R v Farquhar

[1994] QCA 589

COURT OF APPEAL	[1994] QCA 589
MACROSSAN CJ PINCUS JA DOWSETT J
CA No 349 of 1994
THE QUEEN v JENNIFER KAY FARQUHAR	Applicant
BRISBANE
DATE 16/11/94
JUDGMENT
THE CHIEF JUSTICE:

The applicant seeks leave to appeal against her sentence which was one of eight years imprisonment unaccompanied by any recommendation in respect of the attempted murder of the person with whom she had been living at the date of the offence. The offence occurred in October of 1993 and she was convicted and sentenced in August of this year.

She is 33 years of age. She was 32 at the time of the offence, we are told. The circumstances of the offence are conveniently set out in the Crown/s outline of submissions. The applicant commenced to assault the complainant by delivering one or more blows to his head. To the extent that her own detailed account is reliable, she admitted jumping on his head and hitting him on the head with a bottle.

Other persons, witnesses at the trial, saw her deliver barefoot kicks to his head while he was unconscious; saw her banging his head on the floor, and while he was unconscious, saw her jumping on his stomach. It seems there was some domestic tension which preceded all this activity on the applicant's part, but the point is that after a trial, she was found guilty by a jury of attempted murder.

The victim of her violence has been left extremely seriously injured. The Judge described some of the consequences in this fashion: "He spent a long period in hospital, some five months or so. He's been in his parents' care after being discharged. He has to have twice-weekly treatment." More exactly describing his condition, the Judge said, "His balance is greatly impaired. He's been reduced from a fit, active man to a person with problems including lack of co-ordination, speech problems, memory problems, all of them due to the severity of the head injuries caused by the applicant. He can walk unaided, but not a great distance. He can't stand long. He can't run. He seems to be subject now to epileptic fits." As the Judge said, "In short, his life has been ruined." Those were the consequences of the applicant's actions.

The applicant must be viewed even more seriously in terms of her behaviour because of a previous conviction. In June of 1989, the applicant pleaded guilty to a charge of unlawful wounding involving the same man. From the sentencing comments, the Judge has extracted the information that on that occasion, the applicant stabbed the unfortunate man four times. The applicant was then given two years probation and ordered to undergo certain medical, psychiatric and psychological treatment.

Attempted murder cases must, of course, carry substantial penalties when the conviction results. So much was not contested. Counsel for the applicant, without justifying exactly in terms of cases to which he refers, suggested that the range was five to eight years. The Crown contended that the range was higher - seven to ten years. Without making any definitive observation on this aspect, it is sufficient to say that the concessions and assertions were such as to make it not possible to say that the head sentence here was excessive.

Indeed, in argument before us, counsel for the applicant did not attempt to maintain that position, but said that in all of the circumstances, a recommendation concerning parole should have accompanied the head sentence. When one looks at the previous history of this applicant and the brutality of the acts which constituted the attempted murder on this occasion, I do not think it is possible to say that the fact that the Judge declined to accompany his sentence with any recommendation has resulted in the sentence being manifestly excessive.

That being so, the Court would not be entitled to interfere and in my opinion, the application for leave should be refused.

PINCUS JA: I agree.

DOWSETT J: I consider that in cases of this kind, there is a tendency to concentrate too much upon the assault and too little upon the element of intent. The gravamen of the offence of attempted murder is precisely that - that there was an intention to kill.

When this is realised, sentences such as the present can be seen to be clearly within a proper exercise of the sentencing discretion. I agree.

THE CHIEF JUSTICE: The application is refused.