R v Lacey [2009] QCA 275

SUPREME COURT OF QUEENSLAND

CITATION: R v Lacey [2009] QCA 275

PARTIES: R v LACEY, Jade Michael (applicant/appellant)

FILE NO/S: CA No 123 of 2009 SC No 920 of 2009

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 11 September 2009

DELIVERED AT: Brisbane

HEARING DATE: 15 July 2009; 16 July 2009

JUDGES: Chief Justice, McMurdo P, Keane, Muir and Chesterman JJA Joint reasons for judgment of Chief Justice and Keane, Muir and Chesterman JJA; separate reasons of McMurdo P, dissenting in part

ORDERS: Appeal against conviction dismissedApplication for leave to appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where appellant was convicted after trial of wounding with intent to maim – where primary judge did not explicitly summarise counsel for the appellant’s argument in summing up – whether primary judge failed to put the appellant’s case to the jury / CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where appellant raised defence of self- defence – whether jury was bound to have a reasonable doubt about whether the appellant acted in self-defence – whether jury verdict was unsafe and unsatisfactory / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where upon being convicted, after trial, of unlawful wounding with intent, the appellant was sentenced to five years imprisonment – where primary judge reduced a notional seven years imprisonment by two years to take into account non-declarable pre-sentence custody but did not fix an earlier parole eligibility date – where, as a result, appellant will serve four and a half years in actual custody and will be eligible to apply for parole after serving 65 per cent of an effective seven year sentence – whether sentence manifestly excessive / Criminal Code 1899 (Qld), s 23, s 271, s 272, s 317, s 688E / Penalties and Sentences Act 1992 (Qld), s 161B, Part 9A / AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited / Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited / Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13, cited / Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited / Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, cited / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited / MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited / R v Ainsworth [2000] QCA 163, cited / R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited / R v Aziz [1982] 2 NSWLR 322, cited / R v Clarke (2005) 159 A Crim R 281; [2005] QCA 483, cited / R v Courtney-Smith (No 2) (1990) 48 A Crim R 49, cited / R v Dwyer [2008] QCA 117, cited / R v Hytch (2000) 114 A Crim R 573; [2000] QCA 315, cited / R v Kitson [2008] QCA 86, considered / R v Lester [2004] QCA 34, cited / R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited / RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited

COUNSEL: J R Hunter SC for the applicant/appellant / W Sofronoff QC SG, with M R Byrne, for the respondent

SOLICITORS: Boe Lawyers for the applicant/appellant / Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE, KEANE, MUIR AND CHESTERMAN JJA:

Appeal against conviction introduction

The background to this appeal and a more comprehensive discussion of the facts are to be found in the reasons in Appeal No. 114 of 2009, which was heard together with this appeal.

Grounds 1 & 2 - the primary judge failed to put the appellant's case to the jury

Submission of counsel for the appellant

Counsel for the appellant relied on the principles stated in the outline of submissions by counsel for the appellant's co-accused. Additionally, it was submitted that the duty of the trial judge to put the accused's case was both "onerous"¹ and "fundamental"² and that a judge is not relieved of such obligation by the failure of defence counsel to insist on compliance.³ Senior counsel for the appellant in his opening address to the jury at the commencement of the trial identified the defence case and made the same points again in his closing address. The appellant gave evidence and was cross-examined on Monday, 27 April 2009. His counsel's two and a half hour closing address to the jury commenced at 10:15am on Tuesday, 28 April.

The part of the summing up which related specifically to the appellant's offences was delivered on the afternoon of Thursday, 30 April and there were some brief redirections on the morning of Friday, 1 May. The jury retired at 11:50am on that Friday, almost four days after the appellant had given evidence and almost three days after his counsel had concluded his address.

The primary judge did not summarise the contentions made on the appellant's behalf by his counsel. The failure "was made particularly acute" by the circumstance that by the end of the summing up, the evidence of the appellant and the address of his counsel had been overtaken by two other addresses and by the summing up, which was, itself, interspersed with lengthy delays caused by legal argument. It was thus unlikely that the appellant's arguments remained "vivid" in the minds of the jurors as they retired to consider his case.⁴

The jury were confronted with a complicated factual situation and complicated legal issues which included intent, accident, self-defence and provocation. The critical issues regarding the appellant's subjective belief and intention could only be resolved by way of inference. The failure of the primary judge to put the appellant's arguments deprived him of a fair chance of acquittal.

