R v Mills [2008] QCA 146

SUPREME COURT OF QUEENSLAND

CITATION: R v Mills [2008] QCA 146

PARTIES: R v MILLS, Garry John (applicant/appellant)

FILE NO/S: CA No 46 of 2008 / SC No 960 of 2006

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 6 June 2008

DELIVERED AT: Brisbane

HEARING DATE: 28 May 2008

JUDGES: Keane, Holmes and Fraser JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application for leave to appeal against sentence grantedAppeal against sentence allowedSentence of 10 years imprisonment set aside; and in lieu thereof applicant sentenced to nine years imprisonment

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant convicted of manslaughter on his own plea of guilty – where applicant sentenced to 10 years imprisonment – where the learned sentencing judge proceeded on the basis that 10 years imprisonment had been held by the Court of Appeal to be at the lower end of the range for cases such as the present – whether the basis on which the learned sentencing judge proceeded was erroneous / Criminal Code Act 1899 (Qld), s 268 / Penalties and Sentences Act 1992 (Qld), s 161B / R v Dwyer [2008] QCA 117, cited / R v Schubring; ex parte Attorney-General (Qld) [2005] 1 Qd R 515; [2004] QCA 418, distinguished / R v Sebo; ex parte A-G (Qld) [2007] QCA 426, applied

COUNSEL: A W Moynihan SC for the applicant/appellant / T A Fuller for the respondent

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

KEANE JA: On 27 November 2007 the applicant, who had been charged with the murder of his wife, pleaded guilty to her manslaughter. The Crown accepted the applicant's plea in full discharge of the indictment. On 29 January 2008 he was sentenced to 10 years imprisonment. A period of 930 days was declared to be time already served under the sentence.

The applicant seeks leave to appeal against that sentence on the ground that it was manifestly excessive.

The circumstances of the offence

The parties agreed upon a "Statement of Facts" which was placed before the learned trial judge. From this statement, it appeared that the applicant and his wife were high school sweethearts who married in 1996 when he was about 22 years old and she was two years younger. Together they had two children who were aged nine and six at the date of the wife's death. The relationship between the deceased and the applicant had deteriorated. Police had been called to three incidents of domestic violence between 1997 and 2002.

The applicant killed his wife on the morning of 10 July 2005. On the evening prior to her death, the deceased had gone out to a nightclub. When she returned home in the morning, she and the applicant became involved in a heated argument in which each claimed to have been unfaithful to the other. She claimed that she had been having sex with other men in the toilets at nightclubs. The deceased threw a mobile phone at the applicant; it struck him on the body. She then picked up an electrical cord and struck him on the head and hand. The applicant grabbed the deceased and pulled her onto the bed on top of him. She then said: "I've given you a gift too. You should have AIDS by now too."

The struggle continued; the deceased tried to put the cord around the applicant's neck. He then wrapped the cord around her neck and applied pressure until her face was red and she was gasping for air. The applicant squeezed the deceased's mouth and put his fingers into her nostrils. She then fell face first from the bed onto the floor. He landed on top of her, and he continued to apply pressure to the cord until the deceased expired.

The applicant then stripped the bed and the deceased's body. He put the clothes into the roof cavity of their house. He wrapped the body in garbage bags and transported it to bushland 15 kilometres away where he buried the corpse in a shallow grave.

He then set about telling police and others that his wife had not returned home that morning. He made an appeal through the media for community help to locate his wife; and sought to direct attention away from himself and onto a man with whom he believed his wife had had a romantic relationship.

One of the deceased's friends informed police that the deceased had sent her a text message at 2.05 am on 10 July to the effect that she, the deceased, had arrived home. A search of the applicant's house on 12 July revealed the clothes in the roof cavity. The applicant was arrested and charged with the murder of his wife.

On 25 July 2005 the applicant provided the authorities with a map showing where his wife's corpse was buried. At that time, the state of decomposition of the body was such that it was difficult to establish the cause of death. There was bruising to the face, neck, left shoulder and left bicep. There was also a fracture of the right greater thyroid horn consistent with pressure to the neck.

The Crown accepted the applicant's plea of manslaughter on the basis that he had strangled his wife having been provoked to kill her.

The applicant's personal circumstances

The applicant was 31 years old when the offence occurred. He is the product of a loving family and a happy childhood. He, in turn, appears to be a loving father to his own children.

The applicant has, for 12 years, operated his own business as a window tinter working in conjunction with a business of spray painting and panel beating conducted by other members of his family.

It is apparent from the references tendered before the learned sentencing judge that many members of the community who know him speak well of him.

For some years, he had suspected that his wife as having an extra-marital affair. She, for her part, was suspicious that he too had been unfaithful. Their mutual resentments appeared to have festered over the years to reach their tragic culmination on 10 July 2005.

Mr Peter Perros, a psychologist, described the applicant as "an unassertive and submissive individual who clung onto his wife when she was making it clear she wanted to leave him."

The sentence

The learned sentencing judge accepted that the applicant had made great efforts to preserve his relationship with his children. Further, while in custody, he had shown himself to be a model prisoner.

The Crown Prosecutor contended for a sentence in the order of 12 years imprisonment. That submission was founded on the statement by Holmes JA in this Court in R v Sebo; ex parte A-G (Qld)¹ that the decided cases demonstrated that a range of sentence upon a plea of guilty in cases of manslaughter of a woman where the killing was not murder by reason of provocation was between nine and 12 years.

In sentencing the applicant, the learned sentencing judge said:

"The Prosecutor has said that an appropriate penalty would be one of 12 years imprisonment relying on the range which was set by the Court of Appeal recently in Sebo, 2007 QCA 426, to be between 10 and 12 years for offences of this kind in which provocation is the redeeming feature, if you like. Mr Kissick, your counsel, has submitted for nine years with no serious violent offence declaration.

