Court of Appeal (Qld)|2003-08-08|Before: McMurdo, P, Jerrard JA and Fryberg J, Separate reasons for judgment of each member of, the Court, each concurring as to the orders made
McMurdo, P, Jerrard JA and Fryberg J, Separate reasons for judgment of each member of, the Court
Catchwords
CRIMINAL
LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
- PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE
VERDICT - WHERE APPEAL
Source
Original judgment source is linked above.
Catchwords
CRIMINALLAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL- PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLEVERDICT - WHERE APPEALDISMISSED - where appellant convicted of manslaughter - where basis of appealregarded the unreliability ofthe principal witness - where evidence andstatements of principal witness contained some inconsistencies - where learnedtrial judgegave very careful directions as to how the jury should approach theevidence of the principal witness - where directions not complainedabout -whether it was open to jury to be satisfied beyond reasonable doubt that theappellant was guilty of manslaughterCRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT -SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCESOF OFFENDER - wherelearned trial judge considered a 12 year term of imprisonment to be appropriatedue to seriousness of the offence
- where learned trial judge considered that s
161(1) Penalties and Sentences Act 1992 (Qld) could not apply to the 660
days already served by the appellant as he was held for that time on a murder
charge - where learned
trial judge reduced head sentence to a term of 10 years
due to perceived inability to apply s 161(1) - where appellate authorities
construe s 161(1) as applicable to such cases - whether sentencing discretion
miscarried
Criminal Code 1899 (Qld), s 300, s 576(1), s 668E
Penalties and
Sentences Act 1992 (Qld), s 161(1)
M v R [1994] HCA 63
(1994) 181 CLR 487, cited
R v Baggot [2000] QCA 153
CA No 1 of 2000, 3 May 2000, followed
R v Barlow (1996-1997) 188 CLR
1, followed
R v Cowburn [1993] QCA 273
CA No 135 of 1993, 4 August
1993, followed
R v Miguel [1994] QCA 512
CA No 351 of 1994, 25
October 1994, followed
R v Stepto [2002] QCA 10
CA No 220 of 2001,
4 February 2002, discussed
Technical Products Pty Ltd v State Government
Insurance Officer (Qld) [1989] HCA 24
(1988-1989) 167 CLR 45, applied
Judgment (72 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] McMURDO P: I agree with Jerrard JA that the appeal against conviction should be dismissed. The prosecution case depended essentially on the evidence of Ms Harris, who had been charged as an accessory after the fact to murder of the deceased. She had made earlier inconsistent statements to police and assisted the appellant in luring the deceased to their home and in disposing of his body. The comprehensive statement of facts in Jerrard JA's reasons amply demonstrates, however, that the jury were entitled to accept the crucial aspects of her evidence, (that the deceased came to the appellant's home unarmed and was attacked by the appellant), and to reject beyond reasonable doubt the appellant's contention of self-defence. The learned primary judge's careful and balanced summing-up warned the jury to approach Ms Harris's testimony cautiously, sceptically and critically and included a detailed and fair summing-up of the defence case. The appellant has failed to demonstrate that the conviction for manslaughter was unsafe or otherwise constituted a miscarriage of justice.
[3]
[2] The learned primary judge sentenced the appellant to ten years imprisonment, declaring the conviction to be of a serious violent offence. Despite the appellant's extensive period of pre-trial custody, his Honour found it was not possible to make a declaration under s 161 Penalties and Sentences Act1992 (Qld) ("the Act") because the appellant had been held pending trial in respect of the offence of murder, an offence of which he was acquitted, not manslaughter, the offence of which he was convicted. The appellant contends that the judge was required to make a s 161 declaration.
[4]
"If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders."
