R v Schubring ; ex parte A-G

Court of Appeal (Qld)|2004-11-05|Before: de Jersey CJ, Williams JA and Jones JSeparate, reasons for judgment of each member of the Court, de Jersey CJ and Jones J, concurring as to the orders made, Williams JA, dissenting in part

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where the Attorney-General appeals against a sentence of seven and half years imprisonment imposed on the respondent, upon his conviction for the manslaughter of his wife - whether the sentence is manifestly inadequate

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - where the respondent has applied for leave to appeal on the basis that the sentence is manifestly excessive - whether the sentence is manifestly excessive

Cheung v R [2001] HCA 67; (2001) 209 CLR 1, cited

R v Auberson; ex parte A-G (Qld) [1996] QCA 321; CA No 248 of 1996 and CA No 249 of 1996, 3 September 1996, considered

R v Babsek [1999] QCA 364; (1999) 108 A Crim R 141, considered

R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183, cited

R v Byrne [1960] 2 QB 396, cited

R v Cawthorne (1996) 2 Crim App Rep (S) 445, cited

R v Darkhu (1956) 40 Cr App R 130, cited

R v Dick [1966] Qd R 301, cited

R v Harris [1961] VicRp 36; [1961] VR 236, cited

R v Isaacs (1997) 41 NSWLR 374, distinguished

R v Leivers and Ballinger [19980 QCA 99; [1998] QCA 99; [1999] 1 Qd R 649, distinguished

R v Marinone [1915] St R Qd 14, cited

R v Pedder, unreported, Court of Criminal Appeal, Qld, CA No 16 of 1964, 2 May 1964, cited

R v Petroff (1980) 2 A Crim R 101, cited

R v Porter [1933] HCA 1; (1933) 55 CLR 182, cited

R v Rolph [1962] Qd R 262, cited

R v Shearsmith [1967] Qd R 576, cited

R v Spriggs [1958] 1 QB 270, cited

R v Whiting; ex parte Attorney-General [1994] QCA 425; [1995] 2 Qd R 199, considered

Veen v R [1962] Qd R 262, cited

Veen v R [1979] HCA 7; (1979) 143 CLR 458, cited

Weininger v R (2003) 212 CLR 629, cited

Director of Public Prosecutions (Queensland) for the appellant/respondent

[1] de JERSEY CJ: The Honourable the Attorney-General appeals against a sentence of seven and a half years imprisonment imposed on the respondent, upon his conviction on 11 June 2004 for the manslaughter of his wife. The learned sentencing judge also declared that the conviction was of a serious violent offence, with the consequence that the respondent will have to serve six years imprisonment before becoming entitled to apply for post-prison community based release. The appeal is based on the contention that the sentence is manifestly inadequate.

[2] The respondent has separately applied for leave to appeal on the basis that the sentence is manifestly excessive.

[3] At the time of the offence, which was committed on 10 August 2001, the respondent was 44 years of age. He had not previously been convicted.

[4] When arraigned at his trial on the count of murder of which he was acquitted, the respondent pleaded guilty to manslaughter. The Director of Public Prosecutions did not accept that plea in satisfaction of the indictment, and that was unsurprising in view of the potential case against the respondent. It was upon that plea that he was later sentenced.

[5] Although the basis on which the respondent pleaded guilty to manslaughter was not articulated, the learned judge considered the acquittal on the count of murder was referable to the Crown's inability "to negative the occurrence of some act of provocation".

[6] Having expressed that view, his Honour went on to reject one basis on which the respondent had defended the charge of murder, namely, that he had been suffering from a state of diminished responsibility. In doing that, the judge expressed his preference for the evidence of the psychiatrists Drs Reddan and Fama, over that of Drs Moyle and Curtis. His Honour considered the nature of the respondent's disturbance, which he characterised as troubling, as nevertheless limited to "generalised anxiety disorder and dysthymia".

[7] The learned judge thereby determined the factual basis upon which he should sentence the respondent, as he was ordinarily entitled to do, and consistently for example with the constraints imposed by s 132C of the Evidence Act 1977.

[8] Counsel did not ask the learned judge to seek from the jury a finding whether the acquittal on the count of murder was based on the respondent's having discharged his burden of proof of diminished responsibility (s 304A(2) Criminal Code), or on the Crown's failure to negative provocation (s 304) or to establish intent, and no such requirement was imposed on the jury. The question has been raised whether the judge was nevertheless obliged to make that inquiry of the jury.

[9] Mr Glynn SC, who appeared for the respondent, submitted that by not inquiring, the judge may have denied the respondent the benefit of the jury's confirmation that it had been satisfied of the ground of diminished responsibility, in which case the judge would have sentenced on that basis.

[10] The authorities do not however put the matter as one of obligation: it is left as a matter within the discretion of the judge.

[11] In R v Rolph [1962] Qd R 262, 290 Hanger J (as he then was) said this:

"When a matter arising for consideration of a jury by reason of

s. 304A is left them along with a question of provocation, etc., it may be appropriate to take a finding as to whether, if a verdict of manslaughter is returned, the verdict is the result of s. 304A or otherwise. The matter may be very important on the question of penalty."

To similar effect is the following statement of Lord Chief Justice Goddard in R v Matheson (1958) 42 Cr App R 145, 153:

"It may happen that on an indictment for murder the defence may ask for a verdict of manslaughter on the ground of diminished responsibility and also on some other ground such as provocation. If the jury return a verdict of manslaughter, the judge may, and generally should, then ask them whether their verdict is based on diminished responsibility or on the other ground or on both."

[12] A possible practical difficulty in requiring that of a jury is that the jurors may not all agree (cf. R v Leivers and Ballinger [1998] QCA 99; [1999] 1 Qd R 649; R v Isaacs (1997) 41 NSWLR 374, 379-380) on the basis on which the accused should be acquitted of murder. Maybe that is what impelled Hanger J, for example, to leave whether or not such a finding should be required of a jury, as a matter for the discretion of the trial judge, rather than a course necessarily to be followed.

[13] While it is plainly correct to observe, as did Hanger J, that whether the conviction for manslaughter is based on the accused's proof of diminished responsibility, or the prosecution's failure to negative provocation, may bear on the determination of penalty, it is important to note here that the learned judge was not asked to impose that requirement on the jury, and that trial counsel raised no objection to his Honour's determining as he did the factual basis for the conviction.

[14] Nevertheless, it would in my respectful view have been preferable to inquire of the jury as to the basis of the acquittal on the count of murder. The response may have been "we cannot agree", but then again, the jury may have responded that it was satisfied diminished responsibility was established. Although counsel raised no objection to his Honour's independently determining the basis of the acquittal, the fact remains that he did so on a basis arguably less favourable to the respondent. Was he entitled to do so?

[15] It was I should say accepted that in finding the factual basis for the conviction, his Honour otherwise proceeded consistently with the requirements of s 132C of the Evidence Act 1977. I note that during submissions on sentence, the learned judge discussed with counsel the possible explanations for the verdict, referring to diminished responsibility, provocation and intent. During the Crown Prosecutor's submissions, his Honour appeared to favour the view the Crown had failed to negative provocation. Then during his submissions, defence counsel confirmed his preference for the "provocation theory". His Honour had earlier exposed his process of reasoning for preferring that explanation.

[16] His Honour thereby proceeded consistently with the authorities which govern the process of fact finding on sentence. See especially Weininger v R (2003) 212 CLR 629 and R v Harris [1961] VicRp 36; [1961] VR 236.

[17] I revert now to the question earlier posed. In my view, his Honour was entitled to proceed as he did. I do not accept Mr Glynn's submission that the process miscarried to the point where the respondent should now be resentenced on the basis that diminished responsibility was established. I consider the judge was not obliged to make the inquiry of the jury (although as I have said it would in this particular case have been preferable had he done so); and I consider that the judge was entitled to proceed as he did, in the usual way, to determine the factual basis of the conviction for manslaughter resulting from the respondent's plea, a course his Honour pursued with the approbation of both trial counsel.

[18] As to the absence of any obligation to make the inquiry of the jury, I note the nature of the formulations in Rolph and Matheson, and record my view that the presumption of sanity (s 26 Criminal Code) and the defence obligation of proof of diminished responsibility (s 304A(2)) do not, as was mooted during submissions before us, combine to put a case like this into a special category where the making of such an inquiry is mandatory. It is not, I consider, to be regarded - in terms of judicial obligation - differently from other cases in which there may be disparate bases for the verdict, although it would, as I have suggested, have been preferable in this particular case (diminished responsibility arising) had the inquiry been made of the jury. In terms of obligation, it is significant that the Code requires a jury acquitting of murder on the ground of unsoundness of mind to say so (s 647(1)), and likewise requires a jury to specify the basis of a finding of "want of understanding" of an accused called upon to plead (s 613(3)), yet no such obligation is expressed in respect of an acquittal of murder under s 304A.

[19] A five judge bench of the New South Wales Court of Criminal Appeal considered the issue in R v Isaacs, supra, and expressed the view that while a trial judge has a discretion to inquire of a jury as to the basis of an acquittal of murder, the judge should refrain from doing so save 'in exceptional cases' (page 379). While Isaacs was a case where the possibly applicable defences were self defence, provocation and absence of murderous intent, but did not include diminished responsibility, their Honours referred to cases in which diminished responsibility was considered (for example, Veen v R [1979] HCA 7; (1979) 143 CLR 458, 466 and R v Petroff (1980) 2 A Crim R 101, 134-9), and would appear not to have considered that to place the case,

ipso facto, into the "exceptional" category to which they referred. At pages 379-380 they list a number of circumstances which they considered rendered undesirable, the practice of making such inquiries. The English Court of Appeal has similarly deprecated the practice: R v Cawthorne (1996) 2 Crim App R (S) 445.

[20] In the end, the matter being discretionary, and his Honour having proceeded with, as I say, the approbation of counsel, and otherwise unexceptionably, it should not be concluded the discretionary process miscarried - notwithstanding any view it would in this case have been preferable had the inquiry been made of the jury.

[21] It is in my view accordingly right for us now to proceed on the basis the learned judge charted, namely, the Crown's failure to negative provocation.

[22] The respondent caused the death of his wife by first rendering her unconscious. As the respondent said to police officers: "[I] [b]ashed her head against the tiles and wrapped the dog lead around her throat." Having rendered her unconscious, he went and obtained the dog lead from the garage or the patio, returned, rolled her over, and strangled her with a garrotting action leaving bruises on her neck. As his Honour observed, the respondent's conduct was characterised by an element of deliberation. Having carried out the post-mortem examination, Dr Ashby's view was that the respondent must have maintained pressure on the victim's neck for more than a momentary period. The doctor said that applying a ligature for 10 seconds or so would be insufficient, and that "this has been considerably longer than that in order to produce these marked asphyxial changes".

[23] The precise nature of the provocation advanced for the defence was not, as I have said, articulated. On the day of the killing, the respondent's wife was due to attend a pain clinic. Considering her complaint of pain to be of psychosomatic origin, the respondent refused to pay for that attendance, and in the context of an argument, his wife informed him, at about 9.00 am that day, that she had cancelled the appointment and was leaving him. The respondent returned home from work, and there was an acrimonious argument between him and his wife. The acrimony persisted over about three hours, and included her threats to take custody of the children, and that he would lose the house. The respondent's approach was influenced by his knowledge that his wife was intimately involved with another man, and that she had lied about that relationship to him. He (wrongly) believed that she was involved with a second man as well.

