Court of Appeal (Qld)|2004-02-20|Before: McMurdo P, Davies and McPherson JJASeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, Davies and McPherson JJASeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL
AND NEW TRIAL - OBJECTION AND POINTS NOT RAISED IN COURT
BELOW - IMPROPER
ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where appellant was
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - OBJECTION AND POINTS NOT RAISED IN COURTBELOW - IMPROPERADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where appellant wasconvicted of attempted murder - wheretrial judge allowed a statement of adeceased witness to be admitted as evidence under s 93B Evidence Act1977 - whether the statement's prejudicial effect outweighed its probativevalueCRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - COURSE OF EVIDENCE,STATEMENTS AND ADDRESSES - GENERALLY - where the prosecutionsuggested anadverse inference could be drawn from the failure to call the appellant's son asa witness - where the prosecution suggestedan adverse inference could be drawnfrom the lies of the appellant made at trial - whether there was a miscarriageof justiceCRIMINAL LAW- JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT ANDPUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER
OF OFFENCE
- GENERALLY - where the appellant was convicted of attempted murder - where
appellant sentenced to nine years imprisonment
with a declaration that the
offence is a serious violent offence - whether the sentence imposed is
manifestly excessive
Evidence Act 1977 (Qld), s 93B
R v Bojovic [1999] QCA 206
[2000] 2 Qd R 183, followedR v Brennan [1999]
2 Qd R 529, applied
R v Bryan
ex parte Attorney-General (Qld) [2003] QCA 18
CA No 410
of 2002, 5 February 2003, followed
R v Desalvo [2002] QCA 63
CA No 284 of 2001, 15 March 2002,
considered
R v Harms [2002] QCA 99
CA No 36 of 2002, 19 March 2002,
questioned
R v Jurcik [2001] QCA 390
CA No 87 of 2001, 21 September
2001, cited
R v Lewis
ex parte Attorney-General (Qld) [2003] QCA 133
CA No
339 of 2002
CA No 319 of 2002, 25 March 2003, followed
RPS v The Queen [2000] HCA 3
(2000) 199 CLR 620, cited
Judgment (109 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for respondent
[2]
**[1] McMURDO P: I agree with Davies JA that both the appeal against conviction and the application for leave to appeal against sentence should be dismissed for the reasons he gives.
[3]
[2] I wish only to add the following observations as to the sentence.
[4]
[3] The break up of the appellant's 16 year marriage was the precipitating cause in the appellant's violent attack upon the complainant. The appellant and his wife had separated about six weeks before the offence. He committed this offence whilst on bail for breaking and entering his estranged wife's home; he was subject to a domestic violence order in respect of her and was also subject to a suspended sentence for offences of assault occasioning bodily harm. The offence occurred when he came upon his wife and the complainant on Christmas Day 2001 in the Woodgate National Park camping ground. The complainant and his wife were keeping company and the complainant had been a friend of the appellant. The appellant showed no remorse, did not have the mitigating benefit of a plea of guilty and did not cooperate with the administration of justice.
[5]
[4] When one party to a broken relationship resorts to violence against either the party who seeks to end that relationship or others with whom that party is associated, a substantial term of imprisonment to reflect the apposite principle of general deterrence is required: cf R v Babsek; ex parte Attorney-General (Qld).[1] The learned primary judge's approach was as follows: a notional sentence of ten years imprisonment was appropriate on the facts; that sentence should be discounted by 12 months to reflect time already spent in custody, which could not be subject to a declaration under s 161 Penalties and Sentences Act 1992 (Qld) ("the Act"); had the notional ten year sentence been imposed, the offence would automatically be declared to be a serious violent offence; it was therefore appropriate to exercise the discretion that arose under Pt 9A of the Act in sentencing the appellant to nine years imprisonment to declare the offence to be a serious violent offence. As Davies JA explained in his reasons, that approach was entirely appropriate. I merely wish to add that by adopting the approach to sentencing when exercising a discretion under Pt 9A of the Act as set out by this Court in R v Bojovic,[2] in the circumstances of this case the sentence of nine years imprisonment with a declaration that it is a serious violent offence was also within the appropriate range.
[6]
[5] DAVIES JA: After a four day trial the appellant was convicted of attempted murder on 3 October 2003. He appeals against that conviction. He was then sentenced on 8 October to a term of nine years imprisonment with a declaration that the offence was a serious violent offence. He also seeks leave to appeal against that sentence.
