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[2008] QCA 395
General information, not legal advice.
Court of Appeal (Qld)
2008-12-09
Keane, Muir and Fraser JJASeparate reasons for judgment of each member, of the Court, each concurring as to the order made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Rowlingson [2008] QCA 395
PARTIES: R v ROWLINGSON, Anthony David (applicant)
FILE NO/S: CA No 241 of 2008 / SC No 39 of 2008 / SC No 1026 of 2008
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Toowoomba
DELIVERED ON: 9 December 2008
DELIVERED AT: Brisbane
HEARING DATE: 1 December 2008
JUDGES: Keane, Muir and Fraser JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: 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 was convicted on his own plea of one count of murder, one count of interference with a corpse, one count of stealing and one count of unlawful use of a motor vehicle – where the applicant was 16 years old at the time of the offending – where the applicant's victim was his brother – where the applicant was sentenced to life imprisonment for the offence of murder and to lesser concurrent terms for the other offences – where the learned sentencing judge ordered that the publication of the applicant's name be permitted – whether the sentence imposed was in the circumstances manifestly excessive – whether the sentence imposed was affected by any error of law / Juvenile Justice Act 1992 (Qld), s 176(3), s 234 / House v The King (1936) 55 CLR 499; [1936] HCA 40, applied / Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46, cited / R v Chivers [1993] 1 Qd R 432, cited / R v D [2000] 2 Qd R 659; [1999] QCA 231, considered / R v Dwyer [2008] QCA 117, considered / R v Twala, unreported, Court of Criminal Appeal, NSW, CA No 60187 of 1993, 4 November 1994, cited / R v WS [2007] QCA 207, distinguished / Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, cited
COUNSEL: S M Ryan for the applicant / M J Copley for the respondent
SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent
KEANE JA: On 8 August 2008 the applicant pleaded guilty to murder, interfering with a corpse, stealing and unlawful use of a motor vehicle. The sentencing of the applicant was adjourned to 15 September 2008, and a pre-sentence report in relation to the applicant was ordered pursuant to s 151 of the Juvenile Justice Act 1992 (Qld).
On 15 September 2008 the applicant was sentenced to life imprisonment for the offence of murder, and 426 days of pre-sentence custody was declared to be time served under that sentence. For the offence of interfering with a corpse, he was sentenced to nine months imprisonment, for the offence of stealing he was sentenced to 12 months imprisonment and for the unlawful use of a motor vehicle he was sentenced to three months. All these terms of imprisonment were to be served concurrently. A conviction was recorded and, under s 234 of the Juvenile Justice Act, an order was made permitting publication of the applicant's name even though he is a juvenile.
The applicant now seeks leave to appeal against the sentences imposed. The grounds of his application are:
"1.That the sentence … was manifestly excessive in all the circumstances.
2.That the Learned Sentencing Judge erred in law when she made an order that the applicant be named pursuant to s 234 of the Juvenile Justice Act 1992.
3.That the Learned Sentencing Judge erred in law when she imposed the maximum penalty of life for the offence of murder when it was not warranted in all the circumstances.
4.That the Learned Sentencing Judge erred in law by failing to give proper regard to the plea of guilty in circumstances where she imposed the maximum penalty available."
Circumstances of the offences
The offences other than the offence of stealing were committed on Sunday, 15 July 2007. At that time the applicant was 16 years and 10 months old. He was 18 years old when he was sentenced. The applicant's victim was his brother, Robert, who was 19 years old.
The applicant was at home on his own on his family's farm when Robert came home and began working on his car. The applicant obtained a rifle from his father's gun safe inside the house, went outside and shot Robert. Robert fell to the ground and the applicant shot him a second time. Both shots were fired from behind into the head of the deceased
The applicant then used a forklift to put Robert's corpse into the back of Robert's car. He covered the blood on the ground with some sand. He then drove around with the body in the back of the car until he was able to enlist the assistance of a school teacher with whom he was friendly. Together they disposed of the body by throwing it off a bridge into a floodway. Subsequently, the applicant told police where the body could be found.
When Robert was not home by Sunday morning, his parents assumed that he was staying the night with friends. On the Monday, the applicant went to school. Robert did not turn up for work and his car was found with a shovel in the back seat. When the applicant's mother expressed her concern that something may have happened to Robert, the applicant said: "Oh mum, don't think that."
The applicant's father noticed that the forklift had been moved, and he saw large pools of blood, covered with sand, near the shed. He also saw blood on the forklift.
