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[2020] QCA 53
General information, not legal advice.
Court of Appeal (Qld)
2020-03-27
Morrison JA, Bond and Callaghan JJ
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Kirke [2020] QCA 53
PARTIES: R / v / KIRKE, Alexander Craig Wharton / (applicant)
FILE NO/S: CA No 172 of 2019 / SC No 750 of 2019
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Brisbane – Date of Sentence: 7 June 2019 (Davis J)
DELIVERED ON: 27 March 2020
DELIVERED AT: Brisbane
HEARING DATE: 5 March 2020
JUDGES: Morrison JA, Bond and Callaghan JJ
ORDER: Application for leave to appeal against sentence refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to five counts including one count of manslaughter – where the applicant was party to a violent home invasion after which the applicant’s gross negligence and reckless conduct unlawfully killed a rescuer – where the applicant was 17 at the time of the offence – where the primary judge imposed a sentence that did not require the mandatory declaration of a serious violent offence – whether the primary judge gave enough weight to the applicant’s mitigating factors / Penalties and Sentences Act 1992 (Qld), s 161B / Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
COUNSEL: C F C Wilson for the applicant / C W Heaton QC, with C M Cook, for the respondent
SOLICITORS: Guest Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I have read the reasons of Bond J and agree with those reasons and the order his Honour proposes.
BOND J: On 31 May 2019 the applicant was convicted on his own pleas of guilty of the following offences:(a)Attempted armed robbery in company (count 1 on the indictment);(b)Assault occasioning bodily harm while armed and in company (count 2 on the indictment);(c)Attempted burglary by breaking in the night while armed and in company with property damage (count 3 on the indictment);(d)Assault occasioning bodily harm while armed and in company (count 4 on the indictment); and(e)Manslaughter (count 5 on the indictment).
On 7 June 2019, the primary judge sentenced the applicant to 9 years imprisonment in respect of count 5 and to 2 years imprisonment on each of counts 1 to 4. All terms of imprisonment were to be served concurrently. A parole eligibility date was fixed at 9 July 2022, after the applicant had served 5½ years of imprisonment (or a little over 60% of the full time term). The primary judge declared that 879 days spent in pre-sentence custody between 9 January 2017 and 6 June 2019 was to be regarded as time served under the sentence.
The applicant seeks leave to appeal against the sentence imposed on him. The applicant contends this court should set aside the sentence below; exercise the sentencing discretion afresh; and conclude that a sentence of 9 years imprisonment with parole eligibility after 3 years was appropriate in all of the circumstances.
This is not a case where the applicant seeks to demonstrate that the primary judge made any specific error in the exercise of the sentencing discretion. Rather, as I observed in relation to a similar application in R v Williams [2015] QCA 276:1
“… the applicant’s case is that the sentence was manifestly excessive and that, accordingly, this court should set aside the sentence below and exercise the sentencing discretion afresh. In order to make good this contention, it is not enough to show that the sentence is markedly different from sentences in other cases. The difference must be such that “… the result embodied in the court's order ‘is unreasonable or plainly unjust’ and the appellate court infers ‘that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’.””2
In my view, that ground has not been made out. I set out my reasons for reaching that conclusion.
The offending occurred at a duplex unit building in Broadbeach Waters.
As at Christmas Day 2016, the residents of the downstairs unit in the duplex were BR, his grandmother and his female friend, SC. The residents of the upstairs unit, with whom they had a familiar but not close relationship, were Darren Pullar (aged 50), his girlfriend and her son JR.
On the evening of Christmas Day 2016, BR was socialising in the carport of the downstairs unit with SC and two other friends. They were drinking and using drugs. BR’s mother, brother and grandmother were inside the unit.
In the upstairs unit, Mr Pullar and his girlfriend had gone to bed early. But three other people were still in the unit and continued socialising in the lounge room. By about 1:00 am on Boxing Day, JR had returned home with two friends and joined the other three in the lounge room to continue socialising.
Shortly after, at about 1:15 am, the applicant and three other male companions arrived outside the duplex, with a view to implementing a plan to rob BR, who was known to them as a low-level drug dealer. They had hatched the plan the previous evening whilst socialising and drinking alcohol at the applicant’s house. The applicant – then an unlicensed driver – drove all four offenders to the duplex in his car. Although the car was uninsured and unregistered, it was in satisfactory mechanical condition. The applicant’s metal baseball bat was in the back. But the applicant stopped off on the way to collect a wooden cricket bat.
Once arriving at the property, two of the applicant’s companions entered the metal gate at the front of the duplex. They were disguised and were armed with the applicant’s baseball bat, the cricket bat they had collected, and at least one knife. The applicant knew they were armed and disguised. The applicant and one other male waited in the car. Street lights provided good visibility and the road was dry and in good condition.
Count 1 occurred when, brandishing their weapons, the applicant’s two companions approached BR and his friends, who were still socialising in the carport of the downstairs unit, one of the offenders yelling demands for money and property. BR went inside the downstairs unit with SC and locked the door, leaving a male and female companion outside. The female told the offenders that they did not have anything and the two went to run away. Count 2 occurred when, as the male turned away from the offenders, he was struck to the shoulder blade with the bat, causing him bruising and an abrasion to his back.
Count 3 occurred when the two offenders then smashed the glass sliding door to the downstairs unit in an attempt to get inside. They were foiled in this attempt by a security screen. One of the offenders then smashed the back windscreen of a vehicle parked under the carport.
“The first comparative to which I was referred was R v Folland [2004] QCA 209. In that case, there was a dispute between the accused driver of a car and the victim. The offender got into a motor vehicle, reversed into a light pole and then drove the vehicle forward on a footpath until it struck the victim. He died. The offender was charged with murder but a jury convicted him of manslaughter. A sentence of nine years declared a serious violent offence was not disturbed on appeal. This was a case of a spontaneous action following an argument.
R v Kelly [[1999] QCA 296] is an older case. This was a very different case both to yours and to Folland. Kelly was a 22 year old who went drunk, stole a van and drove erratically for some 23 kilometres. He killed the driver of another vehicle. He was sentenced to eight years imprisonment and his appeal against that sentence was dismissed.
R v Clark [2009] QCA 361 involved a woman who drove her car while she was affected by prescription medication. She became delayed in traffic and drove up on the footpath to get past the car in front of her. She struck two teenage boys who were standing on the footpath. They both died. She pleaded guilty to two counts of manslaughter. She had a history of psychiatric illness which explained some of her behaviour. She was sentenced to 10 years imprisonment and a serious violent offence declaration was therefore mandatory. On appeal that sentence was set aside and a sentence of nine years imprisonment with no declaration was made.
R v Derks is a case I mentioned earlier. The applicant was 21 years of age at the time of his offending and 22 at sentence. He had a significant criminal and traffic history. The offender stole a vehicle which he then used to perform burnouts. He was driving the car early one morning when he attracted the attention of police. He then drove erratically to avoid police, ended up on the wrong side of the road and collided head on with a woman who was killed. He was, on appeal, sentenced to 11 years imprisonment for manslaughter which attracted a serious violent offence declaration automatically, and two years cumulatively for other offending.”
The primary judge noted that the maximum sentence for the offence of manslaughter was life imprisonment, and that it was “often said that there is a very broad range of sentences for manslaughter because criminality for unlawful killing can vary widely due to differing circumstances”. He concluded, correctly, that the offending of the applicant amounted to a serious example of manslaughter. However, he thought that there were complications which suggested that a declaration of a serious violent offence should not be made. In this regard, the primary judge accepted the submission from the applicant’s counsel that counts 1 to 4 would not attract sentences of 5 years or more if looked at in isolation from count 5. And he accepted that imposing a head sentence on count 5 to reflect the total criminality would, if a serious violent offence declaration was made, impermissibly attach an 80% non-parole period for the offending that was counts 1 to 4, for which a declaration could not be made. The primary judge determined that the factors which had enlivened the discretion to make such a declaration called for an order delaying the parole eligibility date.
