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R v Lawler

 

[2020] QCA 166

SUPREME COURT OF QUEENSLAND

 

 

CITATION:

R v Lawler [2020] QCA 166

PARTIES:

R
v
LAWLER, Darren James
(applicant)

FILE NO/S:

CA No 6 of 2020
SC No 635 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 19 December 2019 (Davis J)

DELIVERED ON:

13 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2020

JUDGES:

Holmes CJ and Morrison JA and Wilson J

ORDER:

Leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was arraigned on the charge of murder – where the applicant pleaded not guilty to murder but guilty to manslaughter – where the prosecution accepted the defendant’s plea of guilty to manslaughter on the basis that it could not negative a defence under section 304 of the Criminal Code (Qld) – where the sentence proceeded on the basis that the applicant had inflicted the fatal wounds in the heat of passion caused by sudden provocation and before there was time for his passion to cool – where the applicant was sentenced to eight years imprisonment with a declaration pursuant to section 161B(3) of the Penalties and Sentences Act 1992 (Qld) that the applicant had been convicted of a serious violence offence – where the applicant seeks leave to appeal on the grounds that the sentence imposed was manifestly excessive and the sentencing judge erred by imposing a serious violence offence declaration – where the applicant submits that a sentence of nine years with parole eligibility after one half of the term would properly reflect the overall criminality of the offence – whether the imposition of a serious violence offence declaration was necessary or appropriate – whether the sentence imposed was beyond the permissible range

Criminal Code (Qld), s 304
Penalties and Sentences Act 1992 (Qld), s 161B(3)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Carlisle [2017] QCA 258, cited
R v Civic [2014] QCA 322, cited
R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63, cited
R v Doyle (unreported, Supreme Court, Lyons J, 5 June 2014), cited
R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58, cited
R v Hedlefs [2017] QCA 199, cited
R v Jackson [2011] QCA 103, cited
R v Liddy; Ex parte Attorney-General (Qld) [2018] QCA 254, cited
R v Mills [2008] QCA 146, cited
R v MP [2004] QCA 170, cited
R v Murray [2012] QCA 68, cited
R v Randall [2019] QCA 25, cited
R v Schubring; Ex parte Attorney-General (Qld) [2005] 1 Qd R 515; [2004] QCA 418, cited
R v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A Crim R 24; [2007] QCA 426, cited
R v Smith [2019] QCA 33, cited
R v Spajic (unreported, Supreme Court, Martin J, 28 September 2010), cited
R v Wales [2019] QCA 64, distinguished
Tak Fat Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

