left to the jury even in the absence of any statement by the accused person concerning his actual state of mind. But the evidence in the present case does not come anywhere near this. It consists of the following details. There was an earlier incident in which the deceased had butted his own head against a post, followed by behaviour on his part which although not well particularised was described as unreasonable and obnoxious. He had said that he had guns and knives in his car and the female witness Whitby said that she was very frightened of him. He was obviously very drunk. Earlier he had shaped up to a 25 year old man who soon afterwards left the gathering. Shortly before the incident he had been mumbling loudly. He then approached the appellant and swung a round-arm punch at him but no-one saw it connect. The strong inference would seem to be that it did not, as apart from the failure of eyewitnesses to see it connect, examination of the deceased's hands showed no marks, and there was no evidence of injury to the appellant.

9 The above circumstances in our view were insufficient to raise any issue for the jury under s271(2). Indeed the circumstances are weaker from the point of view of the defence than those in R v Ellem (No 2)[2] in which it was held that s271(2) had no potential relevance as there was no basis for the appellant to believe that force was needed to preserve himself from death or grievous bodily harm at the hands of the deceased.[3]

10 The difficulties associated with multiple alternative defences of self-defence have been noted by this court as tending more often than not to obscure the more viable or arguably meritorious of the alternatives[4].

11 Sometimes both limbs of s271 will be appropriately left to the jury. But more often than not the consequence of summing-up on both limbs may be confusion which detracts from proper consideration of the true defence. Speaking very generally, in homicide cases the first limb of s271 seems best suited for cases where the deceased's initial violence was not life-threatening and where the reaction of the accused has not been particularly gross, but has resulted in a death that was not intended or likely; in other words cases where it can be argued that the unlikely happened when death resulted. The second limb seems best suited for those cases where serious bodily harm or life-threatening violence has been faced by the accused, in which case the level of his or her response is not subject to the same strictures as are necessary under the first limb. The necessity for directions under both limbs may arise in cases where the circumstances are arguably but not clearly such as to cause a reasonable apprehension of grievous bodily harm on the part of the accused. In cases where the initial violence is very serious, most counsel will prefer to rely upon s271(2) alone. Craig[5] was a case where the court considered that the only defence that should have gone to the jury was one under that subsection. It is only cases in the grey area where it is arguable but not sufficiently clear that the requisite level of violence was used by the deceased person that directions under both subsections will be desirable.

12 The above general statements are not intended to paraphrase the meaning of the subsections. They are given with a view to identifying the broad streams of cases under which one or other or both of these defences may be appropriate. Too often insufficient thought is given to the principal distinction between them. When in doubt there is a natural tendency for counsel to attempt to throw everything into the ring. Such an approach may well be counter-productive to the presentation of a proper defence.

13 The present case was plainly one where consideration of the defence under s271(1) was appropriate while that under s271(2) was not. The circumstances did not raise it. The learned trial judge was right to decline to present the latter line of defence to the jury.

14 It was further submitted that his Honour should have instructed the jury that the defence of accident was available. The submission here was that the death of the deceased might be regarded as "an event which occurs by accident" under s23 of the Code. At trial both counsel assented to the view that such a defence was not raised. That of course is not the end of the matter if such a defence was fairly open for consideration and failure to refer to it deprived the appellant of a fair trial.

15 This case involved direct blows inflicted by one person to the face of another. No intervening event such as an unusual or unexpected fall is suggested. There was no injury to the back of the head. The deceased may have come into contact with a chair after the blows were administered to him, but there is no suggestion that this was anything other than a direct and foreseeable result of the blows. The argument of counsel for the appellant is based upon the relative shortness of the incident and from the absence of any allegation in the indictment that the appellant intended to cause death or grievous bodily harm. He relies upon the following details - it is a case of unintentional homicide not involving a weapon; the appellant had earlier declined to fight; the blows were an immediate reaction to provocation and attack instigated by the deceased; and immediately after the event the appellant applied CPR, called an ambulance and applied mouth-to-mouth resuscitation.

16 Whilst the above circumstances reinforce the absence of intent to cause such a result, they have little to do with its foreseeability. That is the essential question in determining whether an event may qualify as an accident under s23[6]. It was held in Taiters that an event could not qualify as an accident under the section where there was a real risk of its occurrence which an ordinary person in the circumstances would have been conscious of.

