R v McCusker
[2015] QCA 179
•29 September 2015
SUPREME COURT OF QUEENSLAND
CITATION:
R v McCusker [2015] QCA 179
PARTIES:
R
v
McCUSKER, Ronald Peter
(applicant)FILE NO/S:
CA No 48 of 2015
SC No 10 of 2014DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Bundaberg – Unreported, 16 March 2015DELIVERED ON:
Orders delivered ex tempore on 11 September 2015
Reasons delivered 29 September 2015DELIVERED AT:
Brisbane
HEARING DATE:
1 September 2015
JUDGES:
Morrison and Philippides JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
Orders delivered ex tempore on 11 September 2015:
1. That the application for leave to appeal against sentence is granted.
2. The appeal is allowed.
3. The sentence imposed on 16 March 2015 is set aside.
4. The applicant is sentenced to six years imprisonment and a declaration is made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that 553 days spent in pre-sentence custody between 10 September 2013 and 16 March 2015 is time that is taken to be imprisonment already served under the sentence.
5. The applicant’s parole eligibility date is 11 September 2015.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant seeks leave to appeal against a sentence imposed in the Supreme Court at Bundaberg on 16 March 2015 – where the applicant plead guilty to one count of manslaughter – where the applicant was sentenced to six years and three months imprisonment with a parole eligibility date two years and thirty-seven days after the date of sentence – where the applicant and the deceased were old friends who had been drinking for several hours leading up to the deceased’s death – where the applicant was trying to prevent the deceased getting into a motor vehicle – where expert evidence revealed that the deceased died as a result of the compression of his neck by the applicant with moderate force probably for only a few seconds – where the manslaughter plea was not early but timely – where the applicant had a long and persistent criminal history – where the bulk of offences relate to burglary and dishonesty offences – where two of the offences involve violence or apprehension of violence – whether the applicant’s criminal history improperly influenced the sentencing judge’s approach – whether the sentence was manifestly excessive in all the circumstances of the case
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where further ground of appeal – where the applicant was serving a suspended sentence at the time of the killing – where the applicant also committed break and enter offences after the killing but before the date of sentence – where the applicant had already spent 553 days in prison at the date of sentence – where only 35 days declarable as pre-sentence custody – where the sentencing judge declared 35 days of pre-sentence custody as time served under the sentence and made no allowance for the remaining time served in custody – whether the sentencing judge should have made full allowance for the declarable and non-declarable pre-sentence custody
Acts Interpretation Act 1954 (Qld), s 14A
Corrective Services Act 2006 (Qld), s 199(1), s 199(2)
Penalties and Sentences Act 1992 (Qld), s 9(10), s 9(11), s 159AAlcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Cooper Brookes (Wollongong)Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, cited
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited
R v Aston (No 2) [1991] 1 Qd R 375, applied
R v CBG[2013] QCA 44, considered
R v Clark[2009] QCA 361, cited
R v Dwyer[2008] QCA 117, considered
R v Frame[2009] QCA 9, considered
R v Friday (1984) 14 A Crim R 471, considered
R v Griffiths[1993] QCA 559, considered
R v Mooka[2007] QCA 36, considered
R v Neal, unreported, North J, SC No 6 of 2014, 15 October 2014, considered
R v Simeon[2000] QCA 470, considered
R v Skondin[2015] QCA 138, considered
R v Smith; ex parte Attorney-General (Qld)[1996] QCA 56, considered
R v Thomas, unreported, Fryberg J, SC No 681 of 2011, 13 April 2012, considered
R v Tientjes; ex parte Attorney-General of Queensland[1999] QCA 480, considered
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, appliedCOUNSEL:
J J Allen QC for the applicant
M R Byrne QC for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I have read the draft reasons prepared by McMeekin J. Those reasons reflect my own for making the orders on 11 September 2015.
PHILIPPIDES JA: I agree with the reasons for judgment of McMeekin J and have nothing further to add as to the basis for the orders made on 11 September 2015.
McMEEKIN J: On 11 September last the Court pronounced the following orders in disposing of the application and appeal:
1. That the application for leave to appeal against sentence is granted.
2. The appeal is allowed.
3. The sentence imposed on 16 March 2015 is set aside.
4. The applicant is sentenced to six years imprisonment and a declaration is made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that 553 days spent in pre-sentence custody between 10 September 2013 and 16 March 2015 is time that is taken to be imprisonment already served under the sentence.
