R v Murray [2012] QCA 68

SUPREME COURT OF QUEENSLAND

CITATION: R v Murray [2012] QCA 68

PARTIES: R v MURRAY**, Allen James** (applicant)

FILE NO/S: CA No 149 of 2011 / SC No 596 of 2010

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 27 March 2012

DELIVERED AT: Brisbane

HEARING DATE: 9 March 2012

JUDGES: Fraser JA, Margaret Wilson AJA and Applegarth J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS: Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded not guilty to one charge of murder – where the applicant was found guilty of manslaughter – where, although the applicant intended to kill the deceased, he was only criminally responsible for manslaughter because of provocation – where the applicant was sentenced to nine years imprisonment – where there was a declaration that the applicant had been convicted of a serious violent offence – where the applicant did not challenge the imposition of a term of nine years – whether the serious violent offence declaration made the sentence manifestly excessive – whether the sentence was manifestly excessive in all the circumstances / CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDERS – where the applicant was sentenced to nine years imprisonment with a serious violent offence declaration – where the applicant did not challenge the imposition of a term of nine years imprisonment, but contended that the serious violent offence declaration made the sentence manifestly excessive – where the applicant contended that the sentencing judge placed too little weight on mitigating factors – whether the serious violent offence declaration was an improper exercise of the sentencing judge’s discretion – whether the sentencing judge gave proper consideration to mitigating factors / Corrective Services Act 2006 (Qld), s 182, s 184 / Criminal Code 1899 (Qld), s 304 / Penalties and Sentences Act 1992 (Qld), s 161B / R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited

COUNSEL: A J Kimmins for the applicant / B J Power for the respondent

SOLICITORS: Potts Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent

1. FRASER JA: I agree with the reasons for judgment of Margaret Wilson AJA and the order proposed by her Honour.

2. MARGARET WILSON AJA: On 22 May 2009 the applicant killed Graeme William Hughes. He was charged with murder, to which he pleaded not guilty. He was tried in the Supreme Court of Queensland, and found not guilty of murder, but guilty of manslaughter.

3. Provocation was a live issue at the trial. He was sentenced on the basis that although he had intended to kill the deceased, he was criminally responsible only for manslaughter because of provocation: Criminal Code 1899 (Qld) s 304.

4. The sentence imposed was nine years imprisonment with a declaration that he had been convicted of a serious violent offence. Time spent in pre-sentence custody, namely 720 days, was declared time already served under the sentence.

5. This is an application for leave to appeal against that sentence on the ground of manifest excessiveness. The applicant does not challenge the imposition of a term of nine years, but contends that the serious violent offence declaration made the sentence manifestly excessive. He contends that the sentencing judge placed too much weight on factors of general deterrence and too little weight on his mitigating factors.

The facts found by the sentencing judge

6. The applicant, who was aged 40, had a cleaning business. About four weeks prior to the offence, he was introduced to the deceased by a mutual friend. The deceased was in his early fifties. They had a common interest in music, and the applicant gave the deceased some work as a cleaner.

7. At about 2.00 pm on 22 May 2009 the applicant and the deceased were cleaning a house property. The deceased was using a metal worker’s hammer which weighed about one kilogram to put some insect screens back into a bathroom window. He was becoming frustrated with the difficulty of the task and irritated by the applicant’s telling him what to do, and was conscious that the applicant wanted him to hurry up.

8. The applicant walked into the bathroom. The sentencing judge described what happened as follows –

“On your version to the police, when you came into the room he swung the hammer in your direction. At that time, of course, he was in the bathtub. You were at the door. He could not have done you any damage from his position in the bathtub and you at the door, and even more so, once you stepped in and took the hammer from him and so had disarmed him he was no longer a threat to you. You were bigger, younger, fitter, and then armed.

Nevertheless, his swinging the hammer at you represented a provocative act and you lost control of yourself, and in that loss of control, which on the evidence before me seems to be a mixture of fear, panic and perhaps anger, you started to hit him. Unfortunately and tragically you continued to hit him. He fell, he was very seriously injured but, once he had fallen and he was fallen over his head in the bath [sic], when he was no longer any threat to you whatsoever, you continued to hit him.¹ You shattered the bottom half of his skull and the base of his skull. They were repeated vicious blows to his head and, in doing that, you must have, at that time, intended not just to do him grievous bodily harm but to kill him.”

Later her Honour said –

“I accept that there was no premeditation or planning in this series of tragic events, but I also accept that Mr Hughes's death was caused entirely by your actions.”

