R v Stepto [2002] QCA 10

Court of Appeal (Qld)|2002-02-04|Before: Murdo P, Thomas JA, Ambrose J

AMBROSE J: This is an application for leave to appeal against a sentence of 10 years imprisonment imposed upon the applicant when he pleaded guilty to a charge of manslaughter. The sentence was imposed on 10 November 1998 and the offence was committed on 26 July 1997. At the time of the imposition of the sentence the applicant was aged 60 years and had been held in custody in respect of this offence for a period of one year and 19 weeks.

The applicant had a criminal history, the most significant offence being one for arson in 1983. That offence was committed against a background of domestic disputation.

The applicant had been sharing a flat with a man he had met a short time previously. Both men were addicted to alcohol and at about 2 p.m. on the date of the offence an argument developed concerning the deceased man's failing to use money that the applicant was giving him to pay rent, to pay that money to the landlady.

The applicant had made a complaint to the landlady or had a discussion with her and she related that complaint to the deceased, who became very annoyed and the facts upon which the applicant was sentenced were that the deceased attacked him threatening to kill him and the applicant, fearing for his life, picked up a tomahawk that was lying on the floor of the flat that they occupied together and struck him on the back of the head with it on a number of occasions - between five occasions and 11 occasions.

Very significant damage was done to the deceased man, of course. There was a lot of blood left on the ceiling and walls and the floor of the unit where the deceased was killed. The applicant then made efforts to clean up the flat and himself and he took the car owned by the deceased to some hotels where he was seen and then told the investigating police officers that he had been there drinking and that somebody else, in effect, must have killed the deceased man.

Both the applicant and the deceased, as I have indicated, had endured long periods of alcoholism. The deceased's history is one of a life-long struggle - well, almost a life-long struggle - with his addiction to alcohol. The Crown, in the circumstances, accepted a plea of guilty to manslaughter on the basis that the accused had overreacted to the threat to his life that he had received and that the killing was not intended to result in the death of or grievous bodily harm to the deceased and was based upon, to no small extent, I think, the fact that applicant had a significant alcohol problem of many years standing.

The learned sentencing Judge - it was a plea of guilty, I might add - in imposing a sentence of 10 years' imprisonment observed that the very crucial element of intent on the murder charge which was then pending, but which was later nollied, would not be easy to establish and he referred to the fact that the applicant had been seriously affected by alcoholism and he referred to the fact that the applicant was on an invalid pension because of his alcoholic problems at the time of the offence.

His Honour, in his sentencing remarks, referred to remorse that the applicant may have exhibited by pleading guilty at a late stage. He observed that, having regard to the age of the applicant, he was conscious of the effect on him of a long sentence. At the time of the offence he had been

And his Honour said that the applicant must be sentenced to a term of imprisonment. He took into account that he had pleaded guilty and having expressed his reluctance to send the applicant to prison for a long period, having regard to his age, said that, having regard to the gravity of the offence, he must do that.

He imposed a sentence of imprisonment of 10 years and declared that the 498 days spent in pre-sentence custody must be deemed to have been part of the sentence served. Neither counsel, in the course of their submissions, referred to the provisions of Part 9A of the Penalties and Sentences Act. Under the provisions of Part 9A eligibility to apply for parole upon imposition of a sentence for 10 years is postponed until eight years of that sentence has been served.

Both counsel upon sentence agreed that the appropriate range of sentence in this case was between 10 and 12 years. Part 9A had not been in force for a long period of time and it is my view that the likelihood is that counsel and the learned sentencing Judge simply overlooked that provision.

There have been a number of cases where sentences of

10 years, perhaps more, have been imposed for manslaughter charges before Part 9A came into effect. Before that section became operational a 10 year sentence would result in a person so sentenced becoming eligible for parole after five years.

It is clear, having regard to what was said in The Queen v. Bojovic, which is reported in [2000] 2 Queensland Reports at 183 and particularly at page 188 and 189, that one must take into account when determining a sentence appropriate for an offence to which Part 9A applies, what the appropriate penalty should be. This involves taking into account that if a sentence of 10 years is imposed or a sentence of less than 10 years is imposed with a declaration made pursuant to section 161B(3) in Part 9A, in determining whether the sentence is manifestly excessive, one looks at - among other things - the date when the offender will become eligible for parole. That is simply one of the incidents of the application of Part 9A to a sentence of imprisonment.

A number of comparable sentences have been referred to. Some of them precede the advent of Part 9A of the Penalties and Sentences Act which in the circumstances I find of little assistance in determining what an appropriate sentence would be in this case.

To succeed the applicant must show that the sentence imposed was manifestly excessive. In this case I am persuaded that more probably than not, all parties to the sentencing process overlooked the fact that Part 9A of the Penalties and Sentences Act did apply at that time. Keeping that in mind, in my view, the sentence imposed was manifestly excessive. In my view an appropriate sentence was one which would make the applicant eligible for release upon parole at an earlier time than eight years after the commencement of sentence.

In my view an appropriate penalty, having regard, among other things, to the sentence actually imposed in Bojovic, would be one of nine years. An extension of time within which to apply for leave to appeal was granted by this Court on 17 October 2001.

I would grant leave to appeal. I would set aside the sentence of 10 years. In lieu I would impose a sentence of nine years imprisonment. That will have the effect that, in the absence of any declaration under s 161B(3) of the Penalties and Sentences Act made with respect to that sentence (which the Crown does not seek), the applicant will become eligible for parole after serving four and a half years of that sentence.

THE PRESIDENT: I agree. There is nothing in the appeal record to suggest the learned sentencing Judge was informed that a sentence of 10 years imprisonment would have the result in this case of a declaration under Part 9A Penalties and Sentences Act 1992 (Qld). His Honour made no such declaration as he was required to do under the Act; the absence of that declaration also supports the conclusion that his attention was not brought to the provisions of 9A.

The correct approach to sentencing in cases where Part 9A can or does have application are set out in R v. Bojovic [1999] QCA 206; [2000] 2 QdR 183; they were not followed in this case. The Judge, in my view, erred and this Court must exercise its sentencing discretion afresh.

The learned sentencing Judge believed he was sentencing at the lower end of the sentencing range and said this in his sentencing remarks. Comparable sentences relied upon by

the applicant especially R v. Whannell CA No 193 of 1992,

20 August 1992 and R v. Bojovic [1999] QCA 206; [2000] 2 QdR 183 suggest that the sentence imposed, and indeed the range submitted as the appropriate range by both counsel below, was too high.

I further note that no comparable sentences were placed before the sentencing Judge to assist him in sentencing.

I agree that the appropriate sentence to impose in this case is one of nine years' imprisonment and that, in all the circumstances outlined by Mr Justice Ambrose and as conceded by the respondent, no declaration under Part 9A was warranted in this case. I agree with the orders proposed by Mr Justice Ambrose.

THOMAS JA: I agree with the remarks of the other members of the Court and with the order that is proposed.

THE PRESIDENT: The order is the application for leave to appeal against sentence is granted, the appeal is allowed, the sentence of ten years' imprisonment is set aside and a sentence of nine years' imprisonment is substituted.

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