R v Hester

Director of Public Prosecutions (Queensland) for the respondent

**[1] HOLMES JA: I agree with the reasons of, and order proposed by, Mackenzie AJA. The applicant's head injury and its sequelae might have been given greater weight in mitigation, but the learned sentencing judge's approach to it as a sentencing factor was in accordance with what was said in Channon, and the sentence of 15 years, taken as a whole, was not manifestly excessive.

[2] MACKENZIE AJA: The applicant pleaded guilty to two counts of attempted murder (counts 1 and 3) one of unlawful wounding (count 5) and one of assault with intent to commit a crime (count 6). He was sentenced to 15 years imprisonment for counts 1 and 3, four years imprisonment for count 5 and imprisonment for one year for count 6. The application for leave to appeal is concerned only with the sentences on counts 1 and 3. There were two issues argued, that the sentences were manifestly excessive, and that the learned sentencing judge erred in finding that there would be a risk to the victims in counts 1 and 3 when the applicant is released. One facet of this is that it is argued that the learned sentencing judge did not give adequate notice to or allow the applicant the opportunity to be heard on the issue of being a continuing threat to the two victims.**

**[3] The applicant and the complainant in count 1, Jennifer McLeod, had been in a relationship for about four years prior to the commission of the offences. After some difficulties in it, Ms McLeod terminated it on 12 February 2004. It may be noted at this point that the applicant had suffered a closed head injury in a motorcycle accident in June 2003 and thereafter suffered from an organically induced personality disorder. He did not take her refusal to have anything further to do with him well.

[4] The relevant history of the relationship breakdown is as follows. Towards the end of 2003, the applicant and Ms McLeod had been living at her sister's home. After an incident in which property was damaged, the applicant was asked to leave. After that, Ms McLeod went to live with her step-father, Stephen Foster, who is the complainant in count 5, and his partner, Margaret Tschirbig (the complainant in count 3). For the sake of completeness, the complainant to count 6 is a neighbour,

Mr Hyland, who saw the final incident and came out onto the street to intervene.

[5] Ms Tschirbig was not prepared to have the applicant at the house and, as a result, she suffered some harassment by means of telephone calls and text messages. He persistently tried to contact Ms McLeod as well. Her employment was terminated because of the disruptive nature of the calls. On 15 February 2004 he sent a message asking her to ring him one last time for old times' sake. She sent an email telling him emphatically that she did not wish to speak to him ever again. She continued:**

"Can't you just accept it and move on with your life because none of this is ever going to change ...".

She asked him to stop the harassment. He responded by asking for various possessions that he claimed back and informed her that he had been with another woman for weeks. In a footnote he said that Mexican said to say "hi". Whether that was a real person or a voice he later claimed was giving him malign advice is not clear, but she had heard of someone of that name whom he said was one of his friends. She said she was scared of him, interpreted it as a reference to him, and was frightened by the message.

**[6] On 19 February 2004, Toogoolawah police received a call from the applicant's mother saying that he had left with a samurai sword and a knife saying that he was going to drive into a power pole. About an hour later, his mother reported that he was home again. When the police arrived, the applicant was standing in the lounge room with a butcher's knife against his throat. He was taken to Ipswich hospital under an emergency examination order under the Mental Health Act 2000 (Qld). After being examined and given some medication he was released the following day.

[7] On the day of his release, there was a frightening incident where he came to

Ms McLeod's home. During the course of it, he was plainly agitated over the

break-up of their relationship. After some time he damaged a pedestal fan. Eventually he asked her to go to the railway station with him. After some conversation about that, which included a threat to kill Ms Tschirbig, she went to the station with him. On the way and at the station he continued to try to persuade her to resume the relationship. About the time he got on the train he said:**

In consequence of this incident, domestic violence orders were taken out against him by Ms McLeod and Ms Tschirbig.