5. The applicant’s parole eligibility date is 11 September 2015.
What follows are my reasons for concurring in those orders.
The applicant is Ronald Peter James McCusker. On 1 January 2012 he killed his friend John Douglas Dive. Mr McCusker was charged with his murder. On 16 March 2015 when arraigned Mr McCusker pleaded guilty to manslaughter. The prosecution accepted the plea in discharge of the indictment. The primary judge sentenced Mr McCusker to six years and three months imprisonment with a parole eligibility date set at 22 April 2017 – two years and 37 days from the day of sentence. Her Honour declared 35 days spent in pre-sentence custody as time served under the sentence that her Honour imposed. Mr McCusker now seeks leave to appeal that sentence.
There were two grounds advanced in support of the application:
(a) That the sentence was manifestly excessive;
(b) That the learned sentencing judge erred in determining that the period of non-declarable pre-sentence custody should not have the same effect upon the sentence as it would have had it been declarable.
The error identified in that second ground was the subject of an amended ground of appeal filed the day before the hearing. The way the point is now advanced is not precisely the way the issue was dealt with in submissions before the primary judge. If that error is made out it is has the effect that it is necessary for this Court to sentence afresh, exercising its “independent discretion”: Kentwell v The Queen (2014) 252 CLR 601 at [42] per French CJ, Hayne, Bell and Keane JJ.
This was an unusual case. The facts surrounding the unlawful killing were unusual. The considerations surrounding the pre-sentence custody served, while not unique, are not usually found. I turn to the primary argument advanced.
The Error
To understand that primary argument it is useful to set out a brief chronology:
22 November 2010
Sentenced, inter alia, to 18 months imprisonment but wholly suspended with an operational period of three years.
1 January 2012
Killing of Mr Dive.
March 2012
Break and Enter offences committed.
10 November 2012
Sentenced to imprisonment for two years with a parole release date of 10 September 2013 for the break and enter offences. The suspended sentence of three months imposed on 22 November 2010 fully invoked.
3 December 2012
Charged with murder of Mr Dive.
10 September 2013
Parole release date under the sentence of 10 November 2012.
9 February 2015
Sentence imposed on 10 November 2012 ends.
10 February 2015
Declarable time in custody commences.
16 March 2015
Sentenced.
The issue concerns the time served from 10 September 2013 to 9 February 2015, a period of one year and five months. The primary judge commented on that period of custody: “I should take into account (although not in a precise mathematical way) the fact that you were required to serve the whole of the sentence imposed on you on the earlier offences because of your arrest for this offence.”[1]
[1]AB 55/5.
This followed discussion with counsel about the correct approach in the course of which her Honour said that the period was not declarable and “it can’t have quite the same effect as if it were declarable”.[2] The applicant’s counsel pressed very strongly that the entire period should be brought into account – both in reducing the head sentence and in setting the parole eligibility date.
[2]AB 49/10.
The way in which her Honour did in fact take that period into account is not clear from the sentencing remarks. However the relevant point here is that the applicant contends that her Honour ought to have treated that period as if it was declarable – that is to allow every day of it as time served under this sentence. It is clear that her Honour did not take that approach.
The argument depends on the construction of sections 199(1) and (2) of the Corrective Services Act 2006 (Qld) and s 159A(1) of the Penalties and Sentences Act 1992 (Qld). Section 159A(1) provides as follows:
159ATime held in presentence custody to be deducted
(1)If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders. (emphasis added)
Section 199 of the Corrective Services Act relevantly provides:
199Court ordered parole order
(1)The chief executive must issue a court ordered parole order for a prisoner in accordance with the date fixed for the prisoner's release on parole under the Penalties and Sentences Act 1992, part 9, division 3.
(2)However, if the prisoner is being detained on remand for an offence, the chief executive can not issue the court ordered parole order unless—
(a)the prisoner is granted bail in relation to the offence under the Bail Act 1980; or
(b)the charge for the offence is withdrawn.
Here it is said that Mr McCusker was held in custody for two reasons. One was the fact that he faced a charge of murdering Mr Dive. If that was the only reason he was being held then he was entitled, pursuant to s 159A(1), to have the whole of the time spent in custody brought into account when sentenced in relation to that charge. But it is said that there was another reason. That was the fact that s 199(2) of the Corrective Services Act prohibited his release on the court ordered parole date in respect of the sentence imposed on 10 November 2012 for other offences, offences not involved in the proceedings for “the offence” before the primary judge. That prohibition was activated because he was facing the charge of murdering Mr Dive.
