R v Corcoran [2004] QCA 441

SUPREME COURT OF QUEENSLAND

CITATION: R v Corcoran [2004] QCA 441

PARTIES: R v CORCORAN, Anthony Scott (applicant)

FILE NO/S: CA No 313 of 2004 SC No 531 of 2004

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED EX TEMPORE ON: 17 November 2004

DELIVERED AT: Brisbane

HEARING DATE: 17 November 2004

JUDGES: McMurdo P, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CHARACTER OF OFFENCE – GENERALLY – applicant pleaded guilty to one count of manslaughter, one count of common assault, one count of assault occasioning bodily harm and one count of wilful damage – applicant 23 years old at time of offences – involved in course of conduct involving threatening members of his family and his neighbours with two knives and stabbing of his father in law – sentenced to nine years imprisonment and offence of manslaughter declared serious violent offence – whether combination of head sentence and declaration made sentence manifestly excessive / Penalties & Sentences Act 1992 (Qld), Pt 9A / R v Bojovic [2000] 2 Qd R 183, cited R v De Salvo (2002) 127 A Crim R 229, cited R v MP [2004] QCA 170; CA No 42 of 2004, 20 May 2004, cited R v Stepto [2002] QCA 10; CA No 220 of 2001, 4 February 2002, cited

COUNSEL: A J Moynihan for the applicant D Meredith for the respondent

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

THE PRESIDENT: The applicant, Mr Corcoran, pleaded guilty to one count of manslaughter (count 1), one count of common assault (count 2), one count of assault occasioning bodily harm (count 3) and one count of wilful damage (count 4). He was sentenced to nine years imprisonment for the offence of manslaughter and a declaration was made that he was convicted of a serious violent offence under Pt 9A, Penalties and Sentences Act 1992 (Qld) ("the Act"). A further declaration was made under s 161 of the Act that 598 days spent in pre-sentence custody were deemed time already served under the sentence. He was sentenced to lesser concurrent terms of imprisonment in respect of the remaining offences. He contends that the sentence imposed was manifestly excessive, particularly in the light of the declaration under Pt 9A of the Act.

Mr Corcoran was 25 years old at sentence and 23 at the time of the offence. He has a significant criminal history. In 1997, he was placed on three years probation and ordered to perform 240 hours community service for an assortment of property offences, including house breaking, stealing, unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence, unlawful use of a motor vehicle simpliciter and break, enter and steal. In early 1998, he was dealt with for some relatively minor wilful damage and speed offences in the Magistrates Court for which he was fined. In March 1998, his probation was breached but he was sentenced only to the rising of the Court. The next month, he appeared in the Magistrates Court and was fined for drug offences and unauthorised damage to property. In May that year, he was convicted and fined for unauthorised dealing with shop goods. Most significantly, in December 1998, he again appeared in the District Court at Brisbane, this time for a robbery offence. He was convicted and sentenced to two years imprisonment, wholly suspended for four years. He was also dealt with for breach of probation and ordered to serve 12 months imprisonment by way of an intensive correction order. Mr Corcoran committed this offence in company with another man, Baker. Corcoran approached a 59 year old woman in an outdoor café, elbowed her to the head and snatched her handbag. In July 2001, he was sentenced for dangerous operation of a vehicle whilst intoxicated and entering a dwelling with intent and stealing and ordered to perform 240 hours community service. Two months later, he was dealt with in Sandgate Magistrates Court for street offences. In May 2002, his community service order imposed in the District Court was revoked and he was re-sentenced and fined.

The behaviour directly of concern to this Court occurred as follows. Mr Corcoran was unemployed and was living with his wife and their son who was then two years old. His 78 year old stepfather-in-law (the deceased) also lived with them.

Mr Corcoran had often in the past been abusive and violent towards the deceased, who was a Jehovah's Witness and did not approve of Mr Corcoran's drinking, especially when he drank to excess. Mr Corcoran had previously completed an anger management course and attended a clinic for alcohol and drug abuse and received psychiatric assistance for depression.

