Brown v the Queen
[1987] TASSC 27
•27 March 1987
TASSC A15/1987
CITATION: Brown v The Queen [1987] TASSC 27; A15/1987
PARTIES: BROWN
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CA 43/986
DELIVERED ON: 27 March 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Green CJ, Nettlefold and Wright JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: TASSC A15/1987
Number of paragraphs: 21
Serial No A15/1987
File No CA 43/1986
BROWN v THE QUEEN
COURT OF CRIMINAL APPEAL COURT OF CRIMINAL APPEAL
GREEN CJ (Dissenting in part)
NETTLEFOLD J
WRIGHT J
27 March 1987
Orders of the Court:
Appeal against conviction dismissed.
Application for leave to appeal against sentence dismissed.
Serial No A15/1987
File No CA 43/1986
BROWN v THE QUEEN
COURT OF CRIMINAL APPEAL GREEN CJ
27 March 1987
The appellant was charged with two counts of attempted murder, one count of wounding and one count of causing grievous bodily harm. He was acquitted of the two counts of attempted murder, but was found guilty of the other two crimes and sentenced to four years imprisonment.
This is an appeal against the appellant's conviction for causing grievous bodily harm and an application for leave to appeal against sentence. I shall deal first with the appeal against conviction.
The charges arose out of an incident which occurred on 19 October 1985 at a house near Scottsdale in which the complainant, Kevin Smith, lived. The appellant called at the house and unexpectedly discovered that as well as Smith, his wife, from whom he was estranged, was also there. The appellant left the house saying that he was going to shoot himself. He drove to his house and returned to Smith's house with a .22 calibre rifle and some ammunition. Whilst he was still outside the house the appellant saw the complainant and his wife in the lounge room. He fired the rifle through the window, wounding his wife in the wrist and causing an injury to her chest. There were conflicts in the evidence as to what happened then, but the version most favourable to the appellant was that at some time after shooting his wife the appellant turned away to reload the rifle with the intention of shooting himself, whereupon Smith shot at him and the appellant swung round and fired a shot without aiming and hit Smith in the chest.
The grounds of appeal are as follows:
"2 THAT the learned trial judge erred in law in his direction to the jury as to what constitutes a 'provoked' assault within the meaning of Sections 46 and 47 of the Criminal Code Act 1924.
5 THAT the trial judge erred in law and in fact in directing the jury that the appellant's shooting of Mrs Brown could be found to have provoked Smith to assault the appellant by firing at him within the meaning of s46 of the Code."
During the course of his summing–up the learned trial judge gave the following directions to the jury:
"Now going back to the question of provoked assault. A may provoke B to assault him, in some circumstances, by acts which are not directed at B but are directed at a third party. For example, suppose a father is walking along a street accompanied by his son, let us say, a child. A stranger approaches and begins for some unknown reason to attack the boy with blows. Now although the blows are offered to the boy, the force thus directed at the boy would almost certainly be considered to be a provocation to the father to assault or attack the stranger; and of course the father would be entitled to defend the boy under s49. Now an assault by the father on the stranger would in those circumstances almost certainly be an assault provoked by the stranger; and thus in the present case, transferring to that, it would be open to you to find on the accused's version given in the record of interview that the accused by shooting at and wounding Mrs Brown, who was in Smith's house and might be considered to be under the protection of Smith to some extent at least, was a provocation to Smith to assault the accused in defence of Mrs Brown. On that version therefore it might be found that Smith's firing the rifle at the accused would bring into play the provisions of the Code relating to self–defence against provoked assault. So, just pausing there, what I have said in summary is that on the record of interview version you might well consider that self–defence against provoked assault is an issue which arises and has to be considered."
The appellant's primary submission was that the direction that "A may provoke B to assault him, in some circumstances, by acts which are not directed at B but are directed at a third party" was erroneous. The submission was initially obscured by references to the meaning of the phrase "provoked an assault" in s47(1), whereas the question is whether the appellant could avail himself of the defence provided by s46(1) and that in turn depends upon the scope and application of the phrase "not having provoked such an assault" appearing in that subsection and not upon the construction of s47(1).
I reject that submission. Counsel cited no authority in support of it and there is nothing in s46(1) which supports the proposition that as a matter of law an assault which has been provoked by an act which is directed at or which is done in relation to a person other than the person who commits the assault, is not capable of constituting a provoked assault for the purpose of that subsection.
Although the question of whether an accused person has provoked an assault is for the jury, it may be that there are some limitations upon the class of acts which are capable of constituting provocation for the purposes of s46(1). Thus, for example, it might be the case that an assault committed in response to the accused's acts by a person who had no relationship of any kind with the person against whom the accused's acts were directed, or who was not present when those acts were committed, could not, as a matter of law, be regarded as having been provoked by those acts of the accused. If that is so, and I express no concluded view about the matter, then, in an appropriate case, a direction as to what those limitations are might be called for. However, in the instant case, on no version of the evidence could this be said to have been such a case and no direction beyond that which was given was called for.
I reject counsel's submission made in the alternative that even if the learned trial judge's direction was correct there was no evidence that Smith was in fact provoked by the accused's act of shooting his wife. Notwithstanding the absence of an explicit assertion by Smith that he was provoked, it could not be said that it was not lawfully open to the jury to draw an inference that he was. The appeal against conviction should be dismissed.
The grounds of the application for leave to appeal against sentence are as follows:
"3 THAT his Honour erred in law in imposing a sentence which was manifestly excessive.