It is obvious that the only reason for Mr McCusker’s incarceration after 10 September 2013 was that he faced a charge of murdering Mr Dive. Hence, the argument that there was some reason other than that “the offender was held in custody in relation to proceedings for the offence” before the Court – that offence being the murder charge – was technical at best. In justice, whether declarable or not, there was no reason why that time in custody should not have been treated – in full – as time served under the sentence imposed for the unlawful killing of Mr Dive. In not doing so I consider that her Honour fell into error. A peculiar feature of the case is that in the statement of agreed facts put before the primary judge it was said that this period of incarceration “should be considered to be time spent in custody as a result of this charge”.[3] That position was not maintained for reasons that remain unclear.
[3]See paragraph 9 at AB 95.
To this point I have proceeded on the assumption that the time spent in custody was not declarable under s 159A(1). That was the proposition advanced before the primary judge and this Court. I am by no means persuaded that this assumption is correct.
The issue turns on the scope that is to be given to the words of the section: “held in custody in relation to proceedings for the offence and for no other reason”.
The phrase “in relation to” in its normal operation means “in connection with”. I can see no good reason not to apply the usual meaning of the phrase. As Gibbs CJ observed in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation,[4] “it is not unduly pedantic to begin with the assumption that words mean what they say”.
[4](1981) 147 CLR 297 at 304.
Looked at objectively can it be said that the applicant was held in custody “in connection with” the murder charge? Without a doubt. Was he held for any other reason? Not at all. Section 199(1) of the Corrective Services Act otherwise entitled him to be released on his parole release date.
The approach the primary judge expressed – that the applicant was “required to serve the whole of the sentence imposed on [him] on the earlier offences because of [his] arrest for this offence” – while true as a statement of what had transpired, did not reflect any requirement of the legislation. The legislation did not “require” the applicant to serve any further imprisonment in relation to those earlier offences. Had the sentencing taken place on 10 September 2013 the applicant would have not served one day more of the sentence imposed for the prior and unrelated offences.
That approach is behind the interpretation that the prosecution adopted before the primary judge and this Court. It essentially ignores the fact that the “other reason” for holding the applicant was inextricably bound up with the charge that was before the court.
I am reinforced in that view by the definition that the section provides for the phrase “proceedings for the offence”. It is defined in s 159A(10) as including “proceedings that relate to the same, or same set of, circumstances as those giving rise to the charging of the offence.” So the question that the section poses is: was the applicant held in custody in connection with the same set of circumstances as those giving rise to the charging of the offence and for no other reason? In my view there is only one answer to that.
Consideration of the context and the mischief that the legislature sought to remedy[5] do not suggest that the approach I take is misconceived. The legislature was plainly concerned that prisoners were not to be disadvantaged by serving longer in incarceration than was proportionate to their crime. The approach that the prosecution urges in this case would bring about that very disadvantage.
[5]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47.
Section 14A of the Acts Interpretation Act 1954 (Qld) requires the court to adopt the interpretation that will best achieve the purpose of the Act in preference to any other interpretation. That test is met in the approach I take to the legislation.
The approach that her Honour took, or at least expressed, is a very common one. It applies in the more usual case where the prisoner before the Court has no immediate right of release in respect of the other offences, offences not the subject of the proceedings, on which he or she is being held. Then there is a need to apply some judgment as to what part of the period ought to be brought into account. There is then some other reason for the incarceration of the prisoner. But that is not this case.
Here Mr McCusker was entitled to have the entire period after 10 September 2013 brought into account. It seems evident that her Honour did not do that.
Even if I am wrong in that view, and if in fact the primary judge did allow for the whole of that period, then the difficulty is that the effective sentence imposed was not one of six years and three months but seven years and eight months and, as I will endeavour to explain, such a sentence would in my judgment be manifestly excessive.
Given my view that the sentence proceeded on a mistaken view of the proper approach that should be taken to the pre-sentence custody period it is necessary that I exercise my own independent discretion in setting the appropriate sentence. I turn to the material matters. I am assisted in that by the careful review that her Honour undertook of the material.
