R v Willemyns

[2023] QCA 163

SUPREME COURT OF QUEENSLAND

CITATION:

R v Willemyns [2023] QCA 163

PARTIES:

R
v
WILLEMYNS, Michel Francoise Theodoor
(applicant)

FILE NO/S:

CA No 227 of 2022
SC No 1210 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 16 September 2022 (Hindman J)

DELIVERED ON:

11 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2023

JUDGES:

Bond and Flanagan and Boddice JJA

ORDER:

The application for leave to appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of manslaughter – where the applicant was sentenced to imprisonment for a period of 10 years – where the applicant had a neuro-cognitive deficit and, at the time of the offence, was suffering from a hypomanic episode – where the applicant was of diminished responsibility for the purposes of s 304A of the Criminal Code (Qld) – where the applicant identifies six grounds of appeal, each alleging the learned sentencing judge erred by either taking into account irrelevant considerations or failing to take into account relevant considerations – where the sentence proceeded on an agreed statement of facts – whether the sentencing judge made a specific error

Criminal Code (Qld), s 304A

COUNSEL:

K M Hillard and L C Ferguson for the applicant
G J Cummings for the respondent

SOLICITORS:

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

1. BOND JA:  I agree with the reasons for judgment of Flanagan JA and with the order proposed by his Honour.

2. FLANAGAN JA:  On 16 September 2022, the Crown presented an indictment charging the applicant with one count of manslaughter.  The count alleged that on 5 March 2017 at Karana Downs he unlawfully killed Patrick Pierre Willemyns and that the offence was a domestic violence offence.  The applicant entered a plea of guilty to that count.

3. Patrick Pierre Willemyns was the brother of the applicant.

4. The indictment replaced a previous indictment which contained one count of murder. The count was reduced from murder to manslaughter on the basis that the applicant was of diminished responsibility for the purposes of s 304A of the Criminal Code.  It was accepted that the applicant’s capacity to know he ought not do the acts which resulted in the unlawful killing of his brother was substantially impaired.

5. The applicant was sentenced to imprisonment for a period of 10 years. Pursuant to s 159A of the Penalties and Sentences Act 1992 it was declared that 2020 days of pre-sentence custody for the period 6 March 2017 to 15 September 2022 be imprisonment already served under the sentence.

6. If granted leave, the applicant identifies six grounds of appeal, each alleging specific error on the part of the learned sentencing judge:

   “Ground 1 – The learned Judge erred in failing to take into account material and relevant considerations that the Applicant’s mental health also extended to pre-offence conduct as it related to:

   A.Bringing the spanner and entering the deceased’s house, and/or

   B.The belief that his brother had stolen from him, and/or

   C.The belief that his brother was in league with the Applicant’s former wife concerning money, and/or

   D.The previous recent physical violence between the deceased and the Applicant that occurred in the context of the Applicant’s declining mental health and/or hypomania.

   Ground 2 – Further and in the alternative to Ground 1, the learned Judge erred in proceeding on a wrong principle of law in failing to consider the applicant’s mental health in any or all of the ways relied on for Ground 1 namely:

   A.Bringing the spanner and entering the deceased’s house, and/or

   B.The belief that his brother had stolen from him, and/or

   C.The belief that his brother was in league with the Applicant’s former wife concerning money, and/or

   D.The previous recent physical violence between the deceased and the Applicant that occurred in the context of the Applicant’s declining mental health and/or hypomania.

   Ground 3 – The learned Judge erred in fact that taking drugs and alcohol was accepted as leading to re-offending.

   Ground 4 – The learned Judge erred in proceeding on a wrong application of principle in that the applicant was a risk of reoffending and that the community required protection.

   Ground 5 – The learned Judge erred in failing to take into account the material and relevant consideration of the benefit of the Applicant being supervised on extended parole.

   Ground 6 – The learned Judge erred in taking into account an irrelevant and impossible consideration of the possibility that the deceased may have been alive when the Applicant left the house.”

7. Grounds 1 and 2 both allege a failure on the part of the sentencing judge to take into account a relevant consideration, namely the applicant’s mental health in relation to four aspects of his pre-offence conduct and beliefs.