[24] In favour of the respondent, the learned judge took account of the circumstances that he had no prior convictions, was well respected at work, had had a troubled upbringing, was a caring father, and notified early a willingness to plead guilty to manslaughter.

[25] On the other hand, as the judge held, the respondent intended to kill his wife, and showed no sign of remorse.

[26] The judge considered that he should declare the offence to be a serious violent offence, notwithstanding the Crown Prosecutor's not having sought such a declaration. Mr Glynn SC submitted during oral argument that there was nothing particularly special about the case to warrant a declaration, having regard to R v DeSalvo [2002] QCA 63; (2002) 127 A Crim R 229. In my view, the undoubted violence of the killing - garrotting using a dog leash after rendering the victim unconscious by a bashing to the back of the head - while by nature serious, was rendered particularly so by the circumstance that the respondent was not reacting to "provocation" in any particularly immediate sense: as the judge found, the respondent's conduct was attended by deliberation. Making the declaration was amply justified. In relation to a particular additional submission made by Mr Glynn SC, I should add that whether a declaration should be made was sufficiently flagged to counsel, and defence counsel adequately addressed the point.

[27] In determining to sentence the respondent to seven and a half years imprisonment (with the declaration), the learned judge worked from a head sentence of "ten years or perhaps slightly longer". Because of the respondent's co-operation (embracing his plea, and its being foreshadowed), the judge reduced the head sentence to a point below that level. It seems reasonable to infer that he moulded the sentence in order to reflect a view floated during submissions, that the respondent serve five and a half to six years imprisonment prior to eligibility to apply for post-prison community based release. As mentioned earlier, six years is 80 per cent of the seven and a half year head term imposed (80 per cent being relevant because of the serious violent offence declaration).

[28] Mr Glynn SC generally accepted 10 years as a "commencing level", but submitted that the plea of guilty to manslaughter, and its being foreshadowed early, warranted a reduction then by two years or more. Further reduction was then warranted, he submitted, because of the making of the serious violent offence declaration, having regard to R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183. Mr Glynn submitted that the penalty imposed should have been seven and a half years imprisonment, but without a serious violent offence declaration.

[29] Mr Heaton, appearing for the appellant, submitted during oral argument that the appropriate range, after allowing for the plea of guilty to manslaughter, was 10 to 12 years imprisonment - automatically attracting the serious violent offence regime, and submitted that upon this Attorney's appeal, the result should be imprisonment for 10 years. He submitted that the learned judge, in moving from 10 years imprisonment to seven and a half years imprisonment, attributed too great a significance to the plea of guilty to manslaughter.

[30] While the reported cases are replete with references to the need to recognise the significance of a plea of guilty, in appropriate cases, by way of reduction of the penalty otherwise applicable (cf s 13 Penalties and Sentences Act 1992), there are three features of this case which combine to reduce that diminishing effect. First, the case against the respondent was particularly strong because he had admitted his responsibility for the killing to many people, so that any attempt to avoid responsibility at the trial would have been futile; second, the plea of guilty to manslaughter was not indicative of remorse, and the judge held as much; and third, while the respondent aided the administration of justice by his plea, it did not facilitate any substantial saving of resources, because the circumstances of the killing had to be led in presentation of the case of the alleged murder which the Crown reasonably determined nevertheless to pursue.

[31] While the acquittal on the count of murder on the basis of the Crown's inability to negative provocation, albeit provocation of a rather nebulous or amorphous nature, must be respected, the chilling features of the respondent's intent to kill his wife, and when being sentenced, his lack of remorse, lent this manslaughter a grave complexion.

[32] The learned judge was referred to a number of previous decisions. In terms of sentencing level, as opposed to sentencing principle, attention before us focused on R v Babsek [1999] QCA 364; (1999) 108 A Crim R 141, R v Auberson CA No 248 of 1996 and CA No 249 of 1996 and R v Whiting; ex parte Attorney-General [1994] QCA 425; [1995] 2 Qd R 199.

[33] Babsek killed her former de facto husband by shooting him, but without the intent relevant to murder. There was no immediate provocation on the part of her victim. Babsek, who was 24 years old, was sentenced - following trial - to nine years imprisonment with parole to be considered after three years. The Court of Appeal increased the term to 10 years and deleted the parole recommendation.

[34] Auberson strangled his estranged wife, and was sentenced to nine years imprisonment. He had offered to plead guilty to manslaughter. The jury's verdict was "guilty of manslaughter with provocation". The sentence of nine years, with which the court did not interfere, was described as "at or near the bottom of the range".

[35] Whiting was acquitted of the murder, but convicted of the manslaughter, of his estranged wife by strangulation, and sentenced to eight years imprisonment, lifted to 11 years imprisonment on appeal. He had a relevant history of past violence towards women, by contrast of course with the situation of this respondent, who had no prior criminal history.

[36] Mr Heaton reasonably made the point that all of those cases were determined prior to the commencement of Part 9A and the amendments to s 9 of the Penalties and Sentences Act 1992, which occurred in 1997. Section 9(3), especially, signalled a strengthening of the response expected by the legislature of courts sentencing for violent offending. In those cases, a court was no longer to have regard to the principle that a sentence of imprisonment "should only be imposed as a last resort". Part 9A must likewise be regarded as an expression of legislative intent that those who commit serious violent offences should serve longer terms in custody. Bojovic (p 191) referred to s 161B(3) of the Penalties and Sentences Act (which is concerned with sentences ranging between five and 10 years imprisonment) as providing "simply another option that has been placed in the court's armoury". But nothing in Bojovic gainsays the proposition just advanced as to legislative intent, and as observed in that case (p 190), "plainly the courts will not attempt to subvert the intentions of Part 9A by reducing what would otherwise be regarded as an appropriate sentence".

[37] In summary, the legislative regime introduced in 1997 provides a clear signal that it was intended judicial responses to serious violent offending be strengthened.