[5]
[4] It is very common for offenders to be charged and have proceedings commence against them for an offence or offences different from those of which the offenders are ultimately convicted, with the original charged offences and the ultimate convictions for different but related offences arising out of the same or connected facts. It seems extremely unlikely that the legislature intended to prohibit a s 161 declaration in such cases. The term "offence" is not defined in the Act. Its most sensible construction in s 161 is that referred to by Brennan CJ, Dawson and Toohey JJ in R v Barlow,[1] as describing "the facts the existence of which render an actual offender liable to punishment". This interpretation of "offence" in s 161 supports the making of a declaration here.
[6]
[5] There are other reasons for reaching that conclusion in this case. Under s 300 Criminal Code, the unlawful killing of another is a crime which is called murder or manslaughter according to the circumstances of the case. The appellant was charged with murder and, as his Honour explained to the jury, if they were not satisfied beyond reasonable doubt of the appellant's guilt of murder they could then consider whether the prosecution had established the offence of manslaughter beyond reasonable doubt. If it is open on the evidence, s 576(1) Criminal Code makes manslaughter an alternative verdict to murder. The term "proceedings for the offence" in s 161 refers to the action commenced in court for the offence of which the offender is ultimately convicted, here manslaughter. The appellant's time spent in custody prior to that conviction related solely to the proceedings resulting in his conviction of manslaughter. He was not, for example, also in custody for other quite separate offences committed at another time and place. A declaration under s 161 should have been made, as is the usual practice in comparable cases.[2]
[7]
[6] His Honour, believing it was impossible to make a s 161 declaration, took into account the appellant's 660 days of pre-sentence custody in determining the sentence of ten years imprisonment so that the practical effective sentence imposed was about 12 years imprisonment.[3]
[8]
[7] The appellant, a mature man of 48 years, did not have an unblemished record. Although his criminal history is not significant, he had some minor previous convictions including two for common assault. He was sentenced on the basis that out of sexual jealousy, he lured the deceased to his home where he violently and fatally attacked his victim with a piece of wood, although without intending to cause death or grievous bodily harm. The appellant did not have the mitigating factor of any remorse or an early plea of guilty and no other favourable circumstances were placed before the court. This was a serious example of unlawful killing. Previous decisions of this Court in R v Stepto,[4]R v Baggot[5] and R v Miguel[6] support an effective sentence in this case of about 12 years imprisonment.
[9]
[8] Ordinarily, I would grant the application for leave to appeal against sentence and re-sentence the applicant to an increased term of imprisonment, but make the required declaration under s 161 of the Act. This course was foreshadowed in oral argument during the appeal hearing. The appellant's counsel stated that he had instructions that if the Court thought the sentence would need to be increased with the imposition of a s 161 declaration, his instructions were to withdraw the application for leave to appeal against sentence. It follows that I would order that the appeal against conviction be dismissed and allow the application for leave to appeal against sentence to be withdrawn. Because there is no practical difference between the orders I propose and those agreed upon by Jerrard JA and Fryberg J, I am content to join in their proposed orders.
[10]
[9] JERRARD JA: On 16 January 2003 the appellant Brian Sanderson was convicted by a jury of the offence of having unlawfully killed one Umend Singh on 8 January 2001. He was sentenced to 10 years imprisonment, that sentence being reduced from the 12 years the learned sentencing judge would otherwise have imposed by reason of the appellant having been in custody for 660 days between 28 March 2001 and 16 January 2003. Mr Sanderson contends that his conviction for manslaughter is "unsafe and unsatisfactory and contrary to law", and further that the sentence imposed was manifestly excessive.
[11]
[10] The appeal against conviction should be understood as one brought pursuant to s 668E of the Criminal Code, and on the ground that the verdict of guilty is unreasonable or cannot be supported having regard to the evidence. The basis on which that ground was argued was that Linda Harris, the principal witness for the prosecution, was such an unreliable witness that it was not open to the jury to be satisfied beyond reasonable doubt that Mr Sanderson was guilty of manslaughter[7].