8. Grounds 3 and 4 assert that the sentencing judge erred in assessing the risk of the applicant re-offending.

9. Ground 5 alleges a failure to take into account a relevant consideration, namely the benefit of the applicant being supervised on extended parole.

10. Ground 6 alleges that the sentencing judge took into account an irrelevant consideration, namely that the applicant’s brother may have been alive when the applicant left the house.

11. None of these proposed grounds of appeal have any merit.

    Agreed statement of facts

12. The sentence proceeded on an agreed statement of facts.[1]  Five days prior to the unlawful killing, the applicant visited the Roma Street Police Headquarters to speak to police.  Police observed that he was extremely inarticulate and jumping topics randomly.  He reported, among other things, that:

    (a)his wife owed him $200,000 and that there were custody issues.

    (b)his “alcoholic” brother was harassing him and may have stolen his passport.

    (c)he had started seeing a family lawyer.

    [1]RB 35 – 37.

13. Prior to their mother’s death in 2016, the applicant and his brother had enjoyed a close and loving relationship.  Subsequently, the relationship deteriorated and was characterised by the brother’s drinking and the applicant’s mental health difficulties.  The relationship deteriorated to the extent that the brothers would argue and become involved in physical fights.

14. At 9.00 pm on 5 March 2017, the applicant drove to his brother’s unit, bringing with him a metal spanner which he had wrapped in some cloth.  On arrival, the applicant remained outside watching his brother as well as practising swinging the spanner.

15. He moved to the front door of his brother’s unit, smashed one of the glass panels and entered the unit where he found his brother lying on the sofa.

16. He struck his brother to the head with the spanner.  His brother tried to get up, but the applicant struck him again in the back of the head and did so repeatedly, as well as stomping on his head over a period of time.

17. At points during the offending, the applicant recorded video footage of himself talking to his severely injured brother who did not respond intelligibly but groaned.  This video was played in the course of the sentencing proceedings.

18. The applicant left his brother’s residence at around 5.00 am on 6 March 2017.  He took his brother’s laptop with him.

19. At 1.11 pm on 6 March 2017, the brother’s body was discovered lying on the sofa in his unit by the manager of the units.  There was a large amount of blood located on the lower floor of the unit, including on the furniture.

20. The brother suffered numerous blunt force injuries to various parts of his body including his face, head, both upper limbs, torso, back and both lower limbs.  There were over 10 lacerations to his head which were consistent with blunt force trauma.  At least two of the blows to the head involved such force such that his skull was fractured.

21. The applicant was arrested at 9.45 pm on 6 March 2017.  He cooperated with police and made a number of admissions, including that he had struck his brother in the head with a spanner several times.  He also admitted to stomping on his brother’s head.  He admitted that he arrived at his brother’s apartment at 9.00 pm and left at 5.00 am the following morning.  He believed that his brother was alive and breathing when he left the apartment.

22. He told police that the purpose of him visiting his brother was to obtain money that he believed was owed to him and that he took his brother’s laptop when he left the unit.  He said words to the effect that he wanted to kill the monster inside his brother.  He further admitted to practising swinging the spanner outside the apartment before entering.  The applicant was angry with his brother because he believed his brother had stolen both money and his passport.

    The psychiatric reports

23. At sentence, the Crown tendered three psychiatric reports; a report of Dr Beech dated 2 October 2019, a report of Dr Arthur dated 25 March 2019 and a report of Dr Scott dated 27 June 2022.  A letter dated 8 September 2022 from Dr Aboud, who was the applicant’s treating psychiatrist whilst on remand, was tendered by the applicant.

24. Her Honour had read each of these reports and the letter prior to the commencement of the sentencing proceedings.[2]

    [2]RB 14 line 26; RB 17 line 34.

25. Dr Beech opined that the applicant had a neuro-cognitive deficit and, at the time of the offence, was suffering from a Bipolar Affective Disorder – hypomanic episode.  He considered that the neuro-cognitive deficit may have been related to the mood disorder, alcohol use, or other processes.  Dr Beech noted that after a short time on remand, the applicant was admitted to the High Security Inpatient Service at The Park on 10 March 2017.  The applicant remained at The Park until he was returned to custody in 2019.  Dr Beech further noted that the applicant had developed an Alcohol Use Disorder in his thirties which continued into late 2016.  The applicant told Dr Beech that he had stopped drinking.  Around August 2016, the applicant developed a Cannabis Use Disorder which had persisted.  Dr Beech noted however, that the applicant had been relatively consistent in stating that he had not used cannabis for some days prior to the offence.  Dr Beech opined that it was possible that cannabis triggered the hypomanic episode but thought it more likely represented Bipolar Affective Disorder.