Submissions of counsel for the respondent

The trial judge's duty is relevantly identified in the following passage from Domican v The Queen:⁵

"But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence." (footnotes omitted)

It was held also in RPS v The Queen⁶ that while it is incumbent on the trial judge to put the accused's case fairly in summing up, there is no obligation on the trial judge to repeat the arguments of counsel in detail. The trial judge's duty will be discharged by a fair and balanced approach reminding the jury of the issues in the trial, the applicable law and any commentary on the evidence which the judge sees fit to make.

There was very little direct evidence in the case relating to one appellant which was not also relevant to the other appellant's case. The decision by experienced senior counsel not to complain about the alleged deficiency in the summing up indicates that at the time of the summing up it did not "convey any impression of inadequacy" in the relevant regard.⁷ The consequence of the failure to complain creates an onus on the appellant to establish that it is reasonably possible that the failure to direct the jury as alleged "may have affected the verdict".

Consideration

In the summing up, supported by the primary judge's jury notes, the primary judge directed the jury as to: the onus and standard of proof on a number of occasions; the drawing of inferences; self-defence and defence of another; and mistake of fact. The jury were reminded of the evidence of the appellant as to the time immediately leading up to the shooting. The jury were also reminded of:

Submissions by counsel of the deceased's medical history and counsel's submissions that he was "a bomb waiting to go off", as well as the deceased's mother's evidence relevant on this point;

The evidence of witnesses about how the appellant presented himself when he re-entered the unit;

The fact that the events took place in a short space of time;

The evidence relevant to the issues of accident, both from the appellant and Dr Urankar;

The evidence of how many shots were fired; and

Counsel's submission that the defect in the wall near the stairs represented a possible bullet hole.

As was discussed in relation to the appeal by Dionne Lacey, the evidence and issues in the case were not factually complex and did not give rise to conceptually complex issues. The questions for resolution by the jury concerned, for the most part, events which occurred in a small room and in a hallway leading into it within a period of minutes. The evidence of the witnesses who had been present in the unit at the time of the incident was relatively brief and, for the most part, concerned what they had heard and seen during the incident.

Senior counsel for the appellant addressed the jury from 10:15am on 28 April to 11:10am and then from 11:25am to 12:45pm. His address, like that of senior counsel for Dionne Lacey, was based around 10 points or topics. They were:

(1)"[I]s there a reasonable possibility that [the appellant] and his brother Dionne did not go to the unit with an intent to assault anyone there? Is it a reasonable possibility that they only went to talk to this man [Aytac]?"

(2)"Is it a reasonable possibility that there was an attack on [the appellant] which justified his response in discharging a firearm – ie., was there an attack of the kind he [described]?"

(3)"Is it reasonably possible that [the appellant] only intended in drawing and discharging his weapon to stop a sudden and unforeseen aggressive attack against him? That is, was his action produced by any motives other than self-defence?"

(4)"Is it a reasonable possibility that as [the deceased] jumped up, he reached for a weapon and then appeared to be on the verge of using it?"

(5)"Is it reasonably possible that [the deceased] … by reason of his mental health-state, affected and fuelled as he was by a cocktail of amphetamines and alcohol, acted unpredictably in the way that was really unforeseen in an attack upon the [appellant]."

(6)"[I]s it reasonably possible that the attack involved the use of a weapon such that it gave rise to a reasonable apprehension that one's own life might be in danger?"

(7)"[I]s it a reasonable possibility that there was in fact another gun or guns in that unit, apart from the 38 calibre revolver that [the appellant] had and the 25 calibre pistol that Dionne had?"

(8)"[I]s it reasonably possible that [the appellant] did not intend to hit the deceased, but only fired a warning shot. If he did intend to … maim, … the real question is: did he do so in self-defence or not[?]"

