R v Stephens - [2017] QCA 173

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stephens [2017] QCA 173

PARTIES:

R
v
STEPHENS, John Jesse
(applicant)

FILE NO/S:

CA No 57 of 2017
SC No 310 of 2017
SC No 421 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 10 March 2017

DELIVERED ON:

15 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

9 August 2017

JUDGES:

Holmes CJ and Gotterson JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was convicted of attempted murder of his estranged wife – where primary judge sentenced applicant to fifteen years’ imprisonment – where primary judge made reference to a variety of factors in sentencing remarks – whether sentence was manifestly excessive – whether primary judge erred by not attributing sufficient weight to several factors, including applicant’s history of substance abuse, alleged psychiatric and personal disorders, immediate post-offence surrender, plea of guilty to an alternative charge and admissions during trial – whether applicant’s mental condition reduces his moral culpability

Channon v The Queen (1978) 33 FLR 433; [1978] FCA 16, cited
R v Clark[1998] QCA 477, cited
R v Forster[2002] QCA 495, cited
R v Goodger[2009] QCA 377, cited
R v Hammond [1997] 2 Qd R 195; [1996] QCA 508, cited
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited
R v Williams[2015] QCA 276, cited
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited

COUNSEL:

A McDougall for the applicant
G J Cummings for the respondent

SOLICITORS:

Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I agree with the reasons of Douglas J and with the order he proposes.
GOTTERSON JA: I agree with the order proposed by Douglas J and with the reasons given by his Honour.
DOUGLAS J: The applicant was convicted of the offence of attempted murder of his estranged wife as a domestic violence offence on 10 March 2017, the eighth day of his trial. On the previous day, during the summing-up, he had been re-arraigned and pleaded guilty to a possible alternative charge of unlawfully doing grievous bodily harm which the prosecution did not accept in discharge of the indictment.
The learned sentencing judge sentenced him to 15 years’ imprisonment and ordered that the conviction be recorded as a domestic violence offence, declaring also that the time he had spent in pre-sentence custody, 937 days, be deemed time already served under the sentence. The applicant appeals against the sentence on the ground that it was manifestly excessive.
The evidence
The applicant was born on 29 October 1970 making him 43 years old…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Stephens

Details

AGLC: R v Stephens [2017] QCA 173
Case: [2017] QCA 173
Decision Date: 15 August 2017

CaseChat Overview and Summary

The appeal before the court was brought by the applicant, who was convicted of the attempted murder of his estranged wife. The applicant challenged the sentence imposed by the primary judge, arguing it was manifestly excessive. The primary judge sentenced the applicant to fifteen years’ imprisonment and ordered the conviction be recorded as a domestic violence offence. The applicant submitted that the sentence was excessively harsh and that the primary judge failed to give sufficient weight to mitigating factors such as the applicant's history of substance abuse, alleged psychiatric and personal disorders, immediate surrender post-offence, a plea of guilty to an alternative charge, and admissions made during the trial. Additionally, the applicant contended that his mental condition should reduce his moral culpability.

The court was tasked with determining whether the sentence imposed by the primary judge was manifestly excessive or inadequate. This involved assessing the weight given to various mitigating factors by the primary judge and whether the sentence was disproportionate to the gravity of the offence. The court also considered whether the primary judge had erred in not attributing sufficient weight to the applicant's history of substance abuse, psychiatric and personal disorders, immediate surrender, plea of guilty, and admissions during the trial. Furthermore, the court had to evaluate whether the applicant's mental condition should have been considered in determining his moral culpability.

The court found that the sentence was not manifestly excessive. The judge emphasised that the attempted murder was a planned and premeditated act, carried out in the presence of the applicant’s children, which underscored the gravity of the offence. The court held that the primary judge had appropriately considered the mitigating factors and that the sentence was proportionate to the nature and circumstances of the offence. The court rejected the applicant's argument that his mental condition should substantially reduce his moral culpability. Consequently, the court dismissed the appeal.

The court refused the applicant's application for leave to appeal against the sentence. The conviction and sentence of fifteen years’ imprisonment, with the conviction recorded as a domestic violence offence, were upheld.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The learned sentencing judge sentenced him to 15 years’ imprisonment and ordered that the conviction be recorded as a domestic violence offence, declaring also that the time he had spent in pre-sentence custody, 937 days, be deemed time already served under the sentence. The applicant appeals against the sentence on the ground that it was manifestly excessive.The evidence The applicant was born on 29 October 1970 making him 43 years old at the time of the offence on 16 August 2014 and 46 years old when he was sentenced. His criminal history revealed that he had committed several assaults between 2009 and 2013 including two offences of assaulting or obstructing a police officer and two of common assault as well as an offence of resisting an authorised person after being refused entry to premises. Those offences were not punished by imprisonment but by the imposition of fines. The applicant and the complainant separated on 9 May 2014. On 12 June 2014 she obtained a domestic violence order against him after he made repeated threats to her life in text messages and telephone calls from early June 2014. He nominated the location, a car park, and the manner in which he proposed to take her life. She altered her lifestyle to avoid him, changing her car and residence and moving their children away for a time. On the day of the offence the complainant had taken her three children with the applicant and her child with her new de facto partner to a shopping centre. The children were aged between four and eight. The applicant had been monitoring her movements that day having followed her or stalked her approximately six weeks earlier in order to identify the vehicle that she was driving. He armed himself with a .22 calibre self-loading rifle, loaded with 13 live rounds including one in the chamber. He had travelled a considerable distance from his residence with the purpose of killing the complainant. He donned a disguise, sunglasses and a hooded jumper/jacket, and parked his car in front of hers in such a position as to help him make a quick getaway. The complainant returned from shopping with the children to her car in the shopping centre car park. The applicant then got out of his car, opened the driver’s side front door of the complainant’s car and in the view of the four children also in the car aimed his rifle at her right temple and fired it by pulling the trigger at close range. The bullet struck her skull and ricocheted away after splintering the bone. He prepared for a further shot, this time aimed at her chest, but the gun jammed. After having dragged the bleeding complainant out of her car, in spite of her efforts to struggle against him, he proceeded to punch and strangle her until he was restrained by the combined force of three men who were bystanders who bravely interceded to protect the complainant. While they were restraining him he continued to struggle to get to the complainant and attempted to justify his position by yelling to onlookers that they did not know what she, the complainant, had done.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Stephens [2017] QCA 173
PARTIES:	R v STEPHENS, John Jesse (applicant)
FILE NO/S:	CA No 57 of 2017 SC No 310 of 2017 SC No 421 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 10 March 2017
DELIVERED ON:	15 August 2017
DELIVERED AT:	Brisbane
HEARING DATE:	9 August 2017
JUDGES:	Holmes CJ and Gotterson JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was convicted of attempted murder of his estranged wife – where primary judge sentenced applicant to fifteen years’ imprisonment – where primary judge made reference to a variety of factors in sentencing remarks – whether sentence was manifestly excessive – whether primary judge erred by not attributing sufficient weight to several factors, including applicant’s history of substance abuse, alleged psychiatric and personal disorders, immediate post-offence surrender, plea of guilty to an alternative charge and admissions during trial – whether applicant’s mental condition reduces his moral culpability Channon v The Queen (1978) 33 FLR 433; [1978] FCA 16, cited R v Clark[1998] QCA 477, cited R v Forster[2002] QCA 495, cited R v Goodger[2009] QCA 377, cited R v Hammond [1997] 2 Qd R 195; [1996] QCA 508, cited R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited R v Williams[2015] QCA 276, cited R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited
COUNSEL:	A McDougall for the applicant G J Cummings for the respondent
SOLICITORS:	Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent