R v Callow [2017] QCA 304

SUPREME COURT OF QUEENSLAND

CITATION: R v Callow [2017] QCA 304

PARTIES: R v CALLOW, James David Darren (applicant)

FILE NO/S: CA No 146 of 2017 / SC No 14 of 2017

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Toowoomba – Date of Sentence: 9 June 2017 (Applegarth J)

DELIVERED ON: Order delivered ex tempore on 22 November 2017 / Reasons delivered 15 December 2017

DELIVERED AT: Brisbane

HEARING DATE: 22 November 2017

JUDGES: Sofronoff P and Morrison and Philippides JJA

ORDER: Order delivered 22 November 2017: / The application for leave to appeal against sentence is refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted, on his own plea of guilty, of two counts of unlawful assault (domestic violence offences) and one count of manslaughter and three summary offences – where the applicant was sentenced to 18 months’ imprisonment on each of the assault charges and eight and a-half years’ imprisonment for the manslaughter – where parole eligibility was set after serving three years – where the offending involved a prolonged assault against the applicant’s ex-partner and two and a-half year old daughter – where the deceased was a stranger who attempted to intervene and stop the assaults against ex-partner and child – where in the course of his attempts to help, the deceased was struck a number of times before hitting his head on the road and dying one day later – where the applicant contends that the sentence is manifestly excessive when one has regard to comparative cases – where the applicant contends that the lack of a criminal history, the applicant’s remorse, poor psychological health, deprived upbringing and signs of rehabilitation warrant a lesser sentence – where the learned sentencing judge had regard to those factors, and also had the assistance of CCTV footage of the offending – where there are both similarities and differences between the current and comparative cases – whether the sentence is so different to those in comparative cases that there must have been a misapplication of principle – whether the sentence is manifestly excessive / Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited / Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063; [2017] HCA 41, followed / R v Cavazza, unreported, Court of Criminal Appeal, Qld, CA No 404 of 1986, 3 April 1987, cited / R v Dwyer [2008] QCA 117, distinguished / R v Major, unreported, Lyons J, SC No 357 of 2011, 19 September 2013, cited / R v Matthews [2007] QCA 144, distinguished / R v McCusker [2015] QCA 179, distinguished / R v Simeon [2000] QCA 470, distinguished / R v Skondin [2015] QCA 138, distinguished / R v Tientjes; ex parte Attorney General (Qld) [1999] QCA 480, distinguished / R v Tout [2012] QCA 296, followed

COUNSEL: C Reid for the applicant / M B Lehane for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Morrison JA.

MORRISON JA: On 22 February 2016 Mr Callow engaged in an altercation with his ex-partner (MC) and their two and a-half year old child, on the footpath of a busy road in Toowoomba. MC was carrying the child and Mr Callow tried repeatedly to pull the child away from her. In the process she ended up lying on the ground, where he continued to wrestle with her, attempting to take the child.

Mr Olsen and his wife were driving past and stopped. Mr Olsen intervened to prevent further assault on MC and the child. He and Mr Callow were grappling together when Mr Callow punched Mr Olsen in the face and kneed him in the stomach. Mr Olsen fell onto the edge of the roadway, hitting the back of his head on the bitumen. He died the next day from his injuries.

Arising out of that set of events he was charged with three counts:

count 1: unlawful assault on his ex-partner, a domestic violence offence;

count 2: unlawful assault on his child, a domestic violence offence; and

count 4: manslaughter.¹

He pleaded guilty to all charges and was sentenced to 18 months’ imprisonment on each of counts 1 and 2, and eight and a–half years’ imprisonment on count 4. A total of 339 days pre-sentence custody was declared as time served, and parole eligibility was set at 9 June 2020 (after serving three years).²

Mr Callow sought leave to appeal against his sentence on the ground that it was manifestly excessive. On 22 November 2017 that application was refused, with the Court to deliver reasons later. What follows are my reasons for joining in that order.