(9)"Is it reasonably possible that when [the appellant] and his brother Dionne made their entry into the unit, there was no conflict, there was friendly introduction and shaking of hands, including between [the appellant] and [the deceased] … ?" (It was submitted that if there was a friendly meeting and greeting "it elevates the reasonable possibility that the shooting was reactive to the violence offered.")

(10)"Is it reasonably possible that [the deceased] and [the appellant] – the two Laceys, in fact, each knew each other and were friendly … rather than enemies … and … is it a reasonable possibility that [the appellant] would fire a gun towards someone who was a sort of friendly figure to him unless it was explicable by fear of a lethal threat from that person because for some reason known or unknown, he flipped and went berserk."

After expanding on each of these points, counsel discussed the evidence of one of the witnesses present in the unit during the incident with a view to submitting that the appellant did not act aggressively in coming back to the living area of the unit after his brother had left and that he had not spoken aggressively.

In his summing up in relation to the case against appellant, the primary judge explained: the meaning of the word "maim"; the concept of unlawful wounding and the meaning of "assault" for the purposes of ss 271 and 272 of the Criminal Code 1899 (Qld). The defences provided by those sections were then discussed. The primary judge reminded the jury of the appellant's evidence of his taking out his revolver and shooting and as to what happened to cause him to do that. That evidence contained the appellant's explanation of why he shot and how he shot. The jury was reminded of the appellant's counsel's address in relation to the deceased's medical history and of the assertion to the effect "that he was a bomb waiting to go off and on that day, it did go off."

The next matter addressed was the Crown's case in relation to an assault by the deceased on the appellant and on whether the fact that a bullet struck the deceased in the side of his thigh was consistent with the appellant's version of events. The jury was reminded of the appellant's evidence of what happened when the appellant returned to the living room. In the context of whether the force used by the appellant was reasonably necessary to make an effectual defence against any assault, the primary judge spoke of the need to make a judgment in the light of the conditions which confronted the appellant and of the speed in which events unfolded.

In relation to whether the force used was not intended or likely to cause grievous bodily harm, his Honour referred to the evidence of the appellant "that he pointed towards the ground. It was something to stop him, a warning shot, perhaps." He then moved to a consideration of s 271 before dealing with s 24. These directions were made with reference to written directions about which there was no complaint. After concluding his directions in relation to mistake, the primary judge discussed the question of how many shots were fired and how conditions prevailing at the time of the shots could affect persons' perceptions. He read from evidence given by the appellant in relation to the number of shots fired, discussed the contention by senior counsel for the appellant that a mark on the wall had been made by a third bullet and referred to the evidence in that regard. He then discussed the evidence as to the number of guns in the unit at the time of the incident.

Although the primary judge could have repeated the 10 points around which senior counsel's address centred, the issues before the jury were plain and were brought into particular focus as each defence was raised and discussed. It is unlikely that the jury did not remain conscious of counsel's 10 point argument. The 10 points had also been given to the jury by the appellant's counsel in the course of an opening statement after the prosecutor's opening address.

The fact that senior counsel for the appellant did not seek a redirection to address the alleged deficiencies in the summing up is of significance, as was pointed out by senior counsel for the respondent. The failure to seek the redirection is readily explicable by the making of a tactical decision as any further summary of the defence case would have been accompanied by a summary of the prosecution case. That would have served to reduce the advantage gained by the appellant from the placement of the prosecutor's address between defence counsels' addresses and, of course, the jury would have been reminded of the strong prosecution case. Moreover, the address by Dionne Lacey's counsel advanced a number of arguments and referred to evidence harmful to the prosecution's case against the appellant.

The summing up was fair and balanced. It properly identified the issues for the jury. Having regard to those issues and the limited scope and quantity of the evidence, the failure to summarise discretely the defence, and prosecution, arguments did not give rise to any unfairness.

Ground 3 – the primary judge failed to adequately direct the jury on the provisions of s 23 of the Code

No submissions were made in support of this ground. The ground is without merit. The summing up appropriately explained what needed to be established by the prosecution to negative "accident" within the meaning of s 23 of the Code and the jury's attention was drawn to the relevant evidence.