[12]
[11] Much of the evidence was actually common ground between the prosecution and Mr Sanderson, who both gave and called evidence on his behalf at the trial. The evidence in common between the parties was that Linda Harris had lived in a de facto relationship with Mr Sanderson for some seven years prior to March 2001, and in January 2001 she, Mr Sanderson, and her son Jesse James were living in a house jointly owned by the appellant and her at McClymont Road, Nanango. Jesse was 15 at that time. Linda Harris had met the deceased, who was known as Jimmy Singh, through Mr Sanderson in about 1997. At first she had had little contact with him but in the months immediately prior to his death on 8 January 2001 a closer association had developed.
[13]
[12] About one week before 8 January 2001 Linda Harris and Mr Sanderson had a serious argument which resulted in her leaving their home, and she went and stayed with Jimmy Singh. She concealed her car from public view at Jimmy Singh's premises during that week. Her son Jesse was staying with his father for the first part of that week and for the second part at the home of a school friend.
[14]
[13] At least one occasion of sexual intimacy occurred between Linda Harris and Jimmy Singh during that week. In the course of the week Mr Singh, Ms Harris, and her son Jesse were together at Jesse's father's home and Mr Singh, who had consumed alcohol, was heard to speak aggressively about Mr Sanderson. The words Ms Harris could recall were:
[15]
which she thought was "just alcohol talking"[8]. Jesse, who was called by Mr Sanderson as a witness at the trial, recalled hearing Mr Singh saying that he hated Mr Sanderson and wanted to kill him; and Jesse also thought it was "the alcohol talking"[9].
[16]
[14] On Saturday 6 January 2001, Ms Harris returned to 46 McClymont Road intending to collect her belongings, see Jesse, and to end her relationship with Mr Sanderson. She did not expect him to be there, but he was. After some time that day with him she decided to give the relationship with him one more go, and she remained at the premises. She told him she had been staying "at a girlfriend's".
[17]
[15] On Sunday 7 January 2001 she told him during the day that she had in fact been at Mr Singh's. His response, as she recalled it, was to tell her that he had in fact been at Mr Singh's premises during the week with night goggles, and had "seen" them together. Mr Sanderson denied saying or doing that, but he did have a set of night goggles. In any event by that Sunday evening Ms Harris had disclosed the occasion of sexual intimacy between herself and Mr Singh, and during that night Mr Sanderson seriously assaulted Ms Harris. He injured her badly enough for him to become fearful at her condition, and he rang his brother at about 1.00 a.m. on the Monday morning. His brother then attended at 46 McClymont Road in the early hours of that day with his girlfriend Lynette, who (according to Mr Sanderson) had "some first aid experience"[10]. Mr Sanderson's account of that assault admits that he punched Ms Harris in the face some four or five times, to seeing blood coming from the corner of her mouth and that her face needed wiping and that she described herself as feeling "faint", and that when his brother and Lynette were there Ms Harris was shaking and shivering. She was not taken to any hospital.
[18]
[16] Mr Sanderson and Ms Harris gave very different accounts in evidence as to what occurred later on the morning of 8 January 2001. Ms Harris described being woken by him at about 6.30 a.m. He showered and dressed her, (assistance presumably made necessary because of her condition), put her in his car, and drove her to the top of a nearby hill. There, an unsuccessful attempt was made to call Mr Singh on the mobile phone possessed by Ms Harris. On her account in evidence in chief, Mr Sanderson had written out a note for her to read to Mr Singh over the telephone, and had done that before they left the house. They drove back there, and he rang Mr Singh on the landline, and gave her the phone. She read to Mr Singh the words written on the note, which were to the effect that Mr Sanderson had gone out for a couple of hours and Mr Singh should come round and visit Ms Harris. Mr Singh asked if Ms Harris was "ok" and she said "yes". Mr Sanderson then hid his car up "the back" of the premises, and on his instructions Ms Harris then got undressed and put a towel around her.