When the applicant's father enquired about the blood outside the shed, the applicant said that he had shot a cat. The applicant's father was not convinced and called the police. When questioned by police after school on the Tuesday, the applicant initially gave false accounts of events. At the end of this interview, the police said to the applicant: "If you know where Robert may be it may help to put some peace in Mum and Dad’s mind. If we can at least try and find him and not leave him out in the middle of the bush where feral animals and whatever may get to him." The applicant laughed.
The interview ended, and the recording of the interview ceased. The applicant was then arrested. He then confessed that he had shot his brother. The confession was not recorded; its precise terms were disputed, but it was not disputed that, towards the end of the conversation, the following exchange occurred:
"Officer: Well are you prepared to show us where he is now.
Defendant: Perhaps, although I am not sure it is the right time in the game.
Officer: Well this is not a game we are talking about the murder of your brother. We need to know if you will talk to us further about this, because we need to get a Justice of the Peace back here so we can interview you properly.
Defendant: Well I may be willing to assist, but I would like you to do something for me. I am in possession of some incriminating information about a colleague of mine, and if you give me a guarantee that you will destroy it, I will show you where my brother is, and tell you everything."
The friend was the teacher who had helped him dispose of the body, and the information was that he was a member of the "KKK". The police said that they would not make any deals or promises and the applicant agreed to take them to his brother's body.
The charge of stealing arose out of the circumstance that, on a date unknown between 11 July 2007 and 20 July 2007, the applicant stole two motor vehicle registration plates from a car dealership in a nearby town. They were found in a briefcase in his room when police conducted a search in the course of their investigation of the murder.
Three or four weeks before his death, Robert told a friend that while he was doing something he looked up and saw the applicant standing with a rifle. Robert asked the applicant what he was doing and the applicant shrugged his shoulders and walked off. On the weekend before Robert was killed, he told his parents that the applicant had been watching him a couple of days before through the scope of a rifle.
The applicant was interviewed again. In the course of that interview, the applicant said that he had obtained a key to his father's gun safe "sometime last year". He said he did this "as a precaution so that I had access to … firearm in case it was necessary to be used." He said: "To a degree I suppose I had a half baked plan as such as to what was going to happen but no essential permanent, fixed idea as to how exactly it would have to go down." He said that he did not wish to tell police his reasons for killing his brother "at this time". He said that there had been "some previously unpleasant history between my brother but that was not a direct influence upon this particular situation. There [were] other reasons as such involved."
There was a committal hearing into the murder charge, but the matter was never listed for trial. The applicant indicated his intention to plead guilty prior to 8 August 2008.
The applicant's circumstances
The applicant was a grade 12 student at high school at the time of the offence. He had grown up in a loving family although his relationship with Robert was marked by conflict. At the age of 10 the applicant was diagnosed with Attention Deficit Disorder and Oppositional Defiance Disorder.
The pre-sentence report ordered by the court on 8 August 2008 was prepared by Mr Grahame Butler of the Department of Communities. Mr Butler said:
"Family, peer, community and other external factors commonly associated with offending behaviour do not appear to have contributed to Anthony’s offending. It would seem that he is a young person who has otherwise enjoyed positive family nurturance and domestic stability, protected from extremes of an interpersonal or environmental nature. Against this background, Anthony has developed a disposition that became characterised by oppositional behaviour, a lack of emotional connectivity or attachment, and a personality that now shows evidence of narcissistic and psychopathic traits and characteristics. His subsequent violent behaviour, of which there had been no prior indicators or episodes, appears to have occurred against a background of possible issues with a conflictual relationship, combined with a personal psyche that was potentially influenced by other unidentified external factors, and which allowed Anthony to murder his sibling without compunction."
"He was quite evasive around the motivation for his killing Robert but stated clearly that he had planned over some period of time to kill Robert and it was not a result of a sudden rush of emotion or some other acute precipitating event.
He reported that approximately 3 weeks prior to shooting his brother he had decided that he would have to kill him. He said 'I had examined the problem at hand, I felt that the murder of Robert was the most viable one (solution to his problem). I couldn’t see any lasting solution other than this'.
He would not talk directly about his motivation for deciding to kill Robert but stated that 'I did it because I had to, to some extent I did it because I wanted to.' Although he was not prepared to tell me in detail the reasons why he had killed Robert he agreed that it was partially because Robert had wronged him in some way. He stated that this was because 'he couldn’t keep his mouth shut' and 'my brother saw fit to share this with others'. He stated that Robert was prone to telling other people about matters that he regarded as private family matters. He reported that he was in general a private and secretive individual and [Robert] threatened this. He intimated that it had something to do with Robert telling people about contact [which] Anthony had had with someone who was allegedly in the Ku Klux Klan but Anthony would not discuss this in any detail. He reported that he saw Robert as arrogant and stubborn and that he had attempted to persuade Robert with regard to other solutions but then had decided that this was the most viable solution.
He reported that Robert had been in a position to threaten 'things' and he felt that under these circumstances if a violent act was required than this was justified. He reported when further [questioned] that if he had to he would be prepared to kill a friend for the same reasons (in order to protect information he thought was important and should not be divulged). He stated that with regard to a friend he would warn them first and that he had not warned Robert for two reasons. He stated he had not warned Robert because Robert might have taken precautions and also stated that he did not feel any connection with Robert emotionally. He also stated that while he was able to intimidate other people Robert had never been intimidated by him, he stated later in the interview that if Robert had been able to alter his behaviour and had been more threatened he wouldn’t have had to kill him. He stated that despite this 'in my view nobody deserves to die'. He stated that he had not killed Robert because he thought Robert deserved that.
He reported that on the day he killed Robert he had decided to shoot Robert and that he used the larger calibre weapon available as this would be more effective. He reported that he was amused at his own stupidity in terms of executing the crime and being caught. He stated 'I shouldn’t have done it that way'. He stated that he felt he had not covered his tracks very well and that faced with the same situation again, he would still kill Robert but he would have done it differently, he stated 'if I was to shoot him again the part where I failed in the execution, I failed in the cleanup afterwards'.
When asked if he was surprised about any aspect of the crime, he stated that 'the only thing that surprised me was that it was over so fast. I was happy for him and shot him the second time to make sure he didn’t suffer'. He reported that he was not surprised or dismayed about the amount of blood but then said 'it’s certainly a unique experience' and 'not something most people would handle'.
He stated that during the police interview he had been enjoying himself as he felt the police were trying to get a confession from him and 'I led them around the garden path'. This had involved initially telling the police alternative stories about the events, initially claiming that he had shot a cat and later claiming that three male persons wearing balaclavas had been involved. He reported that he had not really expected that the police would believe the stories but had told the stories 'because I could' and also to see how far he could lead the police down that pathway.
He stated that regardless of this he knew he was 'done for' and that they would soon work out what had happened. He said he had already decided prior to being interviewed by the police that when the time was right he would tell the police. He stated that he wasn’t shocked and had always known that he would either get away with the crime or would be incarcerated. He reported that when a person had rung up looking for Robert on the day after he had killed Robert he had at that point realised that he was most likely going to be caught. He reported that if he had been going to try and make Robert’s death look like an accident 'I would have only shot him once'.
He reported that he had pleaded guilty to the offences as 'I have no other option' and he didn’t want his parents dragged through the newspapers. He stated that he accepted that 'it is wrong by society’s viewpoint'."
"He stated that he did not feel any particular regret at having killed Robert and that if he faced the same circumstances again he would do it again. He stated that morally he could see that his actions had been wrong by society’s standards but that 'if the only or most successful solution is a violent act' then such an act was justified.
He was aware that he might receive a life sentence for this crime and stated 'that would be unfortunate'. He stated that 'I personally don’t see imprisonment as a form of penalty' and went on to talk about how he didn’t see the criminal justice system as changing people or giving a repayment for the events that a person had caused. He said that he could understand society’s viewpoint about his actions.
He stated that he accepted that he would have to serve time in an adult prison and stated that 'you can’t fight it'. He then made a number of pseudo-philosophical statements such as 'my personal perspective is if you can change something change it and if not live with it'.
He stated that in general he got on well with correctional staff and had no ill feelings towards the police or others."
"He reported a close relationship with this teacher who taught in maths and physics. He reported that they 'had an understanding' he reported that they had some philosophical agreement about being critical of the government with regard to the services are [sic] provided. He reported that when the teacher told him he was a member of the Ku Klux Klan 'I was a bit speechless, I was shocked and surprised'. He also [reported] that they talked about schoolwork. He reported that he had phoned this teacher for assistance in disposing of his brother’s body because he 'felt he was someone I could talk to and trust, he came to talk and I told him that my brother was in the boot, he didn’t object, we didn’t talk about it much'. I understand that the teacher had been charged with regard to this matter."