Ground 4 - the conviction was unsafe and unsatisfactory

Submissions of counsel for the appellant

The applicable test is whether "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".⁸

The jury was bound to have a reasonable doubt about whether the appellant acted in self-defence, unless it was satisfied beyond reasonable doubt that the deceased did not draw a firearm from his bumbag immediately before the appellant discharged his firearm.

The appellant's argument centres on a combination of these assertions:

The evidence that at least one of the deceased's associates present in the unit was in possession of a handgun at the time of the incident;

The deceased was armed, at least with a pair of scissors, as he approached the appellant in an aggressive, confrontational fashion;

The appellant backed away as the deceased advanced;

The appellant drew his revolver and pointed it at the deceased;

The deceased angrily yelled words to the effect, "All right, I'll take you on";

The evidence was that the appellant was standing in the hallway and the deceased at the entrance to the hallway when the appellant fired;

The incident escalated extremely quickly and the lighting was poor;

The appellant's evidence that the deceased stopped momentarily, pushed his hand into his bumbag and started to pull out a gun;

The appellant's evidence that he fired a shot at the floor in front of the deceased's feet intending "to make a big bang so hopefully [he] could get out of there";

The appellant only fired "as soon as [he] seen (sic) the gun ";

The inability of any of the Crown witnesses to observe the appellant at the time of the shooting or to see "the deceased start to draw a firearm from his bumbag";

The evidence that the bumbag was open when the police arrived and that no handgun or scissors were located on the deceased's person;

The downward trajectory of the bullet from the appellant's gun; and

None of the men in the living room were in a position to clearly observe the deceased start to draw a firearm.

The position of the deceased's leg wounds mean that the deceased's left leg was forward of his right leg when he was shot. Also, the appellant's account that the deceased was twisting his body so that he was "on a bit of an angle" to the appellant when shot, is the only account which satisfactorily explains the trajectory of the bullet through the deceased's left leg into his right leg.

Finally, it was submitted that if there was genuine doubt about whether the deceased was armed, a reasonable jury could not have excluded self-defence.

Consideration

The pathologist's evidence did not support the proposition that the position of the leg wounds meant that the deceased's left leg was forward of his right leg when shot. She did not resile from her opinion that the deceased's legs were close together. It was unclear from the evidence whether the defendant's bag, when initially seen by police, was open or shut. The evidence about the number of handguns in the unit is overstated in the appellant's outline of submissions. Each of Kusdemir and Chang informed Crime and Misconduct Commission officers that the other of them had a handgun but denied having one himself.

The jury was entitled to reject the evidence of the appellant. He was not an independent or impartial witness. The case against him was strong. All of the men in the unit who gave evidence said that they did not see the deceased in possession of a gun. One said that he saw him with scissors which he seemed to be putting away. All of these witnesses reported seeing the deceased stop his forward movement and call out words challenging the appellant to shoot, or questioning whether the appellant would shoot, before he was shot.

Those words were likely to have the effect of further drawing the attention of all those in the living room to the deceased and the person he was addressing. The words used are more consistent with the deceased's being stationary and unarmed when they were uttered than the contrary.

There were aspects of the appellant's evidence which did not inspire confidence in his reliability or veracity. His evidence-in-chief was that he produced his gun and threatened the deceased and Mahir El-Kholed with it with a view to making them back off, but the deceased then took a pistol from his bag and the appellant fired. In cross-examination, he said nothing about threatening the deceased and El-Kholed with his gun: he asserted that he drew it when the deceased "went to pull the gun out of the bumbag."

The appellant said, in evidence-in-chief, that the deceased was "probably about two metres away"⁹ "walking down the hallway" when he pulled the gun out and rushed "straight forward". In response, the appellant, who "thought [the deceased] was going to kill" him, pointed his "gun downwards and fired a shot at the floor in front of his feet." The shot, admittedly angled downwards, hit the deceased 81 centimetres above the bottom of his heel and entered the side of one thigh and went through it into the other thigh. The unlikelihood of the appellant’s account needs no explanation.

There is strong evidence that the deceased, after being shot by the appellant, picked up a chair and threw it. That would have been an odd response had he been holding a gun. If he could pick up a chair and throw it he had sufficient strength and agility to pick up a gun if he had dropped it when shot. Additionally, the chair did not end up in the hallway and no blood was dropped there. Those matters suggest that, contrary to the appellant’s evidence, the deceased did not enter the hallway for any appreciable distance or at all.

