Court of Appeal (Qld)|2006-06-09|Before: Jerrard and Keane JJA and Helman J Separate reasons, for judgment of each member of the Court, each concurring as to the order, made
Jerrard and Keane JJA and Helman J Separate reasons, for judgment of each member of the Court, each concurring as to the order, made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
UNREASONABLE OR
INSUPPORTABLE VERDICT – where appellant was convicted of murder and
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –UNREASONABLE ORINSUPPORTABLE VERDICT – where appellant was convicted of murder andsentenced to life imprisonment –where murder conviction was overturnedand re-trial ordered – where applicant was acquitted of murder butconvicted of manslaughterand sentenced to 17.5 years imprisonment with 980 daysbeing declared as time already served – where appellant identified noparticulars and advanced no argument in support of appeal against conviction– where Crown case that appellant killed the deceasedwas very strong– whether jury could reasonably reach verdict of guilty ofmanslaughterCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED– GENERALLY – where
applicant showed no remorse – whether
sentence imposed was within the range of sentencing judge’s discretion
–
whether sentence was manifestly excessive
Penalties and Sentences Act 1992 (Qld)
R v Auberson [1996] QCA 321, distinguished R v Bates
R v
Baker [2002] QCA 174
CA Nos 295 of 2001 and 329 of 2001, 17 May 2002,
consideredR v Cowburn [1993] QCA 273, distinguishedR v
Duncombe [2005] QCA 142
CA No 410 of 2004, 6 May 2005, consideredR v
Miguel [1994] QCA 512, distinguishedR v Sanderson [2003] QCA 338
CA No 160 of 2003, 7 October 2003, consideredR v Smith [2000] QCA 169
CA No 409, 9 May 2000, distinguished
Judgment (38 paragraphs)
[1]
Director of Public Prosecutions (Qld) for the respondent
[2]
[1] JERRARD JA: In this application I have read and respectfully agree with the reasons for judgment and order proposed by Keane JA. I adopt His Honour's description of the relevant facts, and add these further reasons. The jury's verdict reflected their satisfaction beyond reasonable doubt that Mr Corry directly caused Mr Hingst's death. Mr Hingst suffered at least 14 significant wounds. Some of those were consistent with being caused by a meat cleaver, some were consistent with being caused by a knife, and some were consistent with being caused by either. Those significant wounds were to his right elbow, right shoulder, the lower part of the right shoulder, the right hand side of the chest, the ear, the right hand side of the head (cutting through to and damaging the bone of the skull), the left side of the face, the back, the left arm, the thumb, the chest cavity (a wound about 19cm long), and the abdomen (a wound to a depth of 18cm). Mr Hingst had managed to stagger from his home to his driveway, and died soon after in hospital.
[3]
[2] Mr Corry really abandoned his appeal against his conviction on manslaughter but maintained his application for leave to appeal against his sentence. The sentencing remarks of the learned judge record that the judge was satisfied the appropriate sentence was 18 years, the same sentence as that imposed on the principal offender in R v Bates; R v Baker[2002] QCA 174, and that the learned judge had reduced that sentence by six months, for time spent in custody, to one of 17.5 years. Mr Corry argued that that sentence was manifestly excessive for his offence of manslaughter, and referred to a number of other decisions of this Court.
[4]
[3] Mr Corry had originally been convicted on 26 August 2004 of the offence of murder, and sentenced to life imprisonment. He succeeded in having that conviction overturned, on the ground of a failure to direct the jury in accordance with the provisions of s 272 of the Criminal Code 1899 (Qld), which provide for a plea of self-defence against a life threatening assault provoked by another.[1] On the re-trial which resulted in his conviction for manslaughter, Mr Corry did not rely at all on a defence of self-defence. The possibility of self-defence had been raised in Mr Corry's second interview with police, on 3 April 2002. When first questioned by police on 28 March 2002 Mr Corry had given an account which, if true, provided an innocent explanation for his presence at the house when and where Robert Hingst was murdered. That account was that Mr Corry had been abducted from outside a shop by four men, who had required him to direct them to Mr Hingst's residence, and that two or more of those men had entered and killed Mr Hingst. Those men had forced the body of Mr Hingst onto Mr Corry's body, having already forced Mr Corry to lie on the floor of Mr Hingst's residence. That was how Mr Corry came to have Mr Hingst's blood on him. Mr Corry had managed to escape.
