R v Sydes

[1999] QCA 252

99.252

COURT OF APPEAL

McMURDO P PINCUS JA THOMAS JA

CA No 124 of 1999
THE QUEEN
v.

PHILIP FRANCIS SYDES

BRISBANE
..DATE 07/07/99
THE PRESIDENT: Mr Justice Pincus will deliver his
reasons first.

PINCUS JA: The applicant was convicted of manslaughter on a plea of guilty. He shot and killed a man who had come onto his property, and the learned primary Judge sentenced him to eight years imprisonment with a recommendation for parole after three years.

The basis of the Judge's sentence, which is challenged by Mr Martin of senior counsel who appears for the applicant, is that there was knowledge on the part of the applicant of the location of the victim, and that is a matter which has concerned me.

The applicant is a middle-aged man with no significant criminal history. The applicant and the victim lived on adjoining properties and there were bad relations between them. The victim and his family thought that the applicant was behaving in a perverted way towards that family. As to that, the Judge below said to the applicant:

"You may have had cause to believe that whether it were

correct or not. I want to make it clear that I

make no finding whatever that you" -

that is, the applicant -

"were behaving in that way."

The way in which the deceased came to be killed was a matter which had to be deduced principally from the

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applicant's various accounts to the police and the
physical damage to the deceased in his car. The
deceased had gone on to the applicant's property about
10 p.m. one night to remonstrate with the applicant
because he had been told by his wife that the applicant
had been looking at her while she was in having a
shower. As I have mentioned, sentencing was done below
and must be done here on the basis that there is no
finding against the applicant in that respect.

The applicant told the police that the deceased drove his car up to the applicant's house. The applicant said the deceased roared up the driveway knocking over wheelie bins located near the house and got out of the car yelling and screaming at him. He said the deceased had made threats to use great violence against him.

There were three shots fired. The first went into the bonnet of the car, the second one was a little higher; it went through the windscreen, and a fragment of the bullet hit the deceased and killed him, ultimately. The deceased got out of the car, apparently, after being hit and was still able to run away. A third shot was fired but not in the direction of the deceased.

The Judge's view, as I have mentioned, was that when the second shot was fired the applicant knew the deceased was in the car. His Honour did not find that there was any intention to shoot the deceased, but he found that 070799 T4/BP17 M/T COA147/99

the applicant shot at the car knowing the deceased was in it, and it is this point, in essence, on which the application turns.

It was pointed out during the course of the hearing in
this Court that under the terms of section 302(1)(b) of
the Criminal Code murder is committed:

"if death is caused by means of an act done in

prosecution of an unlawful purpose, which act is of
such a nature as to be likely to endanger human
life".

Since in this case the conviction was for manslaughter only, one must sentence, in my view, on the assumption that there was neither intention to kill nor intention to cause grievous bodily harm, nor circumstances such as to bring the matter within section 302(1)(b).

Mr Martin argued that there was no foundation in the
evidence before the Court for the finding which the
Judge made and he pointed out that His Honour had to
make that finding on the basis indicated in the decision
of this Court in Morrison in [1999] 1 Queensland Reports
397. The principal judgment in that case was delivered
by Williams J who made these observations at page 421,
speaking of sentencing procedure. His Honour said:

"In practice in most cases no evidence will be called as

part of the sentencing procedure. Often any
dispute will be treated informally; the Judge will
be left to decide between conflicting statements

made from the Bar table.

There will in general be no problem if the sentencing

Judge imposes sentence on a particular basis
provided that proof beyond reasonable doubt is

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required of any disputed factual issue which, if
proved, is likely to result in a heavier sentence."

The reference to a disputed factual issue does not quite fit this case because, as Mr Martin has correctly said, the finding which the Judge made that when the second shot was fired the applicant knew the deceased was in the car was not a submission advanced by the Crown. So in that sense there was no dispute, but consistently with the spirit of Morrison it is clear, at least it seems clear to me, the Judge should not have made that finding adverse to the applicant unless he was satisfied beyond reasonable doubt that it was correct.

The fact was that the fatal bullet went through the windscreen and the applicant said that he fired through the windscreen, so presumably he knew where the bullet was going. The difficult point, really, was what the state of knowledge was as to location of the deceased at that point. It is conceded on behalf of the Crown that the Judge's finding cannot stand and we are invited to do the best we can with the matter, ourselves. It is necessary briefly to refer to some of the passages in the evidence in which the applicant discussed this question with the police, or made observations relevant to it.