Taking into account all the matters which he had identified, the primary judge concluded that a just sentence on count 5 to reflect the totality of all the counts was a sentence of 9 years requiring the applicant to serve 5½ years.
Before this Court, counsel for the applicant characterised his argument in this way:
“The point in the appeal, I hope, is a simple one, and that is that the sentence was manifestly excessive, given three things – the basis of the manslaughter being a negligence basis, the extreme youth of the offender, being 17 at the time of the offending, and his plea of guilty – in circumstances where the court had decided that a serious violent offender declaration was not warranted.”
Counsel suggested that it was hard, if not impossible, to see what benefit was given to the applicant in respect of the three matters he had raised.
The first thing which should be said in response to the applicant’s submission is that it is not correct to characterise the way in which the primary judge dealt with the question of a potential serious violent offender declaration merely as a determination that it was not “warranted”. That dismissal rather obfuscates the nuanced way in which the primary judge dealt with the question whether he should impose a sentence which would have as a consequence either a mandatory or a discretionary declaration that the applicant was convicted of a serious violent offence.
Second, the effect of the submission seemed to be that unless sentencing remarks make explicit an analytical structure in which there is a theoretical starting point from which demonstrably sufficient allowance is sequentially made for relevant mitigating factors and the guilty plea, there must be some error. But such a submission must be rejected. Absent some form of statutory prescription, the process of sentencing so as to arrive at an outcome which is just in all the circumstances does not mandate such a sequential form of reasoning.6
Third, in my view, the primary judge’s carefully considered sentencing remarks reveal that he had taken into account the youth of the applicant and the guilty plea when he arrived at a sentence which did not have as a consequence a mandatory declaration that the applicant was convicted of a serious violent offence and when he determined that he should not exercise a discretion to make such a declaration. He was entitled to regard the circumstances of the offending as providing a foundation for an exercise of discretion to delay the parole eligibility date.
Fourth, the respondent was correct to submit that although the cases referred to by the primary judge did provide broad support for the penalty that was imposed, none of the cases were directly comparable. A similar conclusion was warranted in respect of R v Dean, Selmes & Phillips [2018] QCA 124, identified by the applicant in submissions before this court. The applicant conceded in oral argument before this court that the suggested comparable cases were of limited use. But, as I observed at [5] of these reasons, even if the cases had demonstrated a marked difference, it was for the applicant to demonstrate that the result embodied in the sentence was “unreasonable or plainly unjust” and that this court should infer “that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”. That has not been done.
The application for leave to appeal against sentence should be refused.
At [7], Philip McMurdo JA and Jackson J agreeing. Footnote in original. ↩
Barbaro v The Queen (2014) 253 CLR 58 at [26]. See also R v Tout [2012] QCA 296 at [8], per Fraser JA, with whom Muir and Gotterson JJA agreed, citing Hili v The Queen (2010) 242 CLR 520 at [58], [59]. See also R v Ahmetaj [2015] QCA 248 at [5], per Morrison JA, with whom Holmes CJ and Mullins J agreed. ↩
Pursuant to s 302(1)(b) of the Criminal Code the offence of murder includes unlawful killing in circumstances where the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger life. ↩
When this occurred was not entirely clear. Counsel for the Crown informed the primary judge that on 14 September 2017 at one of the mentions in relation to the committal proceedings, a transcript revealed that the applicant told those present that he wanted “to completely apologise for this tragic accident”. It may be that that was the incident referred to in the victim impact statement. ↩
See also R v Nagy [2004] 1 Qd R 63 and R v CBO [2016] QCA 24. ↩
Markarian v The Queen (2005) 228 CLR 357 at [27] and R v Randall [2019] QCA 25 at [38]. ↩
R
Kirke [2020] QCA 53
(2005) 228 CLR 357
(2014) 253 CLR 58
(2010) 242 CLR 520
The commotion attracted the attention of those in the upstairs unit. JR and three of the others who had been socialising in the lounge room came down via external stairs around the side of the building from the carport. JR tripped as he came down the stairs. He landed on his stomach, drawing the attention of the offenders. Count 4 occurred when one of them hit JR a number of times with the cricket bat while he was lying on the ground, causing him bruising and scratches to his back.