S J Hamlyn-Harris for the applicant
D Balic and C M Cook for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    HOLMES CJ:  I agree with the reasons of Wilson J and with the order her Honour proposes.
  2. [2]
    MORRISON JA:  I have read the reasons of Wilson J and agree with those reasons and the order her Honour proposes.
  3. [3]
    WILSON J:  On 19 December 2019 in the Supreme Court of Queensland, the applicant was arraigned on the charge of murder.  He pleaded not guilty to murder, but guilty to manslaughter.  The prosecution accepted this plea and the sentencing judge sentenced the applicant to eight years imprisonment, with a declaration pursuant to section 161B(3) of the Penalties and Sentences Act 1992 (Qld) that the applicant had been convicted of a serious violent offence.  510 days of pre-sentence custody were declared time served under the sentence.
  4. [4]
    The applicant seeks leave to appeal against his sentence on the grounds that:
    1. (a)
      The sentence imposed was manifestly excessive; and
    2. (b)
      The sentencing judge erred by imposing a serious violent offence declaration, having regard to the significant provocation offered by the deceased proceeding the infliction of the deceased’s fatal wounds.
Circumstances of the offence
  1. [5]
    The circumstances of the offence are set out in an agreed statement of facts.  The mutual, and only, connection between the applicant and the deceased was the deceased’s de facto partner, Ms Baker.  Prior to the offence, Ms Baker and the applicant had known each other for approximately five weeks, during which time they had shared drugs and had sexual intercourse.
  2. [6]
    On 27 July 2018, the applicant was in his unit with Ms Baker and his girlfriend, Ms Dinte.  The applicant, Ms Baker and Ms Dinte left the unit to go shopping.  As they exited the unit they were confronted by the deceased, who had been hiding behind a bush outside.
  3. [7]
    The deceased confronted the applicant while yelling phrases such as “un-fucking fortunate”, “what the fuck is my missus doing here” and “hey little boy, you think it’s ok to have my missus over your house.”  He appeared intoxicated and was holding a bottle of vodka and a torch.  The autopsy report indicated that the deceased had toxic levels of methylamphetamine and a high level of alcohol in his system.
  4. [8]
    The events that followed this initial confrontation between the applicant and the deceased occurred quickly, suddenly and unexpectedly.
  5. [9]
    According to Ms Dinte, the deceased moved quickly towards the applicant.  Ms Baker attempted to prevent a confrontation between the applicant and the deceased.  She grabbed the deceased by his jumper and told him that he ‘had the wrong idea’ about her relationship with the applicant.  Ms Baker indicated to the deceased that Ms Dinte was the applicant’s girlfriend.
  6. [10]
    The deceased dropped the bottle of vodka and he and the applicant moved towards each other.  There was an exchange of blows, which included the deceased striking the applicant with the torch.  At some stage the deceased lost hold of the torch.  The applicant was forced backwards onto the ground.  Both the applicant and the deceased suffered facial injuries and blood was observed on their faces.
  7. [11]
    The applicant and the deceased separated.  The applicant then tackled the deceased to the ground.  A struggle ensued.  Both the applicant and the deceased wrestled each other on the ground.  At one stage, the deceased was briefly on top of the defendant.  During the struggle, the applicant said “I’ll stab you, cunt”.  The applicant put the deceased into a headlock and pushed him onto his stomach.
  8. [12]
    Either immediately before the applicant tackled the deceased or during the struggle, the applicant drew his fold out United States Marine Corps knife and then wounded the deceased five times by:
    1. (a)
      Stabbing the deceased’s left chest, a blow that fractured his fifth rib and perforated his left lung.  The opinion of the forensic pathologist was this blow was delivered using severe force;
    2. (b)
      Stabbing the deceased’s left lower chest, delivering an 8.5 to 9 cm deep wound that severed cartilage and extended to his heart.  The opinion of the forensic pathologist was this blow was delivered with moderate force;
    3. (c)
      Stabbing the deceased’s back in his lower left flank from left to right in the horizontal plane through the subcutaneous tissue.  The estimated wound length was 9.1 cm;
    4. (d)
      Stabbing the deceased on the left side of his forehead, penetrating 0.5 cm into his skull. The blow fractured his skull.  The opinion of the forensic pathologist was this was delivered with at least moderate force; and
    5. (e)
      Slashing the back of the deceased’s neck, leaving a 3.5 cm flap of skin.  The wound was superficial, at the level of skin, and did not reach the deceased’s skull.
  9. [13]
    The forensic pathologist attributed the cause of the deceased’s death to his chest stab wounds; the extensive haemorrhaging from each contributed to his death.  The post mortem examination also revealed other injuries to the deceased consistent with wrestling and being punched.
  10. [14]
    The prosecution was unable to identify precisely when the applicant produced the knife, or the order in which the applicant delivered the stab wounds.  At the sentence hearing, the applicant’s counsel informed the sentencing judge that the fatal injuries were the last two injuries inflicted by the applicant.
  11. [15]
    The initial fighting and screaming of Ms Baker and Ms Dinte drew witnesses from nearby houses.  One of those neighbours saw the applicant striking the deceased while the deceased was on the ground.  This neighbour called 000.
  12. [16]
    The applicant let go of the deceased and slid the knife along the ground.  The applicant then grabbed the torch, which belonged to the deceased, and fled into his unit with Ms Dinte and another young female.  He locked the door behind them.  The applicant’s young daughter was inside the unit.
  13. [17]
    Ms Baker followed the applicant into his unit.  She asked for her belongings and the torch.  Ms Baker spotted the knife and the deceased’s wallet and put them in her pockets.
  14. [18]
    The deceased stood up and staggered a short distance before sitting down.  He then lay on his back and called to Ms Baker for help, telling her he had been stabbed.  Ms Baker called 000.  Ms Baker and bystanders unsuccessfully attempted CPR on the deceased.
  15. [19]
    Paramedics arrived and attempted to resuscitate the deceased.  Their attempts at resuscitation failed and the deceased was declared dead at the scene.