[19]
[17] Mr Singh arrived. It appears common ground that he came to the back door of the premises, through which entry was usually gained, and Ms Harris opened it. Mr Singh said "hello", and Ms Harris then walked from that door towards the kitchen. Mr Singh followed her and Mr Sanderson stepped from Jesse's room and struck Mr Singh a powerful blow to the head with a piece of timber. On Ms Harris' account she heard a "thud" and saw Mr Singh fall to the floor. She did not see the actual blow but saw Mr Sanderson then hit Mr Singh twice more. Mr Singh was entirely unarmed.
[20]
[18] His account[11] was that he had been woken up by his dog barking and by the shower running. He put his glasses on, heard some "pounding" noises at the back door, banging and raised voices, and accordingly grabbed "a bit of wood" which he described regularly keeping under the bed. Mr Sanderson, at that stage of his life, had a timber and furniture business in which he recycled dead logs into furniture of various kinds.
[21]
[19] On his account, having grabbed that piece of wood, he got out of bed, opened the door, and saw Mr Singh with a gun in his hand standing directly in front of him, and with his back to him. He heard Mr Singh say "where is the fucking bastard, I'll kill him" as Mr Singh was starting to turn toward the appellant who:
[22]
"automatically just lashed out with a piece of wood I had and hit him in the head".
[23]
Mr Singh fell to the floor, and Mr Sanderson hit him again twice, and knocked the gun from his hand.
[24]
[20] His evidence denied any knowledge of Mr Singh's impending arrival or having played any part in causing it. On his account he had remained in his bedroom, and had not concealed himself in Jesse's bedroom. On any view he struck Mr Singh from behind, and his defence of self defence advanced at the trial depended entirely upon his evidence that Mr Singh was armed with a gun.
[25]
[21] Ms Harris denied in cross examination that Mr Singh's arrival at the house was at her suggestion alone, and without Mr Sanderson knowing of it beforehand, and she swore she had never noticed that he kept a piece of wood under the bed. She denied having heard Mr Singh say "where is he?" or "I'll kill him"; and she repeatedly denied that he had any weapon.
[26]
[22] It was common ground that Mr Singh died immediately, and the appellant and Ms Harris disposed of his body that day. Ms Harris' account was that Mr Sanderson obtained an old rug in which they wrapped Mr Singh's body, and on Mr Sanderson's instructions she obtained some plastic bags. One was put over Mr Singh's head. On Mr Sanderson's instructions she cleaned up the blood in the premises, and he dragged the rug wrapped body to the back seat of her car. They then drove the body, and the rags used for cleaning up the blood, away from the premises.
[27]
[23] It was common ground that they went first to Wooroollin Refuse Tip, where they left Mr Singh's body and the lump of wood used to kill him. Ms Harris drove that body in her car following behind Mr Sanderson, who drove Mr Singh's car. Mr Singh's car was left by Mr Sanderson dumped in a forestry reserve, and Ms Harris waited for some 20 minutes or so while he concealed that vehicle. Two vehicles went past her during that time, and she sought no help from either of them, and nor did she leave and drive to any police station.
[28]
[24] After leaving the body at the Wooroollin Refuse Tip they travelled to the Mererambi Dump, where they disposed of the plastic bags, the rags, and her car seat cover. On the way home Mr Sanderson threw the shoes he had been wearing out of the window, near the Mererambi School. Those shoes and what remained of Mr Singh's body were recovered in later March 2001 by investigating police.
[29]
[25] Ms Harris said that Mr Sanderson told her what to say to any investigating police, namely that she had not seen Mr Singh, and did not know where he was. On her account the next day, 9 January 2001, the appellant got her to write a note addressed to Mr Singh and go to his premises and leave it there. The note, Exhibit 1[12], records that "its Tuesday" and that "Linda" just called in to see "you and let you know that I don't need the water pump now". Ms Harris' evidence describes her picking her son Jesse up on the way to Mr Singh's premises, and sliding the note under his door on arrival. After that she went into Kingaroy and got some pizza for tea.
