Court of Appeal (Qld)|2006-05-05|Before: Jerrard JA, Fryberg and Douglas JJSeparate reasons, for judgment of each member of the Court, Jerrard JA and Douglas J concurring as, to the orders made, Fryberg J dissenting
Jerrard JA, Fryberg and Douglas JJSeparate reasons, for judgment of each member of the Court, Jerrard JA and Douglas J concurring as, to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSON –
APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTEDPERSON –APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY –where applicant was convicted of enteringa dwelling with intent to commit anindictable offence with circumstances of aggravation that he entered thebuilding by means ofa break, was armed with an offensive weapon and he usedactual violence – where applicant was convicted of unlawfully woundinghisex-wife with intent to do grievous bodily harm – where applicant wasacquitted of the charge of attempted murder –where applicant wassentenced to nine years imprisonment on the count of unlawful wounding withintent to do grievous bodily harmand to a concurrent term of five yearsimprisonment for the burglary with circumstances of aggravation – wherethe convictionfor wounding with intent to do grievous bodily harm was declared
a serious violent offence – whether sentence was manifestly
excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSON –
APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY –
whether the applicant, who made no
admissions about either specific matters nor
a plea of guilty in the jury’s presence, was entitled to some reduction of
his
sentence on the basis that he had made three written offers to plead guilty
to burglary and wounding with intent to do grievous bodily
harm if the Crown
dropped the attempted murder charge
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSON –
APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY –
where a serious violent offender declaration
is a matter of discretion, is the
sentencing court constrained to a sentence at the lower end of an appropriate
range by terms
Penalties and Sentences Act 1992 (Qld), s 161A, s 188R v
Ambrose [1995] QCA 122
CA No 5 of 1995, 21 March 1995, consideredR v
Anderson [2004] QCA 287
CA No 64 of 2004, 6 August 2004, consideredR
v Bojovic [2000] 2 Qd R 183
[1999] QCA 206, CA No 4 1999, 8 June 1999,
consideredR v Clark
ex parte A-G [1999] QCA 438
CA Nos 68 of 1999
and 82 of 1999, 22 October, consideredR v Dempsey [2001] QCA 141
CA
No 356 of 2000, 17 April 2001, consideredR v Marshall [1994] QCA 161
[1995] 1 Qd R
673, consideredR v Melissant [2003] QCA 122
CA No 443 of 2002, 19
March 2003R v Wilson [2001] QCA 215
CA No 211 of 2000, 1 June
2001R v Young [2005] QCA 32
CA No 289 of 2004, 18 February 2005,
considered
Judgment (105 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSON - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - where applicant was convicted of entering a dwelling with intent to commit an indictable offence with circumstances of aggravation that he entered the building by means of a break, was armed with an offensive weapon and he used actual violence - where applicant was convicted of unlawfully wounding his ex-wife with intent to do grievous bodily harm - where applicant was acquitted of the charge of attempted murder - where applicant was sentenced to nine years imprisonment on the count of unlawful wounding with intent to do grievous bodily harm and to a concurrent term of five years imprisonment for the burglary with circumstances of aggravation - where the conviction for wounding with intent to do grievous bodily harm was declared a serious violent offence - whether sentence was manifestly excessive
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSON - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - whether the applicant, who made no admissions about either specific matters nor a plea of guilty in the jury's presence, was entitled to some reduction of his sentence on the basis that he had made three written offers to plead guilty to burglary and wounding with intent to do grievous bodily harm if the Crown dropped the attempted murder charge
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSON - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - where a serious violent offender declaration is a matter of discretion, is the sentencing court constrained to a sentence at the lower end of an appropriate range by terms
R v Melissant[2003] QCA 122; CA No 443 of 2002, 19 March 2003
[12]
R v Wilson[2001] QCA 215; CA No 211 of 2000, 1 June 2001
[13]
R v Young[2005] QCA 32; CA No 289 of 2004, 18 February 2005, considered
[14]
Director of Public Prosecutions (Queensland) for the respondent
[15]
[1] JERRARD JA: On 21 July 2005 Mr Lyon was convicted by a jury of the offence of entering the dwelling of his ex-wife Judith Lyon with intent to commit an indictable offence in the building, and with the circumstances of aggravation that he entered the building by means of a break, that he was armed with an offensive weapon, and that he used actual violence. He was convicted of unlawfully wounding her with the intent to do grievous bodily harm. He was acquitted of a charge of attempting to murder her. On 25 November 2005, after a pre-sentence and psychiatric report had been obtained, he was sentenced by the learned judge to nine years imprisonment on the count of unlawful wounding with intent to do grievous bodily harm, and to a concurrent term of five years imprisonment for the burglary with circumstances of aggravation. The learned judge declared that the conviction for wounding with intent was a conviction of a serious violent offence, and declared that 656 days of pre-sentence custody was time already served. Mr Lyon has applied for leave to appeal the nine year sentence.
[16]
[2] His grounds of appeal are that the learned judge failed to give full weight to his remorse, contrition, and co-operation with police; that the judge failed to give full weight to factors included in the psychiatrist's report including that Mr Lyon may have been experiencing agitation associated with the cessation of taking some anti-depressant medication; that the sentences were manifestly excessive; and that the declaration that Mr Lyon had been convicted of a serious violent offence was not justified by either his criminal history or the circumstances of the offence.
