R v Milini [2001] QCA 424

SUPREME COURT OF QUEENSLAND

CITATION: R v Milini [2001] QCA 424

PARTIES: R / v / MILINI, Andrew Mario / (applicant)

FILE NO/S: CA No 190 of 2001 SC No 296 of 2001

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Cairns

DELIVERED ON: 9 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 27 September 2001

JUDGES: McPherson JA, Chesterman and Douglas JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Application and appeal against sentence allowed. Sentence varied by reducing it to imprisonment for 5 years suspended after serving 2 years with an operational period of 3 years

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCESENTENCE – where applicant pleaded guilty to a charge of unlawful killing and sentenced to 7 years’ imprisonment – where Mental Health Tribunal previously found the applicant suffers from paranoid schizophrenia – where finding of mental illness irrelevant to the culpability of the applicant because the charges were based on criminal negligence not an intention to kill or cause grievous bodily harm – whether mental illness not amounting to insanity relevant to sentencing / Criminal Code (Qld) s 304A / Mental Health Act 1974 (Qld) s 33(1)(b), s 35A / R v Benstead CA No 9 of 1995, 23 May 1995, referred to / R v Cole SC No 611 of 1999, 28 June 2001, referred to / R v Dunn CA No 29 of 1994, 13 May 1994, cited / R v Hile [1999] QCA 17, referred to / R v Hill SC No 261 of 2001, 5 September 2001, referred to / R v Lock SC No 479 of 1997, 10 September 2001, referred to / R v Mackenzie [2000] QCA 324, CA No 353 of 1999, 11 August 2000, referred to / R v Streatfield (1991) 53 A Crim R 320, cited / R v Ward SC No 74 of 1999, 8 December 2000, referred to / R v Whelan NSWCA No 144, 5 October 1990, cited

COUNSEL: Mr J M McLennan for the applicant / Mr D Meredith for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: I have read and agree with the reasons of Chesterman J for allowing this appeal. This case bears some superficial resemblance to R v Mackenzie [2000] QCA 324, except that there the offender was a person of above average intelligence, whereas the applicant here was assessed by Dr Kingswell as being of low average intelligence with an IQ of only 84. In both, the offender originally pleaded guilty to an offence of manslaughter by criminal negligence in the handling of a loaded firearm. On appeal the Crown sought to make a distinction between the two cases on the ground that in R v Mackenzie the offender believed the gun was unloaded, whereas here the applicant believed it was loaded with a blank cartridge. However, that difference, if it is one, has in sentencing terms little or no consequence in a case where, as here, the offender has an intellectual function of the level of the applicant.

2. It has long been recognised that mental impairment falling short, and even well short, of insanity is a factor that, as serving to diminish the moral culpability of the offender for the offence committed, operates in mitigation to reduce the sentence that would otherwise be imposed. In addition to the decision mentioned by Chesterman J, I would add a reference to R v Dunn (CA 29 of 1994; May 13, 1994), where some of the many authorities are discussed. Plainly the level of intellectual functioning of the offender is of particular significance in the context of an offence like manslaughter by criminal negligence, where criminal responsibility is measured by the extent of the offender’s departure from the objective standards of ordinary mankind. Even so, I would presume to record my personal impression that the sentences conventionally meted out for this offence in ordinary cases may be tending to err on the lower side of the range.

3. I agree with the order proposed by Chesterman J. The application and appeal should be allowed and the sentence varied by reducing it to imprisonment for 5 years suspended after serving 2 years for an operative period of 3 years.

4. CHESTERMAN J: On 28 June 2001 the applicant pleaded guilty to a charge of unlawful killing and was sentenced to seven years’ imprisonment. He seeks leave to appeal against that sentence on the ground that it is, in the circumstances, manifestly excessive.

5. The deceased was a 28 year old woman, Rhonda Bong. She was the mother of a number of children and was, at the time of her death, about three months pregnant. She and the applicant had been friendly for about two years. There was a marked discrepancy in the their ages. The applicant is now 59 years of age and was 57 at the time of the offence. There was no sexual content in their friendship.

The deceased had a boyfriend, David Ambrum, who was also friendly with the applicant. The deceased and Mr Ambrum had lived together for some time though with interruptions in their cohabitation. At the time in question they were living separately but both were visitors to the applicant’s house where they had spent much of the day. They were accompanied by one of the deceased’s children, a four year old boy.

6. During the day a small amount of alcohol was consumed and in the evening a meal was prepared and eaten. Afterwards the four of them watched television. The deceased and her son fell asleep. At about 10.30pm the applicant and the deceased went into the kitchen, perhaps to obtain some refreshment. There appears to have been some minor unpleasantness between them but no sexual overture and no violence.

7. The deceased returned to the lounge-room where Mr Ambrum and the deceased’s son had remained. The applicant went to another room of the house and returned with a shotgun which he discharged close to and in the direction of the deceased. She died immediately.

8. Mr Ambrum fled taking the child with him. The applicant drove to the Innisfail Police Station where he told the officer on duty that he had “just shot someone”.

9. The applicant was originally charged with murder. The question of his mental state at the time of the offence was referred to the Mental Health Tribunal which on 13 December 2000 found, in the terms required by s 33(1)(b) of the Mental Health Act 1974 that at the time the offence was committed the applicant was suffering from diminished responsibility. The consequence was, pursuant to s 35A of the Mental Health Act that the charge of murder could not continue but that the applicant could be indicted, as he was, on a charge of manslaughter.

10. The psychiatric reports on which the Mental Health Tribunal based its findings were adduced in evidence before the learned sentencing judge. The Tribunal’s findings were also tendered.