[38] Translating what may be drawn from those previous cases to the current sentencing regime, I consider Mr Heaton was correct in his submission that the relevant sentencing level here, after allowing for the plea to manslaughter, and its being foreshadowed, was 10 to 12 years imprisonment, with the automatic enlivening of the serious violent offence regime.

[39] In my respectful view, for reasons expressed earlier in this judgment, the learned judge attributed too great a significance to the entry of the plea of guilty to manslaughter, and its being foreshadowed at an early stage. Conversely, he placed insufficient weight on the brutality of the event, its gravity in foreshortening a vibrant human life, and the need for general deterrence in relation to this particular species of crime. A sentence of seven and a half years imprisonment, with six years necessarily to be served, was in these circumstances manifestly inadequate. In particular, it failed to reflect the present importance of general deterrence: when personal relationships fracture, for whatever reason, the notion that one of the partners, perceiving himself or herself to be the injured party, take the life of the other, is an outrage which must be discouraged by strong judicial responses.

[40] I would order, on the appeal of the Attorney-General:

2. That the sentence imposed on 17 June 2004 be varied by deleting the order for imprisonment for seven and a half years, and in lieu thereof, ordering that the respondent be imprisoned for 10 years; with a declaration pursuant to s 161B of the Penalties and Sentences Act 1992 that the conviction of the respondent of manslaughter is a conviction of a serious violent offence.

[41] I would order that the application for leave to appeal against sentence be refused.

[42] WILLIAMS JA: I will not repeat in these reasons the background factual matters which are set out in the reasons for judgment of the Chief Justice which I have had the advantage of reading. The Attorney-General has appealed against the sentence imposed at first instance and the respondent to that appeal has, in turn, appealed against the sentence imposed on him.

[43] The respondent was charged that on 10 August 2001 he murdered his wife. At the outset of the trial on 31 May 2004 the respondent pleaded not guilty to murder, but guilty to manslaughter. That plea was not accepted by the prosecution and the trial proceeded. This court does not have the advantage of a full transcript of proceedings at the trial, but it is clear from the summing up that the defence relied on both provocation (s 304 of the Code) and diminished responsibility (s 304A of the Code) in an endeavour to secure a verdict of not guilty of murder. Both the prosecution and defence led psychiatric evidence as to the respondent's mental state at the material time. In the course of the summing up the trial judge directed the jury on s 304A of the Code and analysed the competing evidence from the psychiatrists. That segment of the summing up concluded as follows:

"In summary, you have to be satisfied on the balance of probabilities that each element of diminished responsibility has been proved. If you are so satisfied on the balance of probabilities, then you should find the accused not guilty of murder."

[44] The only question ultimately asked of the jury was whether they found the respondent guilty or not guilty of murder; to that the unanimous response was "not guilty". The allocutus was then administered in relation to the charge of manslaughter to which there had been a plea of guilty.

[45] It is true, as noted by the Chief Justice in his reasons, that thereafter there was some debate between the trial judge and counsel as to whether the conviction for manslaughter should be regarded as based on the prosecution not negativing some unspecified act of provocation or whether it should be based on a finding of diminished responsibility.

[46] That matter was resolved by the trial judge saying in the course of imposing sentence:

"I am satisfied beyond reasonable doubt that you intended to kill her. ... There was, therefore, an element of deliberation in your conduct.

The Crown has been unable to negative the occurrence of some act of provocation which led to your conduct. You have given no clear account of what happened at the time of your actions. ...

Despite the evidence of Dr Moyle and Dr Curtis I reject the suggestion that you suffered diminished responsibility. I prefer the evidence of Dr Reddan and Dr Fama. It is more reflective of your history or at least the version of it which you gave prior to your visit to Dr Moyle. Nonetheless you are a troubled person. You suffer generalised anxiety disorder and dysthymia."

[47] Thus it is clear that the sentence imposed was based on a conclusion by the trial judge that provocation, as provided for by s 304 of the Code, resulted in the jury returning a verdict of not guilty of murder. That involved of necessity a finding by the judge that the verdict was not based on the unanimous view of the jury that the respondent had discharged the onus of establishing diminished responsibility.

[48] In my view the trial judge was not entitled in the circumstances to draw the conclusion which he did; that conclusion could well have been contrary to the unanimous decision of the jury.

[49] The starting point with respect to criminal responsibility is the presumption of sanity. As s 26 of the Code provides: "Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved." It is now accepted beyond question that for purposes of the criminal law an accused person must be regarded as of sound mind unless and until the contrary is proved on the balance of probabilities. Subject now in Queensland to provisions found in Chapters 7 and 8 of the Mental Health Act 2000, an accused person will be presumed to be of sound mind until a jury unanimously reaches a conclusion to the contrary. If authority be needed for those propositions reference can be made to the decision of the Court of Criminal Appeal in R v Marinone [1915] St R Qd 14 and The King v Porter [1933] HCA 1; (1933) 55 CLR 182 at 183-4 per Dixon J. It seems clear from the authorities that unless the jury is able to come to the unanimous affirmative conclusion in favour of insanity the defence (defined by s 27 of the Code) fails: Armanasco v The King [1951] WALawRp 7; (1951) 52 WALR 78 at 81. Section 647 of the Code provides, inter alia, that "the jury are to be required to find specially, if they find that the person is not guilty, whether the person was of unsound mind at the time when such act or omission took place, and to say whether the person is acquitted by them on account of such unsoundness of mind".

[50] Reference should also be made to s 613 of the Code which is concerned with the question whether an accused person is capable of understanding the proceedings at trial so as to make a proper defence. The section provides that if that issue is raised "a jury of 12 persons, to be chosen from the panel of jurors, are to be empanelled forthwith, who are to be sworn to find whether the person is so capable or no." Then subsection (3) provides: "If the jury find that the person is not so capable they are to say whether the person is so found by them for the reason that the accused person is of unsound mind or for some other reason which they shall specify ... ." Although I could find no authority directly in point, it seems clear on principle that the verdict of the jury on that issue must be unanimous. Inferentially that follows from cases such as R v Darkhu (1956) 40 Cr App R 130, R v Roche (1889) 3 QLJ 139, and R v Kovalky (1895) 6 QLJ 219. Again that procedure appears to be based on the fundamental proposition that all accused persons are presumed to be of sound mind, and therefore capable of understanding the proceedings, unless and until a jury makes a formal finding to the contrary.

[51] It was against that background of well-established principle and procedure that s 304A of the Code was enacted, adopting language first used in the Homicide Act 1957 (UK). Relevantly s 304A provides that where a person unlawfully kills another under circumstances which would otherwise constitute murder, that person will be guilty of manslaughter only if the person has the state of abnormality of mind therein defined. Subsection (2) thereof provides:

"On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to convicted of manslaughter only."

But subject to that, the section is silent as to the procedure to be followed.

[52] As with the other provisions of the Code to which I have referred above, the underlying assumption is that the accused is of sound mind unless and until the contrary is proved. It is now beyond doubt that in discharging the onus placed on the accused by s 304A(2) the relevant matters have only to be established on the balance of probabilities. Further, when the subsection refers to "On a charge of murder" it is clearly implying that it is on the trial for murder that that onus will fall on the defence; in other words it will be on the trial for murder before the jury that the accused must discharge that onus.

[53] Again, as with s 613 and s 647, the provision does not say that the verdict of the jury must be unanimous on the point. But I can see no reason for differentiating a finding pursuant to s 304A from a finding under either of those other provisions. In each case the finding is overturning the presumption of sanity, and there is good reason for saying that that result can only be achieved by the unanimous verdict of the jury. The cases dealing with s 304A or its equivalent strongly imply that the "defence" is dependent upon the unanimous verdict of the jury that the accused has discharged the onus.

[54] In many instances the only issue for the jury will be whether diminished responsibility has been established and in those cases there is no difficulty created by asking the jury to return a verdict simply of murder or manslaughter. However, a problem potentially arises where (as was the situation here) a verdict of guilty of manslaughter could be based either on diminished responsibility or some other ground. It is in that context that it becomes of critical importance to determine whether the jury verdict on the ground of diminished responsibility must be unanimous and whether it should be made a special verdict. It is against that background that I consider some of the reported cases on s 304A or its equivalent.

[55] One of the earliest English decisions relevant for present purposes is R v Matheson [1958] 1 WLR 474, a decision of five judges constituting the Court of Criminal Appeal. To a charge of murder the defence raised two issues: diminished responsibility which would result in a verdict of manslaughter, and the murder was not in furtherance of theft resulting in the murder being not capital. Three doctors experienced in matters relating to mental health were called by the defence. It is sufficient to say that their evidence discharged the burden of proof thrown on the defence and the prosecution did not lead evidence in rebuttal. The following relevant passages are taken from the judgment of the court:

"While it has often been emphasized, and we would repeat, that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be 'a true verdict in accordance with the evidence.' ... But we have to bear in mind that Parliament has altered the law and decreed that if a killing is committed by a person whose abnormal mind has seriously diminished his responsibility the verdict is to be manslaughter and not murder. If, then, there is unchallenged evidence that there is abnormality of mind and consequent substantial impairment of mental responsibility, and no facts or circumstances appear that can displace or throw doubt on that evidence, it seems to the court that we are bound to say that a verdict of murder is unsupported by the evidence. ... The Act directs the court to allow an appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. ... If there is evidence and a proper direction, this court will not usurp the function of the jury, unless, indeed, there is evidence so overwhelming that the court comes to the conclusion that though it might be said there was some evidence the other way, the verdict would amount to a miscarriage of justice. ...

Before parting with the case, this is a convenient opportunity for laying down a rule of practice in cases where a defence of diminished responsibility is raised. ... This issue must be left to the jury, just as the issue must be if the defence is insanity. It may happen that on an indictment for murder the defence may ask for a verdict of manslaughter on the ground of diminished responsibility and also on some other ground such as provocation. If the jury return a verdict of manslaughter the judge may, and generally should, then ask them whether their verdict is based on diminished responsibility or on the other ground or on both." (478-80).

[56] The next relevant English case was R v Byrne [1960] 2 QB 396. There the Court of Criminal Appeal was concerned with a case where the only defence raised to the charge of murder was that the accused was suffering from diminished responsibility. Three medical experts were called by the defence whose uncontradicted evidence was that the accused suffered from abnormality of mind and it was the view of each that the accused's condition "could properly be described as partial insanity". The appellant was convicted of murder and appealed on the ground of misdirection with respect to diminished responsibility. In the course of its judgment the court said at 403-5:

"Whether the accused was at the time of the killing suffering from any 'abnormality of mind' in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it.

Assuming that the jury are satisfied on the balance of probabilities that the accused was suffering from 'abnormality of mind' ... the crucial question nevertheless arises: was the abnormality such as substantially impaired his mental responsibility for his acts in doing or being a party to the killing? This is a question of degree and essentially one for the jury. ...

... These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common-sense way. ...

... It is for the jury to decide on the whole of the evidence whether such inability or difficulty has, not as a matter of scientific certainty but on the balance of probabilities, been established, and in the case of difficulty whether the difficulty is so great as to amount in their view to a substantial impairment of the accused's mental responsibility for his acts."

[57] The court came to the conclusion that, a jury properly instructed, could not have come to any conclusion other than that the defence had been made out, and in consequence a verdict of manslaughter was substituted.

[58] Matheson, Byrne and R v Spriggs [1958] 1 QB 270 were considered by the Court of Criminal Appeal in R v Rolph [1962] Qd R 262; therein the court pointed out some differences between the English provision and s 304A. But so far as procedural matters were concerned the court appeared to adopt what was said in those English cases. Mansfield CJ noted at 270 that prior to the enactment of s 304A "s. 27 was the only section which limited the criminal responsibility of a person charged with an offence, on the ground of defect of mind." After referring to the enactment of s 304A he noted, inter alia, that "s. 27 requires proof that the person charged was 'deprived' of any one of the three categories of capacity before the protection of the section applies, whereas s. 304A requires proof that any one of the three categories of capacity has been 'substantially impaired'." He then went on: "Assuming then that the jury are satisfied on the balance of probabilities that an accused was suffering from 'abnormality of mind' ... the crucial question arises: Was the abnormality such as substantially impaired his capacity in any one of the three stated categories? This is a question of degree and essentially one for the jury." (272).

[59] Of significance for present purposes is the following observation of Hanger J at 290:

"When a matter arising for consideration of a jury by reason of s. 304A is left them along with a question of provocation, etc., it may be appropriate to take a finding as to whether, if a verdict of manslaughter is returned, the verdict is the result of s. 304A or otherwise."

That reflects the verdict which would be returned pursuant to s 613 and s 647 of the Code.

[60] Passages in the judgment of Brown J at 292 further indicate that the court considered the issues raised by s 304A were solely for the jury to determine.

[61] In my view the decision of the Court of Criminal Appeal in R v Dick [1966] Qd R 301 is instructive for present purposes. There the jury verdict was guilty of wilful murder where the defence had relied on s 304A. Four medical practitioners gave evidence before the jury and all were in agreement that the disease suffered by the accused could result in a diminished capacity to exercise control. Three of the doctors were in agreement that the accused's condition met the test provided for in s 304A. On careful analysis it appears that the opinion of the fourth doctor was not out of line with the others. The critical ground of appeal was that the verdict of the jury was unreasonable and could not be supported, having regard to the evidence. It was submitted they should have returned a verdict of manslaughter based on diminished responsibility. That submission was accepted by the Court of Criminal Appeal, and relying on a passage from Matheson at 479, concluded that a verdict of murder was unsupported by the evidence. What to my mind is critical for present purposes is that the court considered that it had to reach the stage of concluding that the jury verdict amounted to a miscarriage of justice because there was no evidence to support it before the verdict could be overturned.

[62] That approach is supported by the decision of the Court of Criminal Appeal in R v Shearsmith [1967] Qd R 576. There, after reference to Dick and Matheson the court upheld the jury verdict of guilty of murder which amounted to a rejection of a defence based on s 304A.

[63] Finally in this review of some of the cases I would refer to the judgment of Stephen J in Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 455-6. The reasoning there to my mind strongly supports the conclusion that where diminished responsibility is raised, and there is some other possible explanation for a verdict of guilty of manslaughter, the jury should make it clear whether they have unanimously based their verdict on a finding of diminished responsibly.

[64] It is correct, as the Chief Justice has noted in his reasons, that there is significant authority (for example, R v Isaacs (1997) 41 NSWLR 374) which supports the proposition that a trial judge should only question a jury as to the basis of their verdict in exceptional cases. Section 132C of the Evidence Act 1977 provides that a sentencing judge may impose sentence on a factual basis if "satisfied on the balance of probabilities that the allegation is true"; but that cannot empower a judge to sentence on a factual basis which is inconsistent with a fact which is essential to the jury's unanimous verdict. Cases such as Isaacs are primarily concerned with the situation where the jury's verdict of manslaughter could be based, for example, either on criminal negligence or the prosecution's failure to negative provocation. In imposing a sentence for manslaughter in those circumstances the sentencing judge is entitled to act on the basis which is established to his satisfaction by the evidence.

[65] That situation is to be contrasted with the situation here. Diminished responsibility was raised, and if the jury was satisfied on the balance of probabilities that it was established, then the respondent was entitled to be sentenced on the basis that the presumption of sanity had been rebutted and he was of "diminished responsibility". That may or may not in the long run result in a different sentence being imposed than if the verdict was simply manslaughter, but nevertheless he is entitled to have his sentence considered in the light of that unanimous jury finding.

[66] It is in those circumstances that the passages referred to above from Matheson, Rolph and Veen become relevant. It is of critical importance for the sentencing judge to know the basis on which the jury finding has been made and the only way of ascertaining that is by taking a special verdict. If necessary a question should be asked of the jury in order to clarify their verdict. There is nothing unusual in this as is evidenced by the requirement in s 613 and s 647 of the Code.

[67] For all we know in this case the jury reached their verdict of not guilty of murder because they were unanimously of the view that the respondent had discharged the onus on him of establishing diminished responsibility. The sentencing judge was not entitled to arrogate to himself the responsibility of interpreting the jury's verdict. It is clear, in my view, from the cases I have referred to that the issue of diminished responsibility is essentially one for the jury and once the jury have reached a unanimous decision one way or the other, that decision can only be set aside on appeal if it is wholly unsupported by the evidence and has therefore resulted in a miscarriage of justice; it cannot be set aside or ignored by the sentencing judge.

[68] The question was raised in argument as to the position where all members of the jury favoured a verdict of manslaughter but were not in agreement as to the basis thereof; some favoured diminished responsibility others favoured (for example) provocation. My reading of the cases referred to above suggests that in those circumstances the accused has failed to make out the defence of diminished responsibility. As the jury has to be unanimous in making a finding of insanity (s 26 and s 647 of the Code) and in making a finding that the accused was not capable of understanding proceedings so as to make a proper defence (s 613 of the Code) it follows in principle that they should be unanimous in making a finding that diminished responsibility has been established resulting in the accused person not being regarded as "of sane mind" for purposes of sentencing.

