R v Auberson

[1996] QCA 321

IN THE COURT OF APPEAL	[1996] QCA 321
SUPREME COURT OF QUEENSLAND
Brisbane
Before	Fitzgerald P. Pincus J.A. de Jersey J.

[R. v. Auberson]

[A-G v. Auberson]

C.A. No. 248 of 1996

T H E Q U E E N

v.

BRADLEY WILLIAM AUBERSON Appellant

C.A. No. 249 of 1996

T H E Q U E E N

v.

BRADLEY WILLIAM AUBERSON Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

FITZGERALD P.

PINCUS J.A. DE JERSEY J.

Judgment delivered 03/09/1996

JOINT REASONS FOR JUDGMENT OF FITZGERALD P. AND DE JERSEY J.
SEPARATE CONCURRING REASONS OF PINCUS J.A.

Appeal against conviction, application for leave to appeal, and the Attorney-General’s appeal against sentence all dismissed.

conviction could not be “usefully” argued, and no oral submissions
were made.

SENTENCE - manslaughter - appellant’s victim was his estranged wife - wife suspected of having an extramarital affair - appellant’s state of mind at the material time - appellant’s depression said to amount to a psychiatric disorder - savage attack on wife - mitigating circumstances.

Counsel:	M.E. Johnson for the Appellant Mrs. L.J. Clare for the Crown
Solicitors:	Harris Sushames for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	28 August 1996

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DE JERSEY J.

Judgment delivered 03/09/1996

The appellant has appealed against his conviction of manslaughter on 15 May 1996, and has applied for leave to appeal against the sentence imposed. The trial judge sentenced the appellant to imprisonment for nine years and declared that the 515 days which he had been in custody from 17 January 1995 were days spent on that sentence. It was further ordered that the psychiatric reports in the possession of the prosecutor be placed with the file for the information of prison authorities and the Parole Board when the question of the appellant’s parole was considered by them.

The appellant’s victim was his wife, whom he unlawfully killed on 16 January 1995. They had been in a relationship for four years prior to their marriage and then been married for four years when the appellant’s wife left the matrimonial home with their 18 month old son on 31 December 1994. The appellant, who loved his wife and child and was emotionally and financially dependent upon his wife, had suspected for some months that she was involved in a extra-marital affair. He became depressed when she left and, on 15 January 1995, invited her to return to discuss the possible resumption of their marriage; he had recently found employment after a lengthy period of unwanted unemployment.

The appellant’s wife arrived at the matrimonial home at about 8.30 p.m. and was dead approximately seven minutes later. The only explanation of what occurred is to be found in a police interview with the appellant a number of hours later. He said that his wife “looked around, sat down, started showing me a piece of paper ... to change the phone number” and that he “tried to persuade her and talk to her and give me all your reasons why you’re leaving ...”. According to the appellant, she said, “No, it’s over, there’s nothing to explain”. He then said, “Have you got a boyfriend or something, and she sort of hummed and arred and then she said, yes I have”, and the appellant added, “I sort of knew that all along”. In his interview, the appellant then stated that his wife said, “I am gonna go for all the money I can, go for your super”. Later in the interview, he said, “I just fell [sic] that she kept coming back because she wanted to make a go of it but she kept twisting me around. She kept saying a lot of things that just didn’t add up.” He was asked how he felt about her having another boyfriend and he said, “I dunno, I just, the hairs on the back of my neck went up, and I just went wild.” Later, when asked what he did, he said, “I was just standing there and she said: -

‘Yeah’. She said ‘I going for more money too. I’ll take your super. So I can set
me and the kid up.’ ”

The appellant then proceeded to strangle his wife, beat her over the head with bathroom scales at least twice, and cut her throat with a Stanley knife. In his police interview, he could not remember much after he commenced to strangle his wife, but he subsequently told a psychiatrist that he had released his strangle-hold but recommenced the assault when his wife said, “You’ll regret that”.

The appellant then attempted suicide by driving his car over a 40 metre cliff, but sustained only minor injuries.

In mid-1995, the appellant made an offer to plead guilty to manslaughter which the prosecution rejected and he was tried for murder. The central issue at trial was his state of mind at the time of the killing, and four psychiatrists were called, two who gave evidence for the prosecution and two who gave evidence for the defence. The appellant did not testify. The trial judge left both provocation and diminished responsibility to the jury, and the verdict was “guilty of manslaughter with provocation”.

The appellant’s grounds of appeal were as follows:

“(1)	The Learned Trial Judge failed to direct the Jury that they could return a verdict of Manslaughter on the grounds of provocation and Diminished Responsibility.
(2)	The verdict of the Jury is unsafe and unsound in so far as the medical evidence was consistent with there being an abnormality of mind and subsequent loss of the capacity of the accused to control his actions.
(3)	That the sentenced imposed is manifestly excessive.”

