McCormack v The Queen - [2000] WASCA 139

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: McCORMACK -v- THE QUEEN [2000] WASCA 139

CORAM: KENNEDY J
PIDGEON J
IPP J

HEARD: 8 MARCH 2000

DELIVERED : 25 MAY 2000

FILE NO/S: CCA 53 of 1999

BETWEEN: BARRY DESMOND McCORMACK
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 71 of 1999

BETWEEN :BARRY DESMOND McCORMACK
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Unlawfully doing grievous bodily harm with intent - Whether accused prejudiced by misdescription of injury sustained by complainant - Adequacy of evidence of intent of accused - Evidence of recent conflict between accused and complainant admissible

Criminal law and procedure - Sentencing - Unlawfully doing grievous bodily harm with intent - Stabbing - Nine wounds of which seven were superficial and two penetrated to a depth of 3 cms - One wound penetrating the cavity between the chest wall and lung of complainant leading to a tension pneumothorax - Sentence of 8 years' imprisonment with eligibility for parole not set aside as being excessive

Legislation:

Nil

Result:

Appeal against conviction dismissed
Leave to appeal against sentence granted
Appeal dismissed

Representation:

CCA 53 of 1999

Counsel:

Appellant: Mr J Courtis
Respondent: Mr R E Cock QC

Solicitors:

Appellant: Wojtowicz Kelly
Respondent: State Director of Public Prosecutions

CCA 71 of 1999

Counsel:

Applicant: In person
Respondent: Mr R E Cock QC

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Harriman v The Queen (1980) 167 CLR 590
Lowndes v The Queen (1999) 195 CLR 665
R v Bond [1906] 2 KB 389
Wilson v The Queen (1970) 123 CLR 334

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Badron v The Queen, unreported; CCA SCt of WA; Library No 990099; 4 March 1999
Bailey v Fox, unreported; SCt of WA (Templeman J); Library No 980528; 4 September 1998
Charlie v The Queen (1998) 119 NTR 1 (1999) 73 ALJR 809
Chidiac v The Queen (1991) 171 CLR 432
Chikonga v The Queen, unreported; CCA SCt of WA, Library No 950688; 13 December 1995
Game v The Queen, unreported; CCA SCt of WA; Library No 970113; 21 March 1997
Holland v The Queen [1999] WASCA 43
House v The King (1936) 55 CLR 499
Kenny v Lewis, unreported; SCt of WA (Kennedy J); Library No 990113; 12 March 1999
M v The Queen (1994) 181 CLR 487
Morris v The Queen (1987) 163 CLR 454
R v Ball [1911] AC 47
R v Bell (1992) 62 A Crim R 66
R v Hissey (1973) 6 SASR 280
R v Smith, unreported; CCA SCt of WA; Library No 980066; 17 February 1998
R v Tait (1979) 46 FLR 386
R v Weng Keong Chan (1989) 38 A Crim R 337
R v Willmot (No 2) [1985] 2 Qd R 413
Thompson v The Queen (1993) 8 WAR 387
Wilson v The Queen (1970) 123 CLR 334

KENNEDY J: The appellant was presented in the Supreme Court on 15 February 1999 on an indictment containing two counts, the first of having, on 16 May 1998, at Armadale, attempted unlawfully to kill his wife, and the second, in the alternative, of having on the same date and at the same place, with intent to do some grievous bodily harm to his wife, unlawfully done grievous bodily harm to her. After a three day trial, the jury returned verdicts of not guilty on the first count but guilty on the second count. The appellant was sentenced to a term of 8 years' imprisonment, with eligibility for parole.
It is sufficient for the present purposes to adopt the statement of the facts outlined by the learned trial Judge in his sentencing remarks, the evidence in relation to which is either undisputed or was clearly established, having regard to the jury's verdict. At the time the appellant committed the offence, he and his wife had been living together for a total of some 26 years. Their two sons and their daughter, aged respectively 19, 17 and 15, were living with them. A young engaged couple were also living in the house.
In about March 1997, the appellant and his wife first logged onto the Internet. His wife became particularly active on the Internet, spending a great deal of time talking with people from all over the world on a communication channel called Speak-Easy. At first, the appellant and his wife would log on together and talk as a couple. However, later, his wife began to log on by herself. She achieved some degree of popularity and she made a number of friends as well as becoming a channel operator.
In April 1997, the appellant and his wife "met" David van Heurck from Victoria on the Speak‑Easy channel. His wife became closer to Mr van Heurck than did the appellant, but the appellant continued to have some degree of contact with him. Initially, the friendship between the appellant's wife and Mr van Heurck involved general conversations concerning family matters, and matters of common interest. But after a short period of time, their conversations became "more flirty and intimate". The appellant became jealous of his wife's relationship with Mr van Heurck and this was the cause of many arguments between them. By February 1998, the marital relationship had significantly deteriorated, and the appellant's wife agreed, after some persuasion by her husband, that she would not have any more intimate conversations with Mr van Heurck. However, she continued to talk to him on the Internet. The appellant was aware of their continuing friendship, and he remained jealous of it, especially when his wife would not allow him access to her conversations.
On the evening of 15 May 1998, matters came to a head between the appellant and his wife. After a discussion, she agreed not to use the Internet in the future, but before ceasing to use it, she asked the appellant if she could have some time to say goodbye in private to her friends. The appellant agreed, but this request for privacy further heightened his jealousy. After she had finished speaking on the Internet, the appellant asked her if she had spoken to Mr van Heurck and, if so, what they had talked about. She refused to tell him. This made the appellant even angrier than he had been, and he telephoned Mr van Heurck late that night to find out what they had discussed. In the course of their conversation, the appellant told him not to speak to his wife again.
After these incidents, the appellant and his wife stayed up and watched a movie with their elder son. They went to bed in the "granny flat" in their house at about 2.00 am. While in bed, the appellant again asked his wife if he could talk to her about their problem with the Internet. She told him to wait until the morning. The appellant did not go to sleep. He stayed awake brooding over his situation. At approximately 5.00 am, the appellant's wife woke up, and the two of them got out of bed for a cup of Milo and a cigarette. They later returned to bed. The appellant again asked his wife if he could talk to her about the use of the Internet. She told him that she did not want to talk about it, and that it could wait until they both went to see a counsellor under an arrangement which they had already made for the following week. The appellant then said something to his wife, to which she replied, "What are you threatening me with now, Barry". He responded with words to the effect of, "You'll see".
The appellant then left their bedroom, went into the kitchen in the main part of the house and took a serrated steak knife from a kitchen drawer. He returned to their bedroom, where his wife was either asleep or attempting to go to sleep, locking the door to the granny flat after him. He went around to her side of the bed, pulled off the covers and stabbed her in the left side of her upper back. This would appear to have been the injury which resulted in the pneumothorax. She felt an intense pain in her back and she rolled over, opening her eyes to see him standing over her, trying to stab her in the upper body. She began to flail her arms and legs around in an attempt to defend herself. In the process, a number of superficial wounds were inflicted by the appellant with the knife. His wife managed to get herself off the bed and she ran to the door of the bedroom. Just before she reached the door, the appellant stabbed her again, this time in the back of her neck. Disturbed by the noise, their elder son tried to get into the granny flat, but he could not open the door. Someone opened the door and his mother ran past him towards the room where the engaged couple were sleeping, apparently to seek help. The appellant then grabbed the keys to his van and told his son that he was going to kill himself. He left the house, in the process reversing the van through the front gate, and he then drove to Armadale Road where he proceeded to drive the van into a power pole in an unsuccessful attempt to end his life.
After the attack upon her in their home, the appellant's wife attended the Fremantle Hospital, where she was examined by Dr B D Gunn. Dr Gunn described a superficial 3.5 centimetre laceration on the right side of her neck, a 3 centimetre superficial laceration on her left shoulder, a 1 centimetre superficial laceration on the outer aspect of her left arm, a 2 centimetre superficial laceration on the outer aspect of her right forearm and a 4 centimetre superficial laceration over her right shin. She also had a 1 centimetre laceration to the back of her right forearm and a similar laceration to the back of her right thigh, both of which were superficial. Dr Gunn then went on to describe two deeper lacerations. The first of these was a 1.5 centimetre long laceration, approximately 3 centimetres deep, to the back of the left side of her neck. The second, which he identified as the most serious of all, was a 4 centimetres long laceration, approximately 3 centimetres deep, to the back of her left chest. The last‑mentioned laceration caused a tension pneumothorax, which Dr Gunn explained was a result of the knife having penetrated the chest wall, allowing air to get into what he described as a "potential" cavity between the chest wall and the lung. The cavity had become filled with air, which compressed the left lung so that she could not breathe. This caused the collapse of the left lung. Left untreated, Dr Gunn said, the condition would have resulted in death. He was not able to say what degree of force had been used in inflicting the wound which caused the pneumothorax.
Ms L M Korber, who had come to know the appellant and his wife over a period of a little over a year before the events leading to the appellant's being charged, visited the appellant in hospital where he had been admitted after his failed attempt to commit suicide. During the visit, he told Ms Korber that he had planned to kill himself and that he had not planned to kill his wife until the night in question. He told her he went to the kitchen and got a knife and then he thought, "Why am I doing this? It's your fault that I feel this way and you shouldn't be getting away with it. If I'm going to die, so are you." The learned trial Judge, while not telling the jury that they should not accept Ms Korber's evidence, had strongly cautioned them against their acting on it, principally due to the condition of the appellant at the time of her visit. However, it is to be noted that the appellant himself admitted in his evidence that, while he was in the kitchen getting the knife, the thought had crossed his mind to kill his wife, although, he said, the thought had then passed.
The appellant has appealed against his conviction on what are, in effect, two grounds. The first is that the jury were misled regarding the nature of the injury which penetrated his wife's chest wall, and the second is that the learned trial Judge misdirected the jury in instructing them that they could use evidence as to the relationship between the appellant and his wife in the months leading up to the attack with the knife for the purpose of arriving at a finding with respect to the appellant's intention at the time of the attack.
In opening, the Crown prosecutor stated that the laceration to Mrs McCormack's upper back "had caused her lung to puncture and she had sustained a condition that's known as left tension pneumothorax …" Subsequently, in discussing the meaning of the expression "grievous bodily harm", the Crown prosecutor told the jury, "So, in this particular case, the left tension pneumothorax, the collapsed lung, was a life endangering injury, it was an injury that was likely to result in death unless treated". He made no reference on this occasion to the "puncturing" of the lung. What was said by counsel in the trial was not, as the learned trial Judge stressed in his summing up to the jury, evidence. The evidence given by Dr Gunn, to which I have already referred, was quite clear and contained no reference to any puncturing of the lung.
The appellant's wife, in cross‑examination, having been asked about her injuries, replied, "There's one that punctured the lung." She was not corrected by counsel or by his Honour.
The accused himself, in giving evidence as to his stabbing his wife, said, "I stabbed her in the side of the chest and punctured her lung", and he made a subsequent reference to his not knowing "how fast someone can die from a punctured lung or a collapsed lung."
In his summing up, the learned trial Judge quoted extensively from the appellant's evidence, including the passage in which he admitted that he had stabbed his wife in the side of the chest and punctured her lung. He made no comment upon this admission; but shortly afterwards he went on to remind the jury of Dr Gunn's evidence that the stab wound in the back had caused a left tension pneumothorax. It was made quite clear to the jury that the Crown case was that the grievous bodily harm was constituted by the pneumothorax which, had it been untreated, would have resulted in death. The pneumothorax had unquestionably been the result of the stab wound.
A careful reading of the Crown's opening, the evidence dealing with this aspect of the matter and his Honour's summing up indicates to me that the jury could not have been misled in any way by the passing references in the trial by the Crown prosecutor, the appellant's wife and the appellant himself to the puncturing of the lung. The pneumothorax was explained in simple terms by Dr Gunn as compressing the lung and causing it to collapse. There could be no doubt whatever on the evidence that the appellant's wife suffered "grievous bodily harm" at the hands of the appellant. The question for the jury was what was the intent with which the appellant stabbed his wife on 16 May 1998 and it is that aspect to which the second ground of appeal is directed. I would dismiss the first ground of appeal.
The appellant then contended that the learned trial Judge had misdirected the jury in his summing up by instructing them that they could use evidence "like disagreements the [appellant] had had with the complainant regarding the use of the Internet in the months leading up to the incident in question, and the breakdown of their relationship, to infer intent." What his Honour said in his summing up regarding the relationship between the appellant and his wife appeared in the following passage:
"It is essential for you to appreciate that before you can convict the accused of attempting unlawfully to kill you must find that the accused himself had that relevant intention and that he had it at the time when he was stabbing the complainant. The intention with which an act is done is found, as I have said, by way of inference from all of the circumstances of the case. All of the circumstances have to be considered, including in particular any circumstances which you might find are personal to the accused and which might distinguish the accused from his fellows in a way that in your judgment might weaken an inference as to intention otherwise based on facts which you have found.
What then is the evidence on which you will have to judge the intention? You will bear in mind what you have heard about the nature of the relationship between the complainant and the accused and about the argument which precipitated this unfortunate incident. Now, I don't want to go into that background evidence. Counsel has gone into it in some detail, and I will say a little more sometime later about the use to which you can put that evidence.
His Honour then went on to remind the jury of the relevant passages in the evidence before returning to the relationship between the appellant and the complainant. He said:
"Perhaps it will be easier if I tell you what the case is not about. It is not about whether the lifestyle pursued by the complainant or the accused or both was appropriate. It is not about whether the accused or the complainant or both were being reasonable or unreasonable about the use of the Internet. It is not about the use of the Internet for non‑physical sexual exchanges. It most certainly is not about whether the accused was provoked into doing what he has admitted that he did.
As a matter of law, provocation is simply irrelevant even if established, to a charge or charges of this nature. So you might be thinking, "All right then. Well, what use can I put that evidence to." It seems to me that the evidence has a twofold purpose. It serves as background information to help you to understand the argument that developed between them on that night or in the early hours of that morning. Secondly, it is part of the factual material to which you could legitimately have regard in deciding what intention - what inferences, rather, you should draw concerning the intention with which the accused acted."
Having dealt with the count of attempted murder, his Honour instructed the jury in relation to the count of doing grievous bodily harm to his wife with intent. He directed the jury that, in respect of this count, they should judge intent in the same way as they had been instructed to judge intent in relation to the first count.
His Honour's summing up was clear and the appellant's criticism of it, that the background facts could possibly have been used to infer motive but that they were too far removed to infer intent, is misconceived. The relationship between the appellant and his wife was clearly admissible as evidence which the jury could take into account in considering the intent with which the appellant acted in attacking his wife.
In R v Bond [1906] 2 KB 389 at 401, Kennedy J said:
"The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to prove as integral parts of the history of the alleged crime for which the accused is on his trial."
That passage was approved by Barwick CJ in Wilson v The Queen (1970) 123 CLR 334 at 338 as a statement of relevance of universal validity and as not being limited to any particular aspect of the relationship of which his Lordship spoke. See also Menzies J at 344 and Owen J at 346 and Harriman v The Queen (1980) 167 CLR 590 at 630 – 634.
There was clearly evidence available to the jury to sustain a finding beyond reasonable doubt of an intention on the part of the appellant to cause grievous bodily harm to his wife. If the jury accepted the wife's evidence, as it appears they must have done, the initial wound, inflicted without any warning and without any resistance on his wife's part, was that which penetrated the chest wall. The other penetrating wound, which was the last wound inflicted, occurred as she endeavoured to escape from the granny flat and when she had her back to the appellant. The superficial wounds were inflicted as she was trying to protect herself. His Honour's directions as to the appellant's intent were entirely appropriate, and it follows that the appellant's appeal against his conviction must fail.

