R v Miles [1999] QCA 325

Court of Appeal (Qld)|1999-08-20|Before: McMurdo P, McPherson JA, Pincus JA, Murdo P

JOINT REASONS FOR JUDGMENT - McMURDO P and PINCUS JA

1 The applicant applies for leave to appeal against sentence, having been convicted on pleas of guilty of five offences, three of which were charged on indictment; two were summary charges. He is a middle-aged man with no criminal history and complains of what he says is the excessiveness of the punishment imposed, namely 3 years imprisonment with a recommendation that he be considered for release on parole after 1 year.

2 The first count in the indictment alleged that the applicant -

" . . . broke and entered the dwelling of one Enid Elizabeth Buckley in the night time and therein unlawfully assaulted one Evelyn Enid Miles and thereby did her bodily harm".

This does not correspond with any of the offences created by s 419 of the Code, which was substantially amended by the Criminal Law Amendment Act 1997, s 72. The present scheme of s 419 is that subs 1 creates an offence of, to put it simply, entering or being in a dwelling with intent and subs 2 and 3 provide for life imprisonment if that is done in certain circumstances. Subsection 4 creates a separate offence and it is that which most closely corresponds with the drafting of count 1.

3 Counsel for the respondent pointed out that if one ignored the allegation of breaking and the allegation that the offence was committed in the night-time the count would be good under s 419(4); he contended that these allegations should be treated as surplusage. Authority for doing so is to be found in Go (1990) 73 NTR 1 at 12, and in the cases there referred to. There was some discussion at the hearing as to whether the indictment could be amended to put it into proper form; s 572(3) permits amendment after verdict; here there was no verdict.

4 A stage must be reached in which the allegations in a count are such that the count cannot properly be identified with any specific provision of the Code; then the count is simply bad. Here, while one would not wish to encourage such careless drafting as has occurred in the present case, it appears to us that the right course is to accept the respondent's submission that the allegations of breaking and occurrence in the night-time may be ignored, thus reducing the count to one fitting into the language of s 419(4).

5 The other count in the indictment alleged an assault doing bodily harm to one Enid Elizabeth Buckley. It was in relation to these counts that the sentence mentioned above was imposed.

6 All these offences had to do with marital discord. The applicant and his wife Evelyn separated in November 1998 and the offences were committed in February this year. According to the account given by counsel for the applicant to the primary judge there are three children of the marriage; two daughters have left home and are married and there is a son, an apprentice plumber, who was living with the applicant until the date of the offences. Counsel for the applicant told the primary judge that the marriage had been unhappy for some time but the applicant believed that the difficulties between the parties might be resolved. About the middle of 1998, it was said, the applicant lost his job because the position became redundant. He was unemployed for a time and became depressed. Counsel for the applicant told the primary judge that at one point after the separation of November 1998, the applicant's wife returned to the matrimonial home and the parties discussed reconciliation. He said there were two attempts at reconciliation, both apparently unsuccessful.

7 It appears from information which the primary judge had before her that, on a number of occasions last year, the applicant threatened to do harm to himself and on other occasions he threatened to burn the family home and once slapped the wife. The offences now in question were committed when there were floods in Gympie, where the parties live. Counsel for the applicant said below that the applicant became depressed and decided to go to his mother-in-law's house where his wife Evelyn was staying, in a further attempt at reconciliation. He had in mind to commit suicide if she would not come back. Then, it is common ground, he broke into the house, taking with him some cyanide. The prosecutor told the judge and it is not disputed that the wife was woken by the sound of smashing glass and the applicant's roaring. Both the wife and her mother ran into the hallway and found the applicant running towards them. He grabbed his wife around the neck; she tried to fight him off by kicking at him; he shoved his fingers in her mouth; he dragged his wife down the hallway and pushed her to the ground. As this happened, her mother was also knocked over. 8 The prosecutor said that the applicant was attempting to herd his wife and her mother towards a back bedroom; the wife's mother was yelling at him to leave his wife alone. That, the prosecutor said, caused the applicant to strike out at his mother-in-law, punching her to the right side of the face and knocking her to the ground. At some point he kicked at her. At this stage the wife told the applicant to stop what he was doing and she would go back to him. He kept telling her to "shut up"; the struggle continued. The applicant sat on top of his wife. He went into a bedroom and returned with a black bag containing the bottle of cyanide, then came back and abused his wife's mother and told his wife that if she did not return to him he was prepared to take his own life. He said he had put wood under the house preparing to set it alight. He had in fact cut the phone lines to the house and he told the two women that. The wife calmed the applicant down and made him a cup of tea. He apologised and said he loved her and wanted her back and to have another chance. He wanted to clean up the broken glass and offered to pay for the damage. The wife drove the applicant back towards his home; she was unable to take him right to it because of the floods. The wife went to the police station and the police came to the applicant's house. He locked himself in and apparently renewed his threat to commit suicide using cyanide. Eventually the police talked him around, got the cyanide and took him to the police station.

9 He told the police that there was a struggle during which he slapped his mother-in-law twice in the head and put his hand over his wife's mouth in an attempt to quieten her. The prosecutor said that the wife suffered a broken finger which had not yet healed and she suffered bruising, as did her mother. The prosecutor said that both victims were in fear of the applicant and were contemplating leaving the area and perhaps even leaving the country. There was before the primary judge a letter from one of the children, a married daughter, expressing love and support and saying that his conduct in committing the offences was out of character and that he loved the writer's mother and wanted the marriage to continue.

10 Counsel for the applicant suggested to the primary judge that there should be a short period of imprisonment followed by probation, but the judge said in effect that that would be a waste of time, because there was no funding to provide adequate probation. In her reasons for sentencing the judge said that the circumstances of the offences were tragic. Her Honour took into account in favour of the applicant that the events had occurred only in the previous month and had been dealt with promptly because there was an ex officio indictment. Her Honour accepted that the applicant had serious depression, that he had been distraught over the breakdown of his marriage and that he had been a family person as indicated by the daughter's letter.

11 The judge took into account against the applicant that there was a deliberate and premeditated contravention of a domestic violence order; that was one of the offences before the judge, for which her Honour imposed no punishment and the same applied to the summary offence relating to the cyanide. These were taken into account in relation to the principal charges. An indictable offence of stealing a bottle of cyanide produced a 3 month term.

12 There were photographs in evidence showing the injuries to the complainants, the applicant's wife and her mother. The sentence imposed was not a low one, but appears to us to derive support from that imposed in Brelsford (CA No 301 of 1995, 14 September 1995); both sides relied on this case. We would find it impossible to conclude that the seriousness of the events in Brelsford is so far removed from that of the present case as to justify the conclusion that the penalty imposed here - the same as that in Brelsford - was manifestly excessive. Emphasis was rightly placed on the fact that the applicant was the subject of a domestic violence order caused by apprehension about his behaviour. Although he showed very prompt remorse, it appears to us that the requirements both of personal deterrence and general deterrence make the sentence imposed one which was within the proper range. We would refuse the application.

1 I agree with what McMurdo P and Pincus JA have written on the subject of the sentence in this case, as well as the defect (and its effect or consequence) in the first count in the indictment.

2 The application for leave to appeal against sentence should be dismissed.

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Judgment (16 paragraphs)

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