17 There was no doubt that the appellant caused the death of the other man, and that the appellant was guilty of manslaughter unless he was relieved from criminal responsibility by what has been called the second rule of s23. When applicable, that rule "exculpates an accused from liability for the accidental outcome of his willed acts"[7]. When it is properly raised in a trial the onus is on the prosecution to exclude its operation and to do so beyond reasonable doubt. But it is necessary to do so only when it is properly raised as an issue at the trial. There needs to be some evidence from which a jury might reasonably conclude that it is reasonably possible that the result could not have been foreseen by an ordinary person in the position of the accused[8].

18 The evidence here does not suggest any inherent or unusual physical weakness on the part of the deceased man, nor anything other than that he died as the direct result of very forceful, direct punches which shattered the bones mentioned above. Commonly, persons involved in short, sharp physical encounters may not think about the consequences, and do not intend such a severe result. But assuming that the evidence in the present case permits such inferences in favour of the appellant, they do not meet the test that would provide an excuse under s23. In our view the evidence does not leave it open to think that death was such an unlikely consequence of the blows delivered by the appellant that it could not have been foreseen by an ordinary person in his position.

19 It follows that no error occurred at trial in this respect.

20 There is also an application for leave to appeal against sentence. The applicant was sentenced to 10 years imprisonment and a declaration was made under s161A of the Penalties and Sentences Act that the conviction was of a serious violent offence. That was an automatic consequence of the imposition of a sentence of 10 years for manslaughter[9].

21 Both the applicant and the deceased were described as being of similar size and age, the applicant being 46 and the deceased being 50. The deceased was drunk at the time with a post-mortem blood alcohol reading of .22 per cent. The applicant had also taken liquor, but the evidence does not indicate the degree (if any) to which he was under its influence. The circumstances of the fight and of the conduct which preceded it have already been set out above in paragraph 8. The important features are that the deceased was the attacker and that the applicant's criminal responsibility arose through his over-reaction in the course of self-defence. His actions were followed by immediate concern for the victim and attempts to assist him. The incident was the product of a short, sharp reaction consisting of approximately five punches, some of which must have been very powerful. It is an aggravating factor that the victim was obviously a drunken man. On the other hand there is no evidence to suggest that the applicant went on with his attack after the other man had become helpless. That factor, missing here, was present in a number of the cases relied on by the Crown as justifying the present sentence.

22 The applicant has a fairly extensive criminal history containing a number of convictions for dishonesty, drug offences and one of indecent assault. More relevantly there are two convictions for assault and two for assault occasioning bodily harm, the last of which occurred in 1989. The applicant however has a good work history showing him to be a skilled carpenter and a number of good references were tendered in evidence.

23 We have considered the cases to which the court was referred and other cases as well in an attempt to find a comparable decision or at least discern a level of sentencing from cases with which some point of comparison can be made. In chronological order they are Peacock (1986)[10]; Cavazza (1987)[11]; McCarthy (1988)[12]; Bliss (1989)[13]; Walton (1992)[14]; Couch (1992)[15]; Whannell (1992)[16]; Whiting (1994)[17]; Benstead (1995)[18]; and Cummins (1999)[19]. In Whiting it was considered that manslaughter "above all" is an offence in which particular circumstances vary so much that it is difficult to generalise in advance about the appropriate sentence. In that case, 11 years was imposed on an Attorney-General's appeal against a man who strangled his wife shortly after their separation. Whiting was the attacker and there was no question of any provocation or self-defence. Whiting had a history of episodic violence to women that had become increasingly severe and dangerous over many years. He suffered from an anti-social personality disorder and had a worse prior history of violence than the present applicant. Strong elements of personal deterrence and of protection of society would seem to have been necessary in Whiting's case and on practically every level it must be regarded as a worse case than the present one. In the course of that decision reference was made to Peacock and Couch above and also to Sutherland[20] and Moors[21], in all of which sentences tantamount to approximately 11 years were imposed. Reference to those four cases shows that the circumstances in each of them were more serious than the present. Peacock involved the kicking of the victim and the striking of him with a table leg, and the applicant went on to inflict gratuitous injuries after the other man was disabled. Couch involved the use of a shotgun and was very close to murder. Sutherland involved the asphyxiation of a woman who was tied up with rope and whose personal jewellery was then removed and sold by the applicant who had an extensive criminal history. Moors involved the firing of a volley of shots from a high powered rifle.