The Facts of the Offence
The facts were set out in an agreed schedule. The applicant and the deceased were old friends – a friendship that spanned twenty years. The two men had been arguing and drinking over several hours. They were both heavily intoxicated. The deceased died as a result of the compression of his neck by the applicant with moderate force probably for only a few seconds. The applicant was trying to prevent the deceased getting into a motor vehicle. Precisely why was not clear. The deceased had expressed an intention to drive the vehicle and it is one possibility that the applicant was endeavouring to restrain him from doing so, the deceased being in no fit state to drive.
I turn to the event itself. The applicant had gone outside to urinate and had returned to find his friend on the floor. What then followed was set out by the primary judge in the sentencing remarks:
“It is likely that he had been on the floor for several minutes until helped back up into his seat by you. This resulted in the pool of blood forming on the floor near the kitchen table. You helped him and sat him back up in his chair at the table. Once he was again sitting in the chair, you told him to go to bed and helped him out to his Land Cruiser for him to sleep after washing some of the blood from his head. However, he returned to the residence, saying he wanted to keep drinking. You and he argued further and then he said he was going to drive his Land Cruiser. You became angered by something he had said or done, or was about to do. You followed Dive out to his Land Cruiser and reached him just as he was about to open the front driver’s side door. You stopped him opening that door. He fell over. You grabbed him by the neck with one hand and got ready to punch him with your other hand, clenching your fist and cocking your arm. However, before you had time to deliver that blow, Dive became a deadweight in your hand. Unbeknown to you, the compression of his neck had disrupted his nervous system and he had gone into cardiac arrest. You ceased your attack and put him in the back of the Land Cruiser. You returned to the kitchen area.
Some time later, you went out to check on your friend, but found him cold and not breathing. It is clear now that he had, in fact, died about the time he became a deadweight in your hand. You immediately dragged him from the Land Cruiser and tried to revive him. His false teeth came out in the process. You tried to put him back in the vehicle so you could take him into town for medical assistance, but you could not get him back into it. You rang 000 and sought medical assistance, but were unable to tell the operator precisely where you were. You moved him to the Jeep so that you could try and get him to a place where he would get medical attention. You made further attempts to revive him. You put him into the Jeep and drove to Mount Perry Road, where you could be found by the ambulance. All of those things that you did once you realised what trouble he was in give ample demonstration of the remorse that you have said that you feel for the death of your friend.”
According to the uncontested opinion of the pathologist who performed the autopsy on the deceased there were multiple factors that “played a role” in death being the outcome of what was essentially a seemingly innocuous act. They included “[the deceased’s] degree of hypoxia, the vagal inhibition, the severe or moderate coronary artery disease, [and] the severe alcoholic intoxication”.
The primary judge summarised the effect of the agreed facts in these words:
“This is a terrible set of events that unfortunately ended in the death of a man, a man who was a friend of yours. Your behaviour was emotional and momentarily violent, but you had no intention to kill Mr Dive or even to seriously hurt him. These are most unusual factual circumstances, where a man has died who had a number of factors which led him to be vulnerable and one seemingly innocuous action by you, in fact, caused his death.
I agree with her Honour’s summary. Thus the applicant fell to be sentenced on the basis that while he was behaving in an aggressive way towards his friend immediately before the act that caused his death that act was not one that he had any reason to think would kill his friend. He immediately desisted from any further aggressive act once his friend became a “dead weight”. When he realised his friend’s plight he was immediately remorseful. He called for help. He did what he could. He pleaded guilty. While there was a committal and cross examination of the pathologist, that cross examination elicited the crucial opinion that ultimately led to the offer of the plea to manslaughter and its acceptance.
The plea was not an early one but it was timely. It was offered about ten days before trial and accepted the following day by the prosecution. It certainly had a utilitarian value. That has to be acknowledged: R v Clark [2009] QCA 361. And there is no indication that the prosecution had invited such a plea at some earlier time and the applicant resisted. The applicant had good reason to defend the murder charge. There is every reason to accept that the plea confirmed the genuineness of the remorse the applicant expressed by his words – he addressed the primary judge – and deeds.