The learned trial Judge, in very full sentencing remarks, described the offence as a very serious incident and as being a sustained attack of some viciousness done with the express intent of causing serious harm. He rightly emphasised the point that it was an intentional offence.
The psychiatric and psychological reports made available to his Honour indicated that the appellant was not suffering from any psychotic, mental or thought disorder. However, he has suffered a significant degree of emotional distress arising from his childhood and adolescent experiences, which has left him with a dependent personality disorder, chronic depression and anxiety. During his adult life he has experienced the loss of a child, a severe work related back injury and the failure of a business, with all of which he has found it difficult to cope. The psychological report indicated that the offence appeared to be a dramatic and desperate response to the appellant's fear of abandonment by reason of his wife leaving him in favour of Mr van Heurck.
There was evidence before his Honour that, in the final weeks before the offence, the appellant had been smoking increasing amounts of marijuana, and the suggestion was made that, although the heavy use of marijuana does not normally increase a tendency to aggression, it may lessen logical reasoning and control. In this way, it was suggested, it might have been a contributing factor to the offence. However, his Honour properly concluded that this did not afford any degree of mitigation. Similarly, although the background provided some explanation as to the appellant's conduct, it provided no basis for mitigation. The appellant's conduct was out of all proportion to anything which the appellant had perceived as having been done to him.
His Honour, in sentencing, took into account the victim impact statement submitted by the appellant's wife, in which she described the devastating effect which the incident had upon her and their children. He pointed out that the maximum penalty for the offence is one of 20 years' imprisonment, and he indicated that the sentence which he would impose had to mark the concern which the community has towards violent confrontations. He emphasised also the need for both personal and general deterrence in cases of domestic violence, which poses a very real problem in the community. As he indicated, no form of domestic violence is acceptable, and when it includes the use of a weapon of any description, it becomes absolutely intolerable.
His Honour went on to consider the factors personal to the appellant. He was born in the United Kingdom in 1953 and came to Australia with his parents in about 1972. He completed formal education to Year 11 level and commenced a boilermaking apprenticeship with his father. Upon migrating to Australia, he elected to enter the workforce immediately instead of finishing his apprenticeship. Until 1985 he had always been in full employment in a variety of positions, but unfortunately he sustained a work related back injury which has greatly affected his employment. Since 1989 he has been in receipt of a disability pension. He has no prior record of offending other than for relatively minor drug possessions, and his Honour treated him as coming before him as a first offender. As a result of the attempt to end his own life, the appellant was forced to spend six weeks in hospital and he has had, or will need to have, ongoing surgery to reconstruct parts of his legs.
The appellant has appealed against his sentence of 8 years' imprisonment on the ground that it is manifestly excessive, having regard to the following matters:
(a)The complainant's Internet relationship in the period leading up to the incident resulting in the offence.
(b)The deterioration in the matrimonial relationship.
(c)The [appellant's] attempt at suicide as an indication of his emotional and psychological state at the time of the offence. As a consequence, the [appellant] spent six weeks in hospital and requires surgery to reconstruct areas of his legs. He is receiving prescription medication for pain management.
(d)The [appellant's] significant degree of emotional distress arising from childhood and adolescent experiences.
(e)The [appellant's] dependent personality disorder, chronic depression and anxiety.
(f)The [appellant's] good working history until a back injury and his disability pension since 1989.
(g)The [appellant] having no prior criminal record relevant to this offence.
It was contended by the appellant that, having regard to these matters, the learned trial Judge over‑emphasised the factor of general deterrence whereby the sentence imposed was higher than the circumstances justified and fell outside the range of sentencing discretion.
It is to be noted immediately that all of the matters set out in the ground of appeal were considered by the learned trial Judge, but he concluded that they were outweighed by the other factors to which he referred. The appellant has shown no remorse and he does not have the benefit of a discount by reason of a plea of guilty.
Although it appears to me that the sentence imposed by the learned trial Judge was at the top end of the range, it is not such as in my view to justify any interference by this Court. A significant factor in reaching this conclusion is that the trial Judge had the advantage of presiding at the trial and was therefore able to make his own assessment of the appellant. Furthermore, as was said in Lowndes v The Queen (1999) 195 CLR 665, at 671 ‑ 672:
"Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion

which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

In my opinion, although leave to appeal against the appellant's sentence should be granted, I would dismiss the appeal.
PIDGEON J: I agree with the reasons to be published by Kennedy J.
I, too, would grant leave but dismiss the appeal.
IPP J: I agree with the reasons of Kennedy J and have nothing further to add.