24 Counsel for the applicant referred in particular to Cavazza and Bliss where sentences of six years and six and a half years respectively were upheld, with the court in the latter case adding a recommendation for consideration of parole after two years. However the circumstances in each of those two cases were less serious than those of the present one. Although the circumstances have some degree of comparability, Cavazza had no previous criminal history and Bliss had only a minor criminal history. Cases decided in this court since Whiting include Benstead where the applicant, an intoxicated female, used a knife in the course of an argument. She suffered from mental problems and any comparison with it is difficult. The Court of Appeal reduced the sentence to one of seven years imprisonment with consideration of parole after two and a half years. In Cummins the court upheld a sentence of nine years with consideration of parole after four years in the case of a man who had garotted his de facto wife with a teatowel and had attempted to cover up the incident. Cummins had a significant criminal history.

25 The case which in our view gives the greatest assistance in the present circumstances is Whannell[22]. It, like the present, was a case of self-defence that went too far. Whannell defended himself against a man who came into his room and offered violence. Unfortunately Whannell used a butcher's knife and inflicted serious knife wounds which killed the other man. Whannell had previous convictions including three for assault. This court reduced the trial judge's sentence of 10 years to one of eight years with consideration for parole after three years. It is we think comparable, and it can be seen to lie reasonably comfortably in the middle of the range of the more serious cases and the less serious cases to which reference has been made.

26 In our view the sentence here of 10 years was manifestly excessive. Subject to the question whether a further declaration of conviction of serious violent offence ought to be made, consistency would suggest that a sentence in the order of eight years imprisonment would be appropriate.

27 Under s161B(3) of the Penalties and Sentences Act, where an offender is sentenced to between five and ten years imprisonment the court is given an unfettered discretion to make such a declaration. The approach of courts in carrying out the requirements of Part 9A of the Penalties and Sentences Act, which operates in relation to offences committed on and from 1 July 1997[23], has been discussed in a number of cases, including Collins[24] and Robinson[25] and Booth[26]. Plainly the courts will not attempt to subvert the intentions of Part 9A by reducing what would otherwise be regarded as an appropriate sentence. However the question here is whether there is any reason why an otherwise adequate sentence of eight years imprisonment should be strengthened by a declaration that will add considerably to the applicant's burden. In practical terms such a declaration would require this applicant to serve 80 per cent of that sentence and also deprive him of any remission rights.

28 What has to be determined is whether in all the circumstances it is desirable that such a declaration be made. In deciding whether or not to make it, the court should not be blind to the fact that the making of it will have a serious aggravating effect upon the sentence.

29 The court in Collins[27] searched for some guidance that might assist the court in exercising its discretion under s161B but no clear consensus emerged from the separate reasons of the members of the court. We would however record our agreement with the following statements of McPherson JA in that case:

"It is clear that, in using the word "may" in s.161B(3), the intention was not to confer a power which is to be applied mechanically or automatically, but rather to invest a discretion to be exercised judicially and with proper regard for all relevant circumstances including the consequences of making the declaration... Moreover, since the effect of such a declaration is penal and prejudicial to the liberty of the subject, the conclusion necessary to sustain the declaration is not one that is to be reached unless it is fully warranted in the circumstances"[28].

30 We also agree with his Honour's comment that in determining whether to make a declaration under s161B(3):

"[T]he question that the court will be considering will not be whether the offender should be sentenced to imprisonment as a protection to the community, but whether, having been so sentenced, he is to be deprived of eligibility for parole after serving half his sentence and further penalised by deferring it until 80 per cent of that sentence has been served[29]".

31 It should not however be thought that the court's sentencing discretion is compartmentalised into separate exercises of first determining the quantum of the imprisonment and then, having decided on that, considering the further question whether a declaration should be made under s161B. The sentencing process is a single integrated one in which the combination of all available options needs to be considered.