[17]
[3] The circumstances were that Mr Lyon had separated from his wife some years prior to the offence, and had begun a relationship with another woman. The circumstances of the matrimonial breakdown had caused him considerable distress, as had bitter disputes in court about the children and his apparently deteriorating relationship with them. He was also distressed by what he considered to be spiteful stories about his new partner which he believed his ex-wife had related to others, and he also considered that his children might not be safe when with his ex-wife's new partner. Additionally, there had been difficulties with his agreed contact with the children of the marriage in Christmas 2003 when they were not provided for agreed contact with him, and he had felt devastated.
[18]
[4] On 23 January 2004 Mr Lyon was convicted in the Gympie Magistrates Court of two breaches of a restraining order issued pursuant to the Domestic and Family Violence Protection Act 1989 (Qld), committed respectively on 3 and 21 March 2003, when Mr Lyon had made some telephone calls to his ex-wife. The next day, 24 January 2004, the day of the offences the subject of this application, Mr Lyon had argued with his new partner at their residence, and she had called the police. They arrived at about 6.40pm that evening and suggested that Mr Lyon calm down. He had been drinking alcohol during the course of the day, and it so happened that the police officer saw a machete at those premises. It was then unsharpened, and after they left Mr Lyon set about sharpening it. He then drove to his ex-wife's residence, and entered the house by kicking in the front door. He had the machete, now sharpened, and he attacked his ex-wife with it. At one stage she was pinned against a wall and he swung the weapon towards her head, she ducked, and thereafter a number of blows intended for her each hit the wall, leaving marks. She was struck at least one glancing blow, and her victim impact statement records that she sustained a slash to her face, cuts to her neck, one to her left upper arm, and one to her left middle finger. She also experienced severe whiplash, and nerves in her cheek were damaged, leaving her with both a scar and a lack of feeling in the cheek. She suffers from flashbacks about what happened that night and feelings of fear and paranoia, and was really only saved from further injury during the attack by the intervention of their then 12 year old son.
[19]
[5] On sentence the Crown prosecutor submitted that Mr Lyon had demonstrated no remorse, in that the matter went to trial and both their children had been required to give evidence. Further, the offence was committed when there was an existing domestic violence restraining order which had been the subject of proceedings in a court the previous day. The learned sentencing judge accepted that the existence of that order was one matter that made the attack even more serious than the circumstances of the injury Mr Lyon inflicted, which left a noticeable scar, and the intent with which he did it. Another such matter was that the attack was committed in the presence of his children, and a third that he had premeditated it to the extent of sharpening the machete at his own home before setting out for his ex-wife's.
[20]
[6] As against that, the learned judge accepted that the breakdown of Mr Lyon's marriage had been a very unhappy event for him, and that during the course of the marriage he and his ex-wife had suffered the personal tragedy of losing a child who died at the age of five years. The judge accepted that that loss had had a profound impact upon the marriage and upon Mr Lyon, who had been suffering from depression and had for quite some time taken extensive medication to help deal with that, although he had not taken any in the days immediately prior to attacking his ex-wife.
[21]
[7] The Crown prosecutor submitted that the circumstances of the offence made it more serious than those in which six years imprisonment had been imposed such as those of R v Ambrose[1995] QCA 122 and R v Melissant[2003] QCA 122, but less serious in cases in which a 12 or 13 year sentence had been imposed, those being in matters of R v Wilson[2001] QCA 215 and R v Anderson[2004] QCA 287. The Crown accordingly submitted that a head sentence in the range of eight to 10 years was appropriate, as would be a declaration that Mr Lyon had been convicted of a serious violent offence. In response, counsel for Mr Lyon submitted that the sentence to be imposed should have a significant period of suspension attached to it, because Mr Lyon had no convictions for like offences in the past and, apart from his conviction on 23 January 2004 for breaching a restraining order on two occasions, had only one relevant prior offence, committed in November 1980, being breaking and entering a dwelling. He had been placed on probation for that offence, 25 years ago. I observe that whatever the appropriate head sentence, it is difficult to see a proper basis upon which a substantial portion of that could be suspended, in the absence of the significant mitigating circumstances of pleas of guilty or demonstrated remorse.
[22]
[8] In R v Ambrose that offender had been convicted after a trial of the offence of unlawful wounding with intent to do grievous bodily harm, and had earlier pleaded guilty to entering a dwelling house with the intent to commit an indictable offence. He was sentenced to six years imprisonment, and his application for leave to appeal was refused. He was a 41 year old offender with a criminal history extending back to 1978 which included two offences of malicious wounding in 1978, but little thereafter of any significance. That offender and the complainant in that case had been involved in an altercation at a hotel two days before the offences then under appeal, and on the day of those offences that applicant, who had again been drinking at a hotel, decided to visit the complainant in that matter and seek revenge. That applicant, like Mr Lyon, armed himself at his residence with two weapons, and then travelled to the complainant's home where he attacked the complainant. The complainant took evasive action, and called out "Get the gun" to another resident of the complainant's dwelling, whereupon, believing he might be shot, the applicant stabbed the complainant with a screw driver that the applicant had brought with him. That applicant then fled.
[23]
[9] The conduct of that applicant and Mr Lyon was similar in that each deliberately went armed to the respective complainant's premises, at which they attacked them; Mr Lyon was convicted of circumstances of aggravation in respect of his offence of burglary, and he offended in the presence of his children, when restrained by a court order from being at the premises, and attacked a much more helpless victim. That makes his offending more serious than that of Mr Ambrose. Both had a trial.
[24]
[10] In R v Melissant[2003] QCA 122 that applicant had pleaded guilty on the morning of a trial to a charge of unlawful wounding with intent to do grievous bodily harm. He was sentenced to six years imprisonment, with a declaration that he had been convicted of a serious violent offence. His victim was a woman with whom he had been in a relationship for some years, characterised by periods of separation, and who had obtained a restraining order pursuant to the then Domestic Violence (Family Protection) Act1989 (Qld) in relation to his behaviour. On 24 October 2001 he arrived at her home and there was an argument; next day when he returned she told him the relationship was at an end. He went into her kitchen, grabbed a large butcher's knife, and then charged at her and repeatedly stabbed her. She struggled free, and he later ran the knife across his own throat, and also his arm.
[25]
[11] His victim suffered terrible injuries, with at least six wounds including a four centimetre deep laceration to the right side of her neck, a deep laceration to the anterior abdominal wall, and lacerations to the left arm, forearm and armpit, of which one was five centimetres deep. At the time of sentencing she was still unable to use her left arm, had required surgery both immediately after the incident and again in July 2002, and suffered serious adverse psychological effects from the attack.
[26]
[12] That applicant's criminal history included two convictions for assault in 1988, a conviction in 1992 for wilful and unlawful damage to property, a conviction of assault occasioning bodily harm for an offence which occurred in November 1995, and a second conviction for assault occasioning bodily harm for an offence which occurred on 24 March 1996. The complainant in those two offences was the ex-husband of the victim of Mr Melissant's offence of unlawful wounding with intent to do grievous bodily harm.
[27]
[13] That applicant was 39 was he committed the offence of wounding with intent, had been employed throughout his adult years working in Queensland, and had favourable references. This Court held both that the head sentence of six years, and the declaration, were amply justified by the nature of the offence, which had included a frenzied attacked on an unarmed woman in her home, the use of a large butcher's knife, the number of stab wounds inflicted, the intent to cause grievous bodily harm, the physical and psychological effect of the offence on the victim, the continuing impact on the victim, and that applicant's history of violent offending. The Chief Justice expressly noted that had the declaration not been made, the six year sentence would, in his view, have been manifestly inadequate.
[28]
[14] That applicant's conduct when compared to that of Mr Lyon lacked the premeditation of preparing the weapon, but was an otherwise similar attack with similar intent with a weapon, in which more serious injuries were inflicted than those Mr Lyon caused. Further, that applicant had a significantly more serious history of prior convictions, his plea was very late, and he too was restrained by an order relating to the complainant. In those circumstances the sentence of nine years imprisonment, with a declaration, imposed on Mr Lyon appears high by comparison.
[29]
[15] In Wilson that applicant was convicted on a plea of guilty of the offence of wounding with intent to disfigure, and imprisoned for 13 years with a recommendation for parole after six. The plea was entered in June 1997 - it appears there was an application some three years later for leave to appeal the sentence, on the ground it was manifestly excessive.
[30]
[16] That applicant had gone to that complainant's place of work on 4 January 1997, at a shop in a well known shopping centre, armed with a knife, and had grabbed the complainant by the hair in the presence of other employees, customers, and members of the public. He then slashed her with the knife on the face, arms, back, neck and buttocks, and then plunged the knife into his own chest. Prompt medical treatment saved his life, and the complainant's victim impact statement was described by McPherson JA (giving the judgment of this court), as showing her pitiable condition as the innocent victim of something which no person at all could view with anything but horror.
[31]
[17] That was not the first time that applicant had threatened or assaulted that complainant. They had been married in 1989 and had four children, and the periodic violence on that applicant's behalf towards the complainant had included his stabbing or injuring her on more than one occasion. In late December 1996 he had gone to her home where she was then living with their children, and had slashed all her clothing. He then went to her workplace and slashed the tyres of her car. He made continual threats to her over a period of time, including that he was going to cut off her lips. That threat resulted in an interim restraining order being made against him, and a hearing to determine if a final order should have been made was set down for hearing on 6 January 1997, but made irrelevant by his attack on 4 January.
[32]
[18] That applicant had also been violent to others in the past. He had a conviction for armed robbery, which offence he committed when on parol for a conviction for rape. He had five convictions for rape between 1977 and 1980, involving three different complainants. He also had convictions for the attempted carnal knowledge of a girl aged under 14 years, a conviction for indecently assaulting another girl under the age of 16, and one for an indecent assault on a female. Additionally he had a conviction for assault occasioning bodily harm, another for recklessly causing serious injury, and one of using a firearm to prevent lawful apprehension. He had been previously sentenced on seven different occasions to terms of imprisonment, of varying lengths of two, four, five, and seven years imprisonment.
[33]
[19] On his application this Court referred to his appalling criminal history, preparedness to employ weapons, the severe physical and psychological consequences of the victim in the case, for his children, and for members of the public, and the fact that his premeditated and carefully calculated action was largely motivated by revenge. In those circumstances this Court dismissed his application, while observing that the sentence was of the highest that has been imposed for an offence of that kind.
[34]
[20] That applicant's prior history of offending, against numerous other females and that complainant, sharply distinguishes his case from that of Mr Lyon. The Crown was correct in conceding so much.
[35]
[21] In R v Anderson, that applicant had been convicted after a trial of doing grievous bodily harm to one complainant with intent to do her grievous bodily harm, and also of the attempted murder of that complainant's son. On the appeal the convictions for the latter's attempted murder was set aside, and a conviction for doing grievous bodily harm with intent to do grievous bodily harm was substituted. This Court ordered that for that substituted offence that appellant be sentenced to 11 years and seven months imprisonment.
[36]
[22] The circumstances were that that appellant too had been in a relationship with the female complainant, formed in 1997, but which had ended in July 2001. Some occasional telephone contact had occurred thereafter, at the instigation of that appellant, and that complainant had made plain that she was disinclined to resume the relationship. On the morning of the offence that appellant had telephoned the complainant, taxing her with having an interest in another man, and the complainant had made it clear that was none of the appellant's business. Soon thereafter the appellant made an unannounced and unexpected visit to the complainant's home at about 7.30am, and then subjected her and her son, a child, to near fatal assaults. Both victims were only discovered lying unconscious in the house around dark that evening, having been there all day. The female complainant had suffered severe skull injuries, bruising of the brain, and had been in danger of death. She required a tracheotomy to assist her breathing, and was left with permanent visual and physical impairment. Her son had complex facial fractures, including to the forehead, and subdural, extradural, and intracerebral hematomas. He had a severe brain injury; both victims had little memory of the attack.
[37]
[23] Those were both near fatal attacks on a mother and child in the woman's home, and the one on the child certainly justified the sentence imposed. Overall that applicant's conduct was significantly worse than that of Mr Lyon.
[38]
[24] A seven year sentence was upheld by this Court, with no declaration, in Dempsey[2001] QCA 141 where that offender was found guilty after a trial of doing grievous bodily harm with intent. He too had attacked a female partner from whom he was estranged, with a knife. He stabbed her six times; there was less premeditation than in Mr Lyon's offence, but more serious injury caused. In R v Young[2005] QCA 32 this Court upheld a sentence of six years imprisonment, with a declaration, imposed on the female applicant who had been convicted after a trial of an offence of wounding with intent to do grievous bodily harm. That applicant was acquitted on a count of attempted murder, and convicted on a further count of having assaulted another person on the same occasion.
[39]
[25] The circumstances of that offence were that the applicant and the person assaulted had been in a relationship for about four years, and the applicant had gone to that man's home on the afternoon of the offence, armed with a knife. Her ex-partner had a female visitor staying at his home, with whom that ex-partner had become friendly. The applicant Young rang her ex-partner's doorbell, and when the female friend opened it, the applicant entered, shut the door forcibly, and began to stab the female friend with a knife, saying "This is what you get for sleeping with my boyfriend" and "You're going to die". The victim attacked sustained a large a number of stab wounds, though fortunately none were deep. The applicant also bit that victim on the arm. Subsequently she assaulted her ex-partner, when he arrived and intervened, and then restrained that applicant. That was the basis of the assault conviction.
[40]
[26] That applicant's conduct was both aggressive and calculated. She had concealed her vehicle so that her approach to her ex-partner's residence would not be observed, and like Mr Lyon, that applicant made a pre-meditated attack on an unarmed woman in what was that woman's then residence. That applicant had no prior criminal history, and was suffering at the time from an adjustment disorder with a depressed mood. One matter making Mr Lyon's conduct more serious than Ms Young's was that Mr Lyon attacked his victim the day after she had taken court proceedings to punish him for breaching restraining orders. As Fryberg J remarked during the appeal hearing, Mr Lyon's conduct had an element of retribution towards his victim for having done that.
[41]
[27] One matter quite significantly relied upon by Mr Lyon's counsel on the appeal was the acknowledged offers, made in writing on 2 November 2004, 27 January 2005, and 14 March 2005, to plead guilty to the charge of wounding with intent to do grievous bodily harm, and to the count of burglary. The prosecution would not accept those pleas, either on an ex-officio basis, or in full discharge of the indictment later presented. The offer in November 2004 was to plead to those charges on an ex-officio indictment. All offers were refused. It was made clear by the Crown at the time of the last oral offer on 23 March 2005 (just prior to the pre-recording of the children's evidence) that if Mr Lyon did enter a plea to wounding with intent to do grievous bodily harm in the jury's presence (and presumably also to the charge of burglary), and if "the matter was then only [to] proceed on the attempted murder charge, then the Crown would not need to call the children and therefore avoid the necessity of having the children give evidence."[1] No pleas were agreed to be made or in fact made in the jury's presence, and Mr Lyon's counsel on appeal (different counsel from that on his trial) suggested that that may have been for a tactical reason. Irrespective of the reason, on the appeal counsel contended that the fact that offers to plead, to the offences of which Mr Lyon was ultimately convicted, had been made was a matter relevant to mitigation of his sentence, and one not fully drawn to the attention of the learned trial judge. The judge was told only of the Crown position put forward after the oral offer, and before the children were pre-recorded. The judge was not told of the three earlier written offers to plea, should the Crown drop the attempted murder charge. Counsel cited from R v Wiggins[2003] QCA 367, where this Court agreed with the observation in R v Marshall[1994] QCA 161; [1995] 1 Qd R 673 to the effect that:
[42]
"...[An offender's] offer to plead guilty to the only offence of which he was [subsequently] convicted was a relevant matter to be brought to account in the exercise of the sentencing discretion. Such a conclusion is clearly consistent with the policy enunciated in s.13 of the Penalties and Sentences Act1992 (Qld)."[2]
[43]
[28] Accepting that proposition as both sensible and authoritative, the benefit from such offers in any particular case depends upon the extent to which the person convicted co-operates with the administration of justice during the trial, or offers to, or demonstrates remorse. In this matter Mr Lyon's counsel on appeal did not suggest Mr Lyon made any admissions of fact which would have narrowed the issues in dispute at the trial, a point remarked upon as relevant by Byrne J in R v Marshall (at 676). Mr Lyon, having made no admissions about either specific matters nor a plea of guilty in the jury's presence, can gain this benefit from his earlier written offers to plead guilty, that he had thereby been prepared to co-operate with the administration of justice, and he was justified in his plea of not guilty to attempted murder. He was entitled to some reduction in his sentence for that reason, a matter which the learned judge, in an otherwise careful sentencing exercise, did not take into consideration, not having been told of it. The learned judge did take into account that Mr Lyon had gone immediately to the police after the attack, that he had been affected by alcohol, was confused, and felt a deep grievance towards his ex-wife.
[44]
[29] On the appeal the Director defended the approach taken by the Crown before the learned sentencing judge, that of identifying clusters of sentences in other cases which assisted in showing a level of sentence held not manifestly excessive in various other applications to this Court. Those cases had identified a cluster at about the six year level, and a different cluster of sentences at about the 10 to 13 year level. I also accept that that was an appropriate approach by the Crown, and consider that in the circumstances the appropriate sentence here after a trial fell at about the eight year level, were it not for the written offers to plead to the counts of which he was convicted, including the offers to plead to an ex-officio indictment. Those offers somewhat bring Mr Lyon back to the field.
[45]
[30] In the result, a sentence, which reflects the relative criminality of Mr Lyon with that of other persons whose sentences have been upheld by this Court, is less than the nine years imprisonment ordered, with the declaration. On the appeal counsel did not challenge the order making the declaration, but attacked the head sentence. In my respectful opinion, a sentence of seven years imprisonment, with a declaration that Mr Lyon was convicted of a serious violent offence, was an appropriate sentence, and nine years imprisonment with that declaration was manifestly excessive. I would accordingly allow the application, grant the appeal, substitute a sentence of seven years imprisonment for the nine years imposed, and maintain the declaration. I respectfully agree with Fryberg J that had Mr Lyon actually entered pleas of guilty on the counts to which he had offered to plead, then an appropriate order would have been one which made him eligible for parole after three years. But he did not do so.
[46]
[31] FRYBERG J: The cases to which we were referred as being comparable and many of the circumstances relevant to this offence are set out in the reasons for judgment of Jerrard JA. I shall not repeat them. In those reasons his Honour has described how the applicant sharpened a machete, drove to his ex-wife's residence and entered it by kicking in the front door. He has described some of what then occurred. The applicant's attacks were not limited to those with the machete. He also punched his victim and attempted to strangle her. It is implicit in the jury's verdicts that he did these things not with the intent to kill her, but with the intent to do grievous bodily harm to her. As the Crown prosecutor said of his conduct to the sentencing judge:
[47]
"It demonstrates a degree of premeditation and deliberateness that is often absent in these types of cases... where the intention is formed on the spur of the moment, in the heat of the argument."
[48]
[32] A number of factors combine to make this case more serious than is usual for home invasion charges. There were multiple levels of violence. That violence was intended to cause grievous bodily harm to its victim. It was premeditated. It was inflicted notwithstanding the presence in the small house of the applicant's children, of whose presence the applicant must have known. But for the bravery of his 12-year-old son, the victim's injuries might have been far worse. Not only was it inflicted in defiance of a domestic violence order; it is an irresistible inference that it was motivated by a desire to punish the victim for having enforced the order by court proceedings the previous day.
[49]
[33] That last factor is a particularly disturbing feature of this case. Such orders are made with a view to preventing incidents such as this. It is most important that this Court should uphold the authority of those orders and of the courts which make them. They may, often will, be the only form of protection available to the beneficiary of the order. In considering the sentence in this case it is important to take into account the contempt for law and legal process inherent in the applicant's conduct. In this context it is worth noting that not even a visit from the police earlier on the day of the offence was sufficient to deter the applicant.
[50]
[34] The applicant was 40 years of age of the time of the offences. His criminal history was fairly slight and included no offences of violence. A number of years ago, he had suffered from depression, but with medication and counselling his condition had improved to the point where he had ceased using medication and remained relatively free of significant depression for three years. He had been divorced from the victim some time prior to the offences and at that time had been living with another woman for 18 months. The breakup of his marriage led to a recurrence of depressive symptoms. However, at the time of the offences he had been experiencing a "relative resolution" of his depressive illness with antidepressant medication and counselling. (In this regard he was in a different position from the offender in R v Young[3]; at the time of her attack, she was suffering an adjustment disorder with depressed mood). Four days before the offence he had discontinued use of his medication.
[51]
[35] The four grounds included in the proposed notice of appeal are set out in the reasons for judgment of Jerrard JA. The second of them was that the sentencing judge failed to give full weight to (among other things) the possibility that the applicant was at the time of the offences experiencing agitation associated with sudden cessation of his medication. The applicant abandoned that ground of appeal.[4] That is unsurprising. The psychiatrist who had examined him reported, in answer to a specific question asked by the applicant's solicitors:
[52]
"Although his history is not as clear, he may have been experiencing some of the agitation associated with sudden cessation of Venlafaxine at that time also. I do note however that he did not report any significant physical symptoms which had previously for him been associated with this [occurrence]." [5]
[53]
The psychiatrist observed that the applicant's anger may have contributed to a general lack of judgment with regards to his behaviour; and that some of that anger, but only a partial contribution, could be laid at the feet of the sudden cessation of the medication. The report continued:
[54]
"It would seem that it was the significant events occurring both chronically and acutely (namely being convicted of the breach of DVO and then having his valued relationship terminated as a result of his ex wife's behaviour) are [sic] far more likely contributors to this emotional state. In addition, he would have been significantly intoxicated by his account of the amount of beer he had consumed. This would have in my opinion been a far greater impact on his impaired judgment and inability to resist violent impulses [than] simply the sudden cessation of Venlafaxine."
[55]
[36] That report could not in my judgment support a finding that the cessation of medication had any relevance to the offence. More than an opinion of a bare possibility, an opinion hedged with a note of serious doubt, is required for that. Nonetheless, the sentencing judge accepted that the applicant's ceasing to use the medication was a contributing, though not the predominating, cause of the offence. That error favoured the applicant.
[56]
[37] The applicant supported the remaining ground of appeal, that the sentence was manifestly excessive, on two bases. The first was that the sentencing judge must have initially had in mind a head sentence perhaps as high as 10 to 12 years, which not only was too high but which also exceeded that for which the Crown had contended. It was submitted that the reason the judge must have had such a sentence in mind was that (as "one must necessarily assume") he carried out the exercise described in R v Bojovic:[6]
[57]
"...[I]f according to ordinary principles a violent offence seems to call for a sentence of between six and eight years, and it is one where the discretion to make a violent offender declaration arises, such that it might but not must be made, the sentencing judge has the discretion in the event that a declaration is to be made, to impose a sentence towards the lower end of the applicable range. Conversely if the Judge is to give the offender the benefit of declining to make such a declaration, it might be appropriate to consider imposing a sentence towards the higher end of the range. If this were not done, it is difficult to see how the sentencing judge could properly discharge his or her duty under s. 9 of the Act. A just sentence is the result of a balancing exercise that produces an acceptable combination of the purposes mentioned in s. 9(1)(a) to 9(e) of the Act."[7]
[58]
It was submitted that the sentencing judge was required to undertake the assessment of the head sentence in accordance with the principles espoused in that passage.
[59]
[38] That dictum, and a similar submission, were considered last year by a unanimous Court of Appeal. That Court said:
[60]
"In a case such as this, we accept that the inevitable declaration is relevant in the consideration of what sentence is "just in all the circumstances" in order to fulfil the purpose of sentencing which is prescribed by s 9(1), consistently with what was said in Shillingsworth and Herford. In the present case, the learned sentencing judge did consider that matter as is demonstrated by the passage we have set out. However, it is another thing to say that the sentencing court should invariably, or at least as a general rule, be constrained to sentence at the lower end of an appropriate range where the declaration is mandatory. That approach is not indicated by the terms of the statute and indeed in our view its acceptance would be contrary to the apparent purpose of Part 9A, which was to affect a prisoner's eligibility for parole rather than to result in some general lessening of sentences."[8]
[61]
[39] The reference in that passage to "a case such as this" was to a case where making a declaration was mandatory, not one involving the exercise of a discretion. The question in the present case, where a declaration is a matter of discretion, is whether the sentencing judge was required to adopt the approach set out in the passage. The answer is, he was not. There are three reasons for that answer. First, that is not what the Court said in Bojovic. The terms of the passage are far from encouraging the view that the approach described must invariably be applied. Second, such an approach is inconsistent with the integrated sentencing process described in that case.[9] It presupposes determining a range of head sentences "according to ordinary principles", without considering the question of the declaration, and then selecting a figure in the range by reference to whether or not a declaration is to be made. That is a two-step sentencing process in another guise. Third, that approach is no more indicated by the terms of the statute where the declaration is a matter of discretion than it is where it is mandatory. The judge was required to determine a sentence which was just in all the circumstances.[10] It cannot be assumed that he necessarily, or even probably, initially selected a sentence in the range of 10 to 12 years.
[62]
[40] It follows that the applicant's first basis for submitting that the sentence was manifestly excessive has not been made out.