The sentencing remarks were, with respect, detailed and cogent. They included the following summary of the salient features:
“It is relevant to the sentence to be imposed in this case that a man has died as a result of your actions. It is also relevant that you did not intend to seriously hurt him; that the death occurred in these very unusual circumstances that I have referred to; that your irrationality in your behaviour was, in part, caused by the fact that you were drunk; and that, as soon as you realised how serious the situation was, you tried as best you could to save your friend. However, it is also relevant that he posed no danger to you and had not done anything to cause you any fear for your own life or safety and that you have a very long and persistent criminal history, although, as set out, not as bad a history of violence as can often be seen in a criminal history as long as yours. It is also relevant that you have pleaded guilty and that you have spent time in custody.”
Again I gratefully adopt the summary. As the primary judge said these are “most unusual factual circumstances”.
A Long Criminal History
Before turning to the comparable cases it is necessary to say something of the applicant’s personal circumstances and his criminal history.
Mr McCusker is now aged 52 years having been born on 2 September 1963. The last 20 years have been spent in Queensland with Mr McCusker obtaining fairly regular work in the fishing industry. His earlier life was marked by hardship – the death of his mother at his age of 18 months, being taken in by his grandparents only to have his grandmother die from cancer, a return to his father who was harsh in his discipline with constant conflict, being then made what he called a ward of the State by age 11 or 12 with a life in boys’ homes and exposure to physical abuse and drugs. His education was limited. By his later teen age years he was a heroin user if not an addict. He worked at times as a labourer. His heroin habit persisted into his late twenties. He eventually came to Queensland. A happy relationship was formed in about 2004 and a daughter born but that relationship ended in recriminations and again breaches of the law to which I now turn.
Sub-sections 9(10) and 9(11) of the Penalties and Sentences Act 1992 set the statutory framework:
(10) In determining the appropriate sentence for an offender who has 1 or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to—
(a) the nature of the previous conviction and its relevance to the current offence; and
(b) the time that has elapsed since the conviction.
(11) Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.
As mentioned, the applicant has a criminal history which the primary judge described, accurately, as “long and persistent”. It extended over three States and nearly 40 years. He commenced his offending when a child. The bulk of the offences relate to burglary and like offences of dishonesty.
Significantly there have been offences for violence, notably a robbery with violence in South Australia, committed in 1988, which resulted in a sentence of five years imprisonment. This was committed at a time when Mr McCusker was a heroin user. It would seem that alcohol has been the more persistent problem in more recent times. The violence involved was the force necessary to get a bag from a person who had just used an ATM machine. While deplorable it appears that the victim was not physically hurt.
The Queensland criminal history too includes offences involving violence or the apprehension of violence. In 1996 the applicant was sentenced to imprisonment for 13 months for offences including possession of a weapon with intent to murder. That involved a dispute with a security officer at a night club. There was no physical interaction there – perhaps because of the intervention of police. The applicant was heavily intoxicated. Although armed with a knife at the time a feature that suggests that there was more bravado and exaggeration than any real intention to carry out the threat to kill was that when confronted by police the applicant informed them of his intention thereby ensuring his arrest.
Later in that year the applicant was sentenced to nine months imprisonment for an offence of going armed in a public place and seriously assaulting a police officer. There are no further details.
There followed several years of relatively minor offending or no offending. This period of virtually no offending coincided with the forming of a relatively stable relationship. Then on 30 July 2007 the applicant was sentenced to 12 months imprisonment wholly suspended with an operational period of 18 months for making threats and common assault. The record is silent as to the detail of the offending. There is then no record of offending for four years from March 2006 to until April 2010, the offending then involving a fisheries offence.
On 22 November 2010 the applicant was sentenced to concurrent terms of imprisonment for a variety of offences the most significant of which was a term of 18 months for stalking wholly suspended with an operational period of three years. The significant offences arose out of domestic conflict. There was no actual violence but threats of violence, made repeatedly and in violation of a protection order taken out under the Domestic and Family Violence Protection Act 1989 (Qld). For the breach of that protection order a concurrent sentence of three months’ imprisonment was imposed but suspended again with an operational period of three years.
On 10 November 2012 the applicant was sentenced for breaking and entering, stealing, attempted stealing, breach of bail and breach of a protection order. Those offences were committed between March and November 2012. He was sentenced to a total period of imprisonment of two years and three months – the three months being for breach of the protection order and cumulative to the two year sentence imposed for the other offences. The suspended terms imposed on 22 November 2010 were fully activated, but ordered to be served concurrently. The parole release date was fixed as 10 September 2013. As the primary judge correctly observed: “That is the day on which you would have been released on parole had it not been for the commission of the crime for which you are now being sentenced.”
