R v Sheedy [1999] QCA 446

When the deceased entered the applicant's room he appeared, as the learned sentencing Judge found, to have no means of inflicting any but the slightest harm on the applicant. Various witnesses heard the deceased for some time calling out for the applicant to leave him alone. The applicant set upon the deceased with a knife, stabbing him 15 times. Four of these wounds were potentially fatal and there were 11 other deep, penetrating wounds which did not harm any vital organs.

There were a number of other injuries including cuts to the deceased's face and lacerations to his skull which must have been inflicted with a blunt weapon. The learned sentencing Judge found that those skull wounds and at least one of the stab wounds were inflicted when the deceased must have been close to death, inert, and obviously incapable of resisting the applicant's attacks on him.

As well as suffering the disadvantage in combat of being drunk, naked and unarmed, the deceased was a much smaller man both in height and weight to the accused. It appeared that he lost a great deal of blood during an attack which persisted for a considerable time after it was obvious that the deceased could not possibly pose any threat to the applicant. The jury's verdict however meant that they found that the applicant's actions were not intended to cause death or grievous bodily harm.

The personal circumstances of the applicant, as was shown in a psychiatric report by Dr Fama, were that he had spent five years in the RAAF training to become a leading aircraftsman. He completed most of the requirements for qualification as an electrical fitter/mechanic. However, since that time he had suffered from social disintegration and unemployment caused by schizophrenia and aggravated by alcohol. At the time of the offence when he was aged 42 his schizophrenia was in remission. He had a minor criminal record which the Judge said was not relevant due to the seriousness of the charge.

The applicant relies particularly on a second report by

"... I can comment that this unfortunate man at the time of offence probably did have impaired judgment as a consequence of residual schizophrenia. It is likely that he was not able fully to balance his response to the alleged attack by the victim by an appropriate attempt at non-lethal resistance. Although not deluded he would, I think, have been over sensitive to threat. It is not easy to prove but in general some 14 years of so of psychosis and alcoholism must be reckoned to produce that kind of impairment."

"While I take it into account I do not give it much weight because there are many people in the community who, while not mentally ill, are by reason of experiences and personalities overly prone to aggression or over sensitive to perceived threats. It is, I think, a slight explanation for what you did."

In my view however it constitutes more than a slight explanation particularly when there is such a gross over reaction in someone with no real history of violence.

Dr Fama noted in his interview with the applicant that he did on one occasion become a little vague and odd in his thinking referring to what, to him, was the reality of Satan who he said has a lot of children. After he was detained on remand there was a report in his medical file that he had a transient belief that correctional officers would enter his cell and hang him with television cords. Otherwise his behaviour in custody had been quite normal.

When admitted to the Princess Alexandra Hospital some years earlier he had scrawled messages on the wall of his room about God and Satan and had threatened to stab his girlfriend.

In his second report Dr Fama had additional material of clinical records of treatment in New South Wales which showed that he had suffered from paranoid schizophrenia with a history of symptoms since about 1983 and had become an alcoholic.

It would appear then that the lack of proportionality in the response of the applicant to the forced entry into his room in the early hours of the morning by a drunkard, naked, unarmed man was probably because of his impaired judgment as a consequence of his residual schizophrenia. There is, I should say, no suggestion however that he was not fit for trial or had a defence under section 27 or section 304A of the Criminal Code.

Manslaughter is, of course, an offence in which particular circumstances vary so much that it is difficult and as the Court of the Appeal said in R v. Whiting, ex parte

Attorney-General [1994] QCA 425; [1995] 2 QdR 199 at 202, perhaps undesirable to try to generalise in advance about the appropriate sentence to be imposed. The appropriate range in a case such as this may be deduced from cases such as

R v. Whannell (CA No 193 of 1992), R v. Stafford (CA No 503 of 1995), R v. Golding (CA No 265 of 1996), R v. Cowburn

(CA No 135 of 1993), R v. Miguel (CA No 351 of 1994) and

In R v. Whannell, the deceased and Whannell had previously argued. The deceased came to Whannell's flat and forced the front door off its tracks and entered the flat. Whannell, who was a butcher by trade, held up a knife and steel to discourage the deceased from attacking. Whannell struck the deceased with the steel but the deceased grabbed Whannell and punched him to the face and head on the floor.

