R v Wentworth

[1996] QCA 534

IN THE COURT OF APPEAL	[1996] QCA 534
SUPREME COURT OF QUEENSLAND

C.A. No. 461 of 1996

Brisbane

[R. v. Wentworth]

THE QUEEN

v.

MARK TIMOTHY WENTWORTH

(Applicant)

Fitzgerald P.
McPherson J.A.

Moynihan J.

Judgment delivered 20 December 1996

Separate reasons for judgment by each member of the court. McPherson J.A. and Moynihan J. agreeing as to the orders made, the President dissenting.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - grievous bodily harm with intent - applicant threw petrol over complainants - whether sentence manifestly excessive
Counsel:	K. McGuinness for the applicant M.J. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the applicant Queensland Director of Public Prosecutions for the respondent

Hearing Date: 3 December 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 20 December 1996

The circumstances giving rise to this appeal are set out in the reasons for judgment of Moynihan J.

The seriousness of the applicant’s offences is manifest, and his other behaviour towards his former wife has been disgraceful. It is not surprising that she has sustained a severe and lasting psychological reaction.

Further, as his Honour points out, it is difficult to identify a sentencing pattern in the cases which have been drawn to the Court’s attention. Even so, there must be an appropriate sentencing range applicable to the applicant’s offences.

Although it is necessary to proceed largely by way of impression formed by reference to the cases referred to and other experience, I am of opinion that the sentence imposed upon the applicant is not merely at the top but outside the range applicable for his offences, especially when regard is had to the lack of serious physical injury sustained by the complainants. In my opinion, the sentencing judge should have sentenced the applicant to imprisonment for a period of not less than six nor more than eight years.

Accordingly, I would grant the application for leave to appeal, allow the appeal, and substitute a sentence of imprisonment for seven years in respect of each offence, the sentences to be served concurrently. The declaration that the sentence composed on 8 April 1995 and that the applicant had spent 445 days in custody in respect of the offences should stand. I would set aside the recommendation that the applicant be eligible to be considered for parole after serving three and a half years, and substitute a recommendation that he be eligible to be considered for parole after he has served three years.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered on 20 December 1996

In my opinion, leave to appeal should be refused for the reasons given by

Moynihan J.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 20 December 1996

The applicant pleaded guilty on 11 March 1996 to two counts pursuant to s.317 of the Code that, with intent to do some grievous bodily harm, he unlawfully applied an explosive substance (petrol) to the person of his former wife and her companion. The plea effected the discharge of an indictment on which the two counts were alternatives to counts of attempting unlawfully to kill together with eight other offences which the applicant was charged. All were related to events concerning the applicant's former wife.

On 14 October 1996 the applicant was sentenced to 9 years imprisonment for each offence, a declaration was made that the sentence commenced on 8 April 1995 and that the applicant had spent 445 days in custody up to the sentence in respect of the offences. There was a recommendation that the applicant be eligible to be considered for parole after he had served 3½ years, that recommendation was expressly stated to be a reflection of his pleas of guilty and the saving of the time to the community which would have been involved in a longer trial. The sentences are concurrent.

The applicant was born on 20 January 1957. He had a criminal record of four offences of dishonesty for which he had served a term of imprisonment.

The applicant married in June 1991. He and his wife separated on 11 February 1995 and the separation was, or soon became, acrimonious. On 16 March 1995 a dispute between the applicant and his former wife came before the Family Court and on that date the applicant signed an undertaking to have no contact with her. It appears that in fact he kept her under observation. Sometime shortly before 2 April 1995, the applicant's former wife had formed an association with another man. They are the victims of the offences under consideration.

On the night of 2/3 April 1995 the applicant watched the complainants make love on the floor of the lounge of the male complainant's home. He went to his motor vehicle which was apparently parked close by, it was packed with his possessions. The appellant filled two buckets with petrol from a container stored in the vehicle and at about 2.00 a.m. in the morning entered the house through the back door. The complainant's were sleeping naked on a mattress on the floor. The applicant threw the contents of one of the buckets over both of them. As they attempted to back away, he threw the contents of the second bucket over them. He then produced and ignited cigarette lighter and bent forward to set fire to the petrol. He was unsuccessful, essentially because petrol had splashed onto his clothing and ignited before he was able to ignite the petrol he had thrown. He fled the scene but was apprehended by police in Victoria on the 18th of April 1995.

There was some debate before this Court as to whether the sentencing judge was justified in describing the pleas of guilty as on the borderline of a timely plea, as distinct from a timely plea. It was however accepted that in any event the pleas of guilty were appropriately reflected in the recommendation which I have referred to earlier.