[63]
[41] The second basis was what the applicant's counsel was pleased to call "the unaccepted plea of guilty". That was a misdescription, and a considerable one. The applicant pleaded not guilty at trial to all three counts in the indictment and made no admissions about anything. He required all issues to be proved and necessary witnesses to be called. These included his own two children.
[64]
[42] The sentencing judge did not refer in his sentencing remarks to the existence of any remorse on the part of the applicant for what he had done. The applicant criticised a submission by the prosecutor which may have contributed to that omission:
[65]
"...the accused has demonstrated no remorse. The matter did go to trial; both children were required to give evidence. The accused had handed himself in, but there was no real demonstration of remorse, in my submission; he really proceeded to make complaints against the victim."
[66]
He submitted that to approach the matter on the basis that there was no remorse was to ignore an unaccepted offer to plead guilty made by the applicant before the trial.
[67]
[43] That submission confused the existence of remorse with a willingness to assist in the administration of justice. There is in this case little evidence of genuine remorse. It is true that the applicant went straight to a police station after committing the offences, but in doing so he was recognising reality. His ex-wife and son had seen what he did. His interview with the police is not before us (although doubtless it would have been taken into account by the trial judge), but there is no reason to doubt that in the course of it he proceeded (in the prosecutor's words) "to make complaints against the victim". Much the same is apparent in what he told the psychiatrist. His offers to plead reflect an attempt to avoid a trial on the charge of attempted murder, not remorse or acceptance of responsibility.
[68]
[44] On the other hand, these factors do evidence some willingness on the applicant's part to co-operate in the administration of justice. Such a willingness is, like remorse, a subjective consideration, related to the particular offender.[11] It is also a mental state which represents the outcome of a cognitive process. It is not concerned with the offender's motives. A plea of guilty may, and usually will, evince such a willingness. In such a case, the offender is entitled to credit. It does not matter that the plea or offer may have been motivated by self-interest. It might even be thought that the system is designed to appeal to self-interest.
[69]
[45] In the present case, the defendant made offers to plead guilty which were not accepted by the Crown. Unfortunately, the sentencing judge was not properly informed of those offers. At first, neither was this Court. We were initially provided with vague, unreliable and incomplete statements from the bar table. That was quite unsatisfactory, particularly in a case where the point formed a central plank in the applicant's submissions. When it became apparent that the sentencing judge had been misinformed, or at least inadequately informed, of the true position, an application for resentencing under s 188 of the Penalties and Sentences Act 1992 ought to have been made. Because that did not happen, we were obliged to allow fresh evidence (when it was highly dubious that the case was one where such evidence was permissible) and supplementary written submissions simply in order to avoid unnecessary expense, delay and inconvenience. We are now placed in the situation of resentencing the applicant ourselves, which is not the primary function of this Court. It is most disappointing that this situation should have been allowed to develop.
[70]
[46] An offer of this sort is a relevant consideration in sentencing an offender:
[71]
"In my opinion, the appellant's offer to plead guilty to the only offence of which he was convicted was a relevant matter to be brought to account in the exercise of the sentencing discretion. Such a conclusion is clearly consistent with the policy enunciated in s. 13 of the Penalties and Sentences Act1992. What weight is given to the offer may depend upon a variety of other circumstances, including any terms attached to the offer and the time at which it is made."[12]
[72]
[47] It is therefore necessary to identify clearly the offer or offers made and the circumstances in which they were made. That includes any offer made prior to the presentation of the indictment. Contrary to the views held by some in the legal profession, an offer to plead guilty before, at, or even shortly after committal proceedings will, other things being equal, attract a greater discount on sentence than one which is delayed until after the presentation of the indictment. Lawyers who choose not to seek instructions regarding a plea of guilty, and offenders who choose not to give them, until after the strength of the Crown case is assessed at committal cannot expect discounts of the same magnitude as are available to offenders who plead guilty, or notify their intention to plead guilty, at an early stage in proceedings.
[73]
[48] On 2 November 2004, 10 days before the committal proceedings, the solicitor for the applicant wrote to the Director of Public Prosecutions:
[74]
"At this stage it is my client's intention to plead not guilty to all charges, but in the circumstances in which the incidents occurred I hold instructions to try to negotiate with your office. We therefore offer to plead to all charges if the charge of attempted murder is dropped and modified to a charge of wounding with intent to cause GBH."[13]
[75]
At that time the matter was still in the hands of a police prosecutor, in accordance with the usual practice. The letter produced the following response:
[76]
"I advise that this office is not prepared to enter into negotiations in relation to what charges ought be preferred against your client given that the prosecution of the committal hearing is not being conducted by this office and we do not have a brief of evidence or any other material in relation to the matter. In any event, if a brief of evidence has been prepared and supplied to you by the Arresting Officer, this office will not consent to the presentation of an ex officio indictment given that the Queensland Police Service have been put to the expense of preparing the same."
[77]
That was an understandable reaction, but I do not think it detracts from the value of the applicant's offer. Had he actually done what he offered to do at this early stage,[14] he would have been entitled to a very substantial reduction in his sentence. Had I been sentencing in such circumstances, I would have imposed a sentence which would have rendered him eligible for post-prison community based release after about 2½ to 3 years. There are different ways in which such a reduction might be achieved, but it is unnecessary to discuss them here. It suffices to say that in such circumstances it would have been appropriate to recognise his pleas of guilty at least by not making a declaration under s 161A of the Penalties and Sentences Act 1992.[15] There is no requirement to declare a conviction to be one of a serious violent offence merely because the offender has been convicted of a serious violent offence.[16]
[78]
[49] Committal proceedings were held and the applicant was presumably committed for trial on the charges then before the Court (the evidence before us is inconclusive). He could have pleaded guilty to the charge of entering with intent at that stage, but he did not do so. In the circumstances of this case, I would not hold that against him.
