R v Katia; ex parte A-G (Qld)

[2006] QCA 300

SUPREME COURT OF QUEENSLAND

CITATION:	R v Katia; ex parte A-G (Qld) [2006] QCA 300
PARTIES:	R v KATIA, Moses Rupert (respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 111 of 2006 SC No 989 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2006
JUDGES:	McMurdo P, Holmes JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where respondent pleaded guilty to unlawfully killing deceased, robbing him with personal violence and stealing his shoes and mobile phone - where respondent's effective total sentence was eight years imprisonment with a recommendation for parole eligibility after three years - where Attorney-General contends that sentence imposed is manifestly inadequate - where respondent and co-offender had been drinking heavily before they stole shoes and mobile phone from deceased who was also heavily intoxicated - where respondent returned to strike deceased and steal from him again - whether Attorney-General must demonstrate error on the part of the primary court - whether respondent's sentence was within appropriate range in all the circumstances
Criminal Code 1899 (Qld), s 669A
Dinsdale v The Queen (2000) 202 CLR 321, applied R v Bojovic [2000] 2 Qd R 183, distinguished R v Duncombe [2005] QCA 142; CA No 410 of 2004, 6 May

2005, explained

R v George; ex parte A-G (Qld) [2004] QCA 450; CA No

316 of 2004, 26 November 2004, cited

R v Liekefett; ex parte A-G (Qld) [1973] Qd R 355, applied R v Melano; ex parte A-G (Qld) [1995] 2 Qd R 186, applied R v Stepto [2002] QCA 10; CA No 220 of 2001, 4 February

2002, distinguished

Weiss v The Queen (2005) 80 ALJR 444, applied York v The Queen (2005) 79 ALJR 1919, applied

COUNSEL:	M J Copley for appellant R A Mulholland QC for respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for appellant Gilshenan & Luton for respondent

1. McMURDO P: The respondent Moses Katia pleaded guilty on 31 March 2006 to unlawfully killing Paul Bernard Markham, to robbing him with personal violence and to stealing his shoes and mobile phone. He was sentenced for manslaughter to eight years imprisonment with a recommendation for post-prison community-based release eligibility after three years and to lesser concurrent sentences on the other counts. The appellant, the Attorney-General of Queensland, appeals under s 669A Criminal Code 1899 (Qld) contending that this Court should substitute a sentence of 10 years imprisonment.

2. Katia was 18 at the time of the offences and 19 at sentence. He was born in Sydney of Fijian heritage and spent most of his school age years in Brisbane. He was a successful student and sportsman. He was a member of his school's First XV rugby union team. At the time of the offence and at sentence he was part-way through completing a science degree at university. He had no prior convictions.

3. The deceased, Paul Markham, was 23 when killed by Katia. He was much loved by his family and popular amongst his peers and in the wider community; over 800 people attended his funeral. He was not an aggressive young man. Unlike Katia, he was of thin build (66 kgs and 182 cms tall). He had a history of back problems; he was missing a lumbar vertebra and had slight spina bifida but despite this physical disadvantage he was a hard worker with an impressive employment history.

4. On Saturday 12 February 2005 the deceased attended a get-together at Coorparoo to celebrate the return of friends from overseas. Between 7.00 pm and 11.00 pm he drank a bottle of wine. At about 11.00 pm the group of friends travelled to the Valley where they visited various licensed premises. He and others went to The Embassy Hotel in the city. At about 2.00 am he was in good spirits and uninjured. Most of his group went elsewhere but he stayed at The Embassy. He telephoned a female friend with whom he had previously had some romantic involvement. He left The Embassy at about closing time (3.00 am) and waited alone outside. The young woman he was hoping to meet remained inside talking to bar staff whom she knew. She and her companions left The Embassy at about 3.45 am and looked for but could not find the deceased. They went to another venue. The deceased remained in the environs of The Embassy. He was heavily intoxicated. At about 4.10 am a woman who was not known to him became concerned when she noticed that he did not appear to realize he had dropped his phone; his speech was incomprehensible. She sat him on a bus seat and unsuccessfully attempted to hail a taxi for him. She eventually left after giving him instructions on how to hail a taxi.

5. Meanwhile Katia had been drinking at The Stock Exchange Hotel from 11.00 pm. He had consumed about 15 rum and cokes. He met a friend, Matthew La Chuisa. They left at about 5.00 am for a kebab shop in Edward Street.