[5]
[4] His second interview, the one on 3 April 2002, completely abandoned the story of Mr Corry being abducted by four men, of whom two had killed Mr Hingst. Instead Mr Corry told the police that Mr Hingst had assaulted and threatened a woman Lori Smith, whom Mr Corry had been "seeing", and that Mr Corry had gone armed at night to Mr Hingst's house to "scare him" and to "just warn him off, you know".[2] Mr Corry said he had taken a knife with him concealed in the right hand sleeve of a long sleeved shirt he was wearing, and a meat cleaver, inside his shorts and track suit pants. He also said he had consumed nearly a full gram of amphetamine. His reason for visiting Mr Hingst was that he was offended at what Mr Hingst had said and done to Ms Smith. He had heard Mr Hingst was a pretty powerful man who could take care of himself. Mr Corry had gone into the house at night, and, as it happened, had awoken Mr Hingst who was sitting up in bed when Mr Corry entered the bedroom. Mr Hingst had asked Mr Corry why he threatened Ms Smith[3], and Mr Hingst had leapt out of bed and lunged at Mr Corry. The knife began to slip out of the sleeve, and when Mr Corry felt it slipping he realised Mr Hingst might get possession of it. He then used the knife on Mr Hingst, but did not at any stage produce or use the meat cleaver. The medical evidence, not challenged on the trial, included the very clear opinion that the meat cleaver was used to cause some of the injuries.
[6]
[5] Mr Corry's second account did raise for the jury's consideration the plea of self-defence against a provoked assault, but on the second trial Mr Corry completely abandoned that defence and explicitly advanced, through his counsel, the argument that the version given in his first interview was correct.[4] On this application, Mr Corry told this Court towards the conclusion of the hearing that the account given in the second interview was truthful, and submitted that his giving that account to the police at that time showed how he had co-operated with the police in the investigation. He also submitted on this application that he was remorseful: it appeared he relied on his asserted co-operation to demonstrate that remorse.
[7]
[6] There is no evidence of any remorse. Mr Corry told this Court that he had pleaded guilty to manslaughter at the commencement of his first trial, and that the Crown had not accepted that plea. That statement was inaccurate. Mr M Copley, for the respondent Director, took the Court to the transcript of the first trial, which recorded that Mr Corry simply entered a plea of "not guilty" to the count of murder. In his response to that information, Mr Corry informed the Court that what had happened was that he had offered prior to the trial, through his legal representatives, to plead guilty to manslaughter and to be a witness against his co-accused Ms Lori Smith, who was being prosecuted for murder on the basis that she had procured him to kill Mr Hingst. The Director had rejected that overture.
[8]
[7] It follows from that chain of events that Mr Corry attempted to obtain a manslaughter verdict, in exchange for giving evidence against the woman for whom he claimed in his second interview with the police to feel such concern, when learning she had been insulted, that he went armed with deadly weapons at night into Mr Hingst's home, to scare him. When the prosecution refused to accept the plea to manslaughter, Mr Corry had a trial in which he relied on self-defence. That failed and his appeal succeeded on the basis of insufficient directions about that defence. On the re-trial he completely abandoned it, and presented a defence which relied on the account he first gave to the police, one which he told this Court was completely untrue. Mr Corry not only did not co-operate with the investigating authorities and with the administration of justice, but he also attempted to manipulate a favourable outcome on a dishonest account. His argument that he has demonstrated any remorse for killing Mr Hingst must be rejected.
[9]
[8] The prior decisions on which Mr Corry relied included R v Sanderson[2003] QCA 338, in which this Court upheld a sentence of 10 years imprisonment with a serious violent offence declaration, imposed after a trial. That offender was convicted of manslaughter on his trial for murder; the sentence would have been 12 years had the judge felt able to take directly into consideration some 660 days already spent in custody. Mr Sanderson had procured his de facto wife, whom he suspected of having an affair with the deceased, to lure the deceased to the home Mr Sanderson shared with his de facto. When the deceased came there Mr Sanderson killed him with a blow to the head from a piece of timber. Mr Sanderson and his de facto then removed and concealed the deceased's body and clothing, and cleaned the deceased's blood from their premises and clothes. Eventually his de facto told the police what had happened and Mr Sanderson was tried for murder and convicted of manslaughter.