Basis of the plea as set out in the agreed statement of facts

  1. [20]
    Although the applicant was armed on 27 July 2018, his use of the knife was not premediated.  The applicant was unexpectedly met by the deceased outside his unit.  The deceased was enraged over his belief that the applicant and Ms Baker had been having sex, and a violent confrontation quickly ensued.
  2. [21]
    After blows were exchanged, the two men struggled with each other on the ground, each trying to get the better of the situation.  The applicant was entitled to defend himself at that stage.
  3. [22]
    In response to the provocative behaviour of the deceased, the applicant unnecessarily introduced his knife to the fight and wounded the deceased.  He inflicted the two fatal wounds with an intention to kill or at least do grievous bodily harm.
  4. [23]
    The sentence proceeded on the basis that, but for section 304 of the Criminal Code (Qld), the deceased’s death would have constituted murder.  However, the prosecution accepted that the applicant inflicted the fatal wounds in the heat of passion caused by sudden provocation, and before there was time for his passion to cool.

Section 304 of the Criminal Code

  1. [24]
    The prosecution accepted the defendant’s plea of guilty to manslaughter on the basis that it could not negative a defence under section 304 of the Criminal Code.
  2. [25]
    Section 304(1) gives a partial defence to murder, reducing murder to manslaughter:

“(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.”

  1. [26]
    Accordingly, pursuant to section 304 of the Criminal Code, manslaughter may be committed notwithstanding that there was in fact an intention to kill or do grievous bodily harm, in circumstances where provocation is available as a defence.  McMurdo JA observed in R v Hedlefs [2017] QCA 199 that:

“[87] Section 304 operates only where there has been an unlawful killing which, but for that section, would constitute a murder. Where provocation is proved, s 304 negates the legal consequences of the offender’s intent, and the crime is one of manslaughter, rather than murder, or something falling between the two. Once the legal effect of the offender’s intention is negated for the purpose of defining the offender’s criminal responsibility, there is no basis for saying that, nevertheless, that intention had a legal effect for the offender’s punishment.

[88] Just as an intention to kill or do grievous bodily harm, of itself, need not be an aggravating factor, the absence of that intention, of itself, will not be a mitigating factor. Rather, the existence or absence of that intent will be relevant as an ingredient of the mix of facts and circumstances by which the offence is to be considered in the assessment of the appropriate sentence. There is no reason to suppose that the learned sentencing judge here did not consider it in that way.”[1]

Antecedents of applicant
  1. [27]
    The applicant was 36 years old at the time of the offence and 37 at the time of sentencing.  He had children by two relationships, including a young daughter who was in the unit during the incident.  The applicant had good prospects of rehabilitation.  He had an irrelevant criminal history and had the support of his family.  A number of positive references were tendered on his behalf.
The prosecution’s submissions at the sentence hearing
  1. [28]
    The aggravating features of this case were the applicant’s use of a knife, significant violence and substantial force to inflict fatal injuries on the deceased in response to a fight.
  2. [29]
    The prosecution referred to a number of cases,[2] and submitted that the sentencing judge would consider a sentence in the range of nine to 11 years and, but for the plea of guilty, the sentence would exceed 10 years.  Accordingly, taking into account the mitigating circumstances, the applicant should be sentenced to 10 years imprisonment.  This would then attract a declaration that the offence was a serious violent offence and the applicant would serve 80 per cent of that term.
  3. [30]
    Alternatively, the prosecution submitted that if the sentence fell below 10 years, the discretion to make a declaration that the offence was a serious violent offence arose, and such a declaration ought to be made.
  4. [31]
    As a further alternative, it was submitted that even if a serious violent offence declaration was not made, then there ought to be an order postponing eligibility for parole beyond the statutory halfway mark.
  5. [32]
    A number of victim impact statements were tendered which included a statement by the deceased’s mother.