[30]
[26] She swore that she was not allowed to see a doctor in respect of her own injuries, suffered on the Sunday night, for about six weeks. On about 20 January 2001 Mr Singh's brother reported him missing, and on 21 January 2001 police officers called at the McClymont Road residence, where they saw Ms Harris. She denied any knowledge of Mr Singh's whereabouts, and agreed in cross examination that on that date Mr Sanderson was away from home fishing. The police returned the next day, and noticed that Ms Harris had faded bruising around her eyes.
[31]
[27] Apart from those two occasions she was spoken to, provided statements to the investigating police officers, or gave evidence in proceedings about this matter, on 12 further occasions after 22 January 2001. Since she gave accounts of what occurred so many times it can cause no surprise that there is some inconsistency between portions of those accounts. It is the extent of that inconsistency which is the subject of the general challenge to reliance upon her evidence.
[32]
[28] She gave interviews and provided statements on 23 January 2001, 6 February 2001 and 8 February 2001. On her evidence at the trial, in each of those accounts she lied, and did that from fear of Mr Sanderson and to protect herself. It appears that the account given in those statements was essentially that she knew nothing about the fate of Mr Singh.
[33]
[29] By 26 March 2001, the date of her next statement (Exhibit 12), she had decided to leave Mr Sanderson, and to reveal to the police the circumstances of Mr Singh's death. She provided statements dated that day and then 28 March 2001, 5 April 2001, and 4 May 2001, in each of which she acknowledged in evidence having told further lies, which lies she said in evidence were told to keep herself "out of it". The nature of those is described in the cross examination[13] in which she acknowledged that on 26 March 2001 she had falsely described to the police how on the morning of 8 January 2001 she had telephoned Mr Singh to tell him she had been "bashed" by the appellant, and that in the course of that telephone call the appellant had seized the phone from her and assaulted her. On her evidence at the trial neither that incident nor any such assault actually occurred. On her account on 26 March 2001, Mr Singh had arrived unannounced at the premises at a time when she was coincidentally simply wearing a towel, and whilst she was getting dressed she heard a thud and saw that the appellant had killed Mr Singh. After that she had locked herself in her room, and the appellant had left in his car, apparently to dispose of the body.
[34]
[30] She then gave a further series of statements, these being dated 4 July 2001, 3 September, and 1 November 2001, that last date being the date of the committal proceedings. As well as providing a statement on that day, she gave evidence in those proceedings; and then gave evidence on 6 and 7 August 2002, in an earlier trial for the charge of murder brought against Mr Sanderson in the Supreme Court. Her description in cross examination of the statements given on 4 July, 3 September, and 1 November 2001 was that in those she had clarified some of the matters asserted by her in her earlier statements. On 4 July 2001 she was charged with the offence of being an accessory after the fact to the murder of Mr Singh, and she pleaded guilty to that charge on 5 August 2002.
[35]
[31] Mr Singh's car had been located on 25 January 2001, and a replica pistol had been found in it. The police investigation had not really advanced however until Ms Harris came forward on 26 March 2001. Mr Sanderson had been interviewed on 23 January 2001, and denied any knowledge of Mr Singh's death, and he said likewise when interviewed on audio and video tape on 8 February 2001. He was then questioned on 28 March 2001 in a video recorded interview, and arrested on that date. The next day he assisted police by reconstructing at the differing scenes the manner in which the body, the wood, the rags, and the shoes, had been disposed of.
[36]
[32] The important additional item which emerged from his interviews and account was his description of how he had disposed of the sawn down .22 rifle he said Mr Singh had brought to the premises that day. He took the police to a spot where that weapon was recovered from the base of a tree. On his account in evidence he had put that gun in his car after killing Mr Singh. He had realised when at the first dump he and Ms Harris attended, and when throwing away the lump of wood, that he had left the gun at the house because he had forgotten about it. He told Ms Harris then and there that he had thrown the gun into the dump with the piece of wood; but that last assertion was not put to Ms Harris in cross examination. The appellant's evidence was that after he and Ms Harris returned to their home that day following the disposal of Mr Singh's body, he had thrown away the rifle by himself. Ms Harris did not help in that and would not have known what he had done.
