R v Lynch and Attorney-General of Queensland

[1995] QCA 205

IN THE COURT OF APPEAL [1995] QCA 205

SUPREME COURT OF QUEENSLAND

C.A. No. 132 of 1995

Brisbane

[R. v. Lynch]

T H E Q U E E N

v.

MICHAEL JOSEPH LYNCH

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

Fitzgerald P.
McPherson J.A.

Shepherdson J.

Judgment delivered 02/06/95

Reasons for judgment by the Court

APPEAL DISMISSED.

CATCHWORDS	CRIMINAL LAW - SENTENCE - A-G Appeal - Wounding with intent to disfigure - Assault - Everitt v. The Queen (1994) 68 A.L.J.R. 875 - R. v. Melano (C.A. 393 of 1994) - Whether anti-social personality disorder justifies imposing a longer sentence - Veen v. The Queen (No. 2) (1988) 164 C.L.R. 465 - Whether abnormal mental condition operates as mitigating factor.
Counsel:	P. Ridgeway for the appellant P.E. Smith for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the appellant Terry Fisher & Co. for the respondent

Hearing Date: 16 May 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 2nd day of June 1995

This is an appeal by the Attorney-General against

inadequacy of the sentences imposed on the respondent Michael

Joseph Lynch in the District Court at Brisbane on 21 March 1995.

The sentences were imprisonment for 7 years for one count of wounding with intent to disfigure (count 1); 3 months for one count of dangerous driving (count 2); 3 months for one count of wilful damage (count 3); 6 months and two years respectively for two assaults occasioning bodily harm committed against Mrs B.

Paton and Ms. K. Paton (counts 4 and 5); and 2 years for four assaults on police in the execution of their duties (counts 6 to 9). The sentences were to be served concurrently, and his Honour made a recommendation for parole after 2 years and 9

months, in order to reflect the respondent's pleas of guilty. He also made a declaration in respect of 605 days spent in pre-

sentence custody.

The offences were committed on the night of 25/26 July

1993. The respondent Lynch and Ms Kerri Paton had been living

together as man and wife in Melbourne for some time before these

incidents. Because of his behaviour towards her, Ms Paton left

him and returned to her family in Brisbane. The respondent

followed her here with a view to attempting a reconciliation,

and located her at her sister's house at Chevron Island. His efforts at reconciliation failed; but, when Kerri and her mother Mrs Barbara Paton made to drive off in Mrs Paton's car, the

respondent used his own vehicle to block their egress from the driveway of the house. He was warned off by another person in

the house, and they succeeded in driving away.

Mrs Paton and her daughter drove off in a direction opposite to that which the respondent had taken when he left. However, he shortly appeared behind their vehicle and twice

swerved his vehicle in front of their car, eventually driving in front of it, and forcing it to stop (count 2). He demanded to

speak to Ms Paton. He tried to remove the car keys but succeeded only in bending them. He then used a car jack and smashed the front passenger window of their car (count 3) before opening the door and dragging Kerri from her vehicle. He threw her on to the ground and began punching her in the eyes and head

(count 5). When her mother, (who was then aged 55) tried to

intervene, she was pushed backwards and fell, striking her head

on the roadway (count 4). She lost consciousness for a time.

The respondent pulled Kerri Paton into the front of his own car and rammed her forehead six or seven times against the dashboard and then held her down while he bit her on the cheek

causing a gaping wound into which he then attempted to spit (count 1). Bystanders pulled her free and she ran some distance

to a nearby house but was caught again at the door of the house

and pushed to the ground. The respondent sat on her chest, punched her again, grabbed her by the hair and smashed her head

into the concrete path (count 5).

When the police arrived a short while afterwards, the respondent was subdued and allowed to sit in the open boot of his car. However, he seized a long-handled screw driver which

he swung at the police and fled (count 6). He was caught again.

Asked why he had bitten Kerri Paton, he said he had AIDS and he

had done it "to give her AIDS ... if she had AIDS, she'd stay

with me".

At the watchhouse in a cell, the respondent broke a light

fitting, cut himself and spat bloodied saliva on to police

officers. His behaviour as he was being removed was extremely violent. At one stage, having spat on the officers, he said "Go on, bash me, you cunts, I don't care. You're all dead. My blood will kill you" (count 7, 8). The assault on police officer St. George (count 9) was particularly savage. When he went to remove the respondent from the cell, he was struck on the arm by blood-soaked saliva and a piece of glass.

The bite to the cheek of Kerri Paton caused permanent

scarring. However, tests so far carried out suggest that she has
not contracted AIDS.

At the time of these offences the respondent was 36 years of age. He has an extensive criminal history of offences committed in New South Wales, Victoria, and South Australia, commencing in 1972 when he was a child of 14. They include breaking and entering (9 offences); receiving; burglary (6);

false pretences and the like (2); theft and larceny (4);

escaping lawful custody; assault (3) and assaulting or resisting police (4); destruction of property; forging and uttering;

intentionally causing injury, or threatening to do so (3); living off earnings of prostitution; and some minor drug and

street offences.