26. In his executive summary, Dr Arthur noted that the applicant insisted that he did not intend to kill his brother or cause grievous bodily harm.  He asserted that when he left his brother’s unit, his brother was conscious and talking coherently.

27. Dr Arthur noted that whilst the applicant ceased alcohol use around August 2016, he took up cannabis and smoked the drug heavily.  This was associated with a further deterioration in his physical and mental health.  Dr Arthur observed that the applicant had given an inconsistent history in regard to the use of substances around the time of the offence.  He told Dr Arthur that he had not used cannabis or alcohol within 24 hours of the offence yet had told other interviewers that he smoked cannabis within 24 hours of the offence.  The applicant had also reported to police he had not used the drug for five weeks.

28. As to future risk, Dr Arthur opined as follows:[3]

    “The fact that he has experienced further deteriorations in his mental state even whilst in hospital on treatment is an indication that his mental state remains brittle, and there is a risk that he may experience a relapse of his symptoms, even on treatment.  This risk could be mitigated by long-term psychiatric care, compliance with medication, abstinence from all drugs of abuse and assertive case management.”

    [3]RB 98.

29. In his report, Dr Scott also supported a diagnosis of Bipolar Affective Disorder – hypomanic episode.  Dr Scott considered that the applicant’s abnormality of mind may have substantially impaired his capacity to know that he ought not do what he did.

30. Dr Aboud, in his letter of 8 September 2022, considered that the applicant, throughout his time in custody since 2019, had remained wholly mentally stable, with no evidence of active symptoms of mood disturbance or psychosis.  The applicant had remained engaged with his mental health care and consistently compliant with his prescribed medication.  Dr Aboud considered that if there was any cognitive impairment, such impairment was mild and may be attributed to a combination of the applicant’s long-standing alcohol misuse and age and would not constitute dementia.  Dr Aboud further noted that if the applicant was to be released, he would require ongoing mental health care.

    The sentencing remarks

31. After referring to the maximum penalty of life imprisonment for the offence of manslaughter and recognising the applicant’s early plea of guilty, her Honour outlined the agreed facts.  In doing so, her Honour referred to the video footage taken by the applicant, noting that he had left his brother’s unit at 5.00 am.  Her Honour specifically referred to the fact that the applicant made a number of admissions to police.  The agreed statement of facts identifies that the applicant admitted to police at the time of his arrest that when he left his brother’s unit, he believed that his brother was alive and breathing.  Her Honour referred to this admission as follows:[4]

    “You say that when you left your brother in the earlier hours of the morning, he was breathing and lucid, albeit injured.  Whilst that is difficult to accept, if it is true, it makes the crime even more horrific given the extent of injuries that had been inflicted.”

    [4]RB 26 lines 30 – 34.

32. This admission was also consistent with what the applicant told Dr Arthur.

33. Her Honour considered that certain matters did not mitigate the seriousness of the offending:[5]

    “It is of no mitigation and does not reduce the seriousness of your offending that there was some history of recent physical violence between you and your brother, that your brother may have owed you money or that you may have been somewhat affected by cannabis at the time of the offending.  Although there is some conflicting information in the material about that.”

    [5]RB 26 lines 36 – 40.

34. Her Honour did however, consider that it was a significant factor that at the time of the unlawful killing, the applicant was suffering “from a serious and untreated mental illness”.[6]  Her Honour, by reference to the three psychiatric reports, identified that at the time of the unlawful killing the applicant’s mental illness constituted an abnormality of mind which substantially impaired his capacity to know he ought not do what he did.  Her Honour then outlined some of the history of the applicant’s mental illness:[7]

    “It appears that mental illness began to adversely exert itself on you in around 2015. By 2016 you were firmly in the grip of the illness. It caused your relationship with your brother to deteriorate as well as your relationship with your wife and your two young daughters. You became paranoid, you held false beliefs, your behaviour was erratic, manic and certainly abnormal. Your downward spiral culminated in the tragic and bizarre circumstances in which you killed your only brother. Absent the mental illness, it appears that you are otherwise a well-functioning and respected member of society. You have no relevant criminal history. You are highly educated. The references provided by work colleagues demonstrate you to be a competent and kind person.”