6. Although security video tapes then recorded the deceased, the respondent and La Chuisa, the recording did not accurately depict all their actions over the crucial period. It did reveal the following. The deceased was lying on a bus seat outside The Embassy Hotel at about 5.08 am. At about 5.09 am La Chuisa approached him and without resistance (no doubt because of the deceased's intoxication) removed the deceased's shoes and took his telephone. The respondent accepted by his guilty plea that his presence aided La Chuisa in the stealing. The respondent and La Chuisa left the deceased at about 5.11 am. The deceased, apparently unaware of the theft, walked in his socks a short distance to some wheelie bins where he urinated. The respondent returned and flicked some paper at the deceased before pushing one of the wheelie bins towards the back of the deceased's legs. The deceased stumbled but did not fall, finished urinating, adjusted his clothing and walked unsteadily back to the bus seat. The recording shows him standing in front of the bus seat at about 5.15 am. It next depicts him apparently unconscious on the seat. The respondent then approached and bent over him. The respondent stole the deceased's watch, joined La Chuisa and eventually caught a taxi home.

7. A cleaner from The Embassy was outside having a cigarette at this time. The deceased was not in his line of vision but he heard two men arguing. One said "Give me your watch" or "Give me your wallet". When he finished his cigarette he went around the corner and found the deceased unconscious on the bus seat. The deceased made a gurgling noise and slid to the ground. He was taken to hospital by ambulance. He did not regain consciousness and died the following Monday after his life support system was switched off.

8. A post mortem examination revealed that the cause of death was a closed head injury which ruptured a vertebral artery with resultant basal subarachnoid haemorrhage. The examination relevantly showed an abrasion to the left forehead, bruising to the lips, a possible bruise to the nose and, of greatest significance, a bruise behind the left ear. Such an artery rupture is commonly caused by a blow resulting in rotation of the head and stretching of the artery. Consumption of alcohol by the victim is a factor in about 80 per cent of such injuries. This is because an intoxicated victim has less muscular control than normal so that when force is applied there is excessive head rotation and the vertebral artery is ruptured. A blow behind the ear is one of the most common causes of a ruptured vertebral artery. Here the ruptured artery caused the fatal bleeding in the brain. It is relatively uncommon for a single blow to cause such severe damage but it can be caused by a quite moderate assault. The prosecutor described the bruising caused by the blow to the ear as "modest". The position of the left ear injury meant that it was unlikely to have been caused in a fall. The other injuries may have been caused by either multiple blows, a fall or a series of falls. A blood alcohol sample taken from the deceased at 6.30 am showed that at about the time of the assault his blood alcohol concentration was .203.

9. Reasonably clear still photographs from the video recording of the respondent and La Chuisa were broadcast on television. By 15 February La Chuisa was in police custody and police were undertaking surveillance of Katia's home whilst they obtained a warrant. Katia's girlfriend telephoned him and said she had seen him on television. Katia told his girlfriend that "the guy was giving us dirty looks" and that he gave the deceased "one backhander". After he saw himself on TV he rang Crime Stoppers and identified himself as one of the men in the televised images. That information was relayed to the police outside his home who approached him. He gave police an account minimizing his involvement. He distanced himself from La Chuisa's theft, said nothing about the robbery, claimed the deceased fell over, that he tried to assist him and that he found the watch on the ground. Later Katia admitted throwing a punch at the deceased which caused him to fall back and that he then removed his watch from his wrist before leaving. Katia told police that he was drunk but in control and that he knew what he was doing.

10. The prosecutor at sentence pointed out that Katia's final version was not consistent with the cleaner's account of what he heard outside The Embassy before discovering the deceased. The prosecutor emphasized the helplessness of the victim and the seriousness of Katia's conduct in that, after assisting La Chuisa in the theft of the victim's shoes and phone, Katia returned to assault the deceased and steal his watch.

11. Victim impact statements from Paul Markham's mother, father, grandparents, brothers and sister-in-law record the deceased's fine character, his many endearing qualities, that he was much loved, will be forever missed and grieved for and that even in death he was able to help others by donating organs to nine people.

12. The prosecutor submitted that the appropriate penalty was a term of imprisonment in the range of about 10 years but conceded that if a sentence of less than 10 years was imposed it was difficult to submit that the offence of manslaughter should be declared a serious violent offence under Part 9A Penalties and Sentences Act 1992 (Qld).

