R v Smith & Attorney-General of Queensland

[1996] QCA 56

COURT OF APPEAL

[1996] QCA 056

PINCUS JA DAVIES JA McPHERSON JA

CA No 500 of 1995
THE QUEEN
v.

BARRY ROBERT SMITH	Respondent
ATTORNEY-GENERAL OF QUEENSLAND	Appellant

BRISBANE
..DATE 26/02/96
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McPHERSON JA: This is an appeal by the Attorney-General against
a sentence of imprisonment of five years imposed on the
respondent for the offence of manslaughter. The sentence was
accompanied by a recommendation for parole after 12 months. The
Attorney argues that the sentence was plainly inadequate.

The victim of the offence was the respondent's wife. She died in hospital a week after the respondent had admittedly injured her on the evening of 15 September 1994. On post mortem examination there was some question about the precise mechanism by which death had been brought about. Manual strangulation could not be entirely ruled out as a possibility, but the opinion that prevailed among the medical practitioners who examined the body was that death was caused by blood inhalation resulting in obstruction of the airways.

That had led to hypoxic brain damage with the consequence that there was a loss of consciousness and, ultimately, death.

In recording that I have been referring to the opinion of
Dr Naylor, who examined the brain post mortem in conjunction
with Professor Tannenberg. Dr Lallecombe, who attended the
patient after her admission to hospital, formed a similar
opinion. The information in the record is somewhat scanty
because of the way in which the matter proceeded.

Before trial the respondent was prepared to plead guilty to manslaughter; however, he was brought to trial in the Supreme Court on a charge of murder. After some evidence had been given on behalf of the prosecution the Crown accepted his plea of guilty to manslaughter. The respondent had apparently not 260296 T13/LZG M/T COA24-25/96

taken part in an interview with the police, but it is possible from information now available on sentence to piece together some impression of the sequence of events.

The physical evidence, which included photographs, showed that the respondent inflicted at least two and possibly more blows to the cheeks or face of his wife. The force of the blows was sustained on both sides of the face extending to the eyes. Medical opinion was that this may have caused the nose to bleed, and so led to the blood inhalation already referred to.

For the purpose of sentencing this was the version accepted, adopted or acted on by the Crown.

The assault was committed by the respondent on his wife following an argument between them, in the course of which she told him that she had decided to leave home. That is a common enough feature of domestic manslaughter cases, but this one differed from many others in that the marriage of 20 years or so seems to have been a happy one not attended by acts of violence on either side.

He was 48 years old and she 40 at the time of the death. It is convenient to mention here that they had two children of their own, a girl aged 17 and a boy aged 15, who are now under the care of the respondent, or were under his care until the sentence. The boy suffers from attention deficit disorder and requires special care and supervision.

In addition, the couple had brought up and cared for other children of the respondent's previous marriage or relationship. 260296 T13/LZG M/T COA24-25/96

One of them, now aged 28, is disabled through injuries sustained in a motor vehicle accident many years ago when she was a child, and she requires a great deal of looking after.

The marriage, as I have said, seems to have been a happy one. However, the wife was only 18 years old when they married and lately she had secured work in a responsible position in which she had been encouraged to think that she would be promoted in due course. She was obviously pleased with this state of affairs and began to regret that she had married so young, thus narrowing the opportunities which she had had at that age.

On the night in question, she and the respondent had an argument which centred around some of these matters, and it was in the course of that argument that she explained that she was planning to leave him. He was evidently unable to cope with her decision and, although not normally much of a drinker, he consumed a considerable quantity of alcohol in the form of rum on the occasion. Under its influence he went into her bedroom where she was sleeping, his purpose apparently being to continue the argument.

Precisely what happened thereafter we do not know, except that he certainly punched her causing the injuries and swelling I have described. So far as can be gathered, he then left or must have left the bedroom and it was only after some unspecified time that he discovered she was in a comatose condition. He thereupon phoned the police and the ambulance, and when officers from those two services arrived they found him in a state of great distress. He was crying, saying he had killed his wife, 260296 D.1 T14/BP M/T COA25/96

and that he loved her.

There seems to be little doubt that there was genuine remorse on his part for what he had done to her. The Attorney-General submits that the head sentence of five years was not adequate and he refers to the decision in Queen v. Whiting [1995] 2 QdR 199. It was a decision in which the Court held that an earlier decision of the Court of Criminal Appeal in Queen v. Green should no longer be considered as laying down an upper sentencing limit of six years in cases of domestic manslaughter, meaning by that a manslaughter "arising out of the frustrations engendered by close relationships".