[10]
[9] That applicant, like Mr Corry, had attempted by dishonesty to avoid conviction and had exhibited no remorse. His experienced counsel conceded that comparable sentences made it very hard to criticise what would otherwise have been a 12 year head sentence in that matter. Mr Sanderson struck only one blow; Mr Corry inflicted at least 14 separate significant wounds and a number of lesser ones. Mr Sanderson's offending followed the familiar but tragic circumstances of jealousy and the breakdown of trust of a relatively lengthy relationship. Those circumstances make understandable the strong, if not overpowering, emotions he felt, while in no way excusing his conduct. Mr Corry's attack on Mr Hingst was prompted at best by the motive of proving to Ms Smith the extent of Mr Corry's interest in her.
[11]
[10] Mr Corry also relied on the 12 year sentence imposed in R v Cowburn[1993] QCA 273 after a trial. That applicant and another person had attacked a sleeping man with weapons (a block of wood and a spanner), and had left him to die from his severe injuries. Mr Cowburn was acquitted of murder, because the jury were not persuaded that he had the intent to kill or do grievous bodily harm; similar to Mr Corry. But that applicant was only 18 years old when he offended, and in his case parole was recommended after he had served eight years. That equated to a sentence, on the then applicable basis of sentencing, of 16 years (or perhaps 18, if one takes into account that that applicant had spent nearly a year in pre-sentence custody). It follows that that case does not help Mr Corry.
[12]
[11] There was the matter of R v Miguel[1994] QCA 512, where that applicant was sentenced to 12 years imprisonment after his conviction for manslaughter following a trial. He had killed his wife with a knife that he had previously sharpened, and he had announced some eight days earlier to a doctor that he planned to kill her. That case is distinguishable because of the probability that the verdict reflected a defence of diminished responsibility, and that applicant had a history of psychiatric problems. A verdict on that basis means Mr Miguela's case is readily distinguishable from Mr Corry's. Like Mr Sanderson, Mr Miguela had also become embittered and jealous following the breakdown of a prior relationship.
[13]
[12] Mr Corry then relied on R v Smith[2000] QCA 169, where that applicant was convicted of manslaughter after a trial for murder, and sentenced to nine years imprisonment, with a declaration that he had committed a serious violent offence. He had killed his wife by smashing her skull on a concrete floor. He used no weapon, which distinguishes him from Mr Corry.
[14]
[13] The only other significant case on which he relied, was R v Auberson[1996] QCA 321. That applicant was convicted of manslaughter after a trial for murder, and sentenced to nine years imprisonment; he killed his wife. He had relied successfully on a defence of provocation, and was described as very remorseful. Those two matters make his case quite different.
[15]
[14] In the result those other cases where convictions for manslaughter have followed trials for murder do not help Mr Corry, and nor does at least one matter where there was a plea of guilty. That was in R v Duncombe[2005] QCA 142, where that offender had killed his victim - a considerably older man incapacitated by alcohol and fatigue - by two vicious punches. He was sentenced to 10 years imprisonment. Sentencing practices approved by this Court, and reflecting the provisions of the Penalties and Sentences Act1992 (Qld), result in a reduction of between one quarter and one third of an otherwise appropriate term of imprisonment, to reflect a timely plea of guilty. That means the 10 year sentence imposed on Mr Duncombe on a plea equates to a sentence of 13 to 15 years following a trial; just as Mr Corry's 18 year sentence reflects a potential sentence of between 12 to 13.5 years, had an early plea of guilty been accepted. It follows that comparing Mr Duncombe's sentence after a plea with Mr Corry's after a trial does not show that Mr Corry's sentence was excessive.
[16]
[15] For those further reasons I agree the sentence application should be dismissed.
[17]
[16] KEANE JA: On 26 September 2005, the appellant was convicted upon the verdict of a jury of the manslaughter of Robert Hingst ("the deceased") on 26 March 2002. On 27 September 2005, he was sentenced to 17½ years imprisonment with 980 days being declared as time served. The appellant seeks to appeal against both conviction and sentence.
[18]
[17] In relation to the appeal against conviction, the only ground of appeal is "that the verdict of the jury is unreasonable and cannot be supported". No particulars of that ground have been identified by the appellant. He is unrepresented on his appeal, and did not advance any argument in support of his appeal against the conviction for manslaughter. To the extent that the appellant has not formally abandoned his appeal against the conviction for manslaughter, it may be disposed of shortly.
[19]
[18] The Crown case that the appellant killed the deceased was very strong. It was established beyond question that the appellant was in the house of the deceased on the night in question, that he was armed with a carving knife and a meat cleaver and that he came away from the house with the blood of the deceased on him. He tried to dispose of the weapons. The records of interview demonstrate that the appellant admitted the killing in one of his interviews with the police.