The offences for which sentences were imposed plainly called for a heavy sentence, particularly in view of the respondent's record of persistent criminal behaviour in the past. The power of this Court to increase those sentences on

this appeal by the Attorney-General is, however, subject to various limiting factors. The first is the decision of this Court in R. v. Melano (C.A. 393 of 1994) consequent upon Everitt

v. The Queen (1994) 68 A.L.J.R. 875 in the High Court. The second is that, although the assault committed against the police officers might fairly have attracted a sentence or

sentences cumulative on the others, adopting such a course on this appeal would conflict with the sentencing approach invited

by counsel for the Crown in the court below (cf. R. v.

Tricklebank [1994] 1 Qd.R. 330, 338; R. v. Boult (C.A. 458 of

1994); R. v. Aubrey (C.A. 294 of 1994). A third limiting factor is that it is not open to the

Attorney-General now to argue that the respondent's stated

intention of infecting his victims with AIDS was a circumstance

of aggravation in the wounding offence committed on Kerri Paton.
Had the Crown wished to rely on it as a circumstance making the
offence more serious, it would have been necessary to charge the
respondent with wounding with intent to do grievous bodily harm.
See R. v. de Simoni (1981) 147 C.L.R. 383; R. v. Boney, ex.p.
Attorney-General [1986] 1 Qd.R. 190. The same applies to the

assault by spitting on the police officers, as to which s.344 of the Code requires that circumstances of aggravation be

specifically charged. It would not be legitimate for this Court now to sentence the respondent for an offence with a circumstance of aggravation as to which he was neither charged nor convicted.

The offences (and particularly count 1) and the circumstances under which they were committed are obviously very serious instances of their kind. It is however necessary to maintain a degree of relativity with sentences for other offences. A conviction for manslaughter committed in somewhat similar circumstances attracted a sentence on appeal of 11 years imprisonment in R. v. Whiting (C.A. 321 of 1994). What the

appellant did to Kerri can only be regarded as acts of savagery.
Viewed objectively, apart from the matter about to be

mentioned, the overall sentence might in all the circumstances

require reconsideration.

Over a period of some time the respondent has been examined

by no fewer than four psychiatrists, two or three psychologists,

and three or four medical practitioners. Their reports show that the respondent has an anti-social personality disorder with

narcissistic traits. Such a condition generates apprehension about a possible repetition of similar violent behaviour in future, although that factor has, in decisions binding on this

Court, been held not of itself to constitute a justification for imposing, as a measure of preventive detention, a longer

sentence than would otherwise be appropriate : Veen v. The Queen (No. 2) (1988) 164 C.L.R. 465. At the sentence hearing in this

case, the Crown sought no order of the kind contemplated in

s.163 of the Penalties and Sentences Act 1992.

Medical opinion is that the respondent's present

psychiatric condition is the result in part of an exceptionally

deprived and violent childhood, but more especially of his

having, in a motor vehicle accident in December 1990, sustained

a severe closed head injury with contusion of the brain in the left temporal region. The result is to make him act

aggressively and to predispose him to sudden outbursts of uncontrollable and irrational anger. Ms Paton noticed the change which came over him after the accident in which he sustained the head injury, and it was essentially because she found she was the constant target of it that she was unable to

continue living with him.

A matter of that kind, taken in conjunction with other considerations to which it gives rise, is recognised as capable of operating as a mitigating factor in relation to sentence. See R. v. Dunn (C.A. 29 of 1994), where the authorities are

considered. In R. v. Dunn a sentence of imprisonment for 9 years for armed robbery involving the discharge of a shotgun was

reduced to 7 years because of such a factor. In the present case, it was a matter of which the sentencing judge was bound to, and did in fact, take notice. On this appeal reliance was

placed by counsel for the Attorney-General on the decision in

R. v. Nelson (C.A. 324 of 1986), where the Court of Criminal

Appeal declined to interfere with a sentence of 12 years imposed

on a man who, in somewhat similar circumstances of matrimonial disharmony, deliberately smashed the window of the car in which

his wife was sitting and fired a shot from a shotgun inflicting

injuries to the calves of both of her legs. However, the specific charge of which the applicant was convicted there was the more serious offence of doing grievous bodily harm with

intent, and there was no suggestion in that case that what he

did was influenced by an abnormal mental condition on his part.

As was said by Andrews C.J. on that appeal, the applicant had

gone about committing the offence "with a great deal of

deliberation".

The same cannot be said here. When the difference in the two offences (grievous bodily harm in that case, and wounding in this) is borne in mind, and when some allowance is also made for the respondent's psychiatric condition as a relevant factor, the head sentence of 7 years imposed in the present case is not such

as to warrant the interference of this Court. The recommendation for early parole simply reflects, as we have said, the respondent's plea of guilty, which is a matter that, by s.13(1)(a) of the Penalties and Sentences Act, the judge was

required to take into account.

The appeal should be dismissed.