**[8] On 25 February 2004 he telephoned Ms McLeod when she was home alone. He talked to her for about an hour. About an hour and a half or two hours later, she heard his car, which had a distinctive sound, in the street. She hid under a bed but could hear that he had come into the house. She waited in that hiding place until

Mr Foster came home. About half an hour later, two uniformed police officers arrived. They had been sent there because the applicant's father had rung the police and told them that the applicant was coming with a sword to the women's house. The prospect that that was contemplated by him was supported by an email from his treating psychiatrist to the applicant's general practitioner reporting that the applicant had telephoned him to say that he felt like slicing up his girlfriend.

[9] The offences occurred on 7 March 2004. At about 7.00 pm, Mr Foster, Ms Tschirbig and Ms McLeod had just arrived home. The phone rang and a male voice whispered "hello". The call was then terminated. Shortly afterwards Mr Foster thought he heard a noise at the front screen door. He thought he saw a person. After going to a place where he could get a better view, he saw the applicant was there. He then dialled 000. While he was doing so, the two women ran screaming towards him. The applicant came in holding two samurai swords, one long and one short. The applicant lashed out with the larger sword, as a result of which Ms McLeod received an injury to her thumb. Mr Foster crash tackled him and the women ran from the house. After a considerable struggle during which Mr Foster received an injury to his arm, he lost hold of the applicant.

[10] The applicant pursued the women outside. They had run to a nearby home to seek refuge but had been unable to gain entry. The applicant found them at the doorway. Ms Tschirbig interposed herself between Ms McLeod and the applicant, who struck her a number of times with the smaller sword. The force was such that her lower arm was severed.

[11] By this time, Mr Hyland, the complainant in count 6, had seen what was happening and ran to the scene. He armed himself with the longer of the two swords which had been discarded by the applicant and put himself between the applicant and the two women. The applicant tried to continue his attack on the women, telling Mr Hyland that he did not want to kill him. The women fled. Ms Tschirbig made good her escape but the applicant pursued Ms McLeod. Mr Hyland continued to protect her. Then Mr Foster arrived armed with a length of chain. Ms McLeod ran to Mr Foster and the applicant then threatened him and lunged at Ms McLeod. Mr Foster swung the chain and struck the applicant. By this time other neighbours were calling out that the police were on their way. The applicant ran to his car and drove home to Toogoolawah. When the police went to his home there, he surrendered without incident. He admitted his involvement in the offences.**

**[12] It was accepted by the applicant that a sentence of 16 or 17 years for someone without impairment was within range. But, it was said, a sentence of 15 years imprisonment for someone suffering an impairment such as the applicant had was manifestly excessive. It was accepted that mental abnormality could be a factor in mitigation or an aggravating factor (Channon v The Queen (1978) 33 FLR 433 at 436-438; (1978) 20 ALR 1 at 4-5). It was submitted that there was not sufficient evidence before the court in this instance to allow the sentencing judge to make a finding that there would "be a risk to Ms McLeod and Ms Tschirbig" when the applicant was released.

[13] It was conceded that the attack was persistent and sustained but, since the attack, there had been no attempt by the applicant to contact the female complainants. Nor, since then, had the applicant expressed a desire to resume the relationship or a desire to harm either of them at some future time. It was submitted that, apart from the fears of the female complainants expressed in their victim impact statements, there was no suggestion that he wished to harm them further.

[14] There were four psychiatrists' reports before the sentencing judge. The earliest was a brief report in September 2004 from Dr Schramm, the applicant's treating psychiatrist at the Correctional Centre. Dr Schramm diagnosed organic personality change as a result of the motorcycle accident. He said that the regime of medication had diminished the applicant's anger over issues relating to the break up of his relationship and his incarceration.

[15] The next was from Dr Colls in March 2005. He diagnosed Personality Change due to Cerebral Contusion, Aggressive Type. While he conceded that others might disagree, he did not think that there was sufficient evidence to conclude that there was a psychotic disorder due to Cerebral Contusion with Hallucination. He said that there was no objective evidence of auditory hallucinations and noted that there had been no reporting of them before the incident. He concluded that the applicant's condition was containable but not curable, although some improvement could be expected over the following two to five years. He was under treatment and appeared more stable in his demeanour.