[7]
[6] The events which gave rise to the appellant's conviction occurred on Christmas Day 2001. The appellant and his de facto wife Ingrid Lester had separated some time before. Ms Lester had, by the day in question, formed a relationship with the complainant Alisdair Morrison and they were, on that day, camping at a camp site at Burrum Point near Woodgate. They had arrived at about 9.30 pm on Christmas Eve.
[8]
[7] On Christmas morning, after they had had breakfast the appellant drove into the campsite with his two sons Shaun 11 and Troy 15. There was evidence from an independent witness, Mr Fullerton, that the appellant drove into the camping ground "at quite a speed", that he slammed the door of his car and that he ran at the complainant yelling aggressively.
[9]
[8] On the evidence of the complainant, Ms Lester and Mr Fullerton, the appellant was plainly the aggressor in what subsequently occurred. This was contradicted by the evidence of the appellant and his son Troy but there is no reason why the jury should not have believed the evidence of the complainant and Ms Lester, supported as it was by independent evidence, and disbelieved that of the appellant and his son. That is plainly what they did.
[10]
[9] On the evidence which must have been accepted by the jury, the appellant commenced by punching the complainant in the face, knocking him to the ground. Whilst he was on the ground the appellant kicked him in the face with the flat of his bare foot causing the complainant's nose to bleed. Whilst the complainant was trying to back away he tripped over a gas stove causing boiling water to scald his foot.
[11]
[10] The appellant then picked up a black handled sharp bladed knife which had been lying on a card table. He held the knife with the blade pointing from the back of his hand, brandished it at the complainant and struck at the complainant in a stabbing motion. The complainant then fell on his back and the appellant fell on top of him. The appellant continued to stab at the complainant two or three times and the complainant felt some warmth on the side of his face. The complainant ultimately managed to dislodge the appellant from on top of him by bringing his knees up onto his chest and kicking out. At about this time, it seems, the knife broke.
[12]
[11] The appellant then picked up a steel pole that supported the annex to a tent and began to hit the complainant with it about the head and shoulders as the complainant tried to retreat. The complainant then also armed himself with a similar pole and wielded it at the appellant. The appellant then desisted, returned to his car and drove away.
[13]
[12] The complainant's injuries were later described as a three centimetre laceration in a downward direction to his cheek, lacerations to his toes, a four centimetre laceration to his left leg, a V shaped injury to his forehead caused by a blunt instrument, abrasions to his left shoulder blade and bruising to his nose. However he also had what was plainly a stab wound to his face from which blood was streaming. The complainant later developed a haematoma in his neck as a result of the injuries sustained in the attack.
[14]
[13] Later that morning Ms Chew, a nurse at the Maryborough Hospital had a conversation with the appellant in the Accident and Emergency Department. He had apparently arrived with a cut to his finger. She said:**
[15]
"The patient arrived in the department and we were doing our preliminary observation and we asked how the injury had occurred and he said that he had seen his wife with another man and he had taken to him with a knife and the knife had slipped and cut his finger."
[16]
**[14] The appellant submits that, on that evidence, his conviction for attempted murder was unsafe and unsatisfactory. He submits that the jury ought not to have been satisfied that he intended to kill the complainant.
[17]
[15] In addition to that ground of appeal the appellant maintains a number of specific grounds. He contends that the trial miscarried for a number of reasons which I will discuss specifically below. He contends that the learned trial judge ought to have discharged the jury after the complainant disclosed that there was a domestic violence order in favour of Ms Lester against the appellant. And he contends that the learned trial judge erred in failing to exclude the statement and depositions of Ms Lester. It is convenient to discuss these specific grounds before turning to the more general contention that the verdict was unsafe and unsatisfactory.**
[18]
[16] The first ground of appeal, that a miscarriage of justice has occurred, contended that the conduct of the prosecutor deprived the appellant of the chance of obtaining an acquittal. Four particulars of this were given in the notice of appeal. However, at the commencement of oral argument, counsel for the appellant abandoned the first of these. I shall therefore discuss only the remaining three which, either separately or together it was submitted, caused the trial to miscarry.
[19]
(a) the prosecutor in cross-examination and in his address suggested to the jury that an adverse inference could be drawn against the appellant for failing to call his son Shaun Lester as a witness
[20]
[17] During the course of cross-examining the appellant the following exchanges occurred:
[21]
"Where is Shaun now? -- He is here in Brisbane at our - friends of the family's looking after him."
[22]
And, after some questions about the appellant's elder son Troy:
[23]
"And your other son was there as a witness to these events?"
[24]
[18] At that point defence counsel objected to what appeared to be the line of questioning, the learned trial judge indicated to the prosecutor that there was some risk associated with continuing with that course and no further questions were asked about Shaun. However in his address the prosecutor said to the jury:
[25]
"Ladies and gentlemen, I asked yesterday - it was objected to, but I asked - I will refer you to it again - where Shaun is. Shaun's in Brisbane. The defence doesn't have to prove anything, ladies and gentlemen. The accused didn't have to get into the witness box. He could call - if he wants to call witnesses, he can call witnesses.
[26]
Ladies and gentlemen, you know there is a witness here available who was not called, and that's young Shaun. Ingrid's statement is criticized because there is not the opportunity to cross-examine on it, but I remind you Troy's statement only saw the light of day during this trial. I am not saying the accused has to prove anything, not at all, but I am saying to you as a matter of common sense there is - there was and there is an available witness."
[27]
[19] On the basis of those comments counsel for the appellant sought to have the learned trial judge discharge the jury. That application was refused. However, during the course of his summing up, after telling the jury that the question for them was whether, when they considered all of the evidence together, they were satisfied beyond reasonable doubt that the prosecution had proven guilt, the trial judge said:
[28]
"Now, there is one particular matter in that regard that I should refer to. The fact that Shaun Lester did not give evidence was commented on in the Crown prosecutor's address. Now, it is important to bear in mind that the defence bears no onus to prove innocence. The onus remains on the Crown at all times. The defence was under no obligation to call any particular witness."
[29]
[20] The appellant's counsel contends that his Honour's direction was not sufficient to repair the damage caused by what she submitted was a wrongful comment by the Crown prosecutor. She relied on the following statement of principle in RPS v The Queen:[3]
[30]
"[26] In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case and that:
[31]
'Where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.'
[32]
[27] By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused ...
[33]
[28] In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.
[34]
[29] If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor 'has the responsibility of ensuring that the Crown case is presented with fairness to the accused' and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused."
[35]
[21] I agree with the submissions of counsel for the appellant that, in the absence of a direction from the learned trial judge, the jury might have been misled by the above statements of the prosecutor, taken as a whole, into thinking that it was for the appellant to call Shaun and that from his failure to do so they might infer that he would not have supported the appellant's version. However they would also have been plainly aware that the prosecutor was one of two opposing counsel in an adversarial contest and would no doubt have been looking for guidance from the learned trial judge on this question. His Honour gave that guidance clearly and there is no reason to think that they did not heed his direction. I therefore do not think that the prosecutor's comments in this respect, either alone or with whatever support may be derived from the other matters to which I am about to refer, caused the trial to miscarry.
[36]
(b) the prosecutor without notice in his address, alleged that the jury would find the appellant lied in the witness box and that the jury could use those lies as evidence of consciousness of guilt
[37]
[22] The following are the passages in the prosecutor's address upon which the appellant relies:
[38]
"The Crown says that by his actions, by his act and actions, by his attitude he intended to kill that man. And I invite you to this inference also: that if the knife hadn't broken, he might well have achieved that purpose. I suggest to you his story about how he got the knife is demonstrably absurd. It is my submission to you that if you are satisfied that he is lying, that he lied on oath in that witness box, then, ladies and gentlemen, I invite you to this conclusion: that he is lying out of a sense of guilt because he knows that he is guilty as charged; that he knows he can't get himself out of it other than lying, other than turning himself into the person who was put into a position of having to defend himself.
[39]
His lies, ladies and gentlemen, come from a knowledge of his own guilt and he cannot - he cannot otherwise get himself out of it other than lying. His Honour I am sure, will tell you if you are satisfied that he had lied, well, there are a number of reasons why a person might lie. For example, to get himself out of an embarrassing situation, or any number of reasons, but the Crown says to you in this case, in this case it is obvious the reason why he is lying is because he has a guilty mind and he cannot extricate himself other than by lying and by demonstrably lying, and as demonstrable as those lies were yesterday, in my submission they demonstrate to you that he is guilty as charged, he knows that he is guilty as charged, and after you have deliberated, you will know, too, you will know beyond reasonable doubt that he is guilty as charged."