[69] Whilst it is not necessary to decide the issue, it seems to me that, if only for practical reasons, it would be permissible for a jury where they were so divided to return a verdict of manslaughter simpliciter. That would mean that the defence of diminished responsibility was not made out and the sentence would have to proceed on the basis that the accused was of sane mind. The sentencing judge would not be able in those circumstances to conclude that the accused was of diminished responsibility, and would have to sentence on some other basis.

[70] I now return to the facts of the present case. As already noted I am of the view that the learned sentencing judge was wrong in concluding that the jury verdict was not based on diminished responsibility. In the circumstances it would be impractical to order a re-trial in order to have conclusively determined the basis on which the verdict of not guilty of murder was reached. In my view the appropriate course is to treat the verdict as one based on diminished responsibility.

[71] The respondent was aged 44 and had no previous convictions. As was noted by the sentencing judge the respondent was entitled to credit for early notification of willingness to plead guilty to manslaughter. It was also noted on sentence that the respondent had "not shown any sign of remorse", but that could perhaps be explained to some extent if one accepts that the respondent suffered diminished responsibility.

[72] A sentence of seven and a half years imprisonment with a serious violent offence declaration is to my mind well within the range appropriate for the offence of manslaughter based on diminished responsibility. (See, for example, R v Dunn [1994] QCA 147; CA No 29 of 1994, 13 May 1994, and the sentences imposed at first instance in R v Locke SC No 479 of 1997, 10 September 2001, and R v Hill SC No 261 of 2001, 5 September 2001.)

[73] In the circumstances I would dismiss the appeal by the Attorney-General and refuse the respondent leave to appeal against sentence.

[74] JONES J: For the purpose of disposing of these appeals I agree with the reasons of the Chief Justice and the orders he proposes. However, because of the differences in the reasons of the other members of the Court, I consider it appropriate to express my views on the issues raised by the appeal.

[75] After a nine day trial, the jury were invited to determine whether the respondent was guilty or not guilty of murder. To find guilt it was, of course, necessary for the prosecution to satisfy the jury beyond reasonable doubt of the elements of the offence. As the respondent had already pleaded guilty to manslaughter the only element that could possibly be in contention was whether the respondent had the requisite intention, either to kill or do grievous bodily harm. Additionally, the respondent's case had raised two defences - provocation and diminished responsibility - each of which has the effect of reducing a potential finding of murder to one of manslaughter. When the respondent pleaded guilty to manslaughter he did so without stating grounds upon which the plea was made. Were the prosecution prepared to accept this plea in discharge of the indictment, it would, I expect, have been a matter of indifference to him as to the basis on which this was done.

[76] The first of these defences - provocation pursuant to s 304 of the Code - required the identification of some evidence that the respondent's act causing the death was done in the heat of passion caused by sudden provocation and before there was time for his passion to cool. It was for the prosecution to satisfy the jury beyond reasonable doubt that the defendant did not act under provocation. The second defence - diminished responsibility pursuant to s 304A - required the respondent to convince the jury, on the balance of probabilities, that when doing the acts which caused the death, he was in such a state of abnormality of mind as substantially to impair one of the relevant capacities.

[77] It was open to the jury to return a verdict of not guilty of murder based on their lack of satisfaction as to the requisite intent or, that provocation had not been excluded by the prosecution, or upon their satisfaction that the respondent had one of his aforementioned capacities substantially impaired. Members of the jury may have come to their verdict on any one of those bases and indeed some members may have been prepared to acquit on more than one such ground.

[78] The basis of the jury's verdict has no authority, and therefore no relevance, unless that basis is accepted unanimously by the jurors. As a matter of procedure the fact of that unanimity would need to be established as part of the inquiry. It is not uncommon in murder trials for a number of issues having the potential to reduce murder to manslaughter to be agitated. If any inquiry is to be made of the jury it would need to be so framed as to establish whether all such issues had been considered by the jury, and whether there was unanimity on more than one basis. If such a task is set for the jury it may require of an individual juror to deliberate beyond what was necessary for that juror to comply with his or her oath.

[79] The debate about the utility of adopting the procedure of inquiring of the jury the basis of their verdict is not a new one. In Queensland the cases have suggested that such an inquiry was a matter of discretion for the trial judge. R v Rolph[1]. In Veen v The Queen[2], Stephen J recognised the existence of such a practice in cases of manslaughter which he thought dated back to 1887. He also observed that - "[h]owever desirable it may be to know the basis for a verdict of manslaughter where alternative bases, likely variously to affect sentence, are open, that knowledge cannot be a legal prerequisite to a valid sentence."[3]

[80] In New South Wales, the question of when it is appropriate to make such an inquiry of a jury has received close consideration. In R v Isaacs[4] a five member Court of Appeal (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) came to the conclusion that such inquiry of a jury should only be made "in exceptional circumstances". In doing so, the Court of Criminal Appeal identified principles some of which because of their general application I will repeat (in abbreviated form and omitting citations). They are:-

(i) Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rests with the judge, and not with the jury: R v Harris; Kingswell v The Queen.

(ii) Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas v The Queen.

(iii) The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury.

(iv) There is no general requirement that a sentencing judge must sentence an offender on the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris.

Another of the principles enunciated in Isaacs case does not have application in Queensland by reason of s 132C of the Evidence Act 1977 which allows findings of fact adverse to the offender may, be arrived at by satisfaction on the balance of probabilities, having regard to the consequences adverse to the person being sentenced.

[81] The court in Isaacs particularly identified seven reasons for not routinely questioning a jury as to the basis upon which the verdict was founded. Included amongst these are concerns that a jury may be distracted by the request, may deliver a response which is unclear or may make a decision upon which they have not been properly addressed. Also there could well be implications if there is more than one accused or the jury fails to consider all the possible defences.