I should say at this stage that were I to accede to the submissions as to years there are not features about your conduct which would bring a declaration. However, having read the most recent pronouncements by the Court of Appeal which to a large extent governs the range of my discretion, I am of the view that a term of imprisonment of ten years is one which I must impose upon you."

The learned sentencing judge's reference to "features … which would bring about a declaration" was to make the point that this was not a case where, if a sentence of less than 10 years imprisonment were to be imposed, her Honour would be disposed to proceed under s 161B of the Penalties and Sentences Act 1992 (Qld) to declare that the offence was a "serious violent offence".² Such a declaration would have attracted a mandatory minimum period of 80 per cent in actual custody before the applicant would have become eligible for parole.

Importantly, in relation to the features of the case to which her Honour referred, her Honour accepted that the applicant's attempts to disguise his role in his wife's death resulted from panic on his part rather than callous indifference to her fate. Her Honour accepted that the applicant had demonstrated real remorse for his killing of the deceased.

In the event, the sentence of 10 years imprisonment imposed by the learned sentencing judge automatically activated a mandatory minimum period of eight years in actual custody before the applicant would become eligible for parole.

The applicant's argument

The applicant's principal contention is that the learned sentencing judge erred in proceeding to sentence the applicant on the footing that 10 years imprisonment was held by this Court in R v Sebo to be the bottom of the range of appropriate sentences in the case of a domestic killing where the killer was able to establish a partial defence to a charge of murder by reason of provocation.

It is apparent from the passage cited from her Honour's sentencing remarks that the applicant's submission must be upheld. It does seem that her Honour intended to impose a sentence at the lower end of the range held by this Court in R v Sebo to be appropriate to a case such as the present, but mistook the relevant level. It follows that it is necessary for this Court to exercise the sentencing discretion afresh.

Re-sentencing the applicant

While the necessary starting point for the consideration of the appropriate sentence is that a human being has been killed, the circumstances of this killing, though tragic, were a far cry from the brutal thuggery which characterises those examples of this crime which have attracted a sentence at the higher end of the range.³ In R v Schubring; ex parte Attorney-General (Qld),⁴ the offender strangled his de facto wife after she had been rendered unconscious by a blow to the head. In R v Sebo; ex parte A-G (Qld),⁵ the offender inflicted fatal injuries on a defenceless 16 year old girl by beating her with a steering wheel lock. In each of these cases, a sentence of 10 years imprisonment was imposed.

The escalating violence of the episode in which the applicant killed the deceased was not entirely of his own making: it was the deceased who introduced the electrical cord into the struggle. I mention this, not to cast blame on the deceased who is not here to give her side of the story, but to emphasise that the applicant's victim was not defenceless, as were the victims in R v Schubring and R v Sebo, and that the provocation to which the applicant was subject was not limited to sexual jealousy.⁶

It is also necessary to bear in mind that the learned sentencing judge accepted that the applicant's treatment of his wife's corpse was the result of panic on his part, and his subsequent lies to the police and the public reflected his inability to cope with the consequences of what had occurred. Her Honour accepted that the applicant was truly remorseful for the killing of his wife. This Court should proceed on the same basis.

The sentence which must be imposed on the applicant must be such as to indicate the community's denunciation of the unlawful killing of a fellow human being, while at the same time recognising the limited relevance, in this case, of the other considerations which usually warrant condign punishment.

This is not a case where there is an evident need to protect the community from a violent aggressor: the applicant's history shows that his crime was radically out of character. Further, having regard to the circumstances of the crime, considerations of deterrence, whether general or personal to the applicant, have little claim upon the sentencing discretion in this case.

There is room for considerable doubt as to the practical efficacy of heavy sentences in deterring the kind of crime of passion with which we are presently concerned. In any event, to the extent that the theory of deterrent punishment assumes that a potential offender makes some sort of rational cost benefit calculation before deciding to offend, that assumption is necessarily falsified by the basis on which the Crown accepted the applicant's plea to manslaughter by reason of provocation in full satisfaction of the charge of murder. The "deprivation of the power of self-control" involved in the concept of provocation under s 268 of the Criminal Code 1899 (Qld) necessarily denies the possibility of the kind of calculation postulated by the deterrent approach to sentencing.

In these circumstances, it seems to me that this is a case where the appropriate sentence is at the lower end of the range described in R v Sebo. Bearing in mind the applicant's genuine remorse and the nature of the provocation in this case, I consider that the applicant should be sentenced to nine years imprisonment.

Like the learned sentencing judge, I do not think that this case warrants a declaration that the offence was a serious violent offence.

Conclusion and orders

I would grant the application for leave to appeal and allow the appeal to the extent of setting aside the sentence of 10 years imprisonment and substituting in lieu thereof a sentence of nine years imprisonment.

HOLMES JA: I agree with the reasons of Keane JA and the orders he proposes.

FRASER JA: I agree with the reasons of Keane JA and the orders proposed by his Honour.

Footnotes

1. [2007] QCA 426 at [18]. ↩

2. Cf R v McDougall & Collas [2006] QCA 365. ↩

3. Cf R v Schubring; ex parte Attorney-General (Qld) [2005] 1 Qd R 515; R v Dwyer [2008] QCA 117 esp at [40] – [41]. ↩

4. [2005] 1 Qd R 515. ↩

5. [2007] QCA 426. ↩

6. Cf R v Sebo; ex parte A-G (Qld) [2007] QCA 426 at [18]. ↩