As mentioned, Mr McCusker spent the period from 10 September 2013 until he was sentenced for the subject offence on 16 March 2015 in custody. Of that period 35 days (from 10 February, when the two years and three month sentence expired, to 16 March 2015, the day of sentence) was advanced as able to be declared as time served under the sentence pursuant to s 159A(1) of the Penalties and Sentences Act 1992 (Qld) and the primary judge did so.
While the criminal history is lamentable there was some force in the submission made below that violence was not the predominant feature in that history. The applicant’s counsel submitted, apparently accurately, that while there had been exaggerated threats made at various times the applicant had not acted on them. In summary, there were three offences involving actual violence – the robbery in 1988, the serious assault on a police officer in 1996 and the assault in 2007. While I do not wish to minimise the distress an attack of any sort would engender, nor minimise the alarm that the applicant’s conduct would have caused to his former de facto in 2010, it is relevant to note that there was no indication that the applicant had caused any person to suffer serious physical harm before the subject offence.
I have gone into some detail in relation to these offences as it was urged on this application that the past history was relevant and it seems likely that the history influenced the primary judge in her approach. That is the inference I draw from the comment her Honour made about the comparable cases:
“I have been referred to a number of other cases. None of them are particularly helpful in determining what sentence should be imposed. In all of them, the objective circumstances are far worse, but the sentences can also be explained by the fact that they were committed by people – certainly in the case of R v Tientjes; ex parte A-G [1999] QCA 480 and R v Simeon [2000] QCA 470 – who otherwise had extremely good or, indeed, unblemished records, unlike you.”[6]
[6]AB 60/24-29.
I will turn to those comparable cases in a moment. I agree with her Honour’s remark that they are not particularly helpful. But the present issue is what effect that past conduct should have on this sentence. The principles are clear and were discussed relatively recently by Atkinson J in this court (White and Gotterson JJA agreeing) in R v CBG [2013] QCA 44 at [30] – [32]:
“[30] The applicant submitted that the purposes for which a sentence may be imposed are as set out in s 9 of Penalties and Sentences Act 1992 (Qld) ("PSA"). A cardinal principle of sentencing in s 9(1)(a) is that a sentence should only result in punishment that is just in all the circumstances. Relevantly, the applicant submitted, a sentence should be proportionate to the gravity of the offence and should not be increased beyond what is proportionate to the crime merely in order to extend the period of protection of society from the risk of recidivism on the part of the offender. Whilst the antecedent criminal history is relevant in determining whether retribution, deterrence or protection of society might indicate that a more severe penalty is warranted, it could not be used to impose a fresh penalty for past offences.
[31] The applicant's authority for this clearly correct proposition is R v Aston (No 2) [1991] 1 Qd R 375 at 380-381 where the Court of Criminal Appeal adopted the sentencing approach referred to by the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 and held:
"The majority judgment in Veen [No 2] makes clear that the principle of proportionality (that the sentence should be proportionate to the gravity of the offence) applies in Australia. Additionally a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender or to act as a deterrent to others who might contemplate committing the same offence (164 CLR at 472). However, it is permissible to have regard to the protection of society as one of the factors amongst others in the exercise of the sentencing discretion."
[32] Cooper J, who wrote the leading judgment in R v Aston(No 2), referred with approval to what had been said in Veen [No 2] about the use which could be made of an offender's criminal history at 477-478:
"… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties." (Emphasis added)
I cannot accept that the criminal history here indicates that “retribution, deterrence and protection of society” should be seen as significant factors in determining the appropriate sentence. The applicant has continually disobeyed the law over 40 years. But he is not to be punished for those past crimes. And this crime with its tragic consequences can, I think, be fairly described as an aberration.
Comparable Cases
We were taken to the following cases: R v Simeon [2000] QCA 470; R v Mooka [2007] QCA 36; R v Dwyer [2008] QCA 117; R v Skondin [2015] QCA 138; R v Tientjes; ex parte A-G (Qld) [1999] QCA 480; R v Thomas (unreported, Fryberg J, Supreme Court No 681 of 2011, 13 April 2012); R v Neal (unreported, North J, Mt Isa Supreme Court, No 6 of 2014, 15 October 2014); and R v Frame [2009] QCA 9.
None of those cases have the peculiar characteristic of this case namely of an almost innocuous act causing the death. The cases generally involve a brutal killing with limited provocation. Here brutality was entirely absent.
Simeon involved a sentence held not to be manifestly excessive on appeal of seven years and six months – about the same as the effective sentence that was imposed here – for manslaughter. The decision then stands for nothing more than the proposition that the sentence was not seen to be manifestly excessive. But it is not irrelevant to note that the violence there was significantly greater than present in the instant case. The sentencing judge described the attack as “brutal and violent” and “directed at a man who, by reason of his heavy intoxication of alcohol, was defenceless”.[7]
[7][2000] QCA 470 at [6].
Simeon head butted and kicked the deceased and, after the attack, was seen leaning over the deceased punching him in the face when on the ground. He persisted until he was dragged off. Simeon held a false belief that the deceased had struck his son at a party. The death was caused by only one blow and that blow required only moderate force. It was accepted that there was great remorse. Simeon had the advantage of a good prior record. The sentence was described as “by no means a light one”[8] but held to be within the appropriate range.
[8]Ibid at [11].
I consider the violence displayed in Simeon deserved far greater condemnation than here and the need to protect society was a more cogent consideration than here.
Dwyer was, on any view, a more serious case than this one. There was there a degree of callousness and lack of remorse that puts it into a different category of offending. There a sentence of 10 years imprisonment was imposed and not disturbed on appeal. Dwyer felled the deceased with a punch and then kicked him several times. He left him comatose for at least an hour not wishing to involve the authorities. As a result of the attack the deceased had severe multiple facial fractures, traumatic shock and elevated blood pressure, and cardiac arrhythmia. He died of cardiac arrest caused by the attack. The provocation for the attack was apparently that the deceased had thrown objects at Dwyer that had missed.
Skondin comes closest to the facts here. It involved only one blow. But it was an unprovoked attack described as “a cowardly blow, struck while [the deceased] was unguarded and defenceless.” It was a blow directed to the side of the head when the victim was not expecting it. The defendant then walked away after seeing the deceased fall and left others to assist him, albeit not necessarily realising the extent of his injuries. The defendant had shown no real remorse. The sentence was reduced from ten years imprisonment to nine years on appeal. The attack in Skondin was of far more concern than the restraining action here.
In Skondin Holmes JA observed at [80] that “in considering appropriate punishment in manslaughter cases of this kind, there is a significant distinction to be drawn between cases of a modest single blow with unusual and fatal physiological consequences and those in which death results from a sustained beating.” I would add that there is a distinction too between the modest single blow cases and a case, as here, where there was not even a modest single blow.
In Tientjes the defendant had been found guilty of manslaughter after a trial. While that was a case of over reaction in self-defence, an aspect not present here, it involved far more serious violence than here. There the deceased died from a subdural haemorrhage caused either by a kick to the head or the head striking the pavement. He had other, and extensive, injuries. The defendant’s reaction to a claimed unprovoked punch to his head by the deceased was a violent response which continued even after the deceased was on the ground. The primary judge’s view was that the intensity of the defendant’s reaction and its prolonged nature were such as to “cause one to be quite chilled”.[9] The members of the Court of Appeal agreed.
[9][1999] QCA 480 at [9].
The defendant was a 36 year old with one prior conviction for an assault occasioning bodily harm five years before for which he had been fined. The case involved an appeal by the Attorney-General. This court increased the sentence from one of imprisonment of four and a half years to seven years. The prosecutor had contended for a sentence of seven to eight years before the primary judge. That submission apparently influenced the Court.
Again I consider the violence displayed by Tientjes was deserving of significantly more serious condemnation, and raised significantly more serious concerns about the need to protect society from him, than the conduct in question here. Added to that there was no plea of guilt and a false story advanced at trial in an effort to escape a verdict of guilt. Unsurprisingly remorse was not mentioned as a relevant factor.
Thomas and Neal were each single judge decisions and each had the significant aggravating feature in that a knife was used. Fryberg J imposed a sentence of eight years imprisonment in Thomas and North J imposed a sentence of nine years imprisonment in Neal.The use of a weapon puts each of these cases into a different category of offending. Neither case is of assistance here.
