R v Simeon [2000] QCA 470

**[1] THE COURT: This is an application for leave to appeal against sentence. The applicant, then aged 27, attacked another man at a party because he thought that the victim struck the applicant's son. The applicant pleaded guilty to manslaughter and was sentenced to 7 years and 6 months imprisonment.

[2] The killing took place at a birthday party which had been in progress for about 8 hours, the party being one attended mainly by members of the Maori community; the applicant is of Maori descent. Hearing that a man named Clark had struck his son, the applicant accused Clark of that and, according to the applicant's statement to the police, Clark admitted having hit the boy. But it is common ground that Clark did not in fact do so. Perhaps the applicant misunderstood what Clark, who was very drunk, said in response to the applicant's accusation.

[3] The applicant head-butted, punched and kicked Clark. At the end of the attack he was seen leaning over Clark (who was then on the ground) punching him in the face; then he was pulled off. Clark's heartbeat and breathing ceased before the ambulance left and he was declared dead on arrival at hospital. The cause of the death was said to be probably a blow below and behind the right ear, where there was extensive bruising to the muscle; this caused a type of subarachnoid bleeding, which means bleeding in one of the membranes covering the brain.

[4] Although one would tend to assume that, to cause death, the blow behind the ear must have been a very heavy one, the prosecutor explained to the judge that medical opinion was that the force applied was only moderate; it appears that no great force was necessary, particularly in the case of a heavily intoxicated victim, to produce the result which ensued.

[5] The applicant had a good previous record, including meritorious service in the New Zealand armed forces. He was in a de facto relationship which had produced children. A psychiatric report was tendered which said that the applicant has experienced great remorse and this does not appear to be in dispute. The psychiatrist also says that as a result of the victim's death and related circumstances the applicant became very depressed. On the other hand, the victim impact statement produced before the learned sentencing judge showed that there was what the judge described as "enormous ... permanent hurt and distress to [the victim's] family" and the judge said of the applicant: "you have left his young child without a father". It seems evident that the cause of the event was, at least in part, that the applicant was affected by alcohol. This is not a mitigating factor, the time being long past when drunken violence will be treated leniently on the ground that the offender was drunk.

[6] The learned judge's sentencing discussion included a description of the attack as "brutal and violent" and "directed at a man who, by reason of his heavy intoxication of alcohol, was defenceless". His Honour said: "Your attack upon him persisted after you had knocked him to the ground; it stopped only when someone interfered to drag you away". These observations were, with respect, correct. On the other hand, as his Honour pointed out, the applicant co-operated throughout the investigation, made admissions to the police, demonstrated remorse and has had a major depressive illness.

[7] The case is one in which the facts are clear. The only question of whether the sentence of 7 years and 6 months imposed was one which was manifestly excessive, by reference to sentences imposed in other, similar cases. Both sides referred to Bojovic [1999] QCA 206; CA No 4 of 1999, 8 June 1999. There a conviction of manslaughter was initially punished by a 10 year sentence with a declaration of commission of a serious violent offence, the result being that the appellant had to serve at least 8 years. The Court reduced the sentence to 8 years imprisonment, without a declaration. Bojovic, also, assaulted a man who was drunk at the time, although apparently not as drunk as the victim in the present case. There were five heavy blows which broke bones at the root of the nose and in the forehead "into many pieces" and a fracture line continued along the base of the skull. That is a difference from the present case; plainly Bojovic's assault was much more violent. Also, in the Bojovic case the victim, before the attack which caused his death, had been behaving obnoxiously and aggressively. He approached the appellant and swung a punch at him which apparently missed. There was what the Court described as an "over-reaction in the course of self-defence"; there was "immediate concern for the victim and attempts to assist him", but the attack was not persisted in after the victim had become helpless.

[8] Importantly, Bojovic had a fairly extensive criminal history including convictions for assault. Considering that criminal history, absent here, and the substantially more severe attack, the relatively small gap (6 months) between Bojovic's sentence and that given to this applicant is striking.

[9] In Tientjes, [1999] QCA 480; CA No 229 of 1999, 16 November 1999, an Attorney's appeal against sentence, a conviction of manslaughter, after a trial, produced a sentence of 4 years and 6 months imprisonment which was increased on appeal to 7 years. There the offender attacked the victim causing extensive bruising and abrasions but it appears, no fractures. There was assumed to be a single blow from the deceased to which the offender responded with a number of punches, continuing after the deceased was on the ground. One might have expected this applicant to have received no greater sentence than did Tientjes, in view of the more extensive injuries to the body in that case.

[10] In Cavazza (CA No 404 of 1986, 3 April 1987) there was what was described as a "cowardly and violent performance" by the applicant, followed by the rather callous behaviour of leaving the victim lying, obviously injured, on the footpath. The manslaughter was committed in the course of a fight between the applicant, a man who was older and less formidable; a 6 year sentence was imposed and upheld, though described as being "towards the lower end of the range". Cavazza was the aggressor, but had previously led an exemplary life. The sentence imposed on Cavazza gives a little but not decisive support to the contention that 7½ years was too great for the present offence, particularly if one keeps in mind that under the Penalties and Sentences Act 1992, in its present form, offences of violence are to be particularly discouraged by the courts. However, Cavazza was, on appeal, successful to the extent that a recommendation of consideration for parole after 18 months was added.

[11] Apart from the sentences briefly discussed above, we have had reference to a useful schedule produced by the Crown and to a number of other authorities. We have reached the conclusion that the head sentence, although by no means a light one in the circumstances, cannot properly be reduced. A more difficult problem is raised by the lack of any parole recommendation. The applicant's reaction to the crime appears to have been an unusually guilt-stricken one, resulting in what was described as a depressive illness. On the doctor's account he was overcome by remorse. While the 7 year and 6 month sentence should stand, in our opinion the lack of any recommendation for consideration of early parole gives insufficient weight to circumstances extrinsic to the offence, including those just mentioned and the good previous record.

[12] We would grant the application and allow the appeal to the extent of adding a recommendation that the applicant be considered for parole after having served 2 years and 9 months.**