[37]
[33] His evidence denied any knowledge of any telephone calls made on Monday 8 January 2001 to Mr Singh's home from his. Evidence of telephone records adduced by the prosecution established the fact of the telephone call from Mr Sanderson's home to that of his brother at 00.54 a.m. on 8 January 2001, and that at 7:25.57 a.m. that Monday morning Mr Singh's telephone number was rung by the mobile telephone possessed by Ms Harris. At 7:38.43 Mr Singh's home telephone was called from the appellant's home, in a call lasting 67 seconds. That evidence supports the account Ms Harris gave to the jury. The prosecution case was that the sawn off .22 rifle located at the spot to which the appellant took the police had simply been "planted" there by him to provide him with the indicia of a case of self-defence. The prosecution was unable to establish who had been registered as the owner of that gun, or its history, and conceded that when located the rifle did appear to have been left out in the open for some time.
[38]
[34] The principal matters on which the evidence of Ms Harris was attacked, or on which she contradicted herself, included the following:
[39]
* in her 6 February 2001 statement she said the relationship between herself and Mr Singh was a sexual relationship by October 2000, at which time the appellant was away in Western Australia. The description differed from her trial evidence of intimacy on one occasion in January 2001;
[40]
* she described the assault committed on her Sunday 7 January 2001 as including Mr Sanderson jumping on her feet and hands, burning her with a cigarette, and repeatedly punching her face. Despite that damage done to her hands, she had sworn at the committal hearing that she had written at the appellant's dictation the note which she read to Mr Singh over the telephone, whereas her evidence at trial was that the appellant wrote it;
[41]
* although she said in evidence in chief that the appellant hid his car up the back after the telephone call from the house to Mr Singh, she said in cross examination he hid the car before that call was made;
[42]
* she agreed in cross examination that during the committal proceedings she had said that when Mr Singh had arrived at the house on 8 January 2001 he had said:
[43]
whereas she swore at the trial that he said neither of those things and had said only the word:
[44]
* she swore at the trial that Exhibit 1 had been written out by her with her injured hand on the bonnet of her car, and in the presence of her son, whom she had already picked up. She agreed it seemed very neatly written, and that in her statement on 4 July 2001, she had said that Jesse was not present. She swore to having said that to "keep Jesse out of it";
[45]
* it was suggested it would have been difficult for her to clean up the house as she described with her injured hand, and her evidence in response was that:
[46]
* she was cross examined on the obviously general difference between her accounts given before 26 March 2001, those given from then until 4 May 2001, and the contrast of both of those versions with her later accounts (post May 2001), in which she admitted helping dispose of the body and conceal the killing.
[47]
[35] On the events as she described them, it would be understandable she would fear for her own safety at Mr Sanderson's hands; and after 26 March 2001 natural enough for her not to want to admit her part as an accessory after the fact. It was put, and she agreed, that she believed the fact of their property being in joint names meant that on her understanding that, when either she or the appellant died, 46 McClymont Road became entirely the property of the survivor. However, she denied the suggestions that she had hoped that Mr Singh would come over and take her away from Mr Sanderson on Monday 8 January, and that she had hoped he might shoot the appellant, and that thereby she might obtain ownership of the house. Those propositions seemed the only ones which together could explain why she would falsely deny that Mr Singh arrived with a weapon.
[48]
[36] The evidence showed that she had certainly been severely assaulted by Mr Sanderson on 7 January 2001. Phone calls were made to Mr Singh the next morning at the time she described. The appellant certainly killed Mr Singh, who had arrived at Mr Sanderson's residence. He and Ms Harris certainly disposed of the body and did not call the police, although on Mr Sanderson's account the sawn off .22 rifle would have been present for the police to seize. His evidence was that it was sheer panic and fear of being disbelieved which prevented him contacting the police after he had killed in self defence, and further that he feared Ms Harris might not tell the truth and support him. If so, he made it very easy for her to tell lies by not calling the police.
