R v Miguel [1994] QCA 512

He had previously, that is to say, about eight days before, informed his doctor, in the course of a visit, of his plans to kill his wife. At the trial the applicant was acquitted of murder. I find it difficult to believe that the jury could have had much doubt about his intention to kill or at least to inflict grievous bodily harm. It seems to me much more likely that they reached the conclusion that they did on the basis of diminished responsibility on the part of the applicant, which was a matter raised by the evidence in the case.

The applicant was, at the time, a man of some 42 years of age and an immigrant from Argentina. In his country of origin he had, it seems, some history of psychiatric problems, or, at any rate, there was evidence that he had undergone electrotherapy there at a time when he was about 16 years old.

In Australia he had difficulties which led on one occasion to his being looked after in a psychiatric ward after an attempt to commit suicide. His condition at the time of the killing is accurately summed up in the outlines of counsel for the applicant in this matter. He is there described as having a condition which was aggravated by an underlying narcissistic personality and which deteriorated into a depressive illness. According to the disputed psychiatric diagnosis, this substantially impaired his capacity to form a rational intention to kill and to control his actions at the time of killing. For my part I would see the case as one in which the jury were left with a reasonable doubt about his ability to control his actions at the time.

The learned Judge, in sentencing the applicant to a term of imprisonment of 12 years, was evidently persuaded that the offence was one that fell not far short of murder. He said that the applicant was fortunate that the jury had taken the view of the facts that they did. It is impossible not to agree with that sentiment, and to add that the sentences in cases of diminished responsibility - as I see this case to be - vary greatly from terms of imprisonment as high as 20 years down to terms of only one year or even less.

The case discloses circumstances that are, to my mind, quite horrifying. The offence was that of killing another human being in a cold-blooded and calculated way. The victim was defenceless and, as it happens, blameless, and she was stalked, one might say, in a way that was intended to ensure that she could summon no assistance. The killing took place, as I said, in front of the children.

The case, it is true, is one which involves, on one view of it, a family dimension; but we have recently held in The Queen v. Whiting that that is a factor which cannot be used to impose any form of rigid upper limit to the maximum penalty that may follow in cases of that kind. For my part I see no reason to disagree with the sentence of 12 years or to form a conclusion that the case is one in which the Judge ought to have added a recommendation for early parole. In respect of the order made, the Judge directed that account be taken of a period of 701 days pre-sentence detention which the applicant had undergone.

My view of the application is that it should be refused and that the sentence should be confirmed. In saying that, I would suggest that the order should state (a) that the offender was in custody in relation to proceedings for this offence and for no other offence between 10 September 1992 and 11 August 1994; (b) that the period was 701 days; (c) that the period of 701 days is declared to be imprisonment already served under the sentence; (d) that the records of the Court are to be noted to reflect such declaration; and (e) that the Commission is to be advised of the declaration of its details. Those are my reasons in relation to this matter.

THE PRESIDENT: The order of the Court is application for leave to appeal against sentence refused.