On the morning of offence, New Year's Eve 2002, his wife, Mrs Corcoran, went to work at about 8 am and left the applicant at home with his son and the deceased. The applicant left the home during the morning to drink beer with friends. At about 4 or 5 pm he went with a friend, Katrina, to the Brackenridge Tavern where he had a pot of beer and later another alcoholic drink. He bought a 750 ml bottle of Bundaberg Rum which he commenced to drink at his friend's home. By 7 pm he was drunk and becoming aggressive. Katrina asked him to go home. He walked off in the direction of his home and said he would probably have to sleep on the street.

He arrived home about 7.15 pm and was drunk and abusive. The deceased came out of his bedroom but Mrs Corcoran told him to stay in his room and he returned to it. Mr Corcoran had an argument with his wife and demanded to know where her Uncle Gideon was. It seemed he did not like her Uncle Gideon because he thought he was interfering. He said, "I am going to get a knife". He retrieved two knives from the kitchen and went into the yard searching and yelling out for Uncle Gideon, who was not at the house. He returned inside the house holding a bread knife in his left hand and a meat knife in his right hand. He pointed the knives at his wife. This constituted count 2. He demanded that she show him where Gideon was. The deceased then came to the front stairs of the house and asked Mr Corcoran what he was doing and told him to leave. The deceased went inside to call the police.

Mrs Corcoran, meanwhile, obtained refuge with a neighbour. Mr Corcoran followed her to the neighbour's home and abused the neighbour in racist terms demanding to be let in. He stabbed at the neighbour's closed door and a knife blade penetrated the door about three inches on three occasions. This constituted count 4. The neighbour's partner rang for help on triple 0. The transcript of that phone call and of the other triple 0 phone calls made that night give some insight into the terror caused by the applicant as he ran amok with the knives.

Mr Corcoran returned to his home, grabbed the phone from the deceased who was phoning triple 0, threw it at his face and made his nose bleed. Mrs Corcoran's sister, who was also at the home with her young children, told him to stop. Mr Corcoran next pursued his sister-in-law with the two knives, swinging them towards her. She ran into a bedroom and tried to shut the door but he pushed it open and grabbed her right arm. One of the knives hit her on the outside of her right arm just below the shoulder causing an abrasion about three centimetres long and bruising (count 3).

The applicant again left the house. After grabbing a saucepan from the kitchen to defend herself, his sister-in-law followed him outside. She saw the deceased staggering towards the neighbour's house yelling at them to open the door. They did not, almost certainly because they were too terrified. Mr Corcoran was still armed with the two knives, holding one in each hand. The sister-in-law yelled and threw the saucepan at him. He threw one of the knives at her but missed. She ran back inside the home and locked the door. He then threw the second knife at her. She kept yelling at the neighbours to open their door to let the deceased in but they would not.

Mr Corcoran left the scene. It seems the police arrived shortly afterwards and the neighbours at last felt safe enough to unlock the door. The deceased was on the front porch holding his stomach. He told police, "He stabbed me" and "Call an ambulance, I'm hurt. I've never had so much pain". The ambulance arrived and transported the deceased to the Royal Brisbane Hospital for treatment. He said his son-in-law stabbed him.

He was operated on to repair the knife wounds but suffered a major heart attack so that he was placed on life support in the Intensive Care Unit. The deceased was a Jehovah's Witness and refused to be treated with any blood products but this was not a cause of death. He suffered a penetrating wound to his anterior abdomen and the posterior aspect of his left thorax. He died some days later after having been placed on life support. The deceased would have probably died without surgery because of resulting peritonitis which could be expected to develop from his lacerated large bowel. He suffered a deeply penetrating "V" shaped gaping wound, 3.5 by 1.3 cm to the left upper quadrant, steeply angled towards the midline of the body. It was, at least, eight centimetres and had penetrated skin, fat, muscle, the large bowel and the small bowel. He also had an oblique incised wound over the left upper back measuring nine centimetres in length which had not damaged any major structures. He had bruising to the left upper and lower eyelids on the face and abrasions around the left eye and over the bridge of the nose and the left medial lower lip region as well as to the medial aspect of the left eyebrow. Cause of death was said to be multi-organ failure due to or as a consequence of myocardial infarction due to or as a consequence of a coronary arteriosclerosis.