[49]
[37] The learned trial judge gave the jury very clear directions about the necessity to approach the evidence of Ms Harris cautiously and sceptically, and to subject it to critical assessment[14]. The judge reminded the jury that Ms Harris acknowledged having lied to the police on a number of occasions in interviews and in her written statement, and admitted having previously said things on oath which she now accepted were untrue. There is no complaint about those directions. At the end of the day, despite the defects and deficiencies resulting from changes in her quite considerable number of accounts, the only critical point of disagreement between herself and the appellant is whether Mr Singh had a rifle. As to that, the jury was entitled to consider the submissions of the prosecution that if Ms Harris wanted to minimise her own criminality it was in her interests to say Mr Singh had a rifle rather than deny it; and odd that the appellant would destroy the crime scene if his account was true. It was equally as odd that he could immediately locate the rifle he threw away, apparently for the purpose of concealing it forever. To this the jury could add the oddity of his remembering to take the wood to the dump for disposal, and not the rifle.
[50]
[38] When first reading the appeal record and during the hearing of the appeal, I was concerned that the jury could not exclude the possibility that Mr Singh had arrived armed as Mr Sanderson said. On reflection, and after re-reading the evidence, I am satisfied that the evidence of Ms Harris, despite its deficiencies, actually gave the Crown quite a strong case that the deceased was unarmed. In those circumstances the appellant can consider himself fortunate to be convicted of manslaughter rather than murder, and it was open to the jury to be satisfied beyond reasonable doubt that he was guilty of that latter offence.
[51]
[39] The learned trial judge sentenced Mr Sanderson on the basis that the jury had taken the view that he was so affected by sexual jealousy as to have struck the deceased without having formed any intention beyond striking Mr Singh with very considerable force, which force in fact shattered his skull. The judge regarded the pre-mediation involved as a telling feature of the seriousness of the case, and further considered that the appropriate sentence could not be anything less than 12 years imprisonment.
[52]
[40] The learned judge held, when sentencing the applicant, that s 161 of the Penalties and Sentences Act1992 (Qld) could not apply to the 660 days the appellant had spent on remand before finally facing the learned judge for sentence for the crime for manslaughter. This was because Mr Sanderson had been held in custody for all of that period upon a charge of murder, and s 161(1) relevantly provides:
[53]
"If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders".
[54]
The learned judge made the point that Mr Sanderson had not been held in custody on a charge of "unlawful killing", and in the opinion of the learned judge Mr Sanderson had been held in custody in relation to proceedings for the offence of murder "and for no other reason". Since he was being sentenced for manslaughter, s 161(1) could not apply to him.
[55]
[41] The learned judge has considerable experience in both the trial and appellate levels of this court in both its criminal and civil jurisdictions, and the judge's proven depth of knowledge of the law is widely acknowledged. However, a different construction of s 161(1) from that advanced by the learned judge may be both open and practical.
[56]
[42] That alternative construction is that there certainly were proceedings for the offence of murder brought against Mr Sanderson, on which a verdict of manslaughter was open. His conviction for manslaughter did not arrive in the mail, as it were, but instead was the conclusion by verdict of the trial held in the proceedings in which the appellant was indicted on a charge of murder, and held in custody on that charge. He could have been convicted of either murder or manslaughter on the indictment; but only of one or the other. Therefore he was not proceeded against solely for the offence of murder in the criminal proceedings taken against him and resulting in his conviction for manslaughter, and those proceedings which resulted in a conviction for that offence were ones "for" both the offences of murder and manslaughter. In those circumstances he was held in custody on remand "in relation to" the proceedings "for" the offence of manslaughter of which he was convicted. The only reason for holding him in custody was in relation to those proceedings.