Count 5 involved the manslaughter of Mr Pullar. He woke and went downstairs to assist JR. He tackled one of the offenders but the offender broke loose and with the other offender ran back towards the applicant’s waiting car. Mr Pullar pursued them. The applicant saw him coming and, once the two offenders got in the car, accelerated quickly and commenced to drive away. The car struck Mr Pullar while he was in front of the driver’s side, but the applicant continued to accelerate dragging Mr Pullar for a short distance and then completely running over him. The applicant did not slow down and drove away from the scene leaving Mr Pullar lying on the road, breathing faintly and covered in blood. A passing Uber driver attended and performed CPR, but Mr Pullar had stopped breathing by the time paramedics arrived at 1:28 am. Attempts at resuscitation were unsuccessful and he was pronounced dead at the scene.
A post-mortem examination determined the cause of death was severe injuries to the chest as a result of being run over by the applicant’s car. The injuries included:(a)multiple fractures to the ribs and sternum, punctured lungs and collapsed chest;(b)fractures to the cheekbones, sinuses and other areas of the face;(c)multiple fractures to the spinal column and other internal injuries; and(d)fractures to the right forearm and abrasions to the legs, upper arms, back, head, ears, face, forehead, nose and eyes.
The applicant did not surrender himself to police. Rather, after an investigation, he was intercepted by police at a service station off the M1 motorway, Mudgeeraba, a little under two weeks later on 8 January 2017. He was driving the same car he was driving when he killed Mr Pullar. He was transported to the Southport police station, where he was detained and placed in a holding cell with a Law Enforcement Participant. He told many lies about his involvement in killing Mr Pullar but admitted he was the driver and described Mr Pullar as a “human speed bump”. He was taken out of the cell and refused to participate in an interview with police about his involvement in the offending. He was charged with four offences including murder and remanded in custody.
At the time the offending took place on 26 December 2016, the applicant was a little over 17 years and four months of age.
On 2 February 2018, the applicant unsuccessfully applied for bail in the Supreme Court. On 28 November 2018, a committal hearing proceeded with the cross-examination of nine witnesses. The applicant unsuccessfully made a no-case-to-answer submission in relation to the murder charge.
During the committal hearing (almost two years after Mr Pullar’s death), the applicant had made an offer to the Crown to plead guilty to a charge of dangerous operation of a motor vehicle, causing death. On 29 March 2019 (a few months more than two years after Mr Pullar’s death), the applicant indicated to the Crown that he would plead guilty to manslaughter. The Crown accepted that offer, and on 22 May 2019, the Crown presented the five-count indictment to which I have earlier referred. The applicant entered a plea of guilty to all counts on the indictment at the time of the sentencing hearing on 31 May 2019.
At the time of the sentencing hearing before the primary judge, the applicant was a little under 19 years and 10 months of age. He had served over two years in custody.
Before the primary judge, the Crown submitted that the agreed facts revealed the applicant was party to a very violent home invasion in which the applicant’s gross negligence and reckless conduct unlawfully killed a rescuer. The Crown submitted that the circumstances revealed a very serious example of manslaughter. The Crown acknowledged that the applicant was very young and had pleaded guilty and submitted that those factors should result in the applicant not being the subject of a serious violent offence declaration. Ultimately, the Crown submitted that the Court should take a global approach to count 5 and sentence the applicant to nine years imprisonment and require the applicant to serve more than half that sentence before becoming eligible for parole.