Antecedents

9. At the time of the offence the applicant was married but separated from his wife. He had the care of the two young children of the marriage, and for some time after the separation had also cared for his wife’s other child. He and his wife had been arguing for a long time. She had moved out of the matrimonial home and descended into a spiral of drug abuse and drug offending. He was concerned for the children, and worried about her ongoing relationship with them. Her Honour said of his mental state at the time of the offence –

“As has been submitted, your mind was not clouded by alcohol or drugs but I accept that your mind was clouded by all the emotional family issues and the stress you had from your domestic situation.”

10. He had a criminal history which included offences consistent with being a cannabis user. He was dealt with for cannabis related offences in Magistrates Courts in Victoria in 1989 and in Queensland in 1995, 1997, 2000 and 2002, none of which resulted in his serving any period of actual imprisonment. He was also dealt with for criminal damage and theft of a motor vehicle, burglary and theft by a Victorian Magistrates Court in 1996: no conviction was recorded and the sentence proceeding was adjourned for 12 months to allow him to travel immediately to Queensland for psychiatric treatment. Most seriously, in July 1997 a Queensland Magistrates Court imposed a head sentence of 12 months imprisonment for a spree of offending on the one day - wilful and unlawful damage to property; breaking, entering and stealing; attempting to enter premises with intent, eight counts of entering premises with intent, unlawful use of a motor vehicle with circumstances of aggravation, and unlawful damage to property in the night-time. The sentencing judge noted that after his release he did not reoffend except in relatively minor offences and not at all after 2002 – which she characterised as showing a capacity for rehabilitation.

11. The applicant was conducting his own business, which her Honour treated as evidence that he was a productive member of society. In her Honour’s words, he was “obviously a keen and productive musician”.

12. He had the support of a number of people in the community, including his aunt and uncle and several people who provided favourable character references.

13. The sentencing judge accepted that his violent conduct towards the deceased was out of character.

Remorse and co-operation

14. The deceased died in the applicant’s attack upon him. Her Honour described the applicant’s immediate reaction to what he had done as extremely emotional. He called his girlfriend, a babysitter (about picking up the children) and the home owner. He did not call the police or an ambulance. He later spoke with police and readily admitted delivering the fatal blows.

15. Her Honour said –

“While it is not obvious in your actions that there was a lot of remorse for the victim, there was obvious remorse from you for the affect [sic] this would have particularly on your family situation and your children and, although the blows were very brutal, you do not otherwise seem to be a callous person, so it does not seem indicative of a man who is otherwise callous. As has been mentioned in submissions it was not you who brought a weapon on to the premises.”

16. The applicant pleaded not guilty to murder. The principal issues left for the jury’s determination were intent, self-defence, mistake of fact and provocation. As I have said, he was found not guilty of murder, but guilty of manslaughter. The sentencing judge said –

“You do not get the advantage of a plea of guilty but you did assist in the administration of justice by cooperating with the police and also by making various admissions during the trial which meant that it was a much shorter trial than it need otherwise have been, and of course you had an arguable, although in my view absolutely correctly in the end, unsuccessful case of self-defence.”

Serious violent offence declaration

17. Immediately before pronouncing sentence, her Honour said –

“I have approached the appropriate penalty taking all of those matters into account. The nature of the offence, and in particular in this case, the continuing blows well after the deceased was unable to offer any resistance, mean that in my view the appropriate penalty must include a declaration that this is a serious violent offence."

Submissions on this application

18. In summarising the applicant’s version of what happened, the sentencing judge said that after the first blow, the applicant continued to hit the deceased; that the deceased fell; that the deceased was seriously injured; and that after he had fallen and was no longer any threat to the applicant, the applicant continued to hit him.

19. On the hearing of the application, counsel for the applicant took the court to the relevant pages of the transcript of the police interview² to give content to her Honour’s summary. The applicant told police that the deceased was standing swinging the hammer. He said he disarmed the deceased and hit him with the hammer six or seven times. He hit him once as he fell into the bath, and once after he had fallen into the bath. The other blows were inflicted while the deceased was still standing.

20. Counsel for the applicant interpolated that the blows had been inflicted in quick and rapid succession. He acknowledged that all of the blows had been inflicted after the deceased had been disarmed, and with a hammer that weighed one kilogram. He characterised his client’s conduct as an over-reaction. He submitted that having regard to the following features - the rapid nature of what occurred, that the applicant did not introduce the weapon, and that the applicant was approached by the deceased whom he disarmed and dealt with in a quick and speedy manner – the case did not have the features which had been identified in previous decisions of this court as necessary before making a serious violent offence declaration.³

21. Counsel for the respondent submitted that the evidence of the forensic scientific officer and that of the pathologist supported the description of the attack as one so savage that the applicant’s intention must have been to kill the deceased. He drew the court’s attention to evidence of blood spatter patterns⁴ suggesting that all that happened may not have happened as quickly as counsel for the applicant had submitted. He asserted that when a person is struck, blood does not flow immediately. There were flick patterns consistent with the hammer being brought up with blood on it and being brought down with blood on it. Those patterns occurred particularly within the bath - which was consistent with there already being blood on the hammer when the deceased was struck in the bath.⁵ The pathologist referred to there clearly being multiple fractures on at least two surfaces of the skull. He could not be definitive about the number of blows that had been inflicted, although he thought there could have been 11. He described the severity of the blows in this way –

