Court of Appeal (Qld)|2000-05-03|Before: Murdo P, Pherson JA, MacKenzie J

The applicant said he had not seen her all day. A search was conducted at the applicant's house on Sunday 26 July 1998, and the applicant was then driven back to the police station. In the course of the journey, the applicant said "I did it". The conversation that followed was tape-recorded.

The applicant recounted the events which he said had happened, and which, according to him, were that the deceased had arrived on the Friday morning and had come in under his house. In the course of what was said between them after that, she told the applicant, or so he said, that he would never see Cara again. He hit her a single blow with his fist. She fell and hit her head on the concrete floor and died.

Having at the trial listened to the evidence and seen the video tape-recordings of the applicant's interviews with the police, the learned sentencing Judge concluded that the applicant had not been telling the truth, either about what happened or, as I understand it, at all.

It is my view that his Honour was entitled to form the impression that the applicant had not been a truthful witness, having regard to what his Honour saw and heard of the evidence at the trial.

The learned Judge concluded that the applicant's representation to the deceased about the plan to exchange cars was simply a ruse to get her round to his place where, as his Honour saw it, he intended to do her harm of some kind.

The Judge did not accept the applicant's account that the statement about Cara had been made by the deceased and his Honour said that he made no finding in the end as to how the applicant had killed the deceased. He was consequently left only with the verdict of the jury as a basis for his sentencing. It must have involved on any view of it, at least the conclusion that the killing was one that imported an intention to cause some injury to the deceased, even if the injury fell short of an intention to kill or do grievous bodily harm.

His Honour accepted that the range of sentence for a killing involving manslaughter of this kind was in the order of eight to eleven years' imprisonment. The applicant was 43 years old. He had been in the Navy for some ten years and had no criminal history, but he had shown no signs of remorse.

Although before trial he had offered to plead to manslaughter, when the Crown did not accept that plea he pleaded not guilty to both murder and manslaughter when arraigned.

The submission before us is, essentially, that not knowing what the circumstances were the learned Judge was bound to accept a view of the events which was most favourable to the applicant. I do not consider that this is the result as it is to be seen when it comes to us in this Court.

The applicant has, by his untruthfulness or his silence, left the circumstances of the killing completely unexplained by any form of reliable evidence in a case that is fairly described as thread-bare in terms of facts or circumstances.

It seems to me that the proper, and perhaps the only course on appeal, is to ask ourselves this. First, whether the sentence imposed was within the range in terms of duration. To my mind there can be only one answer to that question. A sentence of imprisonment of from eight to eleven years is within the range for offences of manslaughter. It is for the applicant to establish that the discretion has been exercised in such a way as to demonstrate that the sentence is excessive. Because of the dearth of facts with which we are confronted, I do not regard the applicant as being able to establish that.

One should then, in my view, look, secondly on appeal at the question of whether there are any mitigating factors. The offer to plead guilty, which was not carried into effect by making a plea of guilty at the trial to the offence of manslaughter, does not seem to me to qualify as a mitigating factor under this heading. See, for example, R v Clarke, ex parte Attorney-General [1999] QCA 428, which in some ways resembles this case.

In addition to this, it is right to point out that the applicant has no prior convictions or criminal history of any kind. That, however, is in my experience, frequently the case in relation to manslaughter convictions.

The third factor to be considered on the appeal is whether there are any aggravating circumstances which might go to support a sentence at the higher end of the range. Among the facts that I would classify under that heading are that the applicant disposed of the body, or says he did, in such a way that it was and is not possible to determine what precisely was the cause of death, or how he brought it about. Having regard to the fact that he confessed to having killed her, there would not seem to have been any disadvantage to him if he had reported the death before attempting to dispose of the body if his story, which was not accepted by the Judge, was true.

What one is left with then is a straightforward killing without any suggestion that there was any justification or excuse for what was done. The case is not like others to which we were referred where there was some degree of provocation in the conduct of the person who was ultimately killed.

It is not a case of a domestic argument that went astray. The suggestion or evidence to the effect that it was the threat not to let the applicant see Cara again that prompted his action was not accepted by the Judge, with the result that we are left without even that factor as one which might be considered as explaining or (if that is possible) mitigating the offence that he committed.

The consequences of his action have been serious for those concerned. Not only is his former wife dead, but a number of people have suffered whose victim impact statements can be seen in the record. In particular, the little girl Cara who was only about ten when this happened, has been orphaned by the action of the applicant; and, according to reports which we are given, it has proved very difficult for her to come to terms with the loss of her mother. There is a rather moving statement from her of her problems and her longing to see her mother again.

