R v Ryder [1995] QCA 546

Court of Appeal (Qld)|1995-10-06|Before: MacRossan CJ, Lee J, MacKenzie J

THE CHIEF JUSTICE: The applicant was sentenced in June of this year to a term of 10 years imprisonment for attempted murder. The complainant had been his wife but the applicant and the complainant had been divorced for a time. At the time of the offence which took place in December 1993 the applicant was a 55 year old and he had no previous convictions.

The circumstances in which the offence was committed were most grave. Although the applicant and the complainant were formally living separate lives there was on-going contact between them. On the day of the offence the applicant went to visit the complainant and he was, in fact, armed with a kitchen knife. The applicant subsequently explained that he believed he had been under surveillance by a particular person for some time and he was carrying the knife for his own protection.

Whether or not that was so, when the applicant had been at the complainant's house on the day of the offence for a short period, without any prior warning really, he attacked the complainant with the knife causing two serious wounds to the upper part of her body one of which was life threatening. The complainant tried to protect herself and took hold of the knife and the knife blade became broken off but the applicant continued with his assault and attempted to strangle the complainant and he struck her head also on the floor a number of times.

However, at the conclusion of the episode, which did not result in the death of the complainant, the applicant called an ambulance and then drove to the police station and made a full confession to them. The applicant pleaded guilty but that was when the trial was commencing and just after he had been arraigned.

The matter was adjourned for a period following the conviction in November 1994 for the purpose of obtaining a pre-sentence report and the sentence was not in the outcome finally imposed until June 1995. The applicant was apparently granted bail when charged in December 1993 but in April of the following year he was charged with an offence of stalking in relation to the complainant and that charge resulted in his being in custody from that point on although he was, in fact, acquitted of the stalking charge in March of this year.

The sentencing Judge in imposing his sentence declared that the period from March of this year until June of this year when he sentenced him for the present offence, which was 73 days, should be taken into account as the period spent in custody. It is undoubtedly correct that that period should have been taken into account. However, it is a fact that in a more general way the applicant had been in custody from April 1994 when first charged with stalking due to the failed relationship between himself and the complainant and the fears, no doubt, which the complainant held.

In a general way in sentencing the applicant it would, in my view, have been appropriate to take the whole of that period into account as a period of custody related to principally the offence of attempted murder. That is because of the clear connection between the stalking charge when brought and the charge with which we are concerned.

If that had been done that would have resulted in giving some practical effect to the further six months or so spent in custody due to the overall circumstances involved in the offence. The Judge, in sentencing, noted the turbulent matrimonial relationship which had previously prevailed between the complainant and the applicant. It was an unusual marriage, it would seem, and it is undoubtedly correct that the applicant developed a strangely attached obsessive, and it may be correct to say, jealous relationship so far as his wife was concerned.

There were exchanges in the course of the marriage between the applicant and the complainant. The contributions to the turbulence of the relationship were not all one sided. That does not take from the fact, of course, that it is the applicant's criminal offence with which the sentencing Judge was concerned and it amounts to no more, perhaps, than some sort of explanation of the mental state which prompted the applicant to act as he did.

However, the material emerging from the pre-sentence inquiry shows that there was no specific significant psychiatric disorder to be attributed to the applicant even though, as I say, his mental attitude towards the complainant had become strangely convoluted and productive of difficulty. The complainant following the attack on her has had her life very much affected. It is understandable that her mental attitude and approach to life should have been grievously affected by the event and, indeed, that is the case.

There is a pre-sentence report from a community correctional officer which was obtained. There is a report from a

Dr Green, a psychiatrist, in addition, which explores the matrimonial relationship at great length and offers views including views for the future. Dr Green considers that it is correct to describe the applicant as mildly depressed and suffering from a depressive disorder. The applicant has a number of other health problems which will inhibit his mobility substantially. Amongst other things he already finds it necessary to walk with a stick.

There is a recurring concern emerging from the reports that were available to the Judge that if the relationship between the applicant and the complainant were ever resumed there is the possibility of further substantial mischief coming from it. There is no doubt that it would be highly desirable that when the applicant is eventually released from custody no further contact should take place between himself and the applicant and that this should be taken into account by the authorities in the supervision which they may be disposed to exercise. It will be taken into account, no doubt, as a matter also when consideration comes to be given to the point at which it might be appropriate to release the applicant on parole.

The Judge, in sentencing, declared that he took into account that the applicant was a man in his mid 50's with no previous convictions and that he had pleaded guilty although belatedly and that he expressed remorse and demonstrated it as well immediately after the offence in question through summoning the ambulance and giving himself up to the police.

The Judge specifically took into account that the applicant would, on the material, be liable to be a risk to the complainant whenever released. The Judge, in sentencing, made a number of recommendations which it is obviously correct to support, namely, that the applicant should receive ongoing psychiatric treatment, that the complainant should be notified of the applicant's impending release before that occurred whenever it should happen and that there should be, as I have already said, no further contact between the applicant and the complainant.

When full consideration is given to the matter and in particular, subject to the doubt about the intention in respect of the knife which the applicant took with him on the day of the offence, the possibly spontaneous nature of the attack on that day and the history of domestic turbulence between the two which was of a long-standing nature and, as well, the further facts that we have a plea of guilty here from a 55 year old who had no previous convictions of any sort then it seems to me that there is substance in the contention of counsel for the applicant that there should have been some recommendation to take account of these factors. Counsel for the applicant makes no complaint about the head sentence. Indeed, when one considers the nature of the offence it is very hard to suggest that there is anything excessive in the head sentence when considered alone.

In urging, however, that some recommendation should have been made to allow for the personal factors counsel for the applicant suggests that a period of one year prior to the time when the automatic parole point would have been reached is an appropriate time to regard. That is, counsel for the applicant, contends that a recommendation for consideration for release on parole after four years would have been appropriate.

In my opinion, there is substance in the submission that a recommendation earlier, by some extent, than the automatic point should have been made in this case and in looking at the limit of the submission as it is made by counsel for the applicant it seems correct to adopt it. It gains some support from the fact that there was the earlier period to which I have already referred when the applicant was in custody due to the bringing of the stalking charge which eventually was dismissed. That period was one of some six months and it would be appropriate to reflect, although the Judge below has not specifically done so, the fact of the loss of freedom to that extent.

Now, it should not be understood that in making a recommendation for consideration for release on parole the Court is intending to bind the hands of the appropriate authority in any way. If that recommendation is made it will not reduce the onus upon the authorities of considering how matters stand at the time that consideration is given to the question of parole.

However, in this case, for the reasons I have endeavoured to outline I would allow the appeal to the extent of recommending that the applicant be considered for parole after serving a period of four years of his sentence. Otherwise, I would allow the sentence in the terms imposed below to stand.

LEE J: I agree. I would add that it is, of course, quite clear that merely because a recommendation is made it does not follow that release is automatic. This, as the Chief Justice points out, depends upon a careful assessment of the applicant by the parole authorities at that time when he will be some four years older and no doubt has had the benefit of the psychiatric treatment recommended by the sentencing Judge. Consideration will also have to be given, at that stage, to whether there is then any likelihood of putting the complainant under any further risk.

MACKENZIE J: I agree. I would also reinforce that release on parole is not automatic upon the making of an application. In my view, this is a case where the authorities should be very vigilant to ensure that when the time comes to consider the application for parole they can exclude, as far as is humanly possible, the risk that there may be a repetition of the same kind of offence. I agree, otherwise, with the order proposed.

THE CHIEF JUSTICE: The order will then be as we have indicated.

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