[40]
[23] Immediately after the Crown prosecutor's address, which concluded with the passage I last quoted, counsel for the appellant objected to these remarks because, it seems, he had not been given notice about any particular lies which were said to have been told out of the consciousness of guilt. The learned trial judge told counsel that he was not going to give a "consciousness of guilt" direction, said that he would think about how he was going to direct on this matter and invited counsel that if either was uncomfortable at the end of the summing up, to ask for a redirection. His Honour then summed up on this question as follows:
[41]
"I should mention one particular thing that came up, I think, in the Crown Prosecutor's address, and that was that it was suggested that the accused had lied on oath, and it may have been that you got the impression that that provided some evidence of guilt of itself. Now, the fact that a person tells a lie does not automatically prove the opposite of what is said by the person. A moment's thought would establish that. And you must bear in mind also that there are often - or there can be many reasons for a person telling a lie other than having a guilty conscience in respect of a particular matter. I suppose the most common example of that would be, you know, if somebody was alleged to have assaulted somebody else in a restaurant and they said: 'No it wasn't me, I wasn't at the restaurant', but there were a lot of witnesses who had seen the person there. Now, that would not prove that the person was guilty of the assault of itself, and it may be that the reason why the person lied about being at the restaurant was that he was there with somebody he should not have been there with. So you cannot just automatically assume that because somebody lies the proposition that is sought to be proved is established."
[42]
[24] In R v Brennan[4] McPherson JA with whom Thomas JA agreed said:
[43]
"Finally, I wish to enter a caution against the persistent reliance by prosecuting counsel on the phenomenon of lies by the accused as evidence of a consciousness of guilt. As was decided in Edwards v The Queen[1993] HCA 63; (1993) 178 CLR 193, the telling of lies is something that in some instances is capable of being considered as circumstantial evidence amounting to an implied admission of guilt on the part of an accused person; but the directions needed in order to correctly explain the conditions in which it is available for that purpose are convoluted and not at all easy for a judge to give, or for a jury to understand. The result often is to obscure rather than to simplify the issue to be determined.
[44]
**[25] His Honour's warning was not heeded by the prosecutor in this case which was probably not one of those instances in which lies by an accused were capable of being considered as circumstantial evidence amounting to an implied admission of guilt though, of course, in deciding whether to accept his evidence, the jury were entitled to take into account the fact that, in their view, he had lied about relevant matters. His Honour was therefore correct, in my opinion, in refusing to give a "consciousness of guilt" direction. The direction which he in fact gave is unexceptionable and no criticism is made of it by the appellant's counsel. Her point is that it did not overcome a prejudicial effect which the prosecutor's comments would have had upon the jury.
[45]
[26] I do not agree. In the first place I think, as the learned trial judge plainly thought, that the prosecutor's remarks in this respect would have had little or no effect on the jury's consideration. But secondly and more importantly, if they did have some momentary effect, it would have been dispelled by his Honour's careful and readily comprehensible direction. I therefore do not think that the prosecutor's remarks in his address to the jury about lies by the appellant, either alone or together with other matters, caused the trial to miscarry.[5]**
[46]
(c) the prosecutor in his address suggested that an adverse inference could be drawn against the appellant because his barrister at the committal proceedings did not put the appellant's version to the witness Ingrid Lester
[47]
[27] The appellant's counsel sought to argue this particular together with ground 3 which was in the following terms:
[48]
The learned trial judge erred in failing to exclude the statement and depositions of the witness Ingrid Lester
[49]
Ms Lester died on 20 November 2002 after she had given evidence in the committal proceedings. Her statement and the transcript of her evidence in the committal proceedings were admitted.
[50]
**[28] The statement was admitted pursuant to s 93B of the Evidence Act 1977 and the committal transcript was admitted pursuant to s 111 of the Justices Act 1886. There was no issue either at trial or in this Court as to compliance with the formal requirements for admission contained in those respective sections. At trial, counsel for the appellant submitted that the learned trial judge ought to exclude both pieces of evidence on the basis, in effect, that their prejudicial effect outweighed their probative value. That was also the basis of the submission by the appellant's counsel to this Court that his Honour ought to have excluded that evidence. With that submission counsel for the appellant joins a submission (particular (c) above) that the prosecutor suggested that an adverse inference could be drawn against the appellant because his counsel at the committal proceedings did not put the appellant's version to Ms Lester.
[51]
[29] It is unnecessary to consider in this appeal whether the discretion to exclude evidence on the basis that its prejudicial effect outweighs its probative value is limited to cases in which the probative value of evidence is slight. It is, nevertheless, undoubtedly correct that the higher the probative value of evidence the less likely it is that it will be excluded on this basis.
[52]
[30] In the present case Ms Lester's evidence went to the central question of fact. As far as is presently known only four people were witnesses to all that relevantly occurred; the appellant, Troy, the complainant and Ms Lester. It is true, as the appellant's counsel contends, that because Ms Lester had separated from the appellant and had formed a relationship with the complainant which, it may be assumed, continued up to the time when she gave her statement and gave evidence in the committal proceedings, she might reasonably be thought to have been well disposed towards the complainant and somewhat antagonistic towards the appellant. But that was no reason to conclude that the risk that her evidence was unreliable was so high that its prejudicial effect would exceed its probative value. Nor was any other reason suggested for that conclusion. In particular, it was not suggested that there were any internal inconsistencies in either the statement or the transcript of her evidence or any significant inconsistencies between the statement and the evidence transcribed. In my opinion the learned trial judge correctly refused to exclude that evidence.