11. The Tribunal found:

“The (applicant) . . . suffers from paranoid schizophrenia. The (applicant) has been examined by Dr Kingswell, by Dr Varghese and by Dr Fama. They all agree upon the diagnosis and that the mental disease, . . . paranoid schizophrenia, affected the (applicant’s) behaviour at the time of the offence and was wholly, or in part, responsible for it. . . . the mental disorder was sufficient to substantially impair the (applicant’s) capacity to control his actions and to know that what he was doing was wrong . . .”

12. The applicant has not given a clear account of the thought processes which led him to arm himself with a shotgun and discharge it close behind the deceased. He does not seem to have been deliberately evasive. His inability to provide a clear account may be the result of his mental illness or a shock caused by the realisation of what he had done, or a combination of those factors and others. In any event he has given a fairly consistent account that he believed the gun to be loaded with a blank cartridge. There was some independent corroboration for that view of the facts.

13. The Tribunal’s findings quoted from Dr Kingswell’s report:

“. . . I believe (the applicant’s) habitual foolish behaviour with firearms was contributed to by his abnormality of mind. (The applicant) has consistently said that the shooting was the result of a failed joke. In the absence of limited intellect, and paranoid schizophrenia, I think it unlikely that he would be engaging in this kind of joke. To that extent I think that he was substantially impaired in his capacity to know that he ought not shoot (the deceased).”

The Tribunal also quoted from Dr Varghese’s report:

“In association with his relatively low intelligence the schizophrenia contributed to his socially inappropriate behaviour and lack of judgment. Keeping a loaded gun handy, whether or not he had blanks, is also related to his schizophrenic disorganisation and perhaps with some added paranoid thinking. I believe that he qualifies for diminished responsibility in that he was significantly impaired in his capacity to know he ought not to do the act.”

14. The process of sentencing the applicant had obvious difficulties. A finding of diminished responsibility can only be made in a case where, but for the operation of s 304A of the Criminal Code, the unlawful killing in question would be murder. In the ordinary case that involves killing with the intention of causing death or grievous bodily harm. The proceedings before the Mental Health Tribunal were predicated upon the applicant intending to kill the deceased. The intention was to be inferred from the applicant’s actions of pointing a shotgun at the deceased and firing it from a close distance. The Tribunal’s finding that the applicant’s abnormality of mind substantially impaired his capacity to know he ought not to shoot the deceased reduced the charge to manslaughter.

15. However there was another basis on which the applicant could be guilty of manslaughter, not murder. There is the basis that the killing involved criminal negligence. The applicant behaved carelessly, or even recklessly, by pointing the gun at the deceased but he believed it was loaded only with a blank cartridge. The act was not intended to kill or cause an injury at all.

16. On this basis the determination of the Tribunal was irrelevant to the applicant’s culpability. He would not have been guilty of murder even if not suffering from the abnormality of mind noted by the psychiatrists. It is now clear that the applicant was charged with unlawful killing on the basis of criminal negligence. Counsel for

the Crown accepted that it could not have proved an intention to kill or cause grievous bodily harm by reason of the applicant’s belief that the gun was loaded only with a blank cartridge. This concession is of particular relevance to the outcome of the application.

17. The learned sentencing judge does not appear to have addressed the point that the applicant was guilty of manslaughter by reason of his criminal negligence and not by reason of diminished responsibility ameliorating what would otherwise be murder. His Honour noted during argument that “the manslaughter . . . is more justified by reason of the mental state rather than criminal negligence . . . but it appears to be one or the other”.

18. Counsel in their submissions referred to, and analysed, a number of cases which have discussed the appropriate sentence to impose in cases of unlawful killing as a result of criminal negligence involving firearms. The cases to which particular reference was made were Streatfield (1991) 53 A Crim R 320; Mackenzie [2000] QCA 324 and Whelan (CA No 144 of 1990, 5 October 1990). Reference was also made to Hile (CA No 341 of 1998, 5 February 1999) and Benstead (CA No 9 of 1995, 23 May 1995). Hile was a case in which the accused injected the deceased with heroin from which she died and knowing that she was unfamiliar with the drug. Benstead was a case of stabbing.

19. Counsel for the Crown opposed the application and submitted that the appropriate range of penalty was between 7 and 9 years. There are a number of cases which were not referred to the learned judge, nor to this court, which show, in my opinion, that the sentence imposed was too heavy, and that the range of penalty suggested by the Crown is wrong. They are Ward, Cole, Hill and Lock. All of them were cases of manslaughter prosecuted subsequently to a determination of the Mental Health Tribunal that each accused was suffering from diminished responsibility. In each of them the accused intended to kill but, by reason of abnormality of mind, had a substantially impaired capacity to know that it was wrong to kill. Each of those cases is, therefore, more serious than the present in which the applicant did not intend to kill or cause any harm to the deceased. Ward stabbed his wife to death and then made a substantial attempt to kill himself. He was sentenced to nine years imprisonment. Lock bludgeoned his wife to death with a hammer. He was sent to gaol for 8 years. Hill killed her husband also by a blunt instrument. She, too, was sentenced to eight years’ imprisonment. Ward and Lock pleaded guilty to manslaughter. Hill contested the charge of unlawful killing on the ground that she was insane, but was found guilty of manslaughter. Cole was charged with murder but defended the charge on the basis of psychiatric evidence that he suffered an abnormality of mind, an adjustment disorder with anxiety and depression, which substantially impaired his capacity for moral judgment. He shot a neighbour, with whom he had a long-standing dispute, in the head. He was acquitted of murder but convicted of manslaughter. He was sentenced to eight years’ imprisonment.