"In the sentencing process a court must consider all available sentencing options and impose that option or combination of options that is most appropriate in the particular case. In the end it is the total order that matters to the offender and community alike. It is impossible in our view to consider the discretion that is involved in s12 [of the Penalties and Sentences Act] in isolation from the particular sentencing option that is being considered under ss 16, 22, 29, 34, 44, 90, 100, 111, 143, 152 or any other section. And it is likewise inappropriate to consider those sentencing options in isolation from the circumstance whether the conviction will be recorded or not. The combined effect of the orders needs to be looked at before a court decides that a sentence is appropriate. If it is not appropriate the court should not make it and should look for some other option or combination of options."[30]

32 In the absence of positive guidance in the legislation, the courts should act according to principles which they have traditionally followed in imposing sentences. Sentencing is a practical exercise. Courts have traditionally fashioned sentences to meet circumstances of the particular offence, having regard to the needs of punishment, rehabilitation, deterrence, community vindication and community protection. They did so before legislative expression was given to such factors in s9.

33 The power given by s161B(3) is simply another option that has been placed in the court's armoury.

34 None of the ten cases to which reference has been made in determining an appropriate level of sentence were in respect of offences committed on or after 1 July 1997, so they are devoid of guidance on this point. It may reasonably be thought however that in each instance the court considered that adequate punishment was imposed by the sentence in question. While the mandatory requirements of s161B(1) will inevitably interfere with the courts' capacity to maintain parity and consistency, the same problem does not exist in relation to sentences under s161B(3) where an additional sentencing discretion has been conferred. In such matters the courts have the power to maintain reasonable consistency between sentences, although they will of course heed the additional emphasis that has now been placed on protecting the community from violent offenders. As an example, if according to ordinary principles a violent offence seems to call for a sentence of between six and eight years, and it is one where the discretion to make a violent offender declaration arises, such that it might but not must be made, the sentencing judge has the discretion in the event that a declaration is to be made, to impose a sentence toward the lower end of the applicable range. Conversely if the judge is to give the offender the benefit of declining to make such a declaration, it might be appropriate to consider imposing a sentence towards the higher end of the range. If this were not done, it is difficult to see how the sentencing judge could properly discharge his or her duty under s9 of the Act. A just sentence is the result of a balancing exercise that produces an acceptable combination of the purposes mentioned in s9(1)(a) to 9(e) of the Act.

35 In our view it is not appropriate that a declaration be made unless the overall sentence will be seen to be reasonably consistent with attaining the normal objectives of punishment. One of the purposes for which sentences are imposed is to protect the community from an offender when it is appropriate to do so[31]. In a case such as the present where the essential feature was over-reaction in the course of self-defence and where the danger of repetition seems remote we fail to see why any additional recommendation over and above an adequate sentence, which in this case is eight years, would be called for.

36 We would dismiss the appeal against conviction, grant leave to appeal against sentence, allow that appeal, set aside the sentence below and replace it with one of imprisonment for eight years. It should be declared that between 16 January 1998 and 11 May 1998 and 7 December 1998 and 15 December 1998 the applicant was in custody solely in relation to this matter and that a total of 123 days is to be deemed to be time served under the sentence.

[1] cf R v Gray [1998] QCA 41; (1998) 98 A Crim R 589; Julian v R [1998] QCA 119; (1998) 100 A Crim R 430; R v Craig CA No 139 of 1998, 15 September 1998.

[2] [1995] 2 Qd R 549.

[4] R v Craig CA No 139 of 1998, 15 September 1998.

[6] R v Van Den Bemd (1992) 70 A Crim R 489, [1995] 1 Qd R 401 (Qld CA)[1994] HCA 56; , (1994) 179 CLR 137 (HCA); R v Taiters [1996] QCA 232; [1997] 1 Qd R 333, (1996) 87 A Crim R 507.

[7] Kaporonovski v R [1973] HCA 35; (1973) 133 CLR 209, 227.

[8] R v Van Den Bemd [1995] 1 Qd R 401, 405.

[9] Section 161A (a)(ii); s161B(1); Schedule to the Act Item 15.

[13] CA No 280 of 1989, 31 October 1989.

[16] CA No 193 of 1992, 20 August 1992.

[17] R v Whiting ex parte Attorney-General [1994] QCA 425; [1995] 2 Qd R 199.

[21] CA No 188 of 1992, 11 August 1992.

[23] R v Mason and Saunders [1997] QCA 421; [1998] 2 Qd R 186, 189-190.

[24] CA No 238 of 1998, 18 September 1998.

[27] CA No 238 of 1998, 18 September 1998.

[28] Ibid p6 of McPherson JA's judgment.

[30] R v Briese [1997] QCA 10; (1997) 92 A Crim R 75, 77-78, per Thomas and White JJ.

[31] See s9(1)(e) of the Penalties and Sentences Act.