Blight v Attorney-General of Queensland

[1999] QCA 346

99.346

COURT OF APPEAL

McMURDO P PINCUS JA THOMAS JA

CA No 174 of 1999
THE QUEEN
v.

ROBERT DARRYL BLIGHT	Respondent
and
THE ATTORNEY-GENERAL OF QUEENSLAND	Applicant
BRISBANE
..DATE 20/08/99
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PINCUS JA: This is an appeal by the Attorney-General in
which the appellant submits that the sentence imposed on
the respondent Mr Blight was too lenient. The sentence
attacked is one of six years with a recommendation for parole after two years for an offence described in the indictment as follows:
"That on the second day of November, 1998 at Woodridge

in the State of Queensland, Robert Darryl Blight
with intent to do some grievous bodily harm to
another, put an explosive substance in a place,
namely the foyer of the Logan police station."

The offence as charged is one created by section 317(b) and (j) of the Criminal Code.

The learned primary Judge said:
"Although you have pleaded guilty to a Section 317

charge, your counsel says that you only threatened to kill yourself; you were not threatening to kill police at the police station."

The Judge then referred to a psychiatric report which
(his Honour said) sets out that:

"You actually attempted to carry out the threats at the

police station."

In that report the doctor said that on the occasion in question the respondent was "giving a message to both the police, as representatives of authority figures in our society as to how much he needed control of the anger and infuriation that he felt at the time".

I cannot find in the report anything which corresponds
to the Judge's reference to it which I have quoted.
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The Judge later said:

"[T]he reality is in your case that you were really

attempting to bring attention to your cause without
necessarily threatening harm to others, although it
would have been frightening for the police officers
concerned at that stage and the necessary intent
was part of the section 317 to which you have
pleaded. You were not attempting to light the
device, but rather threatening your own life with
one of the guns, on the submissions which I find in
the present case. I accept those submissions
before me by both the Crown and defence as to what
was actually occurring. Your original intent was
conceded as part of your plea."

The facts, so far as it is necessary to explain them, were that the respondent went to the police station with a briefcase containing an explosive device and also containing some homemade guns. The information before the Court did not suggest that at any stage the respondent attempted to set the explosive device off, although he could have done so. He did however have a struggle with the police relating with the four homemade guns and it apparently occurred at a time when, so the material before the Judge suggested, he had in mind to shoot himself.

There was some evidence available which might have been relied on by the Crown, it appears, to prove the necessary intent, but submissions by counsel for the defence below were to the general effect that the intent did not exist at the relevant time.

The view which the Judge took was described in argument
before us as, in effect, a compromise in an area where
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there was no room for compromise; that is, either there
was the necessary intent which the count alleged, namely
an attempt to do grievous bodily harm, or there was not.

What counsel for the defence said, in effect, below was

that the plea of guilty was entered because of an
apprehension that the jury might convict, although the
submissions made were inconsistent with the existence of
the intention.

The Judge at one stage misapprehended the facts, with respect, when his Honour said that the more serious offence involved four homemade devices consisting of pipes which could be fired as guns strapped together containing some gunpowder, threatening with a loaded firearm, a bomb, or stick of explosive. His Honour seems to have thought that there was one device which consisted of guns plus explosive. In fact there were two devices and the device which the Crown was relying on was not the one with the guns in it.

However the misapprehension, as it appears, with respect to the facts is not the principal difficulty in the case. It is simply that, although there was a plea of guilty, the submissions which were made were to the effect that there was in truth no guilt and the Judge said that he accepted those submissions.

The sentencing process therefore seems to have
miscarried. It is conceded that the sentencing Judge
had power to and perhaps should in this case have
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considered whether or not to accept the plea, in view of
the submissions made.
It is not contended by either side that this Court
should attempt to deal with the matter. The submission
made by
Mr Byrne QC on behalf of the Attorney is that the Court
should set aside the sentence and remit the matter to
the District Court to be reheard, and that course is not
opposed by
Ms McGinness, who appears for the respondent.

I would add that it is necessary to stress that in making the remarks which I have made, I do not intend to convey either that the plea should be accepted or that it should be rejected. But I do express doubt as to whether it was proper to accept the plea on the basis of the information which the primary Judge had before him at the hearing to which I have referred. It may be that at a further hearing other information which would be placed before the Court would justify acceptance of the plea.

Therefore the orders which I would propose are as follows: that the appeal be allowed; that the sentence imposed below in respect of count number 2, the charge under section 317(b) and (j), be set aside and that the matter be remitted to the District Court to enable the question of sentence to be reconsidered by a Judge, other than the Judge from whom this appeal is brought. 200899 T19/BP17 M/T COA200/99

THE PRESIDENT: I agree with the proposed orders made by

Mr Justice Pincus and with his reasons.

THOMAS JA: I also agree.

THE PRESIDENT: The orders are as proposed by Mr Justice
Pincus.