"The offences occurred in circumstances where he had planned to kill his brother over at least a three-week period and carried out the murder without any overt emotional reaction in an opportunistic fashion. There appeared little evidence to suggest that 'hot' aggression was involved to any great extent in this violence.
While it is possible that there are other explanations it seems most likely that in this crime the violence was used in an 'instrumental' or 'cold' fashion in order to achieve a practical goal. The fact that he continues to conceal some of the issues around his motivation and goals is consistent with his statements suggesting that the murder of his brother was because he felt that his brother was likely to give away information that he did not want given away. This is a young man who values secrecy and control above all things.
It appeared that the murder of his brother would be regarded as 'targeted violence' and this is not susceptible to the same predictive variables as generalised predictions about violent recidivism. He is not prone to impulsive aggression in general although he has problems with temper control when he is challenged particularly over issues of control or dominance.
He has a prior diagnosis of Attention Deficit Hyperactivity Disorder, this appears to have predominantly only had an effect on his attention in academic settings in the past and he does not demonstrate significant impulsive activity in his history.
He otherwise appears to have had a reasonable family of origin, performed adequately academically, been able to relate successfully to peers and performed at a high level in army cadets.
Under DSM IV TR he would meet criteria for Narcissistic Personality Disorder in that in my opinion he demonstrates, a grandiose sense of self-importance, a belief that he is special and unique, has a sense of entitlement, is interpersonally exploitative, lacks empathy and demonstrates arrogant behaviours and attitudes. This diagnosis is made with the caveat that he is relatively young for such a diagnosis but that this appears to be an established personality pattern in this individual. He also has some antisocial and schizoid personality characteristics.
There is no evidence that he suffers from the type of mental disorder that would impair his capacity and offer him any kind of mental health defence under the criminal code or would even result in his diminished responsibility. He was clearly fit to instruct counsel at the time of assessment.
In my opinion his future risk of violent reoffence is moderate. My assessment of this risk is based on the combined clinical and actuarial assessment. Reoffence in this individual is most likely if an individual threatens his sense of control and dominance or threatens some other goal that he finds important. If this man were to make threats against another individual in a targeted way in the future such [threats] should be taken extremely seriously.
When the topic of possible transfer to an adult correctional facility was specifically discussed with him he understood and accepted that he might have to serve part of any custodial sentence in an adult correctional facility and seemed quite resigned to this. There did not appear to be any psychiatric or psychological factors that made him less likely to cope effectively if he were transferred at some point to an adult correctional facility.
Recommendations
I would recommend that attempts at intervention should in general not focus on building understanding of victim empathy or other similar appeals to interpersonal relatedness and empathy. This is because he appears to suffer from significant deficits with regard to empathy for others and these deficits may not be remediable.
Attempts at changing his pattern of behaviour are probably most likely to be successful when focused on environmental manipulation (rewards and consequences for positive and negative behaviour) and helping Anthony develop and increase understanding of how prosocial behaviour is to his advantage and how further antisocial behaviour is detrimental to his future opportunities and plans.
He is an organised and bright individual who is likely to thrive in an institutional context although this may provide opportunities for him to continue to exercise power and control through various kinds of subtle and less subtle intimidation." (emphasis in original)
"Mr A [Rowlingson's attitude] toward the use of violence was appraised via the Justifications for Violence Scale (Kelty, 1996). Mr A Rowlingson’s beliefs about and justifications for the use of violence were slightly elevated compared to research on general members of the Australian Community (Kelty, 1996; Watt, 2008). His interest in violent movies, violent computer games, weapons and explosives further highlights potentially favourable attitudes toward the use of violence. A number of cognitive distortions are evident facilitating the use of violence toward others. Mr A Rowlingson viewed the commission of the offence as a necessary solution and as the ultimate [form] of censorship. In description of the offence, Mr A Rowlingson minimised the wrongful nature of his actions stating 'I did not want him to suffer' and that it was not for his own pleasure.
In problem-solving previous interpersonal conflicts, Mr A Rowlingson seems to have considered various approaches and [selected] an option that favoured him. On some occasions his selected solution did not appear to have any adverse consequence on others. On other occasions, he selected responses to conflict that had an adverse impact, including removing an older [student's] assignments, use of verbal abuse and threatening behaviour, as well as the current offences. In summary, while Mr A Rowlingson seems capable of resolving interpersonal situations without the use of violence, he also seems to construe some situations in a manner that justifies the use of violence.
Mr A Rowlingson’s ongoing propensity for violence.