13. Counsel for Katia at sentence tendered a report from psychologist Dr Ian Lynagh with whom Katia had consulted on 14 occasions after his arrest. Dr Lynagh also interviewed Katia's parents and girlfriend. Dr Lynagh noted that Katia's alcohol use increased significantly after leaving school and soon became a problem affecting his university and part-time work attendance. By late 2004 he was binge drinking and his weight had increased by about 25 kgs over four or five months. His girlfriend told him he had a problem with alcohol and that he should get help. Since his commission of these offences he has abstained from alcohol and intends to embrace lifelong sobriety. During regular counselling sessions with Dr Lynagh, Katia addressed his offending behaviour, accepted responsibility and expressed great remorse to the deceased and his family. Dr Lynagh's assessment of Katia was that he is not an inherently aggressive or violent man who harbours ill will and criminal intent but his presentation, personal history and clinical and psychometrically generated profiles all indicate a person who is essentially mature for his years, shows sound psychosocial adjustment, has an awareness of and concern for others and is respectful of authority, rules and order. He is from a stable, caring family, is well educated, is active in sport and enjoys sound peer relationships. He has, however, a premorbid alcohol usage history and meets the criteria for the clinical disorder of alcohol dependency with a physiological dependence. On the night of the offences the consumption of 12 to 15 standard rum drinks in a four hour period would have rendered Katia seriously intoxicated. This would have impaired his cognitive processes, narrowed his attention and focus and led to a loss in critical judgment. He may have a particularly acute predisposition to alcohol addiction. Because alcohol is a depressant, Katia was apt to become emotionally less stable and prone to irritability, exhibiting an enhanced aggression and some behavioural dyscontrol. He would be well advised to embrace abstinence, if not for life certainly while he is still maturing cerebrally. Katia has no inherent predisposition to violence and whilst sober presents a minimal risk of recidivism and no particular threat to the community.

14. Dr Lynagh's impressions of Katia were reinforced by a number of tendered references including some from Katia's former teachers, the pastor of his church, and his peers. These references uniformly supported the contention that Katia's offences were out of character; that they were committed at a time when he was abusing alcohol; that he was genuinely remorseful for his actions; that he has made real efforts to rehabilitate; and that he has not consumed alcohol since he committed the offences in February 2005.

15. Through his counsel Katia apologized for his actions in open court to the deceased's family. Defence counsel submitted that Katia had done all he could to further his rehabilitation. He urged the judge to impose a term of imprisonment of about seven years with a recommendation for parole earlier than the halfway point.

16. Before passing sentence the learned and experienced sentencing judge noted the following matters. The victim had consumed a large amount of alcohol and this seemed to be a contributing factor to his fatal injuries. Katia too had consumed a large amount of alcohol. Katia's offending had profoundly and lastingly impacted on several generations of the deceased's family who loved him dearly, as their victim impact statements showed. Katia had a good family background and many references were tendered in his support which suggested he was not prone to violence and that his offending could be attributed to his alcohol abuse and dependency. Katia had attempted rehabilitation by abstaining from alcohol consumption. Manslaughter is an offence without the element of an intent to kill or cause life-threatening injuries. The appropriate sentence in each case will vary widely depending on the facts. General deterrence was a factor in determining the appropriate sentence in this case. After referring to R v George; ex parte A-G (Qld)[1] and R v Duncombe[2] the judge considered that Katia's youth, co-operation with the police, early plea of guilty and efforts at and good prospects of rehabilitation were factors in his favour. His Honour observed, however, that the offence was gratuitous, unprovoked and unnecessary violence against a man who had given no offence and was incapable of looking after, let alone defending, himself so that Katia's conduct, especially in first robbing and then again stealing from him, was contemptible.

    [1] [2004] QCA 450; CA No 316 of 2004, 26 November 2004.

    [2] [2005] QCA 142; CA No 410 of 2004, 6 May 2005.

17. It is not contended that the judge's reasoning process was flawed but that the sentence was inadequate. In support of that submission the appellant again emphasized the following. The victim was blameless[3] and was defenceless to the respondent's acts of violence and dishonesty. Katia was not immediately remorseful or fully co-operative. Helping La Chuisa steal the deceased's shoes and mobile phone and then deliberately and fatally punching him to the head before robbing him of his watch warrants a sentence of 10 years imprisonment. The appellant placed reliance on this Court's decision in Duncombe.[4]

    [3]            By contrast with the conduct of the victims in R v Bojovic [2000] 2 Qd R 183 and R v Stepto [2002] QCA 10; CA No 220 of 2001, 4 February 2002.

    [4] [2005] QCA 142; CA No 410 of 2004, 6 May 2005.

18. As in the present case, Duncombe was an attack in a public place on a blameless and defenceless victim incapacitated by alcohol. Duncombe, like Katia, was when sober a model citizen, but when drunk he became violent. Duncombe, however, used significantly more force than Katia in committing his killing: three punches to the head with at least one of very significant force. In addition Duncombe was older than the respondent (22 compared to 18) and had prior convictions for offences of violence for which he had been placed on community-based orders structured so that he could address his problems with alcohol and drug abuse. Duncombe's rehabilitative prospects were therefore not nearly as promising as Katia's. In the light of those distinctions, Duncombe supports the sentence imposed here.