Circumstances of the offending

This is an unusual case where there was very clear CCTV footage of the all the relevant events. That enables a very accurate assessment of what occurred and a proper characterisation of the seriousness of the offending conduct. What follows is taken from the CCTV footage, supplemented by some facts given to the learned sentencing judge without objection.³

Callow only had “rare and sporadic” contact with his ex-partner (MC) and their two and a-half year old daughter since she was born. He and MC lived in separate States, and each had new partners. Callow and his new partner, SR, travelled to Toowoomba so he could have contact with the child. They met on 22 February (the day of the offences) and he had some contact with the child.

Afterwards, SR went to a Cash Converter and applied for a loan for herself and Callow. The three adults and the child spent some time together at a local shopping centre, while they awaited the processing of that application, which was declined. They planned to go to a nearby park so the child could play further, and were walking down Bridge Road.

As they were walking Callow started to get angry because the loan had been declined, he had no cigarettes, no “cones”⁴ and nowhere to sleep. MC told them they could not sleep at her house any more, that she would not buy them cigarettes or give them any money because she did not trust them to pay her back and she was yet to buy her own groceries. Callow started saying, “No cunt will help me”, and he started to yell and bring up the past. He was unhappy that MC was going to a friend’s place to stay the night. He told MC that she was more worried about her friend than his spending time with his daughter. He then said, “I’m going to jump in front of a bus.”

Callow had been pushing the child in a shopping trolley but stopped it and MC took the child out. He walked down the road and took off his shirt. He walked out on to the road and yelled at cars, asking them to hit him. He was out in the middle of the road for a couple of minutes, and some cars were slowing down because of him. MC was still walking down the footpath, holding the child, when Callow came running up behind her.

It is at this point that the CCTV footage commences.

Callow said to MC, “Let me give her a cuddle before I leave and get out of her life.” She said, “No,” and he replied, “Give me [the child] or I’m going to thump you.” He tried to grab the child. MC stepped backwards and he stepped towards her, waving his arm and threatening her. At that point SR was walking up towards them.

Callow circled MC, threatening her (by his posture, if not otherwise). SR intervened for the first time, evidently to prevent his actions towards MC and the child. Callow walked away a few paces, then turned back, and SR intervened for the second time. He leant in to MC in a threatening manner, and SR intervened for the third time, holding her arm up between them. Callow pushed SR’s arm away, stepped in again and tried to grab the child away from MC. MC stepped back and he tried again. SR intervened for the fourth time as Callow threatened MC.

Some 30 seconds later Callow tried to take the child again, and MC stepped back again. He tried again to forcibly take the child, with MC stepping back and he pressing to take her. He pushed MC as SR intervened for the fifth time. Callow wrestled with MC (who was still holding the child) until she was forced to the ground in a sitting position.

As MC was sitting on the ground Callow had to fend off SR, who was intervening for the sixth time, trying to restrain him. He wrestled with MC using his right arm, while using his left arm to fend off SR. In the process he pushed MC so she was lying on the ground, still holding the child.

Callow continued to wrestle with MC, at which point SR dropped the bags she was carrying and intervened for the seventh time, using both of her hands to try to drag him away from MC, who was still lying on the ground.

SR continued in her attempts to pull Callow off MC, at which point he was assaulting both MC and the child. Around then Mr and Mrs Olsen pulled up. Mrs Olsen recalled him saying, with respect to the struggle between Callow and MC, “Oh, we can’t have that”. Mr Olsen then appeared running in from the side.

At the point at which Mr Olsen came to the fight, SR had both her arms around Callow,⁵ trying to pull him away. Callow looked up towards Mr Olsen and lifted his left arm to fend him off. Callow and Mr Olsen started to grapple with one another while SR was still holding Callow with both arms. MC got free and walked away, carrying the child.