[57]
[43] This view additionally treats "in relation to" as having a meaning very like "in respect of" which, in the admittedly different circumstances of another statute, has been so construed[15] that if applied here, that construction would require some discernable and rational link between the appellant being held in custody and proceedings for the offence on which he was convicted. I consider that discernable and rational link exists.
[58]
[44] I note that in Cowburn[1993] QCA 273 (CA No 135 of 1993, judgment delivered 4 August 1993) this court, when hearing an application by an applicant seeking leave to appeal against his sentence following a conviction by a jury of manslaughter, clearly regarded s 161 as applicable in identical circumstances to the present. The same result occurred in R v Miguel[1994] QCA 512 (CA No 351 of 1994, judgment delivered 25 October 1994). On both occasions this court agreed that the respective applicants should have orders made that they had been in custody in relation to proceedings for the offence of manslaughter and for no other offence, where those two applicants had each been held in custody awaiting trial for murder and convicted of manslaughter.
[59]
[45] Whatever the proper position, in this appeal it is actually academic. This is because the learned judge having expressed the clear view that in the circumstances a sentence of 12 years imprisonment was the least which was appropriate, gave the appellant the benefit of that time spent in custody, by the imposition of a 10 year sentence. The applicant who asks for an order pursuant to s 161(1), nevertheless asked that his application for leave to appeal be dismissed, should the court agree with the 12 year head sentence considered appropriate by the sentencing judge. The experienced counsel for the appellant readily conceded that comparable sentences, such as that imposed in R v Stepto[2002] QCA 10 (CA No 220 of 2001, judgment delivered 4 February 2002) where that applicant received a nine year sentence from this court following a plea of guilty to manslaughter for an offence committed in circumstances in which the deceased had attacked the applicant, who fearing for his own life killed his attacker with a tomahawk, makes it hard to criticise a 12 year sentence here. The plea of guilty in Stepto was accepted by the Crown on the basis that that applicant had overreacted to the threat to his own life, and that that applicant had not intended to cause the death or grievous bodily harm of the deceased. The sentence alone makes a sentence of 12 years in this case far more appropriate than would be a head sentence of 10 years on which the applicant would ask that he be treated as having already served 660 days.
[60]
[46] In those circumstances I understand the applicant accepts that this court will simply dismiss his application for leave to appeal against sentence. The orders I suggest be made are:
[61]
* that the appeal against conviction and the application for leave to appeal against sentence be dismissed.
[62]
[47] FRYBERG J: For the reasons given by Jerrard JA it was reasonably open to the jury to be satisfied of guilt to the requisite standard[16]. The appeal against conviction should be dismissed.
[63]
[48] Jerrard JA has identified the serious features of this case. Having regard to those features, neither the notional head sentence of not less than 12 years imprisonment considered by the trial judge, nor the actual sentence of 10 years imprisonment which he imposed, was manifestly excessive. In the light of sentences imposed in comparable cases they might be regarded as, if anything, light. The sentencing discretion has not miscarried.
[64]
[49] It is unnecessary to decide whether the construction of ss 158 and 161 of the Penalties and Sentences Act 1992 adopted by the trial judge was correct. If it was not, the 10 year sentence would need to be increased. Counsel for the applicant informed the court that in this event his instructions were to withdraw the application. There is no provision for that. In the circumstances I agree with Jerrard JA that the application should be dismissed.
[65]
[2] See, for example, R v Cowburn[1993] QCA 273; CA No 135 of 1993, 4 August 1993 and R v Miguel[1994] QCA 512; CA No 351 of 1994, 25 October 1994.
[66]
[3]Part 9A of the Act and s 135(2)(c)Corrective Services Act 2000 (Qld) would require him to serve 80 per cent of his sentence (9.6 years of a 12 year term or eight years of a ten year term) before becoming eligible for post-prison community based release; he had already served about one year and 10 months or a little over 80 per cent of a two year term so that a further 10 year sentence equated to an effective 12 year sentence.