Mr A Rowlingson poses a moderate to high risk of future violence in comparison to other individuals convicted of a violent offence. Using the Violence Risk Appraisal Guide (VRAG; Quinsey et al., 2006), Mr A Rowlingson has approximately 44% probability of engaging in future violence over a seven year period, and 58% over a 10 year period. This rating is based on Mr A Rowlingson’s developmental history, circumstances at the time of the offence, victim injury and gender of the victim, presence of a personality disorder and rating on the PCL-YV.
While the VRAG is the most validated and widely used actuarial tool regarding risk for future violence (Davis & Ogloff, 2008), the instrument is not without limitations. The instrument was developed and standardised in Canada, though has been used in Australian research (Summers & Loza, 2004). The VRAG is based on historical factors that do not change overtime. Hence, any statement of the risk of future violence requires consideration of the individual’s current circumstances. Mr A Rowlingson also presents with a number of strengths, which if fostered over time, could reduce the risk for future violence. Strengths include continued contact with his family after commission of the offence, continued schooling with apparent potential [to] further his education, previous relationships with non-offending peers, and positive responses to well structured environments (e.g., cadets).
Identifying circumstances that are relevant for Mr A Rowlingson’s risk of future violence is problematic. Mr A Rowlingson has not articulated the motivation behind his offence, leaving the antecedent events, cognitions and feelings unknown. Treatment interventions with violent offenders target circumstances and functions associated with violent behaviour (Howells, Watt, Hall & Baldwin, 1997; Polaschek, 2008). This limits Mr A Rowlingson’s rehabilitation potential and strategies to manage the risk of future violence for Mr A Rowlingson. On the other hand, Mr A Rowlingson may be more receptive to therapeutic interventions at a later point in time."
"… Mr A Rowlingson presents with interpersonal and affective characteristics characterised by manipulation of others, recurrent deceitful actions, limited emotional reactivity and deficits in empathy and remorse. Such personality characteristics have been described by International Experts on serious violent offenders as Manipulative Psychopathy (Professors Robert Hare & James Ogloff). Mr A Rowlingson has evident deficits in moral reasoning, where by his own interests override the need to follow rules and laws. Cognitively, Mr A Rowlingson has previously construed situations that enable and necessitate the use of violence. The combination of these factors indicates that Mr A Rowlingson is at a moderate to high risk for future violence.
Mr A Rowlingson does present with a number of protective factors, which if harnessed and developed further, may reduce the risk of future violence. Mr A Rowlingson presents as at least average intelligence and is capable of further academic achievement. He had established and maintained a prosocial peer network prior to his incarceration. Interaction with prosocial peers will be crucial for his future reintegration into the community. Mr A Rowlingson has also previously resolved interpersonal difficulties without resorting to violent behaviour.
Of concern, Mr A Rowlingson has not articulated the reasons behind the murder of his brother, which attenuates the potential for intervention and risk management strategies, which would have the potential to reduce the risk for future violence. Although psychological treatment is likely to be challenging, recent advances in technology for working with serious violent offenders, with personality characteristics similar to Mr A Rowlingson, indicate the potential for harm reduction pursuant to psychological intervention targeting his antisocial behaviours (Wong et al., 2007)."
"The nature of the offences, the manner in which they were carried out, and his actions immediately afterwards do not indicate that at any time he was deprived of the capacities to know what he was doing, to control his actions, or to know essentially that they were wrong. There is nothing that indicates substantial impairment in these areas.
There is in fact little that really explains his actions in killing his brother. In my opinion, the shooting has arisen out of a longstanding resentment he had harboured towards his brother from early childhood. This occurred initially in the context of his brother’s hyperactivity, his brother excluding him from outdoors work with their father, and Anthony’s perception of his brother as an overbearing sibling who intruded with little sanction into Anthony’s life and privacy at home. This animosity was rekindled when Robert returned home and escalated when his brother again intruded into his privacy and produced the Klu Klux Klan material from Anthony’s room and later disclosed this to friends outside the immediate family.
This happened at a time when Anthony was becoming more resistant to authority, more truculent at school, and more prone to rule-breaking. This behaviour I believe was a reflection of the adolescent development of narcissistic personality traits of self-centredness, a sense of entitlement, and a deprecatory attitude to rules. These are likely to have come from his earlier oppositional traits, and his relationship with his brother but I would think they are attributable to a large extent to temperamental factors. One of these is a limited capacity for empathy which I believe is likely to be innately severely impaired.
Although this impairment is inborn, there is nothing else to suggest he has an autistic disorder or other mental disorder that is associated with an impaired capacity for empathy.
I would see his actions in part as consisting of a toxic mixture of longstanding resentment, a heightened sense of grievance, and a limited capacity for personal relatedness. Even then, they are not readily explainable.
I cannot with any certainty comment on to what extent his involvement with the teacher was a factor in the actions of Anthony. It is alarming that a teacher with connections to the Klan would allow, at the very least, his computer with Klan material to be placed in the hands of a student. It seems to me to be singularly alarming that a teacher would assist a student in disposing of a corpse. At interview, Anthony downplayed both his involvement in the Klan, and also the role of his teacher. He denied that the teacher held any sway over him. His parents are less certain of this. Anthony would, I believe, have been susceptible to influence by the teacher and this could have fostered an interest in the Klu Klux Klan. It may have also have acted to enhance his feelings of specialness and acted to harden a developing anti-authoritarian trait, and possibly of callousness. Any influence would not have extended to a point where Anthony would have been unaware of the wrongfulness of his actions. It may have acted to distort his beliefs about his justification in acting as he did.
Anthony is currently fit for trial.
He would benefit from intensive psychological treatment over the course of his incarceration to address his empathy deficits. This may be best done at least in part in a group setting. He does not require inpatient treatment. I do not think that medications would be of assistance."
"there's emerging research evidence over the last, I suppose, six to seven years, which would indicate that individuals with similar characteristics to which I've diagnosed Anthony with [sic] have the potential for responding to treatment."
Dr Watt accepted the proposition that there is some prospect for him "to have his behaviour managed in the future".
The sentence
"… the court may order that the child be detained for–
(a) a period not more than 10 years; or
(b) a period up to and including the maximum of life, if–
(i) the offence involves the commission of violence against a person; and
(ii) the court considers the offence to be a particularly heinous offence having regard to all the circumstances."
At sentence the applicant's Counsel conceded that the murder of the applicant's brother was a particularly heinous offence.
The Crown Prosecutor submitted that this case was in the worst category of the offence of murder, and sought an order for detention of the applicant for life. On the applicant's behalf it was disputed that this case was in the worst category of murders. Counsel for the applicant submitted that a period of detention of 12 to 13 years was suggested by the decision of this Court in R v WS1 which was said to be closely comparable to this case.
The learned sentencing judge noted that the applicant's Attention Deficit Disorder provided no explanation for his actions in killing his brother. Her Honour also noted the expert opinions as to the risk of violent re-offending by the applicant and the potential for the reduction of that risk by treatment.
Her Honour concluded her sentencing remarks in relation to the offence of murder as follows:
"The issue that [your Counsel] particularly pressed was your plea of guilty.
And it is true that under the Penalties and Sentences Act, and the general principles of law enunciated by the highest of Courts says that a plea of guilty must be given some weight, but if otherwise a sentence is appropriate, that may not be possible.
The case, of course in Toowoomba which is particularly well known of Woodman, I would accept, is a much, much worse case than yours, but that is not to say that one has to wait for the very worst case before sentencing to the maximum penalty.
This was a cold-blooded murder, a premeditated murder, in which you, without any provocation - and I don't mean in the legal sense - without any provocation at all, shot your brother in a very cowardly way. There was nothing heroic about this death. The lack of remorse, the attempt to fool the police and your family, allowing your parents to become more and more agitated demonstrates, without a doubt, the concerns about your personality deficits mentioned by the experts.
I'm persuaded that this is a case where the appropriate penalty is one of life imprisonment. You will then come under the provisions of the Corrective Services Act and you will be permitted to apply for release on parole after serving 15 years of that sentence. The period of time that you've spent in custody of 426 days, of course, will be taken as time served under that sentence."
"There's been an application by the prosecution that there should be permission for publication of your name so that you can be identified. Because of the matters that are raised in the psychiatrist's report, that unless you have undergone quite substantial rehabilitation by way of personality treatment with cognitive and behavioural therapy, that you will constitute a danger to the community, in that circumstance, pursuant to section 234, I would permit identifying information about you to be published after the period for giving a notice of appeal or application for leave to appeal, in your case, against sentence has ended.
I note that your parents may not particularly wish this to happen and the publication will revisit upon them, with the attendant publicity, the dreadful experience that occurred last year and has continued since, but all their friends and all of the people who know them will know about this, in any event. There will be nothing new about that."
The application to this Court
It is not, and could not be, suggested on the applicant's behalf that the discretion conferred on the sentencing judge by s 176(3)(b)(ii) of the Juvenile Justice Act was not enlivened in this case. Hence the question is whether the exercise of the discretion miscarried.
The principles which govern this Court's approach to the question whether the exercise of the discretion to impose sentence upon an offender has miscarried are well settled. In House v The King,2 Dixon, Evatt and McTiernan JJ said:
"But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
The worst category of murders?
In R v D,3 this Court accepted that the maximum penalty provided under the Juvenile Justice Act may be imposed "only if the offence was within the worst category of offences of murder, although not necessarily the worst imaginable case."4 This Court also accepted that "in order to characterize any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)."5
In this case, the murder was cold-blooded in the extreme: the applicant deliberately murdered his brother. He carried out his intention to kill his brother in a most cowardly way. The pre-meditated nature of the killing is all the more disturbing because it was utterly senseless. The applicant has been and remains utterly without remorse for killing his brother. There was no suggestion that the applicant acted under the malign influence of others. The applicant poses a real and continuing danger to the community. It was also necessary that the sentence imposed on the applicant should mark the community's denunciation of fratricide, a crime which has always been regarded as an especially heinous kind of murder. The learned primary judge recognised that this was not the worst imaginable case of murder, but her Honour was able to point to features of very great heinousness which put the case into the worst category of cases of murder. On that basis it was open to her Honour to impose the maximum penalty unless there were "subjective features mitigating the penalty to be imposed".
An offender's youth is usually an important mitigating factor. But the murder the applicant committed was no spur of the moment error of judgement which might be explained by his immaturity. Nor is the applicant's conduct and his attitude to his offending explicable as a consequence of the manipulation of an immature young man either by his teacher or by the baleful influence of the Ku Klux Klan. The reports of the psychiatrists and psychologist afford no support for such a suggestion or for any confidence that his deficits in terms of empathy will be overcome as he grows older.
R v WS
R v WS is readily distinguishable. That was a case where a juvenile shot his sleeping father in the head at the instigation of his homosexual lover. The juvenile offender was sentenced to 12 years detention with release after 70 per cent of that period had been served. This Court dismissed the offender's application for leave to appeal against sentence.
In that case, the evidence was that the offender's "personal judgment had become grossly distorted in a pathological sexual relationship."6 Moreover, there was evidence which gave reason for optimism as to the applicant's prospects of rehabilitation in the course of his maturing to full adulthood. The psychiatric evidence was that the offender did not lack "the capacity for the development of empathy".7 In both these respects, the present case stands in stark contrast.
In this case, the prospects for the rehabilitation of the applicant having regard to his youth have been described in guarded terms by the psychiatrists and the psychologist who have examined the applicant. Even if one accepts that there is "some prospect" in that regard, there can be no optimism about the applicant's rehabilitation having regard to his lack of empathy.
In any event, the decision of this Court in R v WS cannot be regarded as indicating the upper limit of the range of sentences which might be imposed in cases of a senseless killing by a juvenile. The decision of this Court in R v WS was that the sentence was not excessive. It is important to recognise that this Court was not called upon to consider whether the sentencing discretion in that case encompassed the maximum penalty subject to mitigating factors. It is also important to appreciate that the sentencing discretion cannot be shown to have miscarried by pointing to a lesser sentence in another case which, though having some similarities, also exhibits material differences. In R v Dwyer,8 I said:
"… An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process (Pearce v The Queen (1998) 194 CLR 610 at 624 [46]). In Markarian v The Queen ((2005) 228 CLR 357 at 371 [27]), Gleeson CJ, Gummow, Hayne and Callinan JJ said:
'Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence (Pearce v The Queen (1998) 194 CLR 610 at 624 [46]). And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies (Johnson v The Queen (2004) 78 ALJR 616 at 618 [5]; 205 ALR 346 at 348 per Gleeson CJ; at 624, 356 [26] per Gummow, Callinan and Heydon JJ).'"
The plea of guilty
I am respectfully unable to accept that the learned sentencing judge failed to take into account the applicant's plea of guilty. Her Honour expressly had regard to this consideration but did not consider that it was possible, in all the circumstances, to give effect to this consideration by imposing a lesser sentence. In my respectful opinion, her Honour's view in this regard cannot be said to be so unreasonable as to amount to a miscarriage of her Honour's discretion.
The applicant's plea of guilty was in no way demonstrative of remorse: it was of utilitarian value only; and the value of the plea in utilitarian terms was not great. The murder charge was the subject of a committal hearing. The Crown case was overwhelming as a result of the applicant's confession to the police and the absence of any reason to doubt the applicant's capacity to tell right from wrong.