The Court in Whiting went on at page 201 to say:
The present case demonstrates that, whatever utility such a

classification might possess, in practice the line of demarcation between those and other cases of manslaughter cannot readily be identified by means of that criterion.

It is plain to anyone who has had the misfortune to consider these cases over many years that the range of sentences for manslaughter extends very far, and that sentences imposed vary considerably according to whether they approach closely to, or depart a long way from, killings which more or less approximate to murder. Surprisingly, in the present case counsel for the Crown on the sentencing of the respondent referred to Green, but not to Whiting, and it has been suggested before us that, for the respondent, the sentence of six years with a recommendation after 12 months was far too low.

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Whiting was a case in which the sentence was increased by this
Court from eight to 11 years, but the accused in that instance
had a consistent history of violence, and particularly violence
against women. Nothing like that can be said of the respondent
in this case. The head sentence of five years imposed here may
perhaps well be lower than some Judges would have chosen to give
him, but in the circumstances it may be thought it was not
markedly lower than what might be expected.

On the material before the sentencing Judge, and having regard to the attitude adopted by the Crown below, the death may fairly be viewed as having been, in one sense, the fortuitous outcome of a physical assault in which alcohol played a part, which for the respondent was uncharacteristic. The Judge may be thought to have summed up the position with accuracy when in the course of his sentencing remarks, he said this:

There is no suggestion in terms of personality or otherwise that you are not other than normal. In other words, we seem to be dealing here with the unfortunate consequences of a single aberrant act in circumstances of an emotional turmoil with which you could not deal. What however we get back to is that as a consequence of your deliberate act, although the consequence may not have been intended, a human life has been lost.

Having said that, the head sentence must, it should be accepted, be considered to be at the low end of the range in circumstances even like these.

I turn now to the recommendation for parole. A recommendation of that kind is in my experience designed to take into account factors and circumstances peculiar and personal to the 260296 D.1 T14/BP M/T COA25/96

applicant. Some of them should be mentioned here and indeed are set out in convenient form in the respondent's outline of submissions in this case.

The respondent had a perfectly respectable life until these events occurred. Although he had a fairly difficult childhood and upbringing, he made a success of things. He served in Vietnam as a member of the Australian Forces; he had been in constant employment, and was extremely well thought of by his employer. He had contributed a great deal to his community, particularly in the field of sporting and other activities for young people. There was nothing to indicate that he had been anything other than a dedicated and devoted parent, and his two children are supportive of him even after this tragic event. The respondent has supported his children in dealing with the grief and bewilderment of the death of their mother at his own hands.

Material in the form of references also shows that the respondent was well regarded by his community and his neighbours, many of whom knew of the circumstances of the death of his wife. A psychiatric report was obtained in support of the respondent on sentencing. It was provided after what appears to have been an extensive interview, or series of interviews, by Dr Ian Linagh. It was his opinion that the respondent was in a state of grief remorse, and also, not unnaturally, anxiety concerning his future.

Testing undertaken by Dr Linagh indicated in his opinion a
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reserved, serious, self-reliant man who he said was emotionally
vulnerable with elevated levels of tension and anxiety. His
psychological pathology, he went on, showed a mild depressive
state but otherwise is quite within normal limits. His
interpersonal style was based on the dynamic of his need to love
and be loved. Consequently rejection by a significant other
person would be highly anxiety provoking.

The report from the psychiatrist sets out in some detail the deprived childhood which the respondent had experienced, which involved many changes of home, and separation from some of his brothers and sisters, one at least of whom at least was sent to an orphanage. None of this, of course, is strictly speaking relevant to the head sentence, but it is a proper matter for his Honour to have taken into account in arriving at an appropriate recommendation for eligibility for parole.

It is in my opinion difficult to fault his Honour's estimation of the respondent's character, motivation (or lack of it) for the offence, and his past record. No attempt has been made to do so on this appeal. Because the ultimate or effective sentence of 12 months, if the respondent succeeds in obtaining parole at that stage, depended so very much on personal factors of the kind I have mentioned, it is difficult to see how the decision in this case could be viewed as a precedent or as calling for intervention by this Court in the case of an appeal by the Attorney-General.

When all these matters are borne in mind, even though I would be
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inclined to think that the sentence was on the low side, I am
not persuaded that it is one with which we should on an appeal
like this interfere. That being so, I would dismiss the appeal.

DAVIES JA: I agree.

PINCUS JA: I agree.

McPHERSON JA: The order is the appeal is dismissed.

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