[53]
[31] As to the contention that the prosecutor suggested in his address that an adverse inference could be drawn against the appellant because his barrister at the committal proceedings failed to put the appellant's version to Ms Lester, this is what the prosecutor said:**
[54]
"Ingrid hasn't been cross-examined. Her statement is only before you, therefore my friend says put little weight - you will attach little weight to her evidence. Well, Troy hasn't been cross-examined either. Troy's statement materialised during this trial. There was the opportunity to cross-examine her, if they wanted to, at the committal proceedings tactically she wasn't cross-examined on his version, well fair enough, but she was there for cross-examination. Whatever was in her statement could have been challenged, tested. Now, you heard his Honour read to you the cross-examination by the defence barrister who appeared for her [sic]. To the extent that it was challenged or contested you might have thought they were pretty peripheral aspects that she was tested upon."
[55]
**[32] This statement, it seems to me, is not directed to the question of what, if any, inferences might be drawn against the appellant, but to a defence of Ms Lester's evidence notwithstanding the absence of an opportunity to cross-examine her on it. It must be read in the light of defence counsel's earlier criticism of that evidence because of the absence of that opportunity.
[56]
[33] I can see nothing wrong or misleading in what counsel said there. No doubt it is common in committal proceedings for defence counsel, for tactical reasons, not to put the details of the defence case to the principal prosecution witnesses. But it is correct that defence counsel could have done so in this case had he wanted to and that he refrained from doing so, no doubt, for tactical reasons. In my opinion the criticism of this passage adds nothing to the grounds of appeal.**
[57]
The learned trial judge ought to have discharged the jury after the witness Morrison disclosed there was a domestic violence order in favour of the witness Ingrid Lester against the appellant
[58]
[34] Morrison, the complainant, when giving evidence-in-chief said:
[59]
"The reason why we chose that camp ground was because it was - so to speak - in the middle of nowhere, and we didn't tell anyone we were going there so we thought we'd be safely away. Ingrid had also taken out a domestic violence --"
[60]
At that point he was stopped. The next morning his Honour made the following statement to the jury:
[61]
"The other matter I want to mention is that yesterday some of you may have noticed that in the heat of the moment the witness started to say something about Ingrid taking out a Domestic Violence Order. Now domestic violence has a special extended meaning for the purpose of getting a protection order, which is what everybody talks about as a DVO or a Domestic Violence Order in everyday usage.
[62]
To get one of those orders it doesn't need proof of physical violence. Other less serious conduct can be relied on by someone who applies for a Domestic Violence Order or a protection order. For example, it can be got even if someone tries to contact a former spouse or partner who doesn't want to be contacted any more. It's as low level as that. Also, I should say that a temporary order which lasts until the truth of the allegations are sorted out in Court can be made on quite limited evidence, even though there is a dispute about the truth of the allegations that are made by the party who applies.
[63]
So I direct you to disregard the evidence given yesterday by the witness about the accused's wife getting a Domestic Violence Order because it is really of no relevance or assistance to you in deciding the issues in this case that we're concerned about, and in particular it can't be used to draw any conclusion that he has a tendency to violence, for the reasons I have just explained to you."
[64]
There is no reason to think that the jury would have ignored his Honour's clear direction. In my opinion there is no substance in this contention.
[65]
**[35] The central question is whether it was open to the jury to be satisfied beyond reasonable doubt that the accused intended to kill the complainant.[6] It would not have been open to the jury to be satisfied beyond a reasonable doubt that the accused intended to kill the complainant if, acting reasonably, they ought to have found that an inference or hypothesis consistent with absence of such intent was open on the evidence, for in that case they ought to have given the appellant the benefit of the doubt. This may be put another way: could the jury, acting reasonably, have rejected as a rational inference the possibility of the absence of an intent to kill.[7] The appellant submits that on the evidence the jury, acting reasonably, could not have excluded as a rational inference the possibility that the appellant stabbed the complainant to cause him bodily harm or out of blind anger, reckless of what the outcome would be.
[66]
[36] No doubt on one view of the above facts the jury could have accepted as a rational inference the possibility of the absence of an intention by the appellant to kill the complainant. But equally, it seems to me, they were entitled to reject that possibility as a rational inference. Neither view is unreasonable; the choice of which one to accept was therefore one for the jury. The learned trial judge in his summing up to the jury made it clear to them that the relevant intention to kill may have formed at any time prior to the appellant's commencing to stab at the complainant with the rather large knife. But the nature of the blows with that knife, that they were delivered in a stabbing fashion, their frequency, the fact that they re-commenced or continued after the appellant was, as the learned trial judge later described it, in a dominant position over the complainant on the ground, and the fact that, after the knife broke, the appellant commenced hitting the complainant over and about the head with a metal pole, in my opinion entitled the jury, in the light of the circumstances which led up to that point, to conclude beyond reasonable doubt that the appellant intended to kill the complainant.[8] I would therefore reject this ground of appeal.
[67]
[37] It follows from what I have said that the appeal against conviction should, in my opinion, be dismissed. I turn now to the application for leave to appeal against sentence.**
[68]
**[38] The appellant was born on 6 January 1963. He was therefore 38 at the time he committed the offence and 40 at the time of sentence. He has a substantial criminal history including for offences of unlawful assault in 1992, unlawful assault in 1994 and assault occasioning bodily harm in 1999. For the last of those offences he was sentenced to imprisonment for nine months wholly suspended for a period of three years. This offence was committed during but towards the end of that period of suspension. Because of that the learned sentencing judge imposed the present sentence concurrently with the activated suspended sentence.
[69]
[39] The sentence imposed was, as I have already said, one of nine years imprisonment with a declaration that the offence is a serious violent offence. The applicant had served a total of 408 days or approximately 13 months on remand prior to sentence. Because the applicant was also on remand for an offence of breaking and entering alleged to have been committed prior to this offence, this time could not be declared to be time already served under this sentence pursuant to s 161 of the Penalties and Sentences Act 1992. His Honour therefore, correctly in my opinion, indicated that he would allow for this time served by reducing the sentence which he would otherwise impose.
[70]
[40] The extent to which his Honour so reduced the sentence was one of the criticisms by the appellant's counsel of the sentence ultimately imposed. His Honour said that, in his opinion the offence should attract a sentence of not less than 10 years before any allowance is made for the time spent in custody. His Honour calculated the time spent in custody, a little unfairly to the applicant, at 12 months, in that way reaching the sentence which he ultimately imposed of nine years imprisonment. The appellant submits that he should have allowed 10/8ths of 13 months on the basis that, after he had made his declaration, the appellant would have been eligible for parole after serving 80 per cent of the term imposed. However I do not think that one should attempt mathematical exactness in matters of this kind particularly where, as seems increasingly to be the case, parole is not always granted at the time of first eligibility. And whilst I think that his Honour should have allowed 13 rather than 12 months the difference cannot affect a consideration of the overall sentence.
[71]
[41] A more important question is whether a sentence of 10 years or little over 10 years was within the appropriate range for this offence. In considering that question it should be noted that his Honour concluded that there was no pre-planning or pre-meditation in the sense that the appellant went to the camping ground for the purpose of using a weapon to harm the victim. The possibility of the use of a knife, from which, perhaps together with the use of the steel pole, the jury must have inferred an intention to kill, probably did not occur to the appellant until after he had commenced abusing the complainant and perhaps until even after he had commenced assaulting him with his fists. The question then is whether given the absence of pre-meditation until that time, the ferocity and persistence of the appellant's attempts to stab the complainant were, in the light of his previous criminal conduct, sufficient to justify a sentence of 10 years or more.
[72]
[42] The appellant's counsel submitted that such a sentence was beyond the appropriate range for this offence when regard is had to comparable cases. She referred principally to Harms,[9] Jurcik,[10] Farquhar,[11] Bitossi[12] and McGuren.[13] Before turning briefly to the facts of each of those cases it should be noted that, in each of them, an application by the offender for leave to appeal on the basis that the sentence was manifestly excessive was refused. Consequently none of them is authority for a proposition endorsed by this Court that a higher sentence in any of those cases would have been manifestly excessive. The same is also true of the cases cited by the respondent.
[73]
[43] Harms was sentenced to nine and a half years imprisonment on 18 December 1999. His offence was described in this Court as a callous and premeditated shooting in an execution style intended, it appears, by the applicant in order to silence a person whom he thought he was informing on his illegal drug operation. The appellant, who was 52 years of age, had an extensive criminal history for offences of dishonesty and drug related offences over a period of 20 years. On those very brief facts it seems to be a much more serious case than this. With great respect, unless there were some facts, not disclosed in the judgments and brief summary of that case given to this Court, which mitigated the sentence otherwise appropriate, the sentence in that case was too low.
[74]
[44] Jurcik who was 43 years of age at the time of his sentence on 21 March 2001, received a sentence of nine years imprisonment. The appellant, who was drug dependent, stabbed a prostitute after they had engaged in intimate sexual acts on his boat. He stabbed her eight times in the back, anterior abdomen, lower pelvis and hand. He claimed to have been under the influence of marihuana at the time. There does not appear to have been any element of premeditation. The appellant had only a minor previous criminal history, none for offences of violence.
[75]
[45] Farquhar, a woman of 33 years of age, was sentenced to eight years imprisonment. She had a previous conviction for wounding the victim of this offence with whom she had been in a relationship. On this occasion she jumped on his head, hit him on the head with a bottle, delivered bare foot kicks to his head while he was unconscious, banged his head on the floor and jumped on his stomach. There had apparently been some domestic argument which had preceded the commission of this offence. It was not suggested that there was any premeditation. On the other hand the complainant sustained serious injuries with permanent consequences.
[76]
[46] Bitossi discharged a shotgun in a bar at a hotel wounding a number of persons. A 26 year old man, he had no relevant criminal history. The summary which we were given of this case contains no further facts. I do not find the case of any assistance.
[77]
[47] McGuren, a 31 year old man, was sentenced to six years imprisonment. He had an extensive criminal record. He was the ex de facto of the complainant who had custody of their two children. There had been a history of harassment of the complainant by the appellant. On this occasion, before 6.00 am he forced his way into her home, straddled her and squeezed her throat for approximately 10 seconds saying "I'm going to kill you you fucking bitch". He would not allow her to leave the house.
[78]
[48] All of these were cases in which, like this, the appellant had pleaded not guilty and was sentenced after a trial. However only two of them, Harms and Jurcik are relatively recent; Harms' appeal on sentence was determined in 2002 and Jurcik in 2001. Farquhar was decided in 1994, Bitossi in 1984 and McGuren in 1996.
[79]
[49] The respondent's counsel cited four other cases; Schaefer,[14] Forster,[15] Rochester[16] and Ryder.[17] All of these involved sentences of 10 years or more. However, as the appellant's counsel has pointed out, they all included an element of premeditation not present in this case. Indeed, in two of them, Schaefer and Forster the applicant appears clearly to have planned to kill his intended victim.
[80]
[50] Schaefer who was only 22 at the time of his offence, was sentenced to 15 years imprisonment. He had had a bitter relationship with his mother and had prior convictions for assaulting her. When he and his mother were returning in her car from visiting a friend he directed her to a bush road on the pretext of showing her a swimming pool. When they were out of the car and walking along he stabbed her with a knife seven or eight times. He left her there believing her to be dead. He pleaded guilty. His sentence was not disturbed on appeal.
[81]
[51] Forster pleaded guilty to attempted murder and doing grievous bodily harm and was sentenced to 12 years imprisonment. He had walked into the florist shop owned by his estranged wife carrying an elongated cardboard box which he placed on the counter with one end facing her. He fumbled around inside and pulled the trigger of a 22 calibre rifle. The bullet struck the complainant in the right breast knocking her to the floor. He then straddled her and pointed the rifle at her evidently intending to fire a second shot saying that he was going to kill her. A brave bystander managed to wrestle the rifle from the applicant and ran outside locking the applicant in the shop. It appears that his plan had been to shoot his wife and then commit suicide. He had left a note to this effect and made arrangements for his own funeral.
[82]
[52] Rochester also pleaded guilty and was sentenced to 10 years imprisonment. His victim was also his estranged wife. He went to the Beenleigh Tavern where his wife was working. He said that, just before he went inside, he thought about things, went back to the car and got a knife which he used when he went fishing. He then approached his wife in the hotel and asked her if she wanted to talk to him. She said she did not and he then attacked her with the knife. He had an extensive criminal record including 12 previous convictions for assault or related offences. The court expressed the view that given the appellant's criminal history and the circumstances of the commission of the offence any sentence less than 10 years would have been manifestly inadequate. Unlike Schaefer and Forster he was convicted after a trial.
[83]
[53] Ryder also pleaded guilty to attempted murder of his former wife at the commencement of the trial and was sentenced to 10 years imprisonment. He had gone to the complainant's house armed with a kitchen knife although he gave some other explanation for carrying it. Without any prior warning he attacked the complainant causing two serious wounds to the upper part of her body. He then attempted to strangle her and struck her head on the floor a number of times. However at the conclusion of this episode he rang the ambulance, went to the police station and made a confession. He expressed remorse and demonstrated it as well in the above fashion. This Court thought that having regard to the nature of the offence the sentence of 10 years was not excessive. However for reasons not relevant here it added a recommendation for release after four years of the sentence.