Defence counsel’s submissions at the sentence hearing

  1. [33]
    The ultimate submission made on behalf of the applicant was that a sentence of nine years imprisonment would reflect the applicant’s early plea of guilty, his remorse and his cooperation in the administration of justice.  A parole release date at the half way mark, or slightly less at the four year mark, would reflect the applicant’s good prospects of rehabilitation.
  2. [34]
    The applicant’s submissions highlighted the following circumstances:
    1. (a)
      The deceased tracked Ms Baker to the applicant’s unit and waited outside in the dark to confront the applicant;
    2. (b)
      The deceased was enraged and aggressive when he confronted the applicant.  The deceased’s intoxication may have exacerbated his rage;
    3. (c)
      The deceased was carrying a vodka bottle and a torch when he confronted the applicant;
    4. (d)
      The applicant was fearful when confronted by the deceased in these circumstances;
    5. (e)
      The deceased then initiated an exchange of blows with the applicant, which included the applicant being struck in the head with the torch;
    6. (f)
      The applicant suffered bleeding to his head and bruising to his forehead as a result of being struck with the torch;
    7. (g)
      The applicant’s response to the deceased’s attack was to tackle the deceased to the ground, by which time the applicant was holding the knife;
    8. (h)
      Although the applicant’s actions began with self-defence, at a point during the struggle the applicant’s emotions got the better of him and he stabbed and killed the deceased; and
    9. (i)
      The applicant was provoked by the deceased and his actions fell within the partial legal defence of section 304 of the Criminal Code.
  3. [35]
    The applicant had good prospects of rehabilitation, and had expressed his remorse in his plea of guilty.  In a letter to the sentencing judge, he stated that he had never “wanted any of this to happen.”
  4. [36]
    The applicant’s counsel referred to a number of cases,[3] and submitted that the unusual circumstances of the offence, which occurred unexpectedly and quickly, placed the applicant’s culpability within “a much narrower confine.”  This was a case of a “situational reaction by a person without a history of violence to circumstances that he was not anticipating, [nor] expecting”.
Remarks of the sentencing judge
  1. [37]
    The sentencing judge referred to the applicant’s antecedents, which included his good work history and lack of relevant prior convictions.  The applicant’s plea of guilty was acknowledged to represent both his desire to cooperate with the criminal justice system and his genuine remorse.
  2. [38]
    The circumstances of the offence were set out in the sentencing remarks, and it was recognised that the applicant did not instigate the violence between him and the deceased.  Furthermore, at the start of the confrontation the applicant had been fearful and acting in self-defence.  However, the sentencing judge noted that the violence escalated when the applicant produced a knife; this went beyond acting in self-defence and changed the balance of power in the fight.
  3. [39]
    In sentencing the applicant for manslaughter in circumstances where the prosecution could not negative a defence under section 304 of the Criminal Code, the sentencing judge endorsed the approach set out by McMurdo JA in R v Hedlefs.[4]  His Honour stated that while the applicant had intended to cause grievous bodily harm to the deceased, the concentration need not be on whether he formed an intent to kill.  Rather, there should be consideration of all the circumstances of the offence, which include the fact that the applicant produced a knife and used it very violently.
  4. [40]
    The sentencing judge noted that the sentencing range for manslaughter is broad due to the almost infinite array of circumstances in which manslaughter can be committed.  Although the comparable cases provided by the prosecution and the applicant’s defence counsel were not specifically referred to by the sentencing judge, they were used as a benchmark against which his Honour gauged the appropriate sentence.
  5. [41]
    In relation to the question of a serious violent offence declaration, the sentencing judge had regard to the principles explained in R v Carlisle [2017] QCA 258.  This case recognised that where a sentence exceeds 10 years, it is not possible to reflect the mitigating circumstances by way of a recommendation for earlier release on parole.  Therefore, the mitigating circumstances must be reflected by reducing the head sentence.
  6. [42]
    In approaching the sentence in this way, the sentencing judge found that the applicant’s sentence must be below 10 years.  This subsequently gave rise to a consideration of whether the imposition of a serious violent offence declaration ought to be part of the sentence.
  7. [43]
    The sentencing judge found that the decision of whether to make a serious violent offence declaration was not one that should be made separately from the assessment of the overall sentence.  The discretion to make a serious violence offence declaration arose due to the circumstances of the offending.  In particular:
    1. (a)
      The applicant’s attack on the deceased was extremely violent;
    2. (b)
      He had carried the knife for no apparent specific purpose;
    3. (c)
      The production of the knife by the applicant escalated the fight;
    4. (d)
      The applicant told the deceased he intended to stab him; and
    5. (e)
      His production of the knife turned what had been a balanced fight into an unfair one.
  8. [44]
    Even accepting the applicant acted as a result of provocation and initially by way of self-defence, the sentencing judge stated that the attack still involved five blows or slashes with the knife, including two into the chest of the deceased.  Accordingly, an appropriate sentence would be reached by reducing the applicant’s sentence to reflect all of the mitigating circumstances and imposing a sentence at the lower end of the range, but making a serious violent offence declaration.  The imposition of the declaration meant that the applicant would be required to serve 80 per cent of his sentence.
  9. [45]
    The applicant was sentenced to eight years imprisonment with a serious violent offence declaration.
The applicant’s submissions on this application
  1. [46]
    The applicant does not submit that the head sentence of eight years is excessive; the focus of the applicant’s proposed appeal is on the sentencing judge’s imposition of a serious violent offence declaration.  He submits that a sentence of nine years with parole eligibility after one half of the term would properly reflect the overall criminality involved in the offence.
  2. [47]
    Given the significant mitigating factors, the applicant does not accept the prosecution’s submission that, but for the plea of guilty, the sentence would have exceeded 10 years.  However, the applicant states that the sentencing judge appeared to take 10 years imprisonment as his starting point.
  3. [48]
    When imposing a serious violent offence declaration, the applicant submits that the critical question is whether the features of the case as a whole are such to warrant the making of the declaration.  The applicant refers to R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58:

[53] Where a case calls for consideration of whether to exercise the discretion to make a serious violent offence declaration, as part of the integrated process, what the sentencing court is required to do is consider all relevant circumstances, including in a case such as this the matters in ss 9(1), 9(2) and, primarily, 9(6) of the Penalties and Sentences Act, to determine whether there are circumstances which aggravate the offence in a way which suggests that the protection of the public, or adequate punishment, requires the offender to serve 80 per cent of the head sentence before being able to apply for parole.”

  1. [49]
    The applicant submits that the most significant mitigating factor in this case is that the applicant was lawfully exiting his home when he was attacked by an enraged deceased and was forced, without warning, to defend himself.  These circumstances, he argues, significantly reduce the overall criminality of the applicant’s actions and the sentencing judge did not appear to give sufficient weight to this mitigating factor.
  2. [50]
    Furthermore, the sentencing judge’s referral to the incident as a ‘fight’ obscures the fact that the applicant was simply defending himself against a sudden attack, and did not encourage or invite a fight between himself and the deceased.  The applicant argues that insufficient weight was placed on the fact that the deceased was carrying a large torch with which he assaulted the applicant.  Although the applicant was carrying a large fold-out knife, there was no suggestion that he had any intention of using it for any unlawful purpose, and its use was not premeditated.
  3. [51]
    The applicant submits that the categorisation of his offence as a ‘fair fight becoming an unfair fight’ suggests he gained the upper hand in an altercation that he entered voluntarily.  The applicant categorises the circumstances of his offence as a different situation.
  4. [52]
    Furthermore, the applicant disagrees with the sentencing judge’s statement that the applicant acted ‘initially’ in self-defence, so far as it implies that there was no element of self-defence to the applicant’s stabbing of the deceased.  As the incident happened very quickly, the applicant submits that it would be quite artificial and unrealistic to suggest that he had any opportunity to reflect on his response to the deceased’s actions.  Rather, the applicant acted reactively to a totally unexpected incident, and the proper characterisation of his actions is that he acted in self-defence throughout the fight, but used more force than was reasonable in the circumstances.
  5. [53]
    As the prosecution accepted the applicant’s guilty plea to manslaughter on the basis of provocation, the applicant suggests that the prosecution therefore accept that section 304(1) of the Criminal Code correctly describes the circumstances in which the applicant stabbed and killed the deceased.
  6. [54]
    In summary, the applicant submits that the factors which take the applicant’s actions outside the category of manslaughter offences that warrant a serious violent offence declaration are that:
    1. (a)
      The applicant was attacked by the deceased outside his own home, without warning, and the events that followed happened very quickly;
    2. (b)
      He  reacted in self-defence, and stabbed the deceased “in the heat of passion caused by sudden provocation, and before there was time for his passion to cool”;
    3. (c)
      His actions were unpremeditated and reactive to a sudden and unexpected attack; and
    4. (d)
      He did not have time to consider or reflect on what he was doing.
  7. [55]
    The applicant referred to a number of cases including R v Mills [2008] QCA 146, R v MP [2004] QCA 170, R v Murray [2012] QCA 68, R v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A Crim R 24 and R v Smith [2019] QCA 33 and submitted that these cases do not suggest that the imposition of serious violent offence declaration was necessary or appropriate in the circumstances of this case.
Discussion
  1. [56]
    In my view, the sentencing judge properly characterised the circumstances of the applicant’s offending.  His Honour acknowledged that the deceased was hiding outside the applicant’s unit, that he was carrying a sizeable torch and that the applicant was taken by surprise.  It was made clear by the sentencing judge that it was the deceased who instigated the violence by assaulting the applicant with some substantial force and causing him injuries.  His Honour accepted that in the initial part of the confrontation the applicant was fearful and acting in self-defence.
  2. [57]
    At the sentence hearing, the applicant’s counsel stated that the incident had its origins in self-defence.  The applicant now seeks to characterise the applicant’s act of killing as excessive self-defence.  The applicant declared his intention to stab the deceased prior to inflicting the deceased’s stab wounds.  By the time the applicant stabbed the deceased, the deceased was not armed and the applicant had an advantage in the fight.  The applicant’s conduct was properly characterised by his counsel at the sentence hearing as follows:

“MR RYAN: And where the provocative acts had continued for a period of time, albeit, all of these things over a short period of time. So his response begins – and this is highly relevant – begins within the realm of self-defence, to a point where his emotions got the better of him during this struggle on the ground, and then he’s acted in a way which is accepted to fall within the scope of the partial legal defence under 304. But it’s driven by, importantly, an intention, initially, to defend himself, but one that then develops from there. So he’s a man, your Honour, with, as has been pointed out, a criminal history that is limited.”

  1. [58]
    The sentencing judge properly sentenced the applicant on this basis.
  2. [59]
    Whilst accepting that the applicant acted as a result of provocation and initially by way of self-defence, the sentencing judge properly regarded the attack upon the deceased as extremely violent.  The applicant told the deceased that he intended to stab him, and he then did so five times.  This included two fatal stab wounds to the deceased’s chest.  In my view, the applicant’s production of the knife turned what may have been a fair fight into certainly an unfair one.  The sentencing judge’s characterisation of the fight in this way was correct.
  3. [60]
    Taking into account all of the mitigating factors, the sentencing judge acknowledged that the head sentence must be below ten years.  Although the sentence hearing occurred before the decision of R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58, the sentencing judge applied the same reasoning and determined that the discretion to impose a serious violent offence declaration arose from the circumstances of the applicant’s offending.
  4. [61]
    In relation to his discretion to make a serious violent offence declaration, the sentencing judge acknowledged the integrated process that was required.  His Honour determined that the extremely violent circumstances of the offending aggravated the offence in a way which suggested adequate punishment required the applicant to serve 80 per cent of the head sentence before being eligible to apply for parole.  In doing so, it was accepted that the applicant acted as a result of provocation and initially self-defence.
  5. [62]
    Once the sentencing judge determined that the discretion to make a serious violent offence declaration arose because of the circumstances of the offending, he then reduced the sentence to reflect all of the mitigating circumstances, imposed a sentence at the lower end of the range and then made the declaration.  No error can be shown in the exercise of the sentencing judge’s discretion.
  6. [63]
    A number of cases involving sentences for manslaughter were relied upon by the applicant’s counsel in the Court of Appeal.  In my view, none of these cases demonstrate that the sentence was manifestly excessive.
  7. [64]
    In R v Mills [2008] QCA 146, the offender killed his wife by strangulation using an electrical cord after being told his wife was unfaithful.  He then interfered with her corpse in an attempt to disguise his role in her death.  The offender pleaded guilty and was sentenced on the basis that the killing was reduced from murder to manslaughter by reason of provocation.  The offender had no criminal history and was genuinely remorseful.  He was sentenced to ten years imprisonment.  On appeal the sentence was reduced to nine years imprisonment.  The Court of Appeal noted that there was no evidence of any need to protect the community from a violent aggressor, there were limited considerations warranting condign punishment and the circumstances did not warrant a serious violent offence declaration.
  8. [65]
    In R v MP [2004] QCA 170, the offender went to trial on a charge of murder, but he was convicted of manslaughter as provocation could not be excluded.  The offender, whilst intoxicated, stabbed and killed his father with a knife.  This occurred after his father remained silent when accused of molesting the offender’s daughter.  The offender’s attack upon his father was ferocious.  The offender had a minor criminal history with no previous offences of violence and he was sentenced to nine years imprisonment.  It was noted that there was evidence of remorse as the offender offered to plead guilty to manslaughter.  Any provocation could only be regarded as minimal.  The application for leave to appeal was dismissed and Chesterman J (as he then was), with whom the other judges agreed, noted that a sentence significantly longer than nine years would have been appropriate.
  9. [66]
    In R v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A Crim R 24, the offender struck his 16 year old girlfriend multiple times, including to her head, with a steering wheel lock using severe force.  The offender offered to plead guilty to manslaughter, which the prosecution did not accept.  He went to trial on the murder charge but was convicted of manslaughter as the jury evidently accepted a defence of provocation as at least a reasonable possibility.  The victim was relatively defenceless.  However, there was a low level of provocation as the victim had taunted the offender with claims of having slept with other men.  It was noted that the offender had a brief, catastrophic fit of rage and then immediately sought aid for his victim.  The offender had no prior convictions and he was sentenced to 10 years imprisonment with a consequent declaration that the conviction was a serious violent offence, requiring him to serve 80 per cent of his sentence.  The Attorney-General appealed the sentence on the basis that it was inadequate.  This appeal was dismissed.
  10. [67]