[20]
[19] The jury were entitled to conclude that the appellant had entered the house of the deceased in the dead of night and slaughtered him with a carving knife and a meat cleaver. The evidence suggested that he was motivated to avenge a perceived insult of a person who had been his girlfriend for a few days, and who had previously been in a relationship with the deceased.
[21]
[20] The appellant, who did not give evidence, relied on a flimsy assertion in his first record of interview that other assailants had brought the appellant (against his will) to the house where the deceased was killed by the other assailants. The jury clearly rejected these assertions. They were entitled to do so.
[22]
[21] The appellant was acquitted of murder only, it would seem, because the jury were of the view that the appellant was so affected by drugs that they could not be satisfied beyond reasonable doubt that he acted with the intention of killing the deceased, as opposed to causing him bodily harm.
[23]
[22] A perusal of the record of the trial does not suggest any reason to doubt that the jury were reasonably entitled, on all the evidence, to reach the verdict of guilty of manslaughter.[5]
[24]
[23] In relation to the application for leave to appeal against sentence, the appellant contends that the sentence which was imposed on him was manifestly excessive, and that a sentence of 12 years was appropriate. He seeks to support that contention by reference to what he contends are comparable sentences. Those cases were cases of manslaughter in which the killing occurred in circumstances involving the breakdown of the domestic relationships in which offender and victim were involved.[6] The circumstances of human tragedy which led to the killings involved in these cases readily distinguish them from this case where the motive for the killing was so trivial.
[25]
[24] It is not necessary to refer to those cases in further detail to identify points of distinction in the light of the recent decision of this Court in R v Bates; R v Baker,[7] another case of manslaughter following a home invasion and savage beating of the victim where the assailant was recruited to administer a beating for no reason other than to avenge a perceived slight.
[26]
[25] The decision of this Court in R v Bates; R v Baker established that, in the most serious cases of manslaughter, the appropriate sentencing range, even where the offender has pleaded guilty, is 15 to 18 years imprisonment.[8]
[27]
[26] This was certainly in the category of the most serious cases of manslaughter. The appellant's attack on the deceased was planned. The appellant invaded the deceased's home in the dead of night. It may be that the killing here was not effected by the prolonged beating administered by the offender in R v Bates; R v Baker, but, of course, here the appellant was armed with a carving knife and a meat cleaver, and used them to dispatch the deceased. He was fuelled by drugs. He attacked the deceased in the most brutal manner, and left him to bleed to death. He acted for the most trivial of motives. He has exhibited no sign of remorse. Despite his protests to the contrary, he has not cooperated with the administration of justice. Indeed, at the hearing of his application for leave to appeal against sentence, he admitted that the account given in his first record of interview, and on the basis of which he defended the charge in this case, was false.
[28]
[27] The learned sentencing judge was, therefore, well within the range of the sentencing discretion in determining that the appropriate sentence was 18 years imprisonment. Her Honour then gave the appellant the benefit of a reduction in sentence of six months spent serving a sentence on another charge which, but for various procedural issues, would have been dealt with at the same time as the offence of present concern.
[29]
[28] There is no reason to doubt that the verdict of the jury was reasonable.
[30]
[29] The sentence which was imposed was not manifestly excessive.
[31]
[30] The appeal should be dismissed; and the application for leave to appeal against sentence should be dismissed.
[32]
[31] HELMAN J: I agree with the orders proposed by Keane JA and with his reasons.
[4] At AR 2-3; where Mr Corry's counsel on the second trial informed the learned judge that counsel had specific instructions that he was not relying on self-defence, and that the second record of interview put forward a false story. At AR 293 the learned judge explained to the jury that Mr Corry's counsel argued that the first interview was "right", and the second one just "rubbish".
[6] See R v Cowburn[1993] QCA 273; CA No 135 of 1993, 4 August 1993; R v Miguel[1994] QCA 512; CA No 351 of 1994, 25 October 1994; R v Sanderson[2003] QCA 338; CA No 40 of 2003, 8 August 2003; R v Stepto[2002] QCA 10; CA No 220 of 2001, 4 February 2002; R v Smith[2000] QCA 169; CA No 409 of 1999, 9 May 2000; R v Auberson[1996] QCA 321; CA No 248 of 1996, 3 September 1996.