4 THAT his Honour erred in law and in fact in imposing sentence on the basis of facts inconsistent with the verdict."
Ground 4 as drawn cannot be sustained. None of the learned trial judge's findings of fact were inconsistent with any findings which were necessarily implied by the verdict. Counsel for the applicant also submitted that the learned trial judge made two errors of fact when he made the following findings:
"I am satisfied of the truth of the evidence of a number of witnesses that Mrs Brown was holding her left arm in front of her chest area at the time you fired and was not, as you said in your evidence, extending it along the arm of the chair. Having fired and injured your wife in this way you then left the house for a short period, but shortly afterwards you returned, again with a loaded .22 rifle and this time you fired it at or in the direction of Smith."
I do not regard counsel's submission that it was not correct to say that the evidence of "a number of witnesses" supported the finding in the first sentence as having any substance because the material point is that there was evidence which was capable of supporting the finding itself.
Counsel also submitted that the learned trial judge erred in finding that the applicant left the house between the occasions when he fired the two shots. The evidence was not clear but, in my view, there was evidence which was capable of supporting the inference that he left the house between the shots. But, in any event, whether or not the applicant left the house was of little significance. The material finding was that some period of time elapsed between the shots. I turn to ground 3.
At the time when he was sentenced the applicant had been in custody for a period in excess of six months, most of which was spent as an ordinary prisoner rather than as a prisoner on remand. As the learned trial judge made no order as to when the sentence was to take effect, the practical effect of the sentence is that the applicant will be liable to serve a term of 4½ years imprisonment.
I have considered the range of sentences which have been imposed in this State for breaches of s172 of the Code in recent years. In my view, a sentence of 4½ years imprisonment for these two crimes was well outside the range of sentences which are usually imposed for breaches of s172. In making that observation I am not purporting to suggest that there exists any rigid sentencing standard for the crimes created by s172, nor am I intending to depart from the principle that the primary duty of a court is to impose a sentence which is appropriate in the light of the particular circumstances of the offence and of the offender. However, due recognition must also be given to the desirability of consistency in sentencing and to the general principle that like cases ought to be treated alike and therefore, although it should not dominate the exercise of the sentencing discretion, regard must be had to the general range of sentences which are usually imposed for a particular crime. In my view, neither the facts nor the trial judge's findings were such as to support the conclusion that these crimes or the applicant's circumstances were such as to justify the imposition of sentences which were well outside the usual range.
Although a lethal weapon was used and there was a risk of death or serious injury, it must be kept in mind that the applicant was convicted of breaches of s172 of the Code, but was acquitted of attempted murder and was not convicted of the more serious crime created by s170 which, unlike the crimes created by s172, requires proof of a specific intent to, inter alia, maim, disfigure, disable or do grievous bodily harm. It follows that the learned trial judge's finding that the applicant intended "at least" to wound the complainant Smith, cannot be construed as meaning that the applicant might have intended to maim, disfigure, disable or do grievous bodily harm to the complainant Smith because that would have resulted in him being sentenced for a crime of which he had not been convicted. Other relevant considerations are as follows: although this would not have been an appropriate case in which to have sentenced the applicant as if both shootings virtually comprised a single criminal act, the sentences should have reflected the fact that the crimes arose out of what could be regarded as a single, or, at least, two very closely connected incidents; the complainants recovered from their injuries; the applicant had no relevant prior convictions; the commission of the crimes was largely brought about by the applicant's distress at his wife leaving him; the applicant was remorseful and there could be no justification for concluding that there was any need to impose a sentence of personal or individual deterrence.
In my view, the application for leave to appeal against sentence should be granted, the appeal should be allowed, the sentence should be quashed and a sentence of 3 years imprisonment commencing on 20th October 1985 should be substituted therefor.
Serial No A15/1987
File No CA 43/1986
BROWN v THE QUEEN
COURT OF CRIMINAL APPEAL NETTLEFOLD J
27 March 1987
The attack on the conviction is contained in grounds 2 and 5 of the grounds of appeal. It is a narrow attack and, in my opinion, an unsound one. Etymology, current dictionary meaning, legal history (as to which see Russell on Crime, 12th ed, 434 ff) and social experience combine to make the attack unsustainable. A may provoke an assault by B by an attack on C, which is made by force and with criminal intent and in the presence of B. It was a matter for the jury. The jury could affirm that Mr Smith was provoked within the meaning of that term in the relevant sections although he did not specifically affirm that he was provoked (compare Bullard v The Queen (1957) AC 635 at 642 and Van Den Hoek v The Queen (High Court of Australia, 2 December 1986).
The attack on the sentence has caused me more difficulty. My difficulty arises principally from the circumstance that the conviction was under s172 of the Code and not s170 (for the significance of that see the relevant passage in Thomas on Sentencing and the several cases there cited). However, I have reached the conclusion that, having regard to all the circumstances, the sentence was within range and hence, immune from successful attack. There are a number of serious aggravating features. These include the weapon used, the place, circumstances and range in which it was used and the serious foreseeable and totally unnecessary injuries caused not to one person only but to two. There was also an appreciable lapse of time between the first attack and the second. Unfortunately, the case presents a conspicuously bad example of arrogant lawlessness. And, certainly, his Honour was entitled to take judicial notice of the number of cases of domestic homicides.
It was asserted that his Honour made some relevant errors of fact. But I am satisfied that no significant and relevant error was made. The appellant may not have left the home. But that is not in itself important. What is important is the time which elapsed.
The application should be dismissed.
Serial No A15/1987
File No CA 43/1986
BROWN v THE QUEEN
COURT OF CRIMINAL APPEAL WRIGHT J
27 March 1987
I have had the advantage of reading the Reasons for Judgment prepared by Nettlefold J. I agree with his analysis of the application, with his reasons for rejecting it and for the order he proposes. The application should be dismissed.
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