Court of Appeal (Qld)|2007-02-09|Before: de Jersey CJ, Williams JA and Holmes JA, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made
de Jersey CJ, Williams JA and Holmes JA, Separate, reasons for judgment of each member of the Court, each concurring as to the
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 REFUSED
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED– PARTICULAR OFFENCES –OFFENCES AGAINST THE PERSON –whereapplicant pleaded guilty to manslaughter and other offences and was sentenced toten yearsimprisonment and deemed a serious violent offender – wheregrossly intoxicated applicant struck deceased with a pool cue inan unprovoked,gratuitous attack – where applicant had a bad criminal record –whether sentence imposed was manifestlyexcessiveR v Bojovic [1999]QCA 206[2000] 2 Qd R 183, distinguishedR v DeSalvo [2002]QCA 63(2002) 127 A Crim R 229, distinguishedR v
Duncombe [2005]
QCA 142
CA No 410 of 2004, 6 May 2005, followed
R v George
ex
parte A-G (Qld) [2004]
QCA 450
CA No 316 of 2004, 26 November 2004, distinguished
R v
Katia
ex parte A-G (Qld) [2006]
QCA 300
CA No 111 of 2006, 22 August 2006, distinguished
R v
MP [2004] QCA 170
CA No 42 of 2004, 20 May 2004, distinguished
R v Stepto [2002]
QCA 10
CA No 220 of 2001, 4 February 2002, distinguished
Judgment (32 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
THE CHIEF JUSTICE: The applicant pleaded guilty to manslaughter and was sentenced to 10 years imprisonment. He also pleaded guilty to two counts of assault occasioning bodily harm, which attracted concurrent terms of six months imprisonment to be served concurrently with the 10 year term. He seeks leave to appeal on the ground the sentence of 10 years was manifestly excessive because it failed to allow sufficiently for matters of mitigation and because its effect was to deem him a serious violent offender, and so obliged to serve at least 80 per cent of the basic term.
[3]
As to that, the learned sentencing Judge observed that a declaration of a serious violent offence, automatically applicable because of the 10 year term, would have been appropriate anyway. The Judge described it as,
[4]
"A vicious, unprovoked attack in a public place using a weapon."
[5]
The weapon was a pool cue. The applicant, then 25 years of age, had that day, the 8th of July 2005, been drinking heavily. The offence of manslaughter occurred at about 7 p.m. at the Mareeba RSL Club, which her Honour noted is a social venue attended by many people including families.
[6]
It was at the club that the applicant first met the deceased. They played a game of pool together. Then, the deceased, who was mildly intoxicated, watched the applicant play pool with another person. During that later game, the deceased said something which video footage suggests caused the applicant to become angry. The applicant aggressively confronted the deceased then, with deliberation, the applicant moved some distance around the pool table, picked up the cue, moved back and into proximity with the deceased and struck the deceased once to the side of the head with the cue.
[7]
Having viewed the video the Judge described it as, "A full swing with the pool cue", which delivered, "A mighty blow to the head." We also watched the video. Her Honour's descriptions were warranted. The deceased fell unconscious to the ground. The Judge said that the applicant was,
[8]
"Entirely the aggressor throughout the whole episode. A very sudden and apparently impulsive thing. He", meaning the deceased, "had done absolutely nothing. There was really nothing that lead up to this vicious blow."
[9]
Mr Moynihan, appearing for the applicant, challenged that approach which, he submitted, was inconsistent with the Judge's finding that before the incident the applicant was not "Out looking for trouble". The flaw in that reasoning is that things can change for reasons which may not be apparent or, with someone who is intoxicated, irrational.
[10]
What the deceased said was not established and the Court was not entitled to speculate about it. It may, however, be observed that in his intoxicated state the applicant may have misinterpreted whatever was said and that, in any case, the applicant grossly over-reacted to it. The applicant may not have been out looking for trouble but his grossly intoxicated condition would plainly have rendered him liable to irrational responses. The Judge was entitled to find that, so far as the evidence went, the deceased did nothing and said nothing provocative. Beyond that, however, the applicant's subsequent contact confirms a view that the applicant's violence did warrant the epithet gratuitous, a description with which counsel took issue.
[11]
Of that subsequent conduct, the first count of assault occasioning bodily harm involved the applicant punching a security officer in the throat as the applicant was being ushered out of the club after the attack upon the deceased. After striking the deceased, the applicant continued to behave aggressively, swearing, abusing other patrons, swinging a metal-framed chair aggressively, challenging others to fight him and saying things including, "This is me, I'm Mooka, and I take everybody out." Then, as he was about to leave, the applicant turned and delivered the punch to the security officer.
[12]
The second instance of assault occasioning bodily harm provides an even more powerful illustration of the applicant's gratuitous unprovoked violence. The applicant went on in to another establishment where a person named Girgenti was seated at a table with his back to the entrance. He and the applicant were complete strangers. The applicant entered the hotel, went up to Girgenti and forcefully punched the back of his head. That lead to a violent exchange between the two of them with the applicant ultimately running out of the hotel.
[13]
The deceased suffered a deep laceration behind his left ear and a fractured skull. He underwent surgery to remove blood from the brain. The brain was badly bruised. He died 11 days later. The police did not locate the applicant until three days after the events in Mareeba. He had decamped to Cairns. He admitted he evaded the police because he heard they were looking for him. When interviewed by police officers, he said he was, "Totally blind", as a result of his alcohol consumption that evening and could not, or claimed he could not, remember the circumstances of his hitting the deceased with the pool cue.
[14]
The death of the deceased, unsurprisingly, had vast adverse impact upon the deceased's family, consequences movingly covered in the Victim Impact Statements tendered before the learned Judge. The applicant came before her Honour with a bad criminal history including convictions for common assault, wilful damage, assaulting and obstructing police officers and breaking into premises. He had previously been given the benefit of community-based orders which he had breached. He had been imprisoned.
[15]
Closest in time to these events, on 16 January 2004, the applicant was convicted of assaults occasioning bodily harm and imprisoned for a fortnight, and then on 4th April 2005 he was convicted of two further assaults occasioning bodily harm and put on probation for two years. He committed the instant offences when only three months into that probation period.
[16]
Counsel for the applicant referred to a number of cases in an attempt to demonstrate that the learned Judge must have adopted a, "notional starting point", which was too high. They involved pleas of guilty to manslaughter or acquittal of murder then conviction of manslaughter, where a willingness to plead to manslaughter had been foreshadowed. I briefly refer to those cases. Bojovic [1999] QCA 206; [2000] 2 Queensland Reports 183, was on appeal sentenced to eight years imprisonment without a declaration as to his having committed a serious violent offence, but as the Court said at page 188 the, "important features", were that,
[17]
"The deceased was the attacker and that the applicant's criminal responsibility arose through his over-reaction in the course of self-defence. His actions were followed by immediate concern for the victim and attempts to assist him."
[18]
Neither of those features was present here. Stepto, CA 220 of 2001, was, on appeal, sentenced to nine years imprisonment without a declaration, but again his situation was significantly different. Stepto used a tomahawk for self defence. As said by Justice Ambrose in the Court of Appeal, "The deceased attacked [the applicant] threatening to kill him and the applicant, fearing for his life," then struck the deceased with the weapon. The reason why the Court reduced the sentence which had been imposed at first instance, 10 years imprisonment, was its conclusion that the application of part 9(A) of the Penalties and Sentences Act1992 (Qld) had been entirely overlooked.
[19]
Similarly, DeSalvo (2002) 127 Australian Criminal Reports 229, who, on appeal, was sentenced to nine years imprisonment without a declaration was, in using a knife, reacting to a perceived threat from his victim. Justice McPherson said, at page 230,
[20]
"The applicant was seated in a car when the victim came up to him and spoke to him in an aggressive manner. The applicant, apparently feeling threatened or provoked, alighted from the car and ... lunged at him with a knife, delivering a single stab wound to his body from which the victim died. The applicant drove off, but did not go very far before turning back to the scene to provide help and give himself up."