Evidence which the jury was entitled to accept was to the following effect. The appellant re-ignited a disturbance when he had no need to do so. In consequence of this, the deceased moved quickly towards him in a threatening manner holding, if anything, a small pair of scissors. The appellant backed into the hallway. The appellant produced his pistol and pointed it at the deceased. The deceased stopped moving forward and went to put the scissors away. He either orally challenged the appellant to shoot, or asked if he was going to shoot. The appellant then shot the deceased at very close range in the left thigh and, after bumping into Dionne Lacey in the hallway, walked out of the unit. There was no evidence, apart from the appellant's own testimony, that he acted out of fear or to save himself from being shot or stabbed or otherwise seriously injured. In particular, there is no evidence that, before shooting, he warned the deceased that he would shoot unless the deceased retreated or stayed where he was.

Accordingly, the jury was entitled to reject the appellant's evidence and his defences.

This ground of appeal was not made out.

Ground 5 – the possibility that the verdict was tainted by bias

The appellant adopted the submissions made on behalf of Dionne Lacey. Those submissions cannot be accepted for the reasons given in relation to the latter's appeal.

Conclusion

For the above reasons, the appeal against conviction must be dismissed.

The appellant’s application for leave to appeal against sentence

The appellant's counsel's submissions

The appellant seeks leave to appeal against sentence on the ground that it is manifestly excessive. He was sentenced on 13 May 2009 to five years imprisonment. One day was declared as time served under the sentence but in imposing the sentence the primary judge indicated that he was reducing the term from a notional seven years imprisonment to take into account the 734 days spent in custody on remand for the subject and other offences. It is submitted on behalf of the appellant that the sentence thus imposed is effectively a head sentence of seven years imprisonment with the consequence that the appellant will serve four and a half years before he is eligible for consideration for release on parole.

The following arguments were advanced in respect of the appellant's parole eligibility. In the absence of any other order, a prisoner will become eligible to apply for parole at the halfway point of his or her sentence. By reducing the head sentence by only two years and not fixing an earlier parole eligibility date, the primary judge, in effect, imposed a parole eligibility date fixed after serving four and a half years in actual custody with the consequence that the appellant will be eligible to apply for parole after serving 65 per cent of an effective seven year sentence, rather than 50 per cent. In R v Kitson¹⁰ this Court confirmed that if the parole eligibility date is fixed beyond the midpoint of the sentence, then "good reason" must be demonstrated for the decision. The primary judge did not articulate any such reason.

The other limb of the appellant's counsel's submissions was that reference to comparable sentences demonstrated that the sentence was manifestly excessive. References tendered on sentencing indicated:

"… that fundamentally, the applicant was a good person but that something had gone wrong for him to become involved in guns and to find himself in the circumstances he did. He was exposed to a sub-culture that embraced guns while he was pursuing a career in rap music in the United States … the applicant now admits that stupidly, he carried on the practice of carrying weapons after he returned to Australia. He is still young and shows prospects of rehabilitation. He has a relatively minor criminal history. The applicant fired downwards, and not at the head or torso of the deceased. The medical opinion was that it was 'difficult to say' whether it would affect the use and function of the deceased's limbs [had he survived] but that 'the leg muscle wouldn't be as strong as it ever was before' and that the effect of the shots on the use and function of the limbs depended 'on how you recover'."

The appellant was invited into the premises where the incident occurred. He was not in company at the time of his offence and it was not a sustained attack. There was objective evidence that the deceased threatened, taunted and aggressively approached the appellant. "He deliberately aimed away from the deceased's body (sic), and thus the vital organs".

A head sentence of about six years was appropriate. In order to give effect to the time already served, which could not be declared, a head sentence of two years commencing on 13 May 2009 with a parole release date between 13 November 2009 and 13 May 2010 was appropriate.