Before the primary judge, counsel for the applicant:(a)acknowledged that the fact that Mr Pullar’s death occurred during a violent home invasion was a factor which could be taken into account in relation to the sentence for manslaughter;(b)submitted that care should be taken not to permit that consideration to overwhelm the sentencing discretion, lest the applicant in effect be sentenced for an offence with which he was not charged, namely felony murder;3(c)identified particular aspects of the applicant’s antecedents to the primary judge, namely –he had three sisters;he left school in year 9 and worked in his father’s furniture business from age 14 to age 16 until his father passed away in February 2016; andthe death of his father had affected him significantly;(d)invited the primary judge to take account of the applicant’s youth, pointing out that the Youth Justice and Other Legislation (Inclusion of 17-year-old Persons) Amendment Act 2016 commenced operation on 12 February 2018, and that if the applicant had committed the offence after that date, he would have fallen to be sentenced as a juvenile;(e)submitted that the offer to plead guilty during the committal hearing could be taken as evidence of remorse on the basis that it showed some insight and an acknowledgement to plead guilty to a negligence type driving offence;(f)submitted that further evidence of remorse was to be found in the occasion (to which reference had been made in one of the victim impact statements) when the applicant stood in court and told those present that he was sorry and that he had lost his father too;4(g)placed before the primary judge character references from the applicant’s family friends and from his mother and sister; (h)placed before the primary judge certificates attesting to the applicant’s successful participation in a youthful offenders program and other rehabilitation programs during his time in custody; and(i)acknowledged that the discretion to make a serious violent offence declaration might be enlivened, but submitted that the discretion should not be exercised in this case where the offender was a very young person without any significant criminal history.
Ultimately counsel for the applicant submitted that the applicant had already served a significant period in custody for a very young person. He did not cavil with a nine year head sentence but submitted that the community and the applicant would best be served if a parole eligibility date was set at less than the halfway point.
Having heard argument on 31 May 2019, the primary judge reserved the question of the imposition of the sentence. Sentence was imposed on 7 June 2019.
In determining the appropriate sentence, the primary judge noted that in Markarian v The Queen (2005) 228 CLR 357, the High Court explained that the sentencing process was an integrated one, which was directed to the determination of a just sentence, taking into account all relevant circumstances and applying all appropriate sentencing principles. He noted that the underlying principles of sentencing in Queensland are provided by s 9 of the Penalties and Sentences Act 1992, and that he had had regard to that section.
The primary judge noted the circumstances in which the pleas of guilty were entered and accepted that by those pleas the applicant had cooperated with the administration of justice, saved the community the costs of a trial and saved Mr Pullar’s family from the ordeal of a trial. His Honour thought that the extent to which the applicant had demonstrated true remorse was a little complicated by virtue of the early demonstrated callousness of the applicant, but ultimately concluded that by the time of the committal hearing the applicant had come to realise the enormity of his criminal conduct and was truly remorseful.
The Crown had also relied on victim impact statements from Mr Pullar’s sister (on her own behalf and on behalf of her mother), Mr Pullar’s brother, Mr Pullar’s girlfriend, and from his former partner (the mother of his 13 year old son). The primary judge accepted – unremarkably – that the statements revealed the depth of the terrible grief and ongoing pain which the applicant’s offending had caused to Mr Pullar’s family.
Before the primary judge, the Crown had tendered the applicant’s criminal history. It revealed that in the few months prior to the index offending, the applicant had committed some minor drug offences and offences of failing to appear, but they had resulted in fines and a good behaviour period, and no conviction had been recorded. The primary judge, unremarkably, concluded that the drug offences were of limited significance but accepted that they did evidence an association with illicit drugs and explained the motivation for his involvement in the present offending.
The primary judge noted and accepted the applicant’s submissions concerning the character references and the certificates relating to the rehabilitation programs, and concluded that there was clear evidence of rehabilitation. His Honour accepted that the loss of the applicant’s father impacted on him significantly.
The primary judge accepted the applicant’s submissions that it would be wrong to sentence the applicant de facto for a felony murder. But his Honour thought that the context in which the death occurred, namely immediately after the home invasion by an act of gross negligence in driving the car when Mr Pullar was near it, was a circumstance which was relevant.