[82] The decision in Isaacs was approved by the High Court in Cheung v The Queen[5] where the principle that the facts adopted by the judge for the purposes of sentencing, must be consistent with the verdict of the jury attracted this further comment by the majority (Gleeson CJ, Gummow and Hayne JJ) at 14 [17]:-

"17. As to proposition 3, the required consistency is with the verdict, ie the decision of the jury upon the issue or issues joined for trial. It is at this point that the distinction between issues, facts relevant to an issue, and evidence, is important. Failure to observe that distinction is apt to cause confusion and error. If, as in the present case, a jury returns a general verdict upon a single count in an indictment, the resolution of issues which is express, or necessarily implied, in that verdict, is binding upon the sentencing judge. But the judge does not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that is revealed by the verdict."

In Cheung, as in these appeals, there was no request by counsel on either side for a special verdict to be taken nor was it suggested by counsel on appeal that the failure to do so constituted an error in the sentencing process.

[83] In Weininger v The Queen[6] the High Court reviewed the approach to sentencing in certain cases. The majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) stated (at 637-638 [23]-[24]):-

"Further, a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender. Some matters may be fixed by the plea or verdict of guilty although, even there, there may be ambiguities (as for example, in some homicide cases where a verdict of manslaughter is returned). Many of the matters relevant to fixing a sentence are matters which either the prosecution or the offender will draw to the attention of the sentencing judge. Some matters will remain unknown to the sentencing judge. The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open.

As was pointed out in Storey, it is important to avoid introducing "excessive subtlety and refinement" to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money."

The reference to "different standards of proof" in the above passage is modified in the Queensland setting by s 132C of the Evidence Act.

[84] I turn then to the suggestion that an inquiry ought to be made of the jury in cases of diminished responsibility because of the parallel with the defence of insanity, pursuant to s 27 of the Criminal Code. The reason, in my opinion, why an inquiry is mandated by s 647 of the Criminal Code is that the person, though acquitted of the offence, is to be dealt with in a particular way, depriving the person of his or her liberty. By contrast, a finding of diminished responsibility pursuant to s 304A results in a guilty verdict followed by a sentencing guided by the usual principles. In that event the process is no different to that applicable to a verdict of guilty of manslaughter on any other basis e.g. provocation, lack of intent, either generally or because of intoxication, or criminal neglect.

[85] Criminal responsibility is based upon a presumption of sanity. That presumption justifies the casting of the onus of proof to the contrary upon the accused person in each case. But the significant difference is in the case of insanity (deprivation of a capacity) there can be no criminal responsibility whereas for diminished responsibility (substantial impairment of a capacity) there is criminal responsibility. For one, there is no punishment and for the other there is.

[86] The mandated special verdict is an obvious necessity in the case of insanity but the only purpose a special verdict could serve in the case of diminished responsibility is to inform the sentencing process. This may be helpful in some cases, or even most cases, but I do not see any basis for holding that the making of the inquiry is obligatory in cases where diminished responsibility arises. We were referred to no case suggesting this, and for my part I am not persuaded it follows as a matter of principle.

[87] To the extent that it is desirable for a sentencing judge to know the basis upon which the jury found manslaughter rather than murder, there is often little difference in the criminality of the conduct between diminished responsibility and the other bases such as, for example - provocation.

[88] If the purpose for making the inquiry of the jury is to inform the sentencing process it does not necessarily follow that a lesser sentence will be imposed if the basis is diminished responsibility. In R v Pedder[7] Gibbs J said:-

"A person found guilty of manslaughter by reason of the provisions of s 304A of the Code is liable to imprisonment with hard labour for life. Cases of manslaughter by reason of diminished responsibility may, like other cases of manslaughter, vary greatly in their nature, and appropriate sentence may vary accordingly, but the imposition of a proper sentence is, under the Code, the responsibility of the court, not of the executive."

[89] In Isaacs (supra) the court said (at p 381):-

"The argument for the appellant advanced on this appeal appeared to assume that a case of provocation manslaughter is necessarily, or at least ordinarily, worse than a case of manslaughter by an unlawful and dangerous act. We do not accept that. Each case depends upon its own circumstances. The range of sentencing available in the case of manslaughter is notoriously wide. There have been cases where provocation manslaughter has resulted in non custodial sentences."

[90] A sentencing judge's discretion is exercised in a broad context of statutory and other considerations, many of them competing. The benefit to be gained by seeking from the jury the basis of its finding resulting in a manslaughter is not necessarily significant. The circumstances when such a finding should be sought, is a matter properly left to the trial judge whose task it is to make the relevant finding and who should determine the source of assistance required for its making.

[91] In the present case the events upon which the respondent's criminality is to be assessed are not well defined and they concern actions which occurred in a short space of time. What was objectively established was that the deceased woman suffered a blow to the head and thereafter strangulation was achieved by applying a ligature for a period considerably longer than 10 seconds. By these facts there can be inferred the level of deliberate conduct which brought about the death.

[92] Neither counsel appearing on sentence sought the adoption of any particular basis for the not guilty of murder verdict. Nor did they advance any basis upon which the plea to manslaughter was made.

[93] Counsel for each party left open the prospect that diminished responsibility remained to be considered and referred to some comparable decisions involving both diminished responsibility and provocation. His Honour's attempted rationalisation of the jury's verdict in accordance with his own view of the evidence appears to have abrogated to himself the jury function. That, whilst not diminishing the right of a primary judge to find the facts relevant to sentencing, may well have imposed an unnecessary limitation on sentencing considerations and this results in a miscarriage of the sentencing discretion.

[94] Ultimately, it is the level of criminality of the respondent's actions which forms the basis for the penalty to be imposed. I agree with the Chief Justice, for the reasons he states, that in the circumstances of this case the starting point adopted by the learned primary judge was too low and the allowance made to take account of the plea of guilty was too high.

[95] I would therefore allow the appeal by the Attorney-General and dismiss the application by the respondent. I agree with the orders proposed by the Chief Justice.

[7] Unreported, Court of Criminal Appeal, Qld, CA No 16 of 1964, 2 May 1964

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