Consideration

The appellant was born on 21 March 1983. He had a minor criminal history which included no convictions for violence but a conviction for possession of a silencer. The primary judge made reference to the evidence that the appellant regularly carried a gun, even when dining with his family. He also identified as a relevant circumstance that the appellant went to the unit on 6 May 2007 with a loaded firearm. The fact that the appellant was armed with a loaded, concealed weapon is a matter of considerable significance to the appropriate level of sentence. By going armed in this manner, the appellant created the circumstance in which the relatively minor disturbance which took place could be transformed into a confrontation in which a shot or shots were fired with predictable results. What was said in relation to these matters in the reasons in Appeal No. 114 of 2009 applies to this appeal. It is unnecessary to repeat that discussion but it has a marked bearing on the merits of this appeal.

It is against this background that the asserted absence of "premeditation" and "spontaneity" must be viewed. In that regard, it is relevant that there was no direct or discernible threat to the appellant or his brother when the appellant returned to the living room of the unit and precipitated a confrontation with the deceased by his presence and conduct. On the jury's findings he deliberately shot the deceased, intending to maim him. He did so at close range when the deceased had ceased moving forward and posed no immediate threat to his safety. The appellant's conduct was thus particularly reprehensible. He walked from the unit without any thought for the fate of his victim and has demonstrated no genuine remorse.

The appellant's counsel's submissions analyse 10 cases said to be comparable with the subject case. Such an exercise can be of value in identifying a sentencing range but it must be approached with caution. Referring to an argument that the primary judge, who allowed for the mitigating effect of a number of matters specified by him, should have made a further reduction in the sentences to be imposed to allow for another matter not raised in argument, Hayne J observed:¹¹

"… There are several flaws in the argument.

First, it assumes that sentencing an offender is some mechanical or mathematical process. It is not. Nobody can identify, let alone define, some precise relationship between the complex and infinitely various elements that bear upon what sentence is to be imposed on an offender such as this appellant. No calculus will reveal some mathematical relationship between this appellant's remorse, the harm he has inflicted on his victims and society's denunciation of what he did to them. A sentencing judge can do no more than weigh these and the many other factors (such as retribution and deterrence) that bear upon the question and express the result as several terms of imprisonment to be served, wholly or partly concurrently or consecutively. Remorse, harm, denunciation, retribution and deterrence – in the end, all these and more must be expressed by a sentencing judge in units of time. That is a discretionary judgment. It is not a task that is to be performed by calculation. Resort to metaphors such as 'discount' or 'allowance' must not be taken as suggesting that it can be."

After this passage, Hayne J pointed out the necessity of considering the conduct of a person to be sentenced without attempting to "segregate and characterise aspects of the appellant's conduct, and award separate degrees of leniency for each aspect…".¹² Attention was also drawn to the existence of policy reasons for the criminal laws rewarding particular conduct.

In R v Dwyer,¹³ Keane JA observed at [37]:

"An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process."

The cases analysed respectively in the submissions of counsel for the appellant and counsel for the respondent show a sentencing range of six to nine years. The maximum penalty for the offence is life imprisonment.¹⁴ For the reasons stated earlier, this offence was a particularly serious one. As explained in the reasons in Appeal No. 114 of 2009, any sentence imposed needed to reflect society's intolerance of the possession and use of handguns and serve as a deterrent to their use. A sentence towards the higher end of the established sentencing range was merited.

The primary judge declined to declare the appellant to be convicted of a serious violent offence.¹⁵ His discretion would not have miscarried had he made the declaration. The appellant deliberately shot the deceased with a revolver, intending to maim him. That the shot did not cause more extensive damage was a matter of good luck rather than good aim, but, even so, the deceased was wounded in both thighs and the bullet remained embedded in him. Had he not been killed by Dionne Lacey, the medical evidence was that there was "quite a significant amount of tearing to the muscle" which would "heal with scarring" but that there would "be some disability in [that] the leg muscle won't be as strong as it ever was before."

In the circumstances, there was ample justification for the primary judge’s approach to parole eligibility. The sentence was not excessive, let alone manifestly so. The application for leave to appeal against sentence must be dismissed.

McMURDO P: I agree with the majority that the appeal against conviction should be dismissed. I wish only to add a few brief observations.