Whannell then struck the deceased causing two large wounds; one to the chest and the other to the thigh. The fatal wound was to the thigh. Whannell's sentence of 10 years' imprisonment was reduced to eight years on appeal.

In R v. Golding, Golding and the accused lived together in a flat. After an argument Golding was told to move out. The deceased attempted to physically manhandle him out of the flat. Golding produced a knife and stabbed the deceased nine times into the heart, deep into the skull and in the back. A sentence of eight years' imprisonment was not interfered with.

In R v. Stafford, the deceased and Stafford, who was 18, argued at a party in the kitchen of Stafford's house. Stafford went and picked up a knife and stabbed the deceased who was unarmed. The single stab wound killed the deceased. The sentencing Judge described the case as a savage stabbing of an unarmed victim. A sentence of nine years' imprisonment was not interfered with.

In R v. Miguel, the applicant was convicted of the manslaughter of his de facto wife. He killed her in the presence of their two young children. The killing was brutal and cold blooded and involved the use of a sharpened hunting knife with which he had stabbed the deceased five times with considerable force. The killing was premeditated but because the applicant suffered from a depressive illness the jury found manslaughter rather than murder. A sentence of 12 years was not interfered with on appeal.

In R v. Cowburn, a sentence of 12 years' imprisonment with a recommendation of parole after eight years was not interfered with. In that case the applicant was tried for murder along with a co-accused. Both were convicted of manslaughter resulting from the savage beating of the deceased who was in bed and apparently asleep at the time.

The applicant armed himself with a large and heavy piece of wood and put gloves on so as not to leave fingerprints. The co-accused was armed with a shifting spanner. During the assault the co-accused dropped the spanner which was retrieved by the applicant and used to hit the deceased on the head three or four times. The deceased was left for dead and the two accused disposed of the gloves and weapon in a weir.

In R v. Moors the applicant was convicted of manslaughter. The applicant was living alone on a property near Ravenshoe on which he had a small marijuana crop. In the afternoon of 15 January 1992 three men travelling in a utility 4-wheel drive vehicle visited the property while the applicant was absent. He returned to observe them walking in the vicinity of his house. He thought they were looking for his marijuana plants. Stealing of such plants is apparently not uncommon in the area.

When they moved away from the vicinity of his house, he went inside and obtained an SKS assault rifle and ammunition, earmuffs and possibly a telescopic sight. An SKS assault rifle is a high-powered semi-automatic military assault rifle which fires bullets with full metal jackets capable of penetrating metal. It is a rifle designed for killing people or large animals at quite substantial distances.

Having obtained the rifle, the applicant secreted himself in a bush near the vehicle and waited for the men to return to it. They did so and, as the vehicle drove away, the applicant, aiming at the tyres of the vehicle, fired two shots one at least of which shot out a tyre. The applicant fired a volley of at least a further 12 shots at the vehicle. He claimed to be quite a good shot. One of them pierced the metal of the truck and killed one of its occupants. When it was fired, the vehicle was still less than 50 metres away. It was then outside the applicant's property.

There was no suggestion in that case that there was any immediate emergency or that the occupants of the vehicle were threatening the applicant in any way. The sentence of 11 years' imprisonment was not disturbed on appeal. That is clearly a more serious case than the present case.

Taking into account particularly the sentence of nine years' imprisonment in Stafford, which is a slightly less serious case, and the sentence of eleven years' imprisonment in Moors, which is a slightly more serious case, the appropriate sentence falls between those two. The sentence in this case of twelve years' imprisonment is therefore manifestly excessive. I would allow the appeal to the extent only of varying the sentence of imprisonment from 12 years to 10 years.

THOMAS JA: I agree. The dominant factor that persuades me to interfere is that, having regard to sentencing patterns and particularly to the cases of Stafford and Moors to which Justice Atkinson has referred, the correct level of sentence would seem to be 10 years. There is a sufficient disparity between that figure and the sentence imposed to call for correction. I agree in the order proposed.

1. The application for leave to appeal is granted.
2. The appeal is allowed.
3. The sentence is varied by deleting "12 years' imprisonment" and substituting "10 years' imprisonment"; otherwise the sentence is confirmed.

There will be a short adjournment whilst the Court reconstitutes for the next matter.