Callow had both of his arms on Mr Olsen, pushing him backwards. While SR was still trying to restrain him, Callow pushed Mr Olsen around so his back was to the road. Then followed a series of three punches by Callow, using his left hand. As the third punch was made, Mr Olsen swung his left arm in a punch at Callow. At the same time Callow punched Mr Olsen with his right hand, simultaneously kneeing Mr Olsen in the side of the stomach. That caused Mr Olsen to fall backwards onto the road, hitting the back of his head. SR was still trying to restrain Callow at that point and he pushed her hands off.

Soon after others arrived to assist Mr Olsen. Callow can be seen to use a phone to attempt to call an ambulance (after Mrs Olsen screamed at him to do so) then hand it to someone else. He eventually retreated to a nearby tree and sat there until just before the police arrived.

Witnesses heard Callow say things such as that Mr Olsen should not have “butted in”.

Mr Olsen was sent to Toowoomba base Hospital and then transferred to Princess Alexandra Hospital in Brisbane. His condition rapidly deteriorated and his life support was turned off on 24 February.

When Callow was interviewed by police he asked, “He’s not dead, is he?” He was told that Mr Olsen was not in a good way but was not dead. Callow then said “I, like, legit, man, all I did was push this old bloke. I told him not to touch me and to keep away from me.”⁶ He explained some of his background, saying he was “a mental mess” and wanted to kill himself and that he had been taking non-prescription drugs the day before. He told police he was frustrated at the time. When he was told that Mr Olsen had died and he would be charged with manslaughter, Callow became visibly upset and emotional.

Submissions below

I do not intend to set out the substance of the submissions before the learned sentencing judge. However, it is worth noting the competing positions of the crown and counsel for Callow, in terms of the appropriate sentence to impose. For the Crown it was submitted that the range was seven to nine years’ imprisonment, with the midpoint being appropriate to take into account the sentences on counts 1 and 2.⁷ Further, it was contended that the late plea and the fact that Callow was on bail at the time, warranted that parole eligibility be set later than one-third, but less than 50 per cent.

For Callow it was submitted that the appropriate sentence for the manslaughter, taking into account such matters as the plea of guilty, Callow’s youth and remorse, was seven years’ imprisonment with parole eligibility set at one third of that time.⁸

Approach of the learned sentencing judge

The learned sentencing judge acknowledged at the start of his Honour’s sentencing remarks that the manslaughter sentence would attract most attention, but that the two domestic violence counts could not be ignored. Because of Callow’s “shameful treatment of a woman and a child”, each deserved “real and substantial” additional punishment.⁹ His Honour recounted the nature of the offending conduct and took into account the following matters:

the plea of guilty, which was not made until a week before the trial; “your plea was not an early plea in that regard, and you are not entitled to the same discount that would have been available had you indicated at a much earlier stage that you would be pleading guilty to either manslaughter or the alternative count”;¹⁰

the background circumstances of the relationship between Callow and MC, and the child;

Mr Olsen, aged 65, came to the defence of MC and the child, “an act of a Good Samaritan who gave his life protecting the victims of your assault”; that more than one blow was directed at Mr Olsen;

in light of what the CCTV footage revealed this was not a case of a single push or shove or punch;

Mrs Olsen witnessed the attack on and injury to her husband;

Callow’s reaction to MC’s refusal to give him money, and refusal to allow him to take the child, was “completely unjustified”;

the source of Callow’s anger was that he thought he had a greater entitlement to MC’s money than did the child;

Callow’s emotional response involved both remorse for his actions, as well as feeling sorry for himself;

that denuciation of the killing, and punishment for it, were factors affecting the sentence;