At about 11.25 pm police arrested Mr Corcoran as he walked down the street towards his home. He was then wearing shorts but no shirt and was covered in grass, dirt and what appeared to be vomit and a reddish brown film. He told police he had been sleeping off the effect of an afternoon drinking session and had no memory of the entire violent incident. He remembered consuming five tall bottles of heavy beer and a 750 ml bottle of rum with Coke.

The plea of guilty to manslaughter was accepted on the basis that Mr Corcoran caused the death of the deceased by stabbing him to the chest but that the prosecution could not prove beyond a reasonable doubt that he intended to kill or cause grievous bodily harm to the deceased.

At sentence, the prosecution submitted that a sentence of nine to 10 years imprisonment with a declaration under Pt 9A of the Act was an appropriate penalty.

The defence counsel, at sentence, emphasised that the pathologist gave evidence at the committal hearing that the fatal wound required only mild to moderate force. He also emphasised that the offence was out of character and triggered by Mr Corcoran's excessive alcohol consumption. The psychiatric report from Professor Whiteford was tendered. It noted that Mr Corcoran had a long history of drug and alcoholic use with previous amnestic periods following excessive alcohol abuse and aggressive behaviour when intoxicated. He has had previous treatment for alcohol abuse. He also has a history of depression from 16 years of age. He was taking antidepressant medication at the time of the offences but this would not have interacted with the alcohol so as to make him of unsound mind nor was there evidence of involuntary automatism. Should he be released from custody there is a likelihood he will return to using alcohol in excess and may require treatment.

Defence counsel emphasised Mr Corcoran's great shame and sorrow for killing his stepfather-in-law which weighs very heavily upon him. Whilst in prison on remand he has made efforts to address his depression and alcohol dependence and has completed a number of self improvement courses. His counsel accepted that the sentence range was eight to 10 years imprisonment but urged the Judge to impose a sentence of less than 10 years without a declaration under Pt 9A and to instead recommend parole after serving about one-third of the sentence to reflect his plea of guilty.

Mr Moynihan, for the applicant, now contends that the appropriate sentence was nine years imprisonment without a serious violent offence declaration or eight years imprisonment with a declaration under Pt 9A of the Act. He argues, however, that the cases to which he makes reference, R v Bojovic [2000] 2 Qd R 183, R v De Salvo (2002) 127 A Crim R 229, R v Stepto [2002] QCA 10; CA No 220 of 2001, 4 February 2002 and R v MP [2004] QCA 170; CA No 42 of 2004, 20 May 2004 demonstrate that the applicable range for an offence of this kind is eight to 11 years imprisonment and that the imposition of a serious violent offence declaration meant that in accordance with the principles discussed in Bojovic, the sentence should have been imposed at the lower end of that range and further that, consistent with observations in De Salvo, there were no special circumstances here warranting the imposition of a declaration under Pt 9A.

The circumstances involving the offences of manslaughter are infinitely variable and no cases to which we have been referred precisely match the unique set of facts here.

Mr Corcoran voluntarily drank alcohol to excess before committing this most serious crime, well knowing from past experience and from the treatment programs he had undertaken that this may cause him to act aggressively. Although still a young man he has an extensive criminal history and has had the advantage of many community-based sentences, almost certainly aimed at addressing his alcohol and drug dependence. Of particular concern was his prior conviction for an offence of violence, robbery. Although he killed his father-in-law, as the learned primary Judge noted, it is fortunate that others in the household, which included children, and others in the neighbourhood were not also seriously injured or hurt by his violent behaviour on New Year's Eve 2002. His plea of guilty at an early stage was certainly a relevant mitigating factor.

The offence was a violent attack on a number of people, most significantly, on a 78 year old man in his own home whilst Mr Corcoran was armed with two knives, heavily intoxicated and completely out of control. It is true that he was so intoxicated that the prosecution accepted it could not prove he intended to kill or do grievous bodily harm but he became intoxicated voluntarily and in the circumstances I have already noted.

It cannot be said that a sentence which requires him to spend 7.2 years in custody before becoming eligible for release on parole is manifestly excessive. I am not persuaded that the learned sentencing Judge erred in any way in the approach he applied in fixing the term of imprisonment and in making the declaration. I would refuse the application for leave to appeal against sentence.

JERRARD JA: I agree.

MACKENZIE J: I agree.

THE PRESIDENT: That is the order of the Court.