At page 92 of the record it is recorded that the
applicant said to police, and this was an interview on
the same evening as the offence was committed:
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"... I put on in through the windscreen of the car on

the driver's side 'cos I could ... when he went

back to the car to get somethin'.

Did he have anything in his hands then?-- Yeah, but

don't ask me what." And then there is something

[unintelligible].

The matter is returned to at page 104 of the record,
where the applicant said, "I fired a warning shot" and
that seems to be the first shot; he said:

"I fired a warning shot and he just kept comin' and then

he went into the, went back into, in, got in his
car to get somethin' else. I dunno what was going
on, he had his dog with him too (unintelligible)

Rottweiler."

And then at page 128 the applicant said to police:

"Well, he's still ravin' and rantin' and carryin' on

sayin' what he's gonna to do me and that, then he
went back to the car and got in the car, oh, no, he
didn't get in it. He got in the driver's side and
he got somethin' out long, probably two metres

long. I couldn't see what it was."

And at page 136 the applicant said:
"Phil, the second shot, this is when he was getting the

long thing out of the car." Phil answered "Yes."

Did you, could you see him at this stage?-- Yeah, I

could see him.

How were you able to see him?-- In the moonlight.
Okay. And how close have you aimed near him?-- Oh I

aimed down in front of the car again, same as

(unintelligible).

And whereabouts was he in relation to the car?-- Well,

he was gettin' somethin' out of the front seat.

From which side of the car?-- The driver's side.
Okay. So when you've shot how close to him would you've

shot (unintelligible) on the car, how far would he
have been from the shot?-- Oh, a fair way. He
would've been here at the front, front driver's
door. Near the front driver's door with that long
thing."

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Now, in the course of discussion between Mr Martin who
appeared below and the Judge, that last passage was
referred to. Mr Martin referred to it then and conceded
that there was an inconsistency, because it is plain
that the applicant could not have, as he said, seen the
deceased out of the car near the front driver's door.
It is perfectly plain that when the fatal shot was fired
the deceased was in the car, because that's where he was

hit.

The question is on what basis the sentencing should take
place. Mr Martin has emphasised the fear which the
applicant said he was suffering from. He has drawn our
attention to the fact that in 1993, on the facts placed
before the primary Judge, the applicant had had, or
believed he had a severe attack made on him on his own
property which had caused brain damage and resulted in
his being on a disability pension;
Mr Martin contended that this was a matter that had to
be taken into account in favour of the applicant. I

think that is correct.

My view of the case, however, is that it is quite a
serious case of manslaughter. Conceding in favour of
the applicant that he had reason to be apprehensive
because of the threats which were directed at him and
conceding in his favour that the matter could have
developed into a stage when he was in imminent danger of
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being physically harmed, it had not reached that stage.

The person who was killed was in fact not close to him

but was in his car at the time when he was killed and
there was no such necessity to take this extreme step as
would in any way justify what was done, legally or
morally.

It is pointed out by the primary Judge that the applicant had a number of weapons. The one which he in fact used was a high powered weapon. That is not a point, perhaps, of any great significance because even a low powered weapon could have achieved this result.

The hard facts of the matter are that, being in fear of a person who came onto his property in a rowdy way shouting threats, the applicant fired a number of shots.

The fatal shot was fired, apparently, at the

windscreen. The most favourable view of the facts, from
my perspective, is that at that stage the applicant did
not know precisely where the deceased was but knew very
well that he was at least in the vicinity of the car.
So you have a man who not knowing where the person who
is the object of his attention is, fires a shot in his
direction and whether it hits him or not is a matter of

chance. In fact it hits him and kills him.

I said during the course of the hearing, and I adhere to
the view, that the sentence which the Judge imposed of
eight years imprisonment with a recommendation for
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parole after three years seemed a lenient one on the
findings - curiously lenient because, as I have
attempted to suggest, on the judge's finding this must
have been very close to a case of murder and was a very
bad case of manslaughter indeed. On what I regard as
the proper view of the case, which does not involve any
finding that the applicant knew the deceased was in the
car, but does involve a finding that he did not know
where he was but he knew he was somewhere in that
vicinity, it still remains quite a serious case of
manslaughter.

The view which I come to therefore is the sentence the Judge imposed (although imposed in a defective way, for the reason which I have mentioned) was a correct sentence and the application should be refused.

THE PRESIDENT: I agree with the reasons given by Mr

Justice Pincus and with the order he proposes.

THOMAS JA: I agree.

THE PRESIDENT: The order is the application for leave to appeal is refused.

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