    In R v Murray [2012] QCA 68, the offender was sentenced to nine years imprisonment with a serious violent offence declaration.  The offender and the deceased were cleaning a property together when the deceased became frustrated with the offender and swung a hammer towards him.  After disarming the victim, the offender repeatedly hit the victim with the hammer.  Following a trial, the offender was acquitted of murder but was convicted of manslaughter based on the partial defence of provocation.  The offender intended to kill the deceased, and not just to do him grievous bodily harm.  The offender’s blows to the deceased continued after the deceased was unable to offer any resistance.  There was no premeditation or planning in the offender’s conduct and the offender had demonstrated a capacity for rehabilitation.  The offender had a criminal history involving drug and property offences for which he was sentenced to 12 months imprisonment.  The application for leave to appeal was dismissed.
  11. [68]
    In R v Smith [2019] QCA 33, the offender pleaded guilty to unlawfully killing his 17 week old baby son and was sentenced to nine years imprisonment with a declaration of a serious violent offence.  He also pleaded guilty to an offence of failing to provide the necessaries of life in the last few days of the baby’s life, for which he was sentenced to a concurrent term of 18 months imprisonment.  The baby died of head and spinal injuries caused by significant shaking or blunt force trauma.  The applicant also denied the baby medical treatment a day or so later.  As the sentencing judge erred in deciding to impose the term of nine years before separately considering whether to declare that this was a serious violent offence, error was established and the Court of Appeal resentenced the offender.  The offender had no relevant criminal history and was a young man; he was 21 at the time of the offence and 25 at the time of the sentence.  He was resentenced to nine years imprisonment with a parole eligibility date at the five year mark.  McMurdo JA[5] stated that, in his view, it was not demonstrated that a term of nine years imprisonment and a serious violent offence declaration was warranted for an offender who had pleaded guilty and who had no significant criminal history.
  12. [69]
    In R v Wales [2019] QCA 64, the offender pleaded guilty to manslaughter and was sentenced to nine years imprisonment.  A concurrent term of four years imprisonment was imposed for burglary by breaking, whilst armed, with violence, in company, with property damage.  The sentencing judge imposed a declaration of a serious violent offence for each offence.  The deceased was at home when the offender’s co-accused stabbed a sword through the front door, which stabbed the deceased in the neck and the lung.  The offender entered the house with other people and used weapons to assault and threaten another occupier.  The appeal was allowed because the sentencing judge did not give sufficient discount for the offender’s plea of guilty.  The Court of Appeal set aside the serious violent offence declaration.  The applicant submits that if a serious violent offence declaration was not necessary in Wales, then this would support the proposition that a serious violent offence declaration was not necessary in the present case.  However, the offender in Wales was not the killer and the appeal in Wales turned on issues of parity.
  13. [70]
    An analysis of these cases referred to by the applicant does not demonstrate that the applicant’s sentence was unreasonable or plainly unjust, or that the sentencing judge, in the exercise of discretion, should have imposed a more lenient sentence.  Appellate intervention on the ground that a sentence is manifestly excessive is “not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.”[6]  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”[7]; none of the cases relied upon by the applicant do so.
  14. [71]
    It is not enough to demonstrate that the sentence was severe or that a lesser punishment would have been appropriate or more appropriate than the one the sentencing judge in fact imposed.[8]  Although another sentencing judge, in the exercise of discretion, may have imposed a more lenient sentence, to succeed on the ground that the sentence was manifestly excessive the applicant must show that the sentence imposed was beyond the permissible range.  The applicant has not done so.
  15. [72]
    Even though the applicant acted initially in self-defence, the applicant’s response was extremely violent; he used a knife with substantial force to inflict fatal injuries.  In my view, taking into account all of the relevant circumstances, including the mitigating factors, the sentence was not manifestly excessive.
  16. [73]
    The applicant has not demonstrated any error of principle on the part of the sentencing judge nor any error in the exercise of the sentencing discretion.
  17. [74]
    The sentence imposed was not manifestly excessive.  I would refuse the application for leave to appeal against sentence.