    [6]RB 26 line 43.

    [7]RB 27 lines 1 – 11.

35. Her Honour specifically noted that the case was not an appropriate one for general deterrence because the applicant’s moral culpability for his conduct was reduced by his abnormality of mind.[8]

    [8]RB 27 lines 35 – 36.

36. As to any ongoing risk to the community, her Honour noted:[9]

    “You are now engaged in treatment.  Your illness has been stabilized with medication.  The risk that you might otherwise present to the community has been significantly reduced by the diagnosis and the treatment of your mental illness since this offence.  You are a person of significant intellectual capability who I believe will understand that the need for treatment will be ongoing and the need to abstain permanently from cannabis and alcohol will be necessary for your complete rehabilitation.  Your treating psychiatrist has noted that you have insight into your condition and that you are compliant with the treatment.”

    [9]RB 27 line 42 – RB 28 line 2.

    Consideration

37. Having outlined the agreed statement of facts, the psychiatric reports and her Honour’s sentencing remarks, it is readily apparent that there was no failure on the part of the sentencing judge to take into account the relevant considerations identified in the grounds of appeal.  Nor has any error been demonstrated by her Honour taking into account any irrelevant consideration.

38. It cannot be established that her Honour failed to take into account those aspects of the applicant’s mental health identified in Grounds 1 and 2. Her Honour had read each of the psychiatric reports and the letter from Dr Aboud. From the sentencing remarks outlined at paragraph at [34] above, it is evident that her Honour specifically had regard to the applicant’s mental health prior to the unlawful killing, including his paranoid beliefs in relation to his brother and the deterioration of his relationship with his wife. Each of these matters were detailed in one or more of the psychiatric reports considered by her Honour.

39. As to Ground 3, the effect of cannabis and alcohol in relation to the applicant’s mental condition was specifically referred to as outlined above by Dr Beech and Dr Arthur.  As to any future deterioration in the applicant’s mental state, Dr Arthur specifically referred to the need for abstinence from all drugs of abuse.  Dr Aboud also in his letter referred to impairment in the applicant’s cognitive functioning as possibly being attributable to a combination of the applicant’s longstanding alcohol misuse and age.  There was therefore no error in fact on the part of the sentencing judge in referring to these matters in the course of the sentencing remarks.

40. As to Ground 4, her Honour expressly referred to the applicant’s risk to the community being significantly reduced by the diagnosis and treatment for his mental illness since the commission of the offence.  Her Honour’s reference to the applicant’s need to abstain permanently from cannabis and alcohol in order to complete his rehabilitation was consistent with the psychiatric opinion.

41. As to Ground 5, the applicant’s mental condition, consistent with the opinions expressed in the psychiatric reports, will require ongoing treatment.  The applicant was an inpatient at The Park for approximately two years before he was sufficiently stable to be returned to custody.  The requirement for ongoing mental health care arises irrespective of whether the applicant was supervised on extended parole.

42. A further difficulty with Ground 5 is that no submission was made by the applicant’s counsel at sentence that her Honour should take into account the benefit of the applicant being supervised on extended parole.  Even if it was considered that the applicant would benefit from such an extended period, such a consideration could not outweigh the imposition of an appropriate sentence having regard to the seriousness of the offence.

43. As to Ground 6, the fact that the brother may have been alive when the applicant left the house was a fact that her Honour was entitled to take into account.  Not only was it an admission made by the applicant to police contained in the agreed statement of facts, it was also what the applicant told Dr Arthur.  Being an admission, it is inaccurate to describe this fact, as Ground 6 does, as “an irrelevant and impossible consideration”.

    Disposition

1. I would propose the following order:

   1.The application for leave to appeal against sentence be dismissed.

2. BODDICE JA:  I agree with Flanagan JA.