The sentencing judge had in evidence a report by a consultant psychiatrist. This described the applicant in terms of a rigid, over-controlled personality whose obsessional defences under severe stress could collapse into an explosive outburst of anger or violence. He lacked "the normal flexibility and trust essentially found in a personal relationship" and his behaviour was at times to have being a pathological (though not legally excusable) reaction to stress. The stress in question was associated with the breakdown in his matrimonial relationship. It concluded the applicant did not require psychiatric care but would be well advised to seek treatment. The weight of the report, particularly in its assessment of the risk to the applicant being a danger to his former wife, was diminished somewhat as a consequence of letters the applicant subsequently wrote.

The applicant's victims obviously had physical pain and discomfort as a consequence of contact with the petrol but serious physical pain was fortuitously adverted. The applicant's former wife sustained a severe and lasting psychological reaction as a consequence of the episode.

After he was in custody and indeed after this application was lodged the applicant wrote a number of vicious and menacing letters to his former wife, the following extracts give the flavour:

"I'm going to express my displeasure now to you regardless of any court, appeal,

sentence, or any other appeal you and your clan so desire to bring . . "

"I once held you in high regard as a loving and caring person now I hold you as a putrid

piece of filthy scum of society and the biggest slime in the human race."

"There are no threats this is just the plain honest truth . . "

The ground of appeal was that the sentence was manifestly excessive. There were a number of cases placed before the trial judge and more were referred to before this Court by the applicant for the purpose of establishing that the sentences imposed were outside the range open in the exercise of a sound sentencing discretion.

It is difficult to identify a sentencing pattern or range applicable to the circumstances of this case from the cases which have been drawn to the Court's attention. This is because of the variety of offences they encompass, the variety of circumstances in which the offence was committed and differences in the circumstances of the various accused.

O'Neill (C.A. No. 435 of 1994) was a case of attempted murder in which leave to appeal against the sentence of 12 years imprisonment was refused. The attempt involved the injection of a potentially fatal dose of insulin into a sleeping husband. In the South Australian case of Pight (No. 7 of 1995; 21 April 1995) 12 years was reduced to 10 for grievous bodily harm with intent to do grievous bodily harm. In Nelson (C.A. No. 279 of 1981) a sentence of 6 years was increased to 10 for an offence of throwing sulphuric acid with intent to, and which did, disfigure. In Suttle (C.A. No. 256 of 1993) and Teichmann (unreported, sentenced 3 November 1995) terms of 6 years imprisonment were imposed for attempted murder.

Farquhar (C.A. No. 349 of 1994) and Burton (unreported, sentenced 27 May 1996) were cases where 8 years were imposed for attempted murder and the same term was imposed in Pootchemunka (C.A. No. 231 of 1995) for an offence of grievous bodily harm with an intent to commit grievous bodily harm while in Craig (C.A. No. 139 of 1990) the sentence of 8 years for unlawfully doing grievous bodily harm (with an intent) was reduced from 8 years to 6 years while the same term was imposed in Hakkila (C.A. No. 14 of 1994) for grievous bodily harm with intent.

This case must be near the top of the range of seriousness for cases involving an intent to do grievous bodily harm. For the applicant, considerable emphasis was placed on the fact that the complainants did not suffer serious physical injury and comparisons were made with various of the cases where there had been severe physical injury but a lesser sentence than that given here was imposed. The extent of injury is obviously a relevant consideration and the sentencing judge referred to it as such.

The weight to be given to the absence of physical injury will vary with the circumstances. Here the applicant was thwarted in effecting to his intention to cause grievous bodily harm (and perhaps the more drastic outcome avoided) by the fortuitous ignition of his clothing. The fact that the victims did not suffer serious physical injury must be read in the light of this. The applicant's former wife has, understandably, suffered significant ongoing psychological distress.

Whatever considerations might bear on whether the applicant's conduct can justifiably be described as premeditated (as the sentencing judge did), the fact is that he went to his vehicle, transferred the petrol to the buckets, returned to the house with them, entered it, threw one then the other as described earlier and set about igniting the fuel with the consequences previously mentioned.

The sentencing judge properly gave weight to the applicant's breach of his undertaking to the Family Court and to the course of vicious and menacing conduct previously referred to.

The considerations canvassed justify a heavy sentence. It has not been established that the sentence was outside that open in the exercise of a sound sentencing discretion or that the discretion otherwise miscarried. Leave should be refused.