[16] The third report, in July 2006, was by Dr Morris. He noted the neuropsychological evidence of cognitive impairments consistent with frontal lobe damage. He accepted that the applicant developed a psychotic disorder after sustaining the head injury. It manifested in the form of prominent auditory hallucinations and some visual hallucinations with associated suspiciousness and paranoid delusional thinking. The condition progressed and was present in a severe form at the time of the offences. Since treatment with antipsychotic and mood stabilising medication in prison, the applicant was in partial remission.

[17] In the section of his report headed "Prognosis", it was noted that the psychotic disorder had continued for three years. The condition was unlikely to recover fully and would continue in partial remission while he remained on treatment. The risk of relapse to full psychotic manifestations was highly likely if he stopped taking his medication and did not continue to be observed and monitored. His personality change should improve slowly over time but it was not considered that it would recover entirely. Dr Morris also noted that the applicant's substance abuse remained a problem, in that relapse to substance abuse was possible and a relapse to use of substances such as amphetamines, cannabis and alcohol would be likely to worsen the manifestations of his psychotic disorder and his personality change.

[18] In the section of his report headed "Management Recommendations" it was said that the applicant suffers from psychiatric conditions that limit his capacity for reality testing and to control anger, aggression, and hostility as well as his capacity to exercise judgment about control of his impulses, including aggressive ones. As a result he continued to be a risk to the community and for the safety of himself, and for the safety of others, he required ongoing close treatment and supervision of his psychiatric conditions and substance abuse.

[19] The latest report was in June 2007 from Dr Neillie upon a request from the Registrar of the Mental Health Court. On the basis of the change of personality described following the accident, he diagnosed organic personality disorder and said it was likely he would also have a diagnosis of organic hallucinosis. Dr Neillie was, however, cautious about the latter because of the absence of support for the existence of hallucinations from clinical records prior to the offence. With regard to future management, he noted that, on the combination of antipsychotic and mood stabilising medications administered in prison, there had been an improvement in his mental state. The applicant was reporting greater stability in mood, frustration tolerance and reported psychotic symptoms. He was demonstrating "some insight" into the ongoing need for treatment and its benefits. But on release he would require follow up treatment from mental health services.

[20] In his sentencing remarks, the sentencing judge referred to the existence of the reports of the four psychiatrists, summarising them by saying that it was clear the applicant was suffering from a personality change resulting from injury to his frontal lobe. It reduced his capacity to control his actions and also increased his intolerance of frustration and the ease with which he was angered.

[21] The sentencing judge then identified that his conduct placed the offence as a higher level example of attempted murder. Had he been convicted after trial it would not have been surprising if he had faced imprisonment for life "reducible only if and to the extent that the sentencing judge felt that your head injury made you less morally culpable."

[22] He identified R v Tevita [2006] QCA 131, in which 18 years imprisonment was imposed, as the top of the range of what would be applied to a person without a disability who pleaded guilty. He said that the circumstances of this case made it less serious than that of Tevita, although not by a long way. If the applicant were not an impaired person he would have been liable to imprisonment, after the plea of guilty and after taking into account such other mitigating factors as there were, of about

[23] He then referred to R v Neumann, ex parte Attorney-General [2007] 1 Qd R 53; [2005] QCA 362, in particular with respect to the diminished moral culpability of an impaired person and the more limited role of general deterrence in such a case. He then went on to point out that abnormality of mind could also have an aggravating effect. The protection of the community may require that the person be kept in prison in order to ensure that, with his abnormality, he is less of a threat to society in general and to particular victims or particular potential targets. He then concluded that the evidence satisfied him that there would be a risk to Ms McLeod and Ms Tschirbig when the applicant was released.

[24] He referred to the benefits of the medication the applicant had been taking while on remand and to the problem of ensuring that the strict regime of medication continued once he was released. He said that he was required to balance the desirability of reducing the sentence of what might have been 16 or 17 years against the risk which it seemed to him the applicant posed. He pointed out that the sentence could not be prolonged beyond the period reached by that method simply to keep him in custody. Having weighed up the matters he decided on the sentence of 15 years for the counts of attempted murder.

