R v Sef

[2024] QCA 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v SEF [2024] QCA 29

PARTIES:

R
v
SEF
(applicant)

FILE NO/S:

CA No 145 of 2022
SC No 320 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time to Appeal (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 11 July 2017 (Flanagan J)

DELIVERED ON:

8 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2023

JUDGES:

Mullins P and Boddice JA and Burns J

ORDER:

The application for an extension of time within which to apply for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant files application for leave five years out of time – whether there is any good reason shown to account for the delay in making the application

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant was convicted of three counts of attempted murder – whether the appeal is viable – whether the sentencing remarks contained material inaccuracies – whether the sentencing judge erred in not recording “merciful impulses” exhibited by the applicant during the offending – whether the sentencing judge had full consideration of the applicant’s mental history and mental state at the time of the offending

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, applied

COUNSEL:

The applicant appeared on his own behalf
G J Cummings for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  On 11 July 2017, the applicant pleaded guilty to three counts of attempted murder.  He was sentenced to life imprisonment on each count.  Some 1,254 days spent in pre-sentence custody was declared as time already served under the sentences.

2. On 18 July 2022, the applicant filed an application for an extension of time within which to appeal those sentences and an application for leave to appeal against sentence.  Should an extension be granted, the applicant seeks leave to appeal the sentences on the ground that there were errors of fact made by the sentencing judge in recording the number of stab wounds inflicted on each complainant; and in not recording “merciful impulses” exhibited by the applicant during the offending; and that his mental history and mental state were not taken into full consideration on sentence.

   Offences

3. The offences were committed in 2014 when the applicant was aged 43 years.

4. The victims were the applicant’s partner and children; a daughter aged nine and a son aged seven.

5. Each offence involved the use of a knife.  Each victim was stabbed multiple times.

   Sentencing remarks

6. The sentencing judge recorded that the applicant had entered early pleas of guilty to the offences and that, notwithstanding those pleas of guilty, it was conceded by both counsel for the Crown and defence counsel, that the circumstances of the offending, together with their effects, meant it was appropriate to impose the maximum sentence of life imprisonment in relation to all three offences.  The sentencing judge found that in those circumstances it was appropriate to impose the maximum penalty.

7. In reaching that conclusion, the sentencing judge noted that the facts of the case, outlined in an agreed statement of facts, included that the applicant had determined, at least a week before the events, that it was appropriate to bring his ongoing marital problems to a close by killing his wife and his two children and that in that sense, the offending was premeditated; that the applicant initially started stabbing his wife multiple times, having armed himself with two knives, and continued notwithstanding that the wife begged him not kill her; that the wounds included stab wounds to the neck and tongue; that whilst this was taking place, both the applicant’s son and daughter were awoken and left their bedrooms; that the applicant first approached his son and started stabbing him in the neck; that when the daughter screamed for help, he followed her and started stabbing her multiple times with both knives, whilst she lay on the floor begging him not to kill her.

8. The sentencing judge recorded that the applicant desisted in his attack, after his severely injured wife had dialled triple zero and reported what had happened.  When police arrived, they located the two knives used by the applicant.  One was a single edged blade, 225 millimetre in length and 30 millimetre in width.  The second was a single edged blade, 145 millimetre in length and 25 millimetre in width.

9. The sentencing judge recorded that the injuries suffered by the applicant’s wife and children were horrific.  All three carried with them the terrible scars of that night, both physically and emotionally.  The sentencing judge recorded that according to the victim impact statement of the wife, she had something in the order of 71 stab wounds, including multiple neck wounds.  She had suffered permanent sensory change to her left middle finger and had ongoing chronic disability.  The daughter had, in total, some 32 to 40 stab and puncture wounds, the most serious wound being an injury to the neck, which was potentially fatal.  Her scarring causes embarrassment.  The son, although his wounds were not as extensive, had two stab wounds to the neck which could have caused death or permanent impairment of function.  There was permanent scarring to that region.

10. The sentencing judge further recorded that when interviewed by police, the applicant had made extensive and quite chilling admissions to his conduct, including that the decision to kill everybody was made at a time of day which he, as a former police officer, knew would be a change of shift time, limiting police attendance.

11. The sentencing judge recorded that there were a number of psychiatric reports before the court.  After outlining the applicant’s personal history, including that he had no prior criminal convictions and he had a very difficult childhood, the sentencing judge recorded that the applicant had a significant past mental health history, including past attempts at suicide.  One psychiatrist specifically noted that underlying personality factors and the effects upon his relationships of that personality, were the most dominant motivating forces in the offences.[1]  Further, the applicant at the time of the commission of the offences, was suffering from a moderate degree of depression, in the context of a past diagnosis of bipolar affective disorder.  However, those conditions, whilst impairing his judgment, did not deprive him of any of the relevant capacities.

    [1]AB55 at [35].

12. The sentencing judge concluded that whilst the evidence demonstrated impairment of judgment, there was clearly a need for both personal and general deterrence, particularly as the attack occurred in a domestic violence situation and included attacking two innocent children, making the offending particularly abhorrent.

    Application

13. The applicant submits that he ought to be given an extension of time within which to seek leave to appeal his sentence, notwithstanding the delay of over five years.  He submits that he was unable to obtain effective legal representation, and that there were inaccuracies in the sentencing remarks, and a failure to have regard to his mental health history and state during the offending, gave rise to a substantial miscarriage of justice.

14. The test applied on whether an extension should be granted is whether there is any good reason shown to account for the delay in making the application and overall whether it is in the interests of justice to grant an extension of time, which may involve some assessment of whether the appeal seems to be a viable one: see R v Tait [1999] 2 Qd R 667 at [5].

    Consideration

15. There is no merit in the applicant’s application for an extension of time as the applicant has no prospects of a successful appeal against sentence.

16. First, the sentencing remarks did not contain material inaccuracies.  They were consistent with the agreed statement of facts.  Further, the applicant, during his police interview, conceded he did not help the complainants after he stopped stabbing them.

17. Second, the sentencing judge had regard to both the applicant’s mental health history and mental state at the time of the commission of the offences.  Each was specifically addressed in the sentencing remarks.  Neither warranted a conclusion that by reason of those matters, the applicant’s moral culpability was significantly reduced, such that the imposition of the maximum penalty would result in a sentence which was plainly unreasonable or unjust.

    Conclusion

18. The applicant has no proper basis to successfully seek leave to appeal his sentence.  An application for an extension of time within which to do so is futile.

    Order

19. The order which should be made is:

    1.   The application for an extension of time within which to apply for leave to appeal against sentence be refused.