Jade Lacey's counsel at trial did not ask for the judge to summarise the arguments of counsel. It follows that Jade Lacey now bears the onus of establishing that the failure to direct the jury may have affected the verdict: Dhanhoa v The Queen.¹⁶ It is well-established that, ordinarily, judges, in giving jurors final directions in criminal trials, should identify the issues, relate those issues to the relevant law and evidence and then outline the main competing arguments of counsel.¹⁷ Jade Lacey's counsel addressed the jury from 10.15 am until 12.45 pm on Tuesday, 28 April 2009. The jury retired to consider their verdict at 11.50 am on Friday, 1 May 2009. In the course of identifying the issues for the jury and relating those issues to the relevant law, the judge adequately and fairly focussed the jury on the competing contentions of counsel, although admittedly without any discrete summation of the main arguments of counsel. The judge's omission to discretely summarise the competing contentions of counsel in the circumstances of this case did not amount to a "wrong decision of any question of law" or "a miscarriage of justice" under s 668E Criminal Code 1899 (Qld). I emphasise that it is ordinarily prudent for trial judges to discretely outline the main competing argument of counsel.

I agree with the majority that the jury verdict of guilty of wounding with intent to maim is not unreasonable; it is well supported having regard to the whole of the evidence in Jade Lacey's case: s 668E(1) Criminal Code. The jury were entitled to conclude on the evidence that the deceased was unarmed and that Jade Lacey did not honestly and reasonably believe him to be armed. In addition to the matters mentioned by the majority on this ground, the photographic exhibits 36 and 37 and the better view of the oral evidence in respect of them suggest that the deceased's "bumbag" was closed when one photograph (ex 36) was taken by police and that it was subsequently opened for the purposes of photographing the contents (ex 37). This evidence did not support Jade Lacey's claim that the deceased took a hand gun from his "bumbag". The pathologist was of the opinion that the deceased's legs were close together at the time the bullet fired by Jade Lacey hit his legs. She conceded that his legs may have been close together only momentarily at the time the bullet struck and she did not exclude the possibility that he may have been in the process of moving when the bullet struck his legs. There was, however, persuasive evidence from others in the unit that, at the time Jade Lacey shot the deceased in the legs, the deceased was stationary after initially taking one or two steps towards Jade Lacey. The resolution of whether the prosecution negated self-defence in the context of s 24 in Jade Lacey's case was a quintessential jury issue. After reviewing the whole of the evidence, I am satisfied it was open to the jury to be satisfied beyond reasonable doubt that Jade Lacey was guilty of wounding the deceased with intent to maim: MFA v The Queen.¹⁸

For the reasons I gave in Dionne Lacey's appeal, Jade Lacey has not established that the jury verdict was tainted by bias.

It follows that Jade Lacey's appeal against conviction must be dismissed.

Jade Lacey's application for leave to appeal against sentence

In sentencing Jade Lacey, the judge made the following findings. Jade Lacey had spent two years in custody which could not be declared under the Penalties and Sentences Act 1992 (Qld). The judge intended to take that period of custody into account in the sentence to be imposed. Jade and Dionne Lacey entered the unit where the offence occurred and greeted the occupants in a friendly manner. They were both carrying loaded firearms. Jade Lacey went to an area outside the front door to negotiate the purchase of drugs. One of the young men in the unit gave Dionne Lacey what was described as a "death stare". This led to an exchange of insults and threats which led to Jade Lacey returning to the unit while Dionne Lacey went outside. There was no reason for Jade Lacey to return to the unit. No-one had followed Dionne Lacey outside. There was no evidence of anything other than verbal abuse. Dionne Lacey threatened in words which indicated that he was prepared to fight. The deceased, a friend of Jade Lacey, reacted by advancing towards Jade Lacey in an aggressive manner. The deceased waved his arms saying, "If you're a man, shoot me." The deceased stopped. Jade Lacey pulled out his revolver and pointed it in the direction of the deceased, but with the gun pointing down to some extent. Jade Lacey then shot his unarmed friend. The bullet went through both thighs. The bullet missed the large thigh bone in each of the deceased's legs. The injury suffered by the deceased as a result of Jade Lacey's offence was not as severe as it might have been. The pathologist considered there would have been a permanent lessening of function but it was impossible to be more precise because he died so soon afterwards as a result of Dionne Lacey's shooting. There was nothing to stop Jade Lacey or his brother leaving before the shootings. Jade Lacey was between the deceased and the door and no-one else was posing any threat.