[25] It is in that context that the argument on the applicant's behalf that the evidence was insufficient to justify the finding that there would be a risk to Ms McLeod and

Ms Tschirbig when he was released must be considered. However, before dealing with that, it is convenient to deal with the subsidiary argument that the sentencing judge had not given adequate notice that he may be considering making the finding, in effect, that the applicant was a continuing threat to the two victims. I am satisfied that there is no substance in this complaint.

[26] When the Crown Prosecutor was making submissions on sentence he submitted that 18 years was the top of the range for the offences of attempted murder in the circumstances of the case. That observation was made after the sentencing judge expressed the view, correctly, that a comparative sentence, R v Kerwin [2005] QCA 259, was less serious than the present matter because there was no evidence that the offender was a danger to the public or a risk to the community. It was conceded by the Crown Prosecutor during the ensuing discussion that that applicant should not be sentenced as an "ordinary unimpaired person". If he were unimpaired, 18 years would have been the minimum, with life imprisonment possibly being within range. Although he did not refer to it by name, the Crown Prosecutor read the often quoted passage from Channon v The Queen (1978) 33 FLR 433 at 436-438; (1978) 20 ALR 1 at 4-5 in which the principle is concisely stated.

[27] From the discussion that ensued it must plainly have been apparent that His Honour's comment that the authority cited was less serious because there was no evidence that he constituted a danger to the public or a risk to the community and from the explicit reference to the passage from Channon, where the tension between factors pointing towards a lenient sentence and to a severe sentence were exposed, that the issue was one in play in the case. For that reason the complaint that the sentencing judge should have done more to bring the issue to the notice of defence counsel is untenable.

[28] The question whether the sentencing judge had no justification for finding that there was an element of risk in the future to the complainants in the attempted murder counts when the applicant was released may now be considered. There was evidence from Dr Colls' report that the applicant's condition which had impaired his capacity to control his actions at the time of the offence was a containable but not curable condition. Dr Morris referred to the need for ongoing psychiatric management of the applicant's psychotic disorder and to the risk involved if the applicant did not continue on his medication in the foreseeable future. None of the medical evidence suggests that, in the absence of compliance with the regime of medication, there would be no risk of relapse into the state that led to the offences.

[29] I am not persuaded that the finding by the sentencing judge was unsupported by evidence. There is no reason to think that the finding was unreasonable and there is therefore no basis upon which it can be disturbed.

[30] The remaining issue is whether the sentence is manifestly excessive. The sentencing judge had to take into account the plea of guilty, and consider the appropriate level of punishment for an offence that was extremely violent and directed against women against whom he harboured a grievance, albeit one where the intensity of it was exacerbated by a condition which caused his capacity to make a fully rational judgment as to the level of his response to be impaired. There was also the finding that he would remain a risk to the complainants upon his release. An element of preventive detention cannot be imposed. But as Brennan J said in Channon, the existence of an abnormality may reduce the moral culpability and the deliberation involved in the offence, but may also mark the offender as a more intractable subject for reform. The abnormality may seem, on one view, to lead towards a lenient sentence and, on the other, to a sentence which is severe. However that is not an unusual phenomenon in sentencing, where a court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one and sometimes to another. As Thomas J pointed out in R v Chivers [1993] 1 Qd R 432 at 436-437, proportionality with the gravity of the offending is a legitimate objective of sentencing. But extension of the period of imprisonment beyond the level of a proportionate sentence to protect society from recidivism is not permitted.

[31] The sentencing reasons show that the sentencing judge had all relevant factors in mind. The sentence was undoubtedly a lengthy one, but the offence was very violent and the intended victims were pursued with persistent determination by the applicant despite the very brave efforts by the complainants involved in the lesser offences to stop him at different times during the episode. Truly comparable sentences are rare in this area of the law, but no authority was cited that suggests that the sentence is manifestly excessive in this case, involving, as it does, the competing factors of potential future danger and commission of the offence when the applicant's judgment was somewhat impaired.

[32] I would refuse the application for leave to appeal against sentence.

[33] DOUGLAS J: I agree with the reasons of Mackenzie AJA and the order proposed by his Honour.**