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R v Abell

 

[2015] QCA 144

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Abell [2015] QCA 144

PARTIES:

R
v
ABELL, Phillip Graeme
(applicant)

FILE NOS:

CA No 121 of 2014

CA No 122 of 2014

SC No 568 of 2012

DC No 526 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 8 October 2013

District Court at Brisbane – Unreported, 6 November 2013

DELIVERED ON:

Orders delivered ex tempore 20 July 2015

Reasons delivered 14 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2015

JUDGES:

Fraser and Morrison JJA and Flanagan J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 20 July 2015:

  1. The application for an extension of time to appeal against conviction and sentence is refused.
  2. The application for an extension of time to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant failed to file his notice of appeal against conviction and sentence within time – where the proposed conviction appeal was seven months out of time, the proposed appeal against the sentence for murder was six months and 17 days out of time, and where the proposed appeal against the sentence for the ‘home invasion’ offences was five months and 17 days out of time – where the applicant’s solicitor filed an affidavit explaining the delay – where it was possible to determine the viability of the appeal – whether there was good reason for the delay – whether the prospective appeal is viable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – OTHER MATTERS – where the applicant was charged with the murder of a police officer – where the applicant had shot the police officer during the commission of an armed robbery – where the applicant alleged that the police officer had failed to call upon the applicant to stop, or in the alternative, that having warned the applicant, failed to give him sufficient time to stop as required by the Police Powers and Responsibilities Act 2000 (Qld) – where this failure would have made the police officer’s conduct an unlawful assault – where the applicant contended he acted in self-defence – whether it was open to the jury to exclude the hypothesis of self-defence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge deferred the applicant’s date for eligibility for release on parole beyond the statutory minimum – where the applicant had demonstrated no remorse – where the applicant had killed an on-duty police officer – where the applicant had a significant criminal history – whether it was appropriate to extend the period before the applicant would be eligible for parole

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of a number of ‘home invasion’ offences – where the applicant was already serving a life sentence at the time of sentencing – where the sentencing judge considered that the offending warranted additional punishment – where the sentencing judge deferred the applicant’s parole eligibility date by 12 months – where the applicant submits that the aggregate punishment for all the offences exceeds what was required for the totality of his criminality – whether the deferral of the parole eligibility date by twelve months was manifestly excessive punishment

Criminal Code (Qld), s 271, s 668E(1)

Penalties and Sentences Act 1992 (Qld), s 13

Police Powers and Responsibilities Act 2000 (Qld), s 616

Jeffers v The Queen (1993) 67 ALJR 288; [1993] HCA 11, cited

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

COUNSEL:

C Heaton QC, with M F Bonasia, for the applicant (pro bono)

M Byrne QC for the respondent

SOLICITORS:

No appearance for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  On 21 July 2015 the Court refused applications for extensions of time within which to appeal against conviction and sentence.  The Court indicated that the reasons for those orders would be published in due course.  These are the reasons for my conclusion that each of the applications should be refused.
  2. After a trial in the Supreme Court the applicant was found guilty by a jury of murder and he was convicted of that offence on 23 September 2013.  On 8 October 2013, the applicant was sentenced to imprisonment for life with an order for parole eligibility on 29 May 2031.  The applicant pleaded guilty to associated offences of armed robbery in company with personal violence and seven counts of deprivation of liberty.  He was sentenced to concurrent terms of 18 years imprisonment and (on each of the seven counts) three years imprisonment respectively.
  3. The applicant had earlier been convicted following a trial in the District Court of a number of “home invasion” offences.  On 6 November 2013, the applicant was sentenced for those offences.  On each of two counts of armed robbery in company he was sentenced to five years imprisonment.  On one count of armed robbery with personal violence he was sentenced to six years imprisonment.  For the offence of burglary with violence whilst armed he was sentenced to eight years imprisonment.  These sentences were to be served concurrently.  The District Court sentencing judge ordered that the applicant was eligible to apply for parole on 29 May 2032.  In effect, the additional punