R v Brown

[1993] QCA 330

IN THE COURT OF APPEAL [1993] QCA 330

SUPREME COURT OF QUEENSLAND

C.A. No. 196 of 1993

Brisbane

[R. v. Brown]

THE QUEEN

v.

LESLIE ROBERT BROWN

(Applicant)

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The President
Mr. Justice Ambrose

Justice White

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Judgment delivered 13/09/1993
Separate reasons prepared by the President, Ambrose J. and

White J. all agreeing in the order to be made.

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APPLICATION FOR EXTENSION OF TIME IN WHICH TO APPEAL AGAINST

SENTENCE REFUSED.

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CATCHWORDS CRIMINAL LAW - Extension of time - convicted of manslaughter - diminished responsibility - s. 304A of Criminal Code - balancing the criminality of offence against likelihood of re-offending when considering recommendation for early parole.

Counsel:	Applicant conducted his own case J. Henry for the Crown
Solicitors:	Director of Prosecutions for the Crown

Hearing date: 17/08/1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 196 of 1993

Before The President

Mr Justice Ambrose

Justice White

[R. v. Brown]

BETWEEN:

T H E Q U E E N

v.

LESLIE ROBERT BROWN Applicant

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment of the Court delivered 13/09/93
The circumstances giving rise to this application are set

I do not think that the parts of the sentencing judge's
remarks relied on by the applicant show that his Honour's
discretion miscarried, and I am satisfied that the sentence
imposed was not manifestly excessive.

out in detail in the reasons for judgment of Ambrose J.. sentence would fail. In the circumstances, there is no sufficient reason to grant the extension of time sought by the applicant and his application should be refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 196 of 1993

Brisbane

Before The President

Mr. Justice Ambrose
Jutice White

[R. v. Brown]

THE QUEEN

v.

LESLIE ROBERT BROWN

(Applicant)

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 13/09/1993 which to seek leave to appeal against a sentence of eight years imposed upon the applicant upon his conviction of manslaughter after a long trial on 6th November 1992.
The Crown presented an indictment charging him with murder.
He had indicated that he was willing to plead guilty to

manslaughter on the grounds of diminished responsibility. The

Crown was unwilling to accept this plea. recommendation that the applicant be eligible for parole at an earlier time than that fixed by the provisions of the Act. He observed:

The issue upon trial was one only of diminished
responsibility. Many of the facts of the offence were placed
before the jury by way of formal admissions. Substantially the
issue of diminished responsibility was determined upon the
evidence given by the applicant, members of his family, and a
number of medical experts who expressed their opinions as to his
mental condition at the time of the killing.
Under s. 304A, of course, the onus was upon the applicant
to satisfy the jury on the balance of probabilities that at the
time he killed his wife he was in "such a state of abnormality
of mind (whether arising from a condition of arrested or
retarded development of mind or inherent causes or induced by
disease or injury) as substantially to impair his capacity to
understand what he is doing or his capacity to control his
actions or his capacity to know that he ought not do the act or
make the omission".
The defence of diminished responsibility only arises when
the person who unlawfully kills another does so under
circumstances which, but for the provisions of s. 304A, the
killing would constitute murder.
The case before the jury therefore was conducted on the
basis that the applicant killed his wife intending to cause her
death.
His conviction of manslaughter only on the ground of
diminished responsibility did not therefore exculpate him from
criminal responsibility as would an acquittal on the grounds of
insanity under s. 27 of the Code. Its effect was merely to
diminish his criminal responsibility with the consequence that
the imposition of a term of imprisonment for life was not
mandatory but was within the discretion of the sentencing Judge.
Had the applicant failed to persuade the jury that at the
time he intentionally killed his wife, his capacity to control
his actions on the facts of the case was substantially impaired
then he would have been convicted of murder. In that event, he
would have become eligible for parole under s. 166(1)(a) of the
Corrective Services Act 1988 after he had been detained in
custody for a period of 13 years.
The learned sentencing Judge imposed upon the applicant, a
sentence of imprisonment for 8 years. It is clear from his
sentencing remarks that he took into account the fact that the
applicant had been in custody awaiting trial for about 12
months. His starting point therefore in fixing sentence was a
period of 10 years' imprisonment. The sentence of 8 years which
he imposed obviously took into account that period of 12 months
spent in custody prior to sentence.

"I have considered this matter and I thought about it a great deal and I am unable in the circumstances of this case to recommend any earlier release on parole than you would normally be entitled to."

The applicant seeks leave to appeal on the ground that in all the circumstances the learned sentencing Judge ought to have recommended that he be eligible for parole at an earlier time than would be the case without such a recommendation. He had spent 12 months in custody at the date of sentence; he will not become eligible for parole until half way through the period of imprisonment imposed upon him - that is, at the end of four years. All told then he will not become eligible for parole until the expiration of a period of five years after the date when he was first taken into custody for the offence of which he has been convicted.

The applicant, very substantially, based his contentions upon observations made by the learned sentencing Judge to the effect that there was no likelihood that he would commit a similar offence again. In the course of his sentencing remarks, the sentencing Judge said:

"... I have to impose a penalty which will deter you - of ever doing anything like this again - not that there is much likelihood that you will. I have already found that. It is to deter like-minded individuals. People must realise that lives are not something which can be trivialised. Life can't be regarded cheap and the court must take a serious view of offences the result of which someone looses his or her life."

His Honour referred to observations made in a report from

Dr. Cox placed before him. applicant had for a significant period of time been addicted to narcotics. Dr. Cox expressed the view that his narcotic dependency was a significant factor in inducing his loss of control which preceded the killing of his wife and there was a very remote chance of future violent behaviour directed at other people. With respect to release on parole, he said:

"At some time in the future he is likely to be considered for parole. In my opinion a useful condition of parole would be abstinence from narcotic type analgesics other than during acute physical illness requiring hospitalisation. This would allow him time to adjust to the real world without falling straight back into the dangers of narcotic dependency."

The learned sentencing Judge obviously gave consideration to the evidence which must have persuaded the jury to acquit the applicant of murder and convict him of manslaughter on the ground of diminished responsibility. I have taken the opportunity to consider briefly some of the psychiatric evidence called on behalf of the applicant. There was a good deal of evidence called on behalf of the Crown to show that the applicant did not suffer a substantial impairment of one of the capacities referred to in s. 304A of the Code, and indeed that any impairment of capacity that he did suffer, resulted simply from anger rather than from any abnormality of mind attributable to disease or injury. It would be unhelpful to analyse in detail the very lengthy and conflicting psychiatric evidence placed before the jury. Reference to the evidence upon the trial of the applicant shows that the jury spent a long time reaching a verdict and indicated problems in reaching agreement.

In fact the retirement of the jury exceeded 29 hours.

In considering the applicant's contention that the learned sentencing Judge erred in declining to recommend early parole, I will refer only briefly to some of the evidence given by one of the doctors called on behalf of the applicant.

It emerged clearly from the evidence given by the applicant that he killed his wife after a domestic argument; for many years he had been significantly addicted to narcotic drugs; he commenced to take drugs for back pain after a back injury in 1980; his wife had devoted herself to his care and had made many sacrifices and had borne his unjustified attitudes towards her in spite of his failure to make any real attempt to overcome his addiction. Eventually his wife took steps directed towards ceasing co-habitation with him. There was a heated argument during which she threw a cup of coffee at him. The coffee cup broke and the applicant, his wife and their son took steps to clean up the floor. The applicant gave evidence that his last recollection of events, preceding his becoming aware of his wife on the floor in blood-stained clothing, was wrestling with her when she insisted on using a broom to sweep up remnants of the coffee cup on the floor; he wished to do this. He gave evidence that he had no recollection of stabbing his wife whom he said he loved.

There was independent eye-witness evidence that the applicant in fact did stab his wife many times - approximately 40 - with a knife.