Frame is merely a decision that the sentence imposed at first instance was not excessive and so it does not assist greatly. The defendant with a co-offender had killed a man in what was described as a “brawl which followed a drinking bout”.[10] A sentence of seven and a half years was not interfered with. If Frame provides any assistance it is that it shows that a sentence comparable to the effective sentence here was imposed for a level of violence that seems, from the brief description given, to be worse than that here.
[10][2009] QCA 9 at [3].
Mooka was cited not as a comparable case factually but as containing a useful review of authorities on sentences imposed for manslaughter. The review was not useful – the cases all involved the use of a weapon. They involved sentences ranging from eight to ten years.
I am conscious that a precise examination of aggravating and mitigating features of past cases and comparing them to the subject case is not always of much assistance: see the comment of Keane JA (as his Honour then was) in Dwyer at [37]. Nonetheless sentences of imprisonment at the level imposed here have invariably involved much more significant violence than placing a restraining hand, albeit with moderate force and with an intent to strike if necessary, on a drunken friend. Mooka is useful for the reminder by de Jersey CJ that the discretion on sentence was “comparatively wide” in manslaughter cases because “the circumstances of manslaughters are infinitely various.”
Submissions
Counsel for the applicant submitted to the primary judge that a sentence of around six years’ imprisonment was appropriate. That submission was repeated on appeal.
Consistently with the decision in Barbarov The Queen (2014) 253 CLR 58 the prosecutor made no submission on the appropriate sentencing range. The cases referred to involved the imposition of sentences from seven to ten years.
Discussion
As I have said, the effective sentence imposed by the primary judge was one of seven years and eight months – comparable to, albeit greater than, that imposed in Simeon and Frame (seven years and six months) and significantly greater than that imposed in Tientjes (seven years) acknowledging that was an appeal by the Attorney-General. Each of those cases involved a level of violence not present here. They are in no sense comparable.
The difficulty is in arriving at a sentence that is not “disproportionate to the gravity of the current offence”, as s 9(11) of the Penalties and Sentences Act 1992 requires, despite that long and persistent criminal history. In my judgment a lesser sentence was warranted in the circumstances here than imposed in any of the above cases, despite the criminal history. It follows that in my judgment the sentence imposed below was manifestly excessive in its effect.
A comparison of the sentence here to sentences imposed in those cases which might be thought to be a little out of the ordinary in terms of the criminality of the conduct involved confirms that view.
For example in R v Smith [1996] QCA 56 a sentence of five years imprisonment was not disturbed on appeal although it was thought to be at the low end of the range. There an intoxicated husband had struck his wife after an argument in which she had said she was leaving him. The blows caused her nose to bleed, she inhaled blood which obstructed her airways and that led to hypoxic brain damage and death a week later. The husband was said to be distressed at his wife’s condition. He had cared for their two teenage children up until sentence. He was remorseful and there had been an early plea to manslaughter eventually accepted at trial.
Similarly in R v Griffiths [1993] QCA 559 a sentence of five years imprisonment was not disturbed on appeal in a case involving negligent handling of a firearm in bushland with subsequent concealment of the offence. The body was not found for a year. There were no prior convictions.
Again in R v Friday (1984) 14 A Crim R 471 a sentence of five years imprisonment was imposed, on this occasion by the Court on the appeal. A sister had stabbed her brother who was attempting to beat her. She had been subject to violence by her brother previously. It was considered relevant that she was from an indigenous community.
While these decisions are somewhat dated that feature probably reflects the fact that exceptional circumstances do not come along that often. Those are by no means the shortest sentences that can be found for manslaughter offences involving some violence but usually there were exceptional features present that are not here – youth, or that feature absent any prior criminal history, or mere encouragement and the like.
Here the circumstances of the offence seem to me to be exceptional. Balancing out the various factors as best I can, and acknowledging that there has been a tragic loss of a life, I consider that a sentence of six years imprisonment is appropriate.
If the time spent in pre-sentence custody could not be declared I would reduce that head sentence to four years and seven months. In the view I take that entire period of presence custody can be declared and there is no need to adjust the head sentence.
To acknowledge the various mitigating features including the plea of guilty and the applicant’s undoubted genuine remorse I would set a parole eligibility date at 11 September 2015, after serving two years in prison.
The orders previously made reflect my view as to the correct approach to the construction of the Penalties and Sentences Act and as to the appropriate sentence in all the circumstances.
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