“So there are multiple points of - must be multiple points of contact. And to say that there's clearly a significant amount of force been required I think is self-evident, but there is no doubt that the first application of force that causes a fracture would have to be quite severe. But once you get one fracture, you weaken the skull a bit and it would then be easier to fracture it again. So it is not possible to say that the subsequent applications of force are the same or greater. They may be less. I'm not saying that they are but they may be less.”

22. Because of the length of the term of imprisonment being imposed, the sentencing judge had a discretion to make a serious violent offence declaration.⁷ Counsel for the respondent submitted that this manslaughter was of such a type that it was open to the sentencing judge to exercise that discretion in favour of making such a declaration. He relied on these matters – that the applicant’s intention was to kill, that he struck a number of blows with a hammer, and that the deceased was defenceless to a greater or lesser degree from the time the hammer was taken from him and certainly when the last two blows were inflicted.

Discussion

23. Sentencing is an integrated process and the time at which a prisoner will become eligible for parole is part of his or her sentence. The combination of the term of imprisonment and the parole eligibility date may make a sentence manifestly excessive.

24. The effect of the sentencing judge’s declaring that the applicant’s conviction was a conviction of a serious violent offence is that he will not be eligible for parole until he has served 80% of the nine year term of imprisonment.⁸ Were it not for that declaration, he would be eligible for parole after serving 50% of that term.⁹

25. In R v McDougall and Collas¹⁰ this Court said –

“[17]As the High Court stated in Markarian v R,¹¹ the sentencing process is an integrated process directed to the determination of a just sentence. The exercise of the discretion conferred by s 161B(3) of the Penalties and Sentences Act thus falls to be exercised as part of, and not separately from, the conclusion of the process of arriving at a just sentence.¹²

[18]When determining the appropriate level of a head sentence for an offence which is a serious violent offence if a sentence of 10 or more years is imposed, relevant considerations include:

•that sentencing is a practical exercise which has regard to the needs of punishment, rehabilitation, deterrence, community vindication, and community protection;

•that courts cannot ignore the serious aggravating effect upon a sentence, of an order of 10 years rather than, say, nine years. The inevitable declaration if the sentence is 10 years or more is relevant in the consideration of what sentence is ‘just in all the circumstances’, in order to fulfil the purpose of sentencing which is prescribed s 9(1) of the Act;¹³

•but that courts should not attempt to subvert the intention of pt 9A of the Act by reducing what would otherwise be regarded as an appropriate sentence;

•with the result, as described by Fryberg J in R v Eveleigh,¹⁴ that while a court should take into account the consequences of any exercise of the powers conferred by the pt 9A, adjustments may only be made to a head sentence which are otherwise within the ‘range’ of appropriate penalties for that offence; and

•the court should also take into account the relevant sentencing principles set out in s 9 of the Act.

[19]It is where the making of a declaration is discretionary that a difference in views has arisen about whether declarations are available as a sentencing tool, when the circumstances are not beyond the norm for that offence.¹⁵ The following observations may assist sentencing courts:

•the discretionary powers granted by s 161B(3) and (4) are to be exercised judicially and so with regard to the consequences of making a declaration;

•a critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80 per cent of the head sentence before being able to apply for parole.¹⁶ By definition, some of the offences in the Schedule to the Act will not necessarily – but may – involve violence as a feature, such as trafficking in dangerous drugs or maintaining a sexual relationship with a child;

•the discrete discretion granted by s 161B(3)(4) requires the existence of factors which warrant its exercise, but the overall amount of imprisonment to be imposed should be arrived at having regard to the making of any declaration, or not doing so;¹⁷

•the considerations which may be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing;

•the law strongly favours transparency and accessible reasoning,¹⁸ and accordingly sentencing courts should give reasons for making a declaration, and only after giving the defendant an opportunity to be heard on the point;¹⁹

•for the reasons to show that the declaration is fully warranted in the circumstances²⁰ it will usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them;²¹

•without that last feature, it may be difficult for the reasons to show that the declaration was warranted;

•where a discretionary declaration is made, the critical question will be whether the sentence with that declaration is manifestly excessive in the circumstances; accordingly the just sentence which is the result of a balancing exercise may well require that the sentence imposed for that declared serious violent offence be toward the lower end of the otherwise available range of sentences;

•where the circumstances of the offence do not take it out of the ‘norm’ for that type, and where the sentencing judge does not identify matters otherwise justifying the exercise of the discretion, it is likely that the overall result will be a sentence which is manifestly excessive, and in which the sentencing discretion has miscarried; probably because of an incorrect exercise of the declaration discretion.”