[84]
[54] None of the cases cited to us is closely comparable to this. Harms, Jurcik and McGuren tend to show that this sentence was a very high one whilst Rochester and Ryder tend to provide some support for it. However, as already mentioned Harms appears, with respect, to be too low and out of line with cases such as Schaefer and Forster which recognize that, as the learned sentencing judge said in this case, cases involving significant premeditation are likely to attract sentences of 12 years or more.
[85]
[55] More generally, since the beginning of last year (R v Bryan; ex parte Attorney-General (Qld) [2003] QCA 18; R v Lewis; ex parte Attorney-General (Qld) [2003] QCA 133) there has been a number of decisions of this Court which have imposed more severe sentences for offences involving violence than hitherto. In considering the sentence which should be imposed in this case, that trend should not be ignored.
[86]
[56] Having regard to the matters to which I have referred and the other cases contained in a schedule provided to the Court, while a sentence of 10 years for this offence was a high one, I cannot be satisfied that it was so high as to be manifestly excessive. As mentioned earlier, his Honour then reduced the sentence to nine years imprisonment to take into account the period of custody already served.
[87]
[57] His Honour made the declaration that this was a serious violent offence because he said that it was a persistent, although relatively brief, attack with a knife by an offender who was at that point of the struggle in a dominant position. He reached this conclusion after considering the remarks of McPherson JA and Williams JA in Desalvo [2002] QCA 63 in which McPherson JA said:**
[88]
"It seems to me that, if in this case we were to uphold the declaration, it would be tantamount to saying that most, if not all manslaughter offences, or at least those involving use of a knife, ought to attract a punishment of this dimension; that is to say, a declaration under s 161B(3)."
[89]
**[58] His Honour was there adverting to the discretion given to courts to make a declaration and it is easy to see why there may be many manslaughter cases which would not attract a declaration because, not only is there an absence of an intention to kill but in some there may even be an absence of an intention to cause serious injury or even an injury at all. Notwithstanding that offences of attempted murder, on the other hand, necessarily involve an intention to kill, there will nevertheless be examples of attempted murder which will not attract a declaration. Whether a declaration is made in such cases will depend, for the most part, on the degree of violence involved and the circumstances in which it is inflicted including the existence and extent of premeditation, the extent of its persistence and the conduct of the victim, though no doubt other matters will be relevant such as the extent of injury and disability inflicted. However, in my opinion, his Honour was entitled to make the declaration in this case for the reason which he gave, namely that the appellant persisted in his attack with a knife upon his victim and continued it when he was in a dominant position.
[90]
[59] His Honour adverted to another reason which he thought may, in any event, have justified the making of the declaration. This was that the sentence was, in reality, a sentence of 10 years imprisonment which would automatically have attracted such a declaration. Had his Honour been able to make a declaration pursuant to s 161 of the Penalties and Sentences Act 1992 with respect to the 13 months pre-sentence custody the declaration would automatically have followed. It was only because, in this case, s 161 did not apply, that his Honour was obliged to reduce the sentence below 10 years in order to allow for that time spent. In my opinion his Honour was correct in the tentative view which he expressed. If the sentence warranted by the seriousness of the conduct was one of 10 years or more and the sentence is reduced only for the reason which it was in this case, then I think a declaration should ordinarily be made.**
[91]
2. Application for leave to appeal against sentence dismissed.
[92]
[60] McPHERSON JA: I agree with what Davies JA has written. The appeal and the application should be dismissed.
[93]
[1][1999] QCA 364; CA No 213 of 1999, 7 September 1999, [13] - [14], [36].
[5] In respect of both of the contentions advanced under this heading and that advanced under the previous heading, this case may be contrasted with R v Weatherall[2001] QCA 435; CA No 94 of 2001, 12 October 2001 in which, in both respects, the remarks by the prosecutor were more likely to have had the effect of depriving the appellant of the chance of an acquittal. For example, 20 per cent of the prosecutor's address in that case was taken up with submissions about "deliberate lies" and "consciousness of guilt" requiring, this Court thought, a more complete direction than that given by the learned trial judge.
[8] Contrast the circumstances in Cutter v The Queen[1997] HCA 7; (1997) 71 ALJR 638 where, though the appellant also used a knife in a stabbing motion, other circumstances tended to negate the existence of an intention to kill.