[79]
[50] On 27 January 2005 his solicitor again wrote to the Director of Public Prosecutions, renewing the earlier offer. He added, "Alternatively I hold instructions to enter a plea of not guilty to the attempted murder charge if it is maintained." That left open the possibility that the applicant would plead guilty to the other charges. The offer was rejected orally on 19 February 2005 and the indictment was presented six days later.
[80]
[51] On 14 March the solicitor for the applicant wrote to an officer of the Director of Public Prosecutions and informed her that he held instructions to offer to plead to counts one and three if the charge of attempted murder were withdrawn. He added, "I note that if the offer is accepted it will not be necessary for the two child witnesses to be subjected to the trauma of giving evidence against their father on 23/03/05, with possible long-term detrimental effects." That was apparently a reference to an appearance for the prerecording of evidence.
[81]
[52] That offer was rejected by the Director of Public Prosecutions by letter dated 17 March 2005. However on that same day, there was a conversation between Mr Campbell of the office of the Director of Public Prosecutions and the lawyers for the applicant. Mr Campbell specifically enquired of counsel whether the applicant intended to enter a plea of guilty to the alternate charge. He raised the possibility that if the applicant did so, it might be unnecessary to call the children. On 21 March 2005 counsel for the applicant advised Mr Campbell that both children were required to give evidence.
[82]
[53] The prerecording was rescheduled and took place on 5 April 2005. The applicant was arraigned on that day and pleaded not guilty to all charges. Both children gave evidence and were cross-examined.
[83]
[54] The trial took place over four days commencing on 18 July 2005. The pleas of not guilty were maintained and counsel for the defendant urged the jury to acquit on all charges. He particularly submitted that the applicant should not be convicted of any offence involving an intention. In the event, the applicant was convicted of two such offences and acquitted of attempted murder.
[84]
[55] The evidence placed before us made no attempt to explain or justify the applicant's failure to plead guilty to the two counts on which he was ultimately convicted. The only inference open in the circumstances is that this was a deliberate tactical decision designed to maximise the applicant's chances of escaping scot-free.
[85]
• at no time did the applicant unconditionally indicate a willingness to plead guilty; all of his offers were conditional upon the withdrawal of the charge of attempted murder;
• the applicant could have pleaded guilty to the charges upon which he was convicted, but chose not to do so;
• at the trial the applicant actively sought acquittal on all counts.
[86]
[57] In these circumstances it is quite impossible to treat the applicant as though he had pleaded guilty at an early stage. The effect of his offers was substantially negated by his subsequent conduct in pleading not guilty and seeking complete exoneration before the jury. The case is comparable to R v Clark, ex parte Attorney-General, where the Chief Justice (Jones J agreeing) said:
[87]
"Had the respondent when arraigned pleaded not guilty to murder but guilty to manslaughter, the position may have been somewhat different. There would then have been some consequent saving of public resources. But the respondent, one infers, preferred to preserve his chance of an outright acquittal. The offer of the plea cannot be regarded as suggestive of remorse. In these circumstances, I cannot see that it should have weighed in any degree in favour of the respondent when the judge came to sentence him."[17]
[88]
In the present case the applicant did not plead guilty even to the charge of entry with intent.
[89]
[58] Clark's offer was made at a late stage of proceedings and was worthless. The present applicant has demonstrated some willingness to cooperate in the administration of justice by his early offers; but because of his conduct at trial, the weight to be attributed to that willingness is very limited. Just how limited is shown by the very case upon which he relied, R v Wiggins.[18] There the offender had been prepared to plead guilty at a relatively early stage to the only charge of which he was ultimately convicted. Unlike the present applicant, he further cooperated by his admissions during the trial. The Court was obliged to resentence because the sentencing judge explicitly made no allowance for these matters. To take them into account, the Court reduced the sentence of seven years imprisonment to one of six years and nine months imprisonment. The present applicant made no admissions to expedite his trial and sought exoneration on all counts. To my mind it is not consistent with the approach in Clark and Wiggins to reduce his head sentence by a year for unimplemented offers.
[90]
[59] From the foregoing it will be seen that I have a different perception of the relevant facts from that of Jerrard JA, and a different appreciation of both the criminality involved in those facts and the mitigatory effect of the applicant's offers to plead guilty. For those reasons the only error which I find in the sentence is that which was induced by the information (or lack of it) provided to the judge in relation to cooperation in the administration of justice. Adopting the approach in Wiggins, I would grant the application, allow the appeal and substitute a sentence of eight years and 10 months imprisonment for the sentence of nine years imprisonment imposed on the count of unlawful wounding. Otherwise the orders made by the sentencing judge should stand.
[91]
[60] DOUGLAS J: I have had the advantage of reading the reasons to be delivered by Jerrard JA and agree with them and with the orders proposed by his Honour.