In the circumstances of this case, it is not difficult to see that the learned sentencing judge could not see a way to accommodate the strong need for denunciation of the crime and protection of the community with such credit by way of recognition of the applicant's plea of guilty as would result in a lesser sentence than life imprisonment.
Preventative detention
The applicant's argument that the sentence involves an impermissible element of preventative detention is founded upon the proposition established by decisions binding on this Court that an apprehension of a possible repetition of violent behaviour in the future is not, of itself, a justification for imposing a longer sentence than would otherwise be appropriate.9
The learned sentencing judge was concerned to impose a sentence which would protect the community against the risk of further violence from the applicant. That was, of course, perfectly proper. It may be accepted that the sentence which is imposed must not be disproportionate to the gravity of the offence, but having regard to the heinousness of the murder in this case, a sentence which requires the applicant to serve 15 years in actual custody while receiving treatment in respect of his profound deficits in empathy cannot reasonably be said to be disproportionate to the gravity of the offence.
In summary, none of the particular attacks upon the sentence succeed. Further, I do not consider that the life sentence imposed on the applicant was so unreasonable or unjust that this Court may infer that there has been a failure properly to exercise the discretion which the law reposes in the learned sentencing judge.
Naming the applicant
It is submitted that the order permitting the naming of the applicant is apt unnecessarily to bring shame upon his family. This concern was recognised by the learned sentencing judge as a factor relevant to the exercise of the discretion under s 234 of the Juvenile Justice Act. It may be open to question whether, in accepting that the interests of the applicant's parents were relevant to the exercise of the discretion in s 234, her Honour was unduly generous to the applicant. It is arguable that the considerations relevant to the discretion concern the balance between the rehabilitation and proper punishment of the offender; on that view the interests of the offender's family may be thought to be somewhat remote at least where the sentence imposed is such that the offender will not be spending any period of post-custody release with his family as a dependent child. On the other hand, it may be said that the "interests of justice" within s 234(1)(c)(ii) properly encompass the interests of the applicant's parents as victims of his crime. In the event, it is not necessary for present purposes to resolve this question.
There can be no doubt that her Honour gave anxious consideration to the feelings of the applicant's parents who have already suffered so much. The weight which could reasonably be accorded to this consideration was, however, diminished by the circumstance, noted by her Honour, that the community in which the applicant's parents live were already familiar with the circumstances of the case and the identity of the applicant.
[49] The applicant committed a particularly heinous crime: he is a dangerous man; there is a legitimate reason in terms of the protection of the community – including, bearing in mind Dr Harden's opinion that "an institutional context … may provide opportunities for him to continue to exercise power and control …", his fellow inmates in prison – why the facts in this regard should be made public.
[50] In these circumstances, I do not consider that the learned sentencing judge's discretion under s 234 of the Juvenile Justice Act to permit the publication of the applicant's name miscarried.
Conclusion and order
[51] The sentence which was imposed was not affected by error. It was not manifestly excessive; and it was reasonably open to her Honour under s 176(3)(b)(ii) and s 234 of the Juvenile Justice Act.
[52] The application for leave to appeal against sentence should be refused.
[53] MUIR JA: I agree that the application for leave to appeal against sentence should be refused for the reasons given by Keane JA.
[54] FRASER JA: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the order proposed by his Honour, and with his reasons for the order.
[2007] QCA 207. ↩
(1936) 55 CLR 499 at 504 – 505. ↩
[1999] QCA 231 at [10]. ↩
See also Ibbs v The Queen (1987) 163 CLR 447 at 451 – 452; Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; R v Chivers [1993] 1 Qd R 432. ↩
See R v Twala, unreported, Court of Criminal Appeal, NSW, CA No 60187 of 1993, 4 November 1994. ↩
[2007] QCA 207 at [14]. ↩
[2007] QCA 207 at [15]. ↩
[2008] QCA 117 at [37] (citations footnoted in original). ↩
Veen v The Queen (No 2) (1988) 164 CLR 465. See also R v Lynch; ex parte A-G (Qld) [1995] QCA 205; R v JJ; R v JJ; ex parte A-G [2005] QCA 153 at [25]. ↩
R
Rowlingson [2008] QCA 395
(1936) 55 CLR 499
(1987) 163 CLR 447
(1988) 164 CLR 465
(1998) 194 CLR 610
(2004) 78 ALJR 616