Although he held no instructions to abandon the appeal against conviction, the appellant’s counsel informed the Court in writing that he did not consider that he could usefully argue any of the grounds set out in the Notice of Appeal and he directed no oral submissions to the Court in respect of the appeal against conviction. A brief written outline of submissions by the prosecution discussed grounds 1 and 2, but nothing emerged to suggest that the trial might have in any respect miscarried. In particular, it is clear that diminished responsibility was left to the jury in addition to provocation, and that the medical evidence was in conflict, with two of the psychiatrists of opinion that the appellant’s state of mind at the time when he killed his wife did not bring him within the definition of diminished responsibility.

There was no substance to the appeal against conviction, which should be dismissed.

Reference has been made to the appellant’s application for leave to appeal against sentence. The Attorney-General also appealed against the sentence imposed on the basis that it was manifestly inadequate, in that the sentencing judge:

“(a)	failed to adequately reflect the gravity of offence in this case; and
(b)	gave too much weight to factors going in mitigation.”

The appellant’s counsel referred to the appellant’s depression, which the psychiatrists considered could be categorised as a psychiatric disorder, and said that what had occurred was “quite clearly a severe loss of control from an otherwise placid man”, who “wanted a resumption of the marriage and was attempting reconciliation with his wife”, who “taunted him in return”. Statements which the appellant made to police in the course of his interview suggested that he had little recall of the attack on his wife, “didn’t want to kill her”, “half way through ... just didn’t know what to do”. He said that it “happened so quick ... I didn’t have any feelings ...”, and that he was not thinking about anything, “I was going to end my life anyway”. Emphasis was placed upon the psychiatric evidence that the appellant was a vulnerable personality who was very dependent upon his wife, and was suffering an “adjustment disorder” associated with depression and disturbed emotions.

Shortly stated, counsel for the Attorney-General relied upon the level of the appellant’s violence.

Subject to one point, neither party suggested that the trial judge had taken extraneous matters in account or ignored relevant matters. Her Honour referred to the appellant’s good work history and absence of any prior criminal convictions, and noted that he was well regarded and obviously immediately deeply remorseful, together with his attempted suicide, the devastation which had been visited upon the lives of so many people, his willingness to plead guilty at an early stage, but that his attack was savage and prolonged. Reference was made to the need to balance “competing factors such as deterrence, revenge and ... rehabilitation”, although in my opinion neither deterrence nor rehabilitation has a major role to play in sentencing for an offence such as this, in which the guilty person has otherwise lived a blameless life and has committed a serious offence in a brief period in which he lost self-control. Her Honour also said that “[t]he jury clearly accepted that it was because of your fragile personality that you were so gravely provoked by the words of your wife that night”. As was conceded in argument, that is an over- statement; the jury might simply have had a doubt with respect to whether or not the appellant was provoked. However, in the overall context, there was no substantial defect in the trial judge’s approach. It should also be noted that her Honour expressly reduced the head sentence by reference to considerations personal to the appellant in preference to imposing a higher head sentence and reducing the time after which he might be considered eligible for release on parole.

Even so, we are of the opinion that the sentence imposed upon the appellant was at or near the bottom of the range. However, it has been noted on a number of occasions that the circumstances of manslaughter offences vary so much that it is difficult to identify a sentencing pattern. Such a consideration emphasises the importance of an appellate court not interfering with a trial judge’s sentencing discretion except where such a course is plainly warranted because the sentence is outside the sound exercise of the sentencing judge’s discretion. Consistently with the approach taken by this Court in relation to appeals by the Attorney- General, we do not think that the level of the present sentence is sufficient to justify this Court’s interference. Obviously, it follows from what we have said, that we do not consider the sentence manifestly excessive.

In summary, the appeal against conviction, and the application for leave to appeal and the

Attorney-General’s appeal against sentence should all be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 03/09/1996

I have read the joint reasons for judgment prepared by the President and de Jersey J. and agree with them.

The respondent killed his wife in a way which suggested complete loss of self-control. However, the jury rejected the plea of diminished responsibility under s. 304A of the Code and it was therefore necessary to sentence the respondent on the basis that he did not have such a state of abnormality of mind as is contemplated by that provision. The President and de Jersey J. have pointed out that, although there was a verdict of manslaughter based on the defence of provocation, the jury were not necessarily satisfied provocation was proved; they might merely have had a doubt about the matter. But what the judge said on the subject suggests that her Honour herself believed that it was because of the respondent’s "fragile personality that you were so gravely provoked by the words of your wife that night". That was a point on which her Honour was entitled to form her own opinion, being one consistent with the jury’s verdict.

There appears to be no dispute that the respondent was extremely remorseful; his suicide attempt was of a kind which was fairly likely to succeed. Although, on the face of it, the sentence falls towards the lower end of what one would think to be the range for this sort of offence, it appears to me that it would not be a proper exercise of the "unfettered discretion" given by s. 669A(1) of the Code to vary the sentence. I agree with the order proposed.