After considering the comparable sentences to which his Honour was referred, and Jade Lacey's antecedents, the judge concluded that, had Jade Lacey not served any time on remand, a sentence of seven years imprisonment would have been appropriate. The judge deducted the two years already served on remand from the sentence he intended to impose. He made no recommendation for parole eligibility, noting that Jade Lacey would become eligible for parole after serving 50 per cent of his five year (but effectively seven year) sentence. The judge declared that Jade Lacey should not be declared to be convicted of a serious violent offence under Pt 9A Penalties and Sentences Act.

Like the primary judge, I am well satisfied that an effective seven year sentence without a declaration and with parole eligibility after serving 50 per cent was within the appropriate range for this offence. The mitigating features were as follows. Jade Lacey was relatively young (23 at the time of the commission of the offence) so that there may still be prospects of rehabilitation after a period in custody. He had no prior convictions for violence. He cooperated by making extensive admissions, thus shortening the trial.

On the other hand, he intentionally caused significant injury to another in circumstances where he and his brother went to a residence with loaded, concealable firearms. He habitually carried a loaded handgun. Jade Lacey brandished and then used his handgun inside a crowded residence to shoot the deceased with intent to maim him. This conduct is antithetical to any civilised society. The sentencing principle of deterrence, both general and particular, was of primary importance. It is an additional concern that he was subject to a bail order for other still unresolved charges at the time of this offence. An effective sentence of seven years imprisonment with parole eligibility after serving 50 per cent was entirely appropriate, despite the mitigating circumstances.

Unfortunately, the judge did not achieve what he intended to do, namely to impose an effective seven year sentence with parole eligibility after three and a half years. This is because of the pre-sentence custody of about two years which could not be declared as part of the sentence. The judge was correct to take into account this pre‑sentence custody in determining the sentence: R v Ainsworth.¹⁹ It was not necessary to do so with mathematical precision: R v Lester.²⁰ But where it is possible to do so, offenders should be given full credit for pre-sentence custody. In bail applications where the prosecution case appears persuasive, the fact that time served in pre-sentence custody will be taken into account in any sentence ultimately imposed is often a relevant consideration in refusing bail. It seems to have been in this case: Lacey v DPP (Qld); Lacey v DPP.²¹ The sentence actually imposed (five years imprisonment) allowed for parole eligibility after serving a further two and a half years imprisonment, but it meant that, effectively, Jade Lacey will spend four and a half years in custody before becoming eligible for parole. Parole eligibility is not usually postponed past the statutory half way mark unless there is a good reason: R v Assurson;²² R v Kitson.²³ The judge does not seem to have intended to postpone parole in this way and certainly gave no reason for doing so. In determining the sentence in this way, the judge has made a material error. It follows that the application for leave to appeal should be granted and the appeal allowed so that this error can be corrected.

I would grant the application for leave to appeal, allow the appeal and vary the sentence imposed at first instance by ordering that Jade Lacey be eligible for parole on 12 November 2010, that is, approximately three and a half years after he was first detained in custody.

Footnotes

1. R v Hytch [2000] QCA 315 per McMurdo P at [10]. ↩

2. R v Clarke [2005] QCA 483 per McMurdo P at [66], Helman and Chesterman JJ agreeing. ↩

3. Fingleton v The Queen (2005) 227 CLR 166 per McHugh J at [83]-[84]. ↩

4. See R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 55. ↩

5. (1992) 173 CLR 555 at 561. ↩

6. (2000) 199 CLR 620 at [41]. ↩

7. R v Aziz [1982] 2 NSWLR 322 at 330 – 331. ↩

8. M v The Queen (1994) 181 CLR 487 at 494 – 495. ↩

9. Changed in cross-examination to "two to three". ↩

10. [2008] QCA 86. ↩

11. AB v The Queen (1999) 198 CLR 111 at 156. ↩

12. AB v The Queen (1999) 198 CLR 111 at 157. ↩

13. [2008] QCA 117. ↩