19. The appellant alternatively contends that, even if there are no comparable cases which demonstrate that the respondent's sentence was outside a fixed range, standing on its own facts Katia's sentence is inadequate so that this Court should substitute a 10 year sentence under s 669A Criminal Code which gives the Attorney-General the right of appeal against any sentence and allows this Court "in its unfettered discretion [to] vary the sentence and impose such sentence as to the Court seems proper". The appellant relies on McHugh J's remarks in York v The Queen[5] to the effect that the plain words of s 669A(1) set out above do not require the Attorney-General to demonstrate error on the part of the primary court satisfying the requirements laid down in House v The King.[6]

    [5] (2005) 79 ALJR 1919, [24] - [28].

    [6] (1936) 55 CLR 499.

20. This Court has long held that to succeed in an appeal under s 669A the Attorney must ordinarily demonstrate error in accordance with the principles set out in House v The King: see R v Liekefett; ex parte A-G (Qld)[7] and R v Melano; ex parte A-G (Qld).[8] McHugh J's observations in York set out above were obiter although some general support for that approach can be found in the High Court's joint judgment in Weiss v The Queen[9] when interpreting the proviso under the Crimes Act 1958 (Vic) s 568(1) (cf s 668E(1A) Criminal Code). Gleeson CJ,[10] Hayne J[11] and Callinan and Heydon JJ[12] in York did not express a conclusive view on the interpretation of s 669A(1). For the present this Court should not depart from the long established interpretation of s 669A(1) Criminal Code taken by this Court in R v Liekefett; ex parte A-G (Qld)[13] and R v Melano; ex parte A-G (Qld),[14] with the apparent imprimatur of the High Court in Dinsdale v The Queen,[15] which requires the Attorney-General to demonstrate error in accordance with the principles set out in House v The King in order to succeed on an appeal under s 669A(1).

    [7] [1973] Qd R 355, 366.

    [8] [1995] 2 Qd R 186, 189 - 190.

    [9] (2005) 80 ALJR 444, [31].

    [10] (2005) 79 ALJR 1919, [4].

    [11]           Above, [35].

    [12] Above, [57] - [65].

    [13] [1973] Qd R 355, 366.

    [14] [1995] 2 Qd R 186, 189 - 190.

    [15] (2000) 202 CLR 321 (the statutory provision here considered did not contain the term "unfettered" which is present in s 669A(1) Criminal Code (Qld)).

21. The tragic events outside The Embassy Hotel on 13 February 2005 provide a stark warning to those in our community who participate in binge drinking. Otherwise pleasant and sociable human beings may become aggressive and act out of character when intoxicated. A minor blow to the head of someone who is intoxicated is much more likely to cause death than when sober. Paul Markham, by all accounts an affable young man of good character, became separated from his friends and in his grossly intoxicated state in a public place was easy prey to predatory conduct. His intoxication was almost certainly why a relatively minor punch to his head caused the devastating vertebral artery rupture and resultant serious brain injury which led to his death. Alcohol abuse was also how Katia, a talented university student, of good character when sober, came to rob, steal, assault and kill the deceased, a man who was doing no-one any harm and who was incapacitated from alcoholic excess in public. Paul Markham's family will never fully recover from their grief over the loss of their beloved son, brother and grandson. Moses Katia will have to carry the lifetime burden of knowing, and knowing that the community knows, that he caused Paul Markham's death by a deliberate blow to the head, without any intention to kill or maim, but in the course of a despicable series of thefts on an innocent and helpless man. If and when he is released on parole he will have to serve the balance of his head sentence subject to the conditions of his parole and the supervision of his parole officers; any substantial breach of his parole will render him liable to be returned to prison to serve the balance of his sentence. The sentencing court's role in these tragic circumstances is to weigh up the various competing, mitigating and exacerbating features of the case and with reference to appropriate legal principles and any comparable cases to determine a just sentence according to law. The primary judge properly carried out that difficult exercise. The sentence which he arrived at, eight years imprisonment with a recommendation for parole eligibility after serving three years, was within the appropriate range in all the circumstances apposite here. The sentence was one I regard as "proper" within the meaning of that word in s 669A(1) Criminal Code.

1. I would refuse the appeal against sentence.

2. HOLMES JA: I agree with the reasons of the President and concur that the appeal should be dismissed.

3. MULLINS J: I agree with the President.