[21]
MP[2004] QCA 170, was sentenced to nine years imprisonment for stabbing his father who died in consequence. In the Court of Appeal, Mr Justice Chesterman observed that the agreement of the other members of the Court, at page 6,
[22]
"A sentence significantly longer than nine years could have been appropriate."
[23]
Again, by way of significant contrast with the present case, the stabbing by MP followed provocative conduct on the part of his victim. As Mr Justice Chesterman said at page 2,
[24]
"No doubt because of the applicant's intoxication, the dispute which began about pets turned to the applicant's children and an accusation made by the applicant to his father that the latter had molested his young daughter. ...[T]he father remained silent in the face of the allegation which prompted the applicant to bring his four-year-old child into the room to interrogate her, then to interpret her responses as confirming sexual molestation by his father and in the face of his continuing silence, to pick up a knife and stab him in the heart."
[25]
R v Corcoran[2004] QCA 441, was sentenced to nine years with a declaration for killing his father-in-law by a stab to the stomach. R v George[2004] QCA 450 was, on an Attorney's appeal, sentenced to nine years without a declaration, which Justice Williams described as, "The minimum which could be imposed". Death resulted from a single punch to the face. The sentencing Judge emphasised that no weapon was involved, which distinguishes that from the present case.
[26]
R v Duncombe[2005] QCA 142 was sentenced to 10 years for a gratuitous attack without a weapon on a sleeping stranger. The criminal history of this applicant was more significantly adverse than Duncombe's. That outcome provides substantial support for the present penalty, especially acknowledging that a weapon was used here.
[27]
R v Katia[2006] QCA 300 was sentenced to eight years with parole recommended after three, but Katia was only 18 years of age when he committed the offence. This applicant was 25 and Katia had no prior conviction. It suffices to observe that R v McDougall[2006] QCA 365 was factually a very different case from this one.
[28]
That brief review supports the view the sentence imposed here was justified and could not be criticised as manifestly excessive or, indeed, as excessive in any degree. In cases like this, the sentencing Judge's discretion is comparatively wide. It must be because, as often noted, the circumstances of manslaughters are infinitely various. This sentence appropriately marked these important aspects: the vicious character of an unprovoked, gratuitous attack with a weapon which led to death, the essential gravity of causing the death of another human being, and this applicant's bad prior criminal history.
[29]
Allowing for the plea of guilty, the learned Judge probably did work from a starting point beyond 12 years. That is presented as an error, a submission derived from a rather close reading of previous decisions on the basis, also, they constrained the Judge's discretion. I surmise her Honour did that because of her perception, reasonably open, of the ferocity of this deliberate and entirely unprovoked attack. She was entitled to approach the matter in that way.
[30]
The above cases provide ample support for the sentence which, she determined, should be imposed. The applicant's real intent seem to be to avoid the 80 percent requirement. That the applicant is now obliged to serve at least 80 percent of his term is the result of the legislation. Her Honour perfectly reasonably considered this a case where a Serious Violent Offence Declaration would have been appropriate anyway.
[31]
Reducing an otherwise appropriate 10 year sentence now, avoiding the 80 percent stipulation, would subvert the legislative intent and disregard her Honour's legitimate view. I would refuse the application.
[32]
HOLMES JA: I agree. This was not a case of manslaughter by some unlucky punch. This was a heavy, aimed blow to the head with a pool cue. Whatever the applicant's actual intention, that blow was bound to cause serious head injury. The finding that it was a gratuitous attack was plainly open. There were a number of other aggravating circumstances, but few mitigating. Ten years' imprisonment, with its serious violent offence implications, was by no means a lenient sentence, but it was certainly within a proper range.