In all the circumstances and in particular because there is, as I see it, nothing in the material before us to demonstrate that the sentencing discretion miscarried, or that the sentence was obviously excessive, I consider that we are bound in accordance with the principles on which we act in this Court to dismiss the application for leave to appeal, and I would do so.

THE PRESIDENT: I agree. The learned sentencing Judge was entitled to sentence the applicant on the following facts. The applicant killed the deceased in circumstances where their marriage had broken down acrimoniously. Aspects of their relationship were still in dispute in the Family Court. The deceased had formed a new relationship and did not wish to continue her relationship with the applicant.

The applicant invited the deceased to his home through a false claim in order to do her some sort of harm. The killing was done without an intention to kill or to do grievous bodily harm but was not done under provocation. The applicant showed no remorse nor did he place any mitigating factors before the sentencing Court other than his lack of prior criminal history.

The death of the deceased has, as one would expect, had a significant impact on her family, especially her 10 year old daughter for whom she was a sole parent. The comparable cases set out in R v. Babsek ex parte Attorney-General, CA No 213 of 1999, 7 September 1999, establish that the range in cases such as this, where a partner or former partner is killed in the context of the breakdown of a relationship with very limited mitigating factors, is a term of imprisonment from eight to eleven years. General deterrence is a very significant factor in such cases.

Although the sentence of eleven years was high bearing in mind the applicant's lack of prior convictions, I am not persuaded it was manifestly excessive. I too would refuse the application for leave to appeal.

MACKENZIE J: I have the misfortune to disagree with the majority view in this matter. I accept the facts and antecedents as stated by Mr Justice McPherson. The facts of the matter were that the accused gave evidence which included a version of how the killing happened which the trial Judge rejected for reasons that he explained and are really not capable of being attacked. However, once that version of events is rejected, the situation is in my view that there is an absence of a clear factual base for sentencing, subject to the question of what inferences can be properly drawn to the required standard from other facts which have been proved. The issue it seems to me is whether it was open to the learned sentencing Judge to impose the sentence of eleven years on the substratum of material which remained after he rejected the applicant's version.

So far as the material from which inferences might be drawn is concerned, the applicant gave a version of the incident which involved some remarks being made by his wife concerning his future access to the daughter and that caused him to punch her once as a result of which the deceased woman died.

That version was rejected by the sentencing Judge. There is also the disposal of the body. However, standing alone, it seems to me that that is something which is equivocal and, standing alone, would not lead to any particular inference.

There is also, however, some evidence that the reason why the meeting had been arranged was not intended to be fulfilled by the applicant in that he did not have the vehicle there at the time to swap for the vehicle which the deceased woman at that time had.

That, even taken together with the other matters, in my view, is a slender basis for drawing any particular conclusion as to how the killing happened.

There is also the fact that the applicant proffered no other information about the circumstances of the offence which, in the circumstances, is explicable on the basis that he had given a version which was rejected.

It then becomes a question of what inference can be properly drawn from those circumstances, but that only becomes of importance if the sentence is not within the range for manslaughter without particular aggravating circumstances being established.

In my view, this case is unlike a number of the cases to which reference was made where an account is given and rejected, in that those are all cases where there is physical evidence or other evidence which disproves the account given by the accused with sufficient cogency. I do not think that this is that sort of case because, as I have said, it seems to me that the circumstantial material from which inferences concerning the circumstances of the killing may be drawn is insufficient to reach the required standard.

The result may be that in a case like this, an accused who remains silent as to the circumstances of an unlawful killing will receive a lesser sentence than a person who is frank. The particular circumstances of this case may well invoke little sympathy for the applicant having regard to the drastic consequences which it led to and which have been referred to by Mr Justice McPherson. However, in my view, that is simply the result of the way the system works.

For manslaughter where there are no sufficiently established aggravating circumstances I would have thought that 11 years was beyond range and that where the person had no previous convictions a sentence of the order of seven years would have been appropriate. This does not involve a reversion to the heresy in Green which, in my view, has been cogently rebutted in Whiting.

In the circumstances, I would have proposed that leave be granted and that a sentence of seven years imprisonment be substituted for the sentence of eleven years.

THE PRESIDENT: The order is the application for leave to appeal is refused.

THE QUEEN v KEVIN JOHN BAGGOTT [2000] QCA 153 (3 May 2000)

THE QUEEN v KEVIN JOHN BAGGOTT [2000] QCA 153

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THE QUEEN v KEVIN JOHN BAGGOTT [2000] QCA 153 (3 May 2000)