Footnotes

[1]  R v Hedlefs [2017] QCA 199 at [87], [88] per McMurdo JA, with whom Morrison and Philippides JJA agreed.

[2]   R v Liddy; Ex parte Attorney-General (Qld) [2018] QCA 254; R v Civic [2014] QCA 322; R v Murray [2012] QCA 68; R v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A Crim R 24; R v Hedlefs [2017] QCA 199; R v DeSalvo (2002) 127 A Crim R 229; R v Schubring; Ex parte Attorney-General (Qld) [2005] 1 Qd R 515; R v Randall [2019] QCA 25.

[3]  R v Mills [2008] QCA 146; R v MP [2004] QCA 170; R v Sebo; Ex parte Attorney-General (Qld) (2007) 179 A Crim R 24; R v Murray [2012] QCA 68; R v Spajic (unreported, Supreme Court, Martin J, 28 September 2010); R v Doyle (unreported, Supreme Court, Lyons J, 5 June 2014); R v Liddy; Ex parte Attorney-General (Qld) [2018] QCA 254.

[4]  R v Hedlefs [2017] QCA 199.

[5]  With whom Gotterson JA and Boddice J agreed.

[6]  Hili v The Queen (2010) 242 CLR 520 at 538 - 539 [59]; citing Tak Fat Wong v The Queen (2001) 207 CLR 584 at 605 [58].

[7]  House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

[8]  R v Jackson [2011] QCA 103 at [25] per Chesterman JA, with whom Muir JA agreed.

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Editorial Notes

  • Published Case Name:

    R v Lawler

  • Shortened Case Name:

    R v Lawler

  • MNC:

    [2020] QCA 166

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Morrison JA, Wilson J

  • Date:

    13 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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