Callow’s personal circumstances; he was 23 at the time of offending, and 24 at sentence; he had no criminal history; he had an unstable life and experienced sexual abuse at a young age; he did not have a significant work history; he took to drugs when only 14 or 15 years old, escalating to methamphetamine; he had long experienced problems of emotional dyscontrol and a complex range of psychological problems;

the guarded opinion of Mr Peros;

that, whilst one psychologist had a “working diagnosis of substance use disorder with psychosis symptoms in relation to stimulants, probably post-traumatic stress disorder, adjustment disorder and major depressive disorder”, there was no explanation of where the PTSD dates from, or when the depressive disorder or adjustment disorder occurred;

the recurrent breaches of bail;

that his expressions of remorse were qualified; his Honour held that he had “shown some remorse”;

the effect on the victims as demonstrated by their statements;

that Callow had an obvious problem with impulsivity, but the PTSD was not shown to be causally linked to the offending; however, Callow grew up in a dysfunctional family setting, was exposed to domestic violence, had a history of poor impulse control, and was a young man who had developed “maladaptive (aggressive) behaviour patterns and has low resilience to stress”; whilst that required the factor of general deterrence to be moderated, “the extent of moderation depends upon the nature and severity of the condition, and, here, the moderation would be less than someone who was suffering from a more extreme and diagnosed form of psychiatric problem, such as a psychotic illness”;¹¹ but the psychological problems, the maladaptive and aggressive behaviour, and his emotional dysregulation, justified some moderation on sentence;¹²

the most comparable case was Skondin;

there was no provocation at all for the attack on Mr Olsen, whose actions were “reasonable and admirable”;¹³ and

mitigation factors included the plea, absence of criminal history, the moderate use of force on Mr Olsen, that he did not persist with retaliation against Mr Olsen, there was some remorse, and the underlying psychological issues.

The learned sentencing judge considered that the head sentence should reflect the overall offending, and eight and a-half years would do that. As well, parole eligibility after the usual one-third was warranted.¹⁴

Submissions

Mr Reid of Counsel, appearing for Callow, did not contend that there was any specific error in the exercise of the sentencing discretion. Rather, he submitted that the sentence for the manslaughter was manifestly excessive when regard is had to the comparative cases such as R v Skondin,¹⁵ R v Simeon,¹⁶ R v Tientjes; ex parte Attorney-General,¹⁷ R v McCusker,¹⁸ R v Cavazza¹⁹ and R v Major.²⁰ He contended that the appropriate sentence should have been seven years’ imprisonment, with parole eligibility set after serving one third, or 28 months. No argument was advanced that the sentences on the two unlawful assault counts were manifestly excessive.

The sentence meant that he would have to serve almost four years before parole eligibility, or about 47 months out of a possible 102 months, or 46 per cent.

It was submitted that significant matters warranting a lesser sentence were: (i) Mr Callow had no relevant criminal history, but was subject to bail at the time; (ii) even if he pleas were late, there was genuine and significant remorse; (iii) his moral culpability was mitigated by psychological issues; and (iv) he had shown some signs of rehabilitation.

It was sought to distinguish this case from the comparatives, and specific mention was made of:

Skondin (nine years, parole after serving two years and nine months) involved a trial, the offender left his victim and walked away whereas Mr Callow remained at the scene, and there was a distinction between cases involving a single blow (said to be this case) and those where a sustained beating was involved;

in Simeon (seven and a-half years) the attack in that case was worse, involving head butting and kicking, and then blows administered while the victim was on the ground; the death was caused by one blow and there was great remorse; the sentence was described as “by no means a light one”; and

Tienjtes (seven years) was after a trial; he was an older offender with a prior conviction for an assault causing bodily harm; the blow to the head was an over-reaction in self-defence; the attack continued while the victim was on the ground.