The primary judge correctly noted the following relevant aspects of the law concerning offences which might be regarded as serious violent offences (noting that all of the charges to which the applicant had pleaded guilty were capable of being so regarded):(a)An offender sentenced to a term of imprisonment is by force of law eligible for release on parole after serving 50% of the sentence, unless there is an order of the Court reducing or extending the time for eligibility: see s 184(2) of the Corrective Services Act 2006 and s 160C(5) of the Penalties and Sentences Act.(b)Where a sentence of imprisonment is imposed for such an offence of 10 or more years, the Court is obliged by s 161B(1) of the Penalties and Sentences Act to declare that the offence is a serious violent offence, with the consequence that the offender must serve 80% of the sentence before becoming eligible for parole.(c)Where a sentence of imprisonment is imposed for such an offence of more than 5 but less than 10 years, s 161B(3) of the Penalties and Sentences Act gives the Court a discretion to declare that the offence is a serious violent offence, with the consequence that the offender must serve 80% of the sentence before becoming eligible for parole. The considerations relevant to the exercise of that discretion were identified in R v McDougall & Collas [2007] 2 Qd R 87 at [19].(d)If a declaration is made then it is made as a component of the sentence, and the fact that the consequence of the declaration is that the offender serves 80% of the sentence is taken into account in setting the appropriate sentence: see R v McDougall & Collas at [17] and R v Smith [2019] QCA 33.(e)The law recognises that the difference in the impact of a sentence imposed just below the arbitrary line of 10 years, and a sentence marginally above, is disproportionally great when having regard to time spent under sentence before being eligible for parole: see R v Randall [2019] QCA 25 at [31] and [33].(f)While in other cases a plea of guilty and other mitigating factors may be reflected in a recommendation for early release on parole, that option is not available where the sentence for a serious violent offence is 10 years or more. In those circumstances, any mitigating factors must be reflected by a suitable reduction of the head sentence: see R v Carlisle [2017] QCA 258.(g)Whilst it is a common sentencing practice where there is a series of offences to select the most serious offence and impose a “global” sentence on that offence which reflects the totality of all the offending with all sentences to be served concurrently, that approach might not be appropriate where the primary offence is a serious violent offence and at least some of the others are not. As the Court of Appeal recognised in R v Derks [2011] QCA 295,5 to the extent that the head sentence is increased to reflect the offences which are not serious violent offences, the declaration will effectively require an offender to serve 80% of the sentence for those offences, even though they cannot be declared serious violent offences.
Against that background recognition of the consequences of either (1) imposing a sentence which was 10 years or more, or (2) (as part of a sentence of less than 10 years but more than 5 years) making a declaration that the applicant had been convicted of a serious violent offence, the primary judge went on to identify that the following features of the applicant’s offending warranted his giving consideration to making such a declaration:(a)the applicant was a party to a plan to commit serious criminal activity where the persons involved intended to use force to secure drugs and money;(b)the planned force involved the use of weapons;(c)significant violence was in fact committed, causing personal injury and property damage;(d)the applicant and his three co-offenders had between them created an extremely dangerous situation in a residential area and it was completely at their making that Mr Pullar was run over and killed;(e)the applicant drove the car with Mr Pullar standing in front of the driver’s side, which was an act of extreme and gross negligence; and(f)the applicant continued to drive after striking Mr Pullar.
His Honour, however, dealt with the question of the making of a declaration of a serious violent offence alongside – rather than separately from – other considerations. He thought that taking that course was a consequence of the nature of the sentencing process described in Markarian v The Queen.
The primary judge specifically dealt with the submission that the applicant’s youth was a significant mitigating factor. He correctly concluded that because the Youth Justice and Other Legislation (Inclusion of 17-year-old Persons) Amendment Act 2016 did not apply, the law required the applicant to be sentenced under the Penalties and Sentences Act. Nevertheless, he agreed that under that Act the youth of the applicant was clearly a mitigating factor and should be taken into account under that Act.
His Honour considered the yardstick against which to examine the sentence by identifying comparative cases in this passage of his sentencing remarks:
CALLAGHAN J: I have read the reasons of Bond J and agree with those reasons and the order his Honour proposes.