26. It is difficult to identify what is “the norm” for the offence of manslaughter. Unlawful killing may amount to manslaughter because of the absence of an intent to kill or do grievous bodily harm - for example, where the homicide was accidental or the result of criminal negligence or where the offender was so intoxicated that he or she did not form the requisite intent. It may amount to manslaughter where the offender formed the requisite intent, but his mental state was such that he was of diminished responsibility. It may amount to manslaughter where he or she had the requisite intent but was nevertheless acted in response to provocation by the victim. Within each of these categories of manslaughter the extent of the offender’s criminality will vary from case to case.

27. In the present case, the applicant’s attack upon the deceased was such that the making of a serious violent offence declaration in conjunction with the imposition of a term of nine years imprisonment was not an improper exercise of the sentencing judge’s discretion. He killed the deceased in a response to provocation. He intended to kill him, not just to do him grievous bodily harm.²² While it was the deceased who introduced the hammer into the melee,²³ the applicant took it from him and used it to inflict multiple blows on him. It was a metal worker’s hammer weighing about one kilogram - a heavy and lethal instrument. At least, the blows inflicted as the deceased fell and while he was in the bath were inflicted when he was incapable of any self-defence.

28. Her Honour did not give undue emphasis to deterrence in fashioning the sentence. Indeed, she made no express reference to it. She gave proper consideration to mitigating factors.

Outcome

29. I would refuse the application for leave to appeal against sentence.

30. APPLEGARTH J: I have had the advantage of reading the reasons of Margaret Wilson AJA with which I respectfully agree. I agree with the order proposed by her Honour.

31. The sentencing judge considered mitigating factors and cannot be said to have failed to give sufficient weight to them. Undue weight was not given to general deterrence.

32. The issue is whether, in making a declaration pursuant to s 161B(3) of the Penalties and Sentences Act 1992 (Qld) that required the applicant to serve 7.2 years of a nine year sentence before being eligible for parole, the discretion miscarried so that the sentence is manifestly excessive.

33. The remarks of the sentencing judge disclose the many factors, both mitigating and aggravating, that were taken into account in imposing a head sentence at what might be described as “the lower end of the otherwise available range of sentences”,²⁴ with the applicant being required to serve 80 per cent of that term before being eligible for parole.

34. I agree with Margaret Wilson AJA that it is difficult to identify what is “the norm” for the offence of manslaughter. If, however, one was to ask whether the circumstances of the offence took it “out of the ‘norm’”,²⁵ the answer would be in the affirmative. The applicant intended to kill the deceased. A number of blows were struck with a hammer. As the sentencing judge stated, blows continued after the deceased was unable to offer any resistance.

35. If the case is treated as falling within a category of manslaughter, namely one in which there is an intention to kill in response to provocation, then the head sentence might have been 10 years or more when account was taken of the objective circumstances of the offence and the applicant’s personal circumstances. A sentence of 10 years imprisonment, which carried the requirement that the respondent serve 80 per cent of it, would have been appropriate.²⁶

36. A head sentence of nine years imprisonment was at the lower end of the range of between nine and 12 years that generally applies in a case such as this.²⁷

37. The declaration that was made did not result in a sentence that was manifestly excessive in the circumstances. The sentencing judge took account of the consequences of making a declaration, the circumstances of the offence and many mitigating factors. In considering those and other relevant matters in arriving at a just sentence, her Honour imposed a head sentence at the lower end of the available range of sentences and otherwise exercised the discretion in accordance with principle.

Footnotes

1. The transcript of the sentencing remarks included in the Appeal Record had not been revised by her Honour. In the revised transcript, which is available on the QSIS database, this sentence is: “He fell, he was very seriously injured but, once he had fallen, when he was no longer any threat to you whatsoever, you continued to hit him.” ↩

2. AR 642 – 645. ↩

3. Appeal transcript page 1-11. ↩

4. AR 213 – 216. ↩

5. AR 213 – 216. ↩

6. AR 289. ↩

7. Penalties and Sentences Act 1992 (Qld), s 161B. ↩

8. Corrective Services Act 2006 (Qld), s 182. ↩

9. Corrective Services Act 2006 (Qld), s 184. ↩

10. [2007] 2 Qd R 87; [2006] QCA 365. ↩

11. (2005) 228 CLR 357. ↩

12. R v Bojovic [2002] 2 Qd R 183; R v Cowie [2005] 2 Qd R 533 at 537-538, [16]-[19]. ↩

13. See the joint judgment of McPherson and Keane JJA and McMurdo J in [2005] 2 Qd R 533.