For the Crown it was submitted that the sentence fitted well into the range suggested by the comparative cases, of which Skondin was the closest. Further, there were a number of factors supporting the sentence imposed, including: (i) the sentence comprehended assaults on three persons and a global approach to the sentencing was taken; (ii) there was no justification for the assaults, particularly in the case of Mr Olsen, who was heroically coming to the rescue of the ex-partner and child; (iii) the blows were not isolated, and the context was a prolonged series of assaults in the face of Mr Callow’s new partner constantly trying to prevent him from doing so; (iv) there was more than one blow before that which impacted Mr Olsen’s head, as well as the use of the knee; (v) all victims were vulnerable; (vi) the offending was in a public place and in the presence of Mrs Olsen (aged 70); and (vii) the prospects of rehabilitation were guarded, as signified by Mr Callow’s multiple breaches of bail after being charged.

Additional cases relied upon by the Crown were R v Matthews²¹ and R v Dwyer.²²

Discussion

When considering the question of whether a sentence is manifestly excessive, one must bear in mind what was said in R v Tout:²³

“[A] contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’: Hili v The Queen (2010) 242 CLR 520 at [58], [59].”

Furthermore, there is no one single correct sentence. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.²⁴ In respect of sentences for manslaughter, because the circumstances are infinitely wide the sentencing judge’s discretion is comparatively wide.²⁵

Recently the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym)²⁶ said:

“While the instinctive synthesis must be informed by each of the factors listed in s 5(2), the extent to which each factor bears upon the case is inevitably a matter for judgment. The process of instinctive synthesis thus allows a measure of discretion to the sentencing judge. The discretionary nature of the judgment required means that there is no single sentence that is just in all the circumstances. Nevertheless, it is well understood that a sentence may be so clearly unjust, because it is either manifestly inadequate or manifestly excessive, that it may be inferred that the sentencing discretion has miscarried. The question raised for determination by the Court of Appeal in the present case was whether the sentence imposed on the respondent was manifestly inadequate.”

There are a number of reasons why, in my respectful view, the submissions for Callow cannot be accepted.

First, this was not a momentary reaction, nor a single blow case, as it was sought to be portrayed before this Court. Callow’s assaults upon MC and his child provide the context in which the offending against Mr Olsen is to be viewed. After all, Mr Olsen only intervened because Callow was attacking a mother and child, in public on the footpath of a busy public road. Moreover, his own partner, SR, tried to intervene on about eight occasions, and throughout the assault on Mr Olsen she was hanging onto Callow, trying to get him to desist. Yet, he persisted in what must have been a terrifying ordeal for MC, let alone the child. Then, when Mr Olsen intervened, Callow ignored the fact that the original object of his fury, MC and his child, had gone, and persisted with an attack on a much older man who was simply trying to help Callow’s victims.

The entire episode warranted the description of a persistent cowardly attack on more vulnerable people, in the face of valiant efforts by SR to get him to desist. As far as Mr Olsen is concerned, the attack on him was perverse considering that MC and the child had gone. Yet, facing a much older man (Mr Olsen was 65) Callow tried to hit him a number of times, then combined a punch to the face with a knee to the stomach. And all of that while SR was continuing to hang off him with both arms, trying to stop him.

Secondly, the offence was committed when Callow was on bail. That, of itself, provides an aggravating aspect. Further, when the breach of bail is considered along with the persistent breaches of bail after being charged, the decision to set parole eligibility after one-third of the time served becomes much harder to challenge.

Thirdly, the impact of the two domestic violence assault offences cannot be overlooked. The head sentence imposed was expressly set to reflect the total criminality of the conduct, including those two counts. Each consisted of a totally unjustifiable and cowardly assault on vulnerable females, one his ex-partner, and the other his own child. Worse, it was carried out persistently in the face of attempts to make him desist, and in broad daylight in a public place.

Fourthly, the combination of repeated breach of bail and the recommendations of the psychologist, Mr Peros, affected the selection of the period of actual custody to be served. Mr Peros said that if left to his own device Callow “will continue to engage in dysfunctional interpersonal behaviour and suffer homelessness because of poor budgeting and poor decision-making”, and that he believed that Callow’s quality of life would be improved by a custodial sentence.²⁷ In so saying it must be borne in mind that the setting of a parole eligibility date is but one element of the overall sentencing process. As was said in Barbaro v The Queen:²⁸

“Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, ‘[S]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute special numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.’”

Further, as was said by Keane JA in Challacombe:²⁹

“On the applicant’s behalf reference was made to a number of cases where arguably more serious offending had attracted a penalty similar to that imposed on the applicant. It is beside the point to refer to cases which suggest that a more lenient approach was taken in other cases where the material facts were different. To approach the matter in this way is to fail to recognise two important points: first, that the question for this Court was whether the sentence was outside the range of proper sentences which might have been imposed on the appellant; and secondly, that the cases to which the applicant refers involved factual differences leading to sentences which reflect those differences within a broad sentencing discretion.”

Fifthly, the comparable cases do not suggest that the sentence is manifestly excessive.

This was a persistent attack such as to bring it within the general scope of Skondin. There a 39 year old man, on bail at the time, decided to hurt the victim in anger and frustration. He punched the victim to the head with moderate force. Once the victim fell the offender walked away, leaving others to assist. He cooperated with police but was not entirely candid. The sentence, nine years, was after a trial.

The offender in Skondin was older and had a criminal history, but the additional offences of assault were absent, as was the repeated breaches of bail after charging. Further, Callow’s attack was persistent, in the face of efforts to make him desist, and used greater force, in that four blows were aimed at Mr Olsen as well as a knee to the stomach.

The reliance placed on Simeon by Counsel for Callow is, in my respectful view, misplaced. Whilst the offender in Simeon was previously of good character, there was only one victim, whereas here there were three. Further, the plea in that case was because the offender was unusually grief stricken. Here, the remorse was qualified, as was any finding of insight into the seriousness of the conduct. In context the sentence there of seven and a-half years could be said to support the sentence on Callow.

None of the other comparable cases relied upon support a conclusion that the sentence here was manifestly excessive.

Matthews was quite different in that the offender was older, with a serious criminal history, and strangled his victim in an amphetamine induced rage. Thus the nine year sentence is no useful guide to the present sentence.

Dwyer involved a worse case than the present. That involved a young offender (22), with a significant criminal history, sentenced for other offences than the manslaughter, which attracted a ten year sentence. The victim threw some punches at the offender in the course of an argument. He responded with a punch and then some kicks. He later threatened his girlfriend to make sure she said nothing. Here Mr Olsen did not provoke the attack, and Callow was much younger and with no relevant record.

McCusker, Major and Cavazza are too remote from the present case to be of any utility. Tientjes was an Attorney-General’s appeal, involving a case where there was only one victim, and an offender not on bail. Given the constrained approach on a successful Attorney-General’s appeal against inadequacy, the case is of little utility.

Conclusion

For the reasons above I am quite unable to conclude that the sentence imposed upon Mr Callow was manifestly excessive. It has not been established that the sentence is markedly different from sentences in other cases, and in any event that would not be enough.³⁰ It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is unreasonable or plainly unjust. I am unpersuaded that is so.

For these reasons I joined in refusing the application for leave to appeal.

PHILIPPIDES JA: I also agree with the reasons of Morrison JA.

Footnotes

1. The original count 3 was discontinued. There were also three drug related summary charges. ↩

2. On the three summary charges he was convicted and not further punished. ↩

3. For ease of reference only I shall refer to Mr Callow as “Callow”. ↩

4. Which can be accepted to be a reference to cannabis: AB 55 line 21. ↩

5. Left arm around his waist and right arm over his right shoulder. ↩

6. Given what the CCTV shows that was a false account of what occurred. ↩

7. AB 30. ↩

8. AB 45, 49. ↩

9. AB 54 lines 11-17, 42. ↩

10. AB 60 lines 37-39. ↩

11. AB 62 lines 14-21. ↩

12. AB 62 lines 47-49. ↩

13. AB 63 line 33. ↩

14. AB 63 line 44 to AB 64 line 6. ↩