Dr. Fama said that in his opinion, at the time of the killing, the applicant did suffer from an abnormality of mind resulting from a severe depressive episode based upon his abnormal personality. He said that the extreme stress of the circumstances resulted in the applicant having a substantially reduced capacity to control is actions. He said also that he thought that the applicant was probably unable to think clearly at the time of the stabbing. The evidence indicated that prior to the applicant's wife throwing the coffee cup at him, there had been a heated argument during which she said to him, "What a pity your suicide attempt didn't succeed. We were all very disappointed. Get out of here. I'm not going to help you." and further words to that effect. Dr. Fama said that the vulnerable personality of the applicant could not cope with this statement and produced an acute decompensation with severe depression and loss of control which had the result that "he then destroyed the woman, the object who had failed him". Dr. Fama agreed that the mental state of the applicant at the time of the killing was clearly one of anger amounting to a frenzy based on the threat of his wife to withdraw the nurturency to his "abnormally dependent personality". He said that in his view the applicant had got angry to a pathological degree which resulted from the neurotic depression induced in him by his personality disorder.

He said that in his view as the result of what was said in the

domestic dispute with his wife, the applicant:

"... stepped over into what I've called a frenzy and I believe a loss of control due to abnormality of mind. And I think that that is the difference there between

a normal ordinary anger in which a person might strike somebody or throw something at someone ... there's a pretty big difference between that and the killing with multiple stab wounds of a woman upon whom he was dependent and whom he believed he loved."

Dr. Fama said that when he was admitted to hospital after the killing, the applicant had to cope with drug withdrawal problems from which he was then suffering. He said that he had been dependent on analgesics and narcotic type analgesics previously which were withdrawn from him in hospital.
It is clear from the evidence given by the applicant before the jury that from an early age he had had a good deal of institutional care as the result of his law breaking activities.

He first had trouble when he was about 13 years of age when he was charged with breaking and entering, and car stealing. Shortly after the first occasion he was again dealt with for a similar offence and sent to an institution he described as Gosford's Boy Home where he remained for about two and a half years. He was released from that institution when he was about 17 years of age and within a couple of weeks he was again convicted of car stealing. He was sent back to the Boys' Home and released at age 18. A couple of months later he was again convicted of car stealing, and breaking and entering and was imprisoned at Long Bay Gaol for 18 months. Subsequently he was convicted of further offences and was sentenced to further terms of imprisonment.

The learned sentencing Judge in passing sentence and in declining to make a recommendation for early release on parole referred to the difficulty in reconciling community concern about violent criminal offences and the features of the case personal to the applicant to which he referred and which had been canvassed in such detail for so long upon trial.

This was not a case where there was an absence of culpability on the part of the applicant. It was a case where upon the evidence, which must have been accepted by the jury, to no small degree his loss of control must have resulted from his failure to control his dependence upon narcotic drugs which resulted in a depressive condition momentarily sparked by a domestic dispute with his wife which led to him killing her in uncontrollable anger.
In my view it cannot be said that the learned sentencing Judge erroneously exercised his sentencing discretion in declining in the circumstances to make a recommendation for early parole.

If the applicant were granted leave to appeal against the failure of the learned sentencing Judge to recommend eligibility for early release on parole he would not in the circumstances succeed upon that appeal.

I take the view therefore that there is no point in granting the extension of time sought.

I would refuse the application for extension.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 196 of 1993

Brisbane

Before The President

Ambrose J.
White J.

[R. v Brown]

THE QUEEN

v.

LESLIE ROBERT BROWN

(Applicant)

REASONS FOR JUDGMENT - WHITE J.

Judgment delivered 13/09/93. background to this application for an extension of time within which to seek leave to appeal from sentence. Although there is some merit in the submission of the applicant, who appeared in person, that a person who acts whilst suffering from diminished responsibility pursuant to s.304A of the Criminal Code will not be deterred by regard to any sentence which might be imposed in punishment for that act, I do not think that his Honour's sentencing discretion miscarried in the sentence which he imposed upon the applicant and it was accordingly not manifestly excessive. Accordingly, an application for leave to appeal against sentence would fail and I agree that in the circumstances there is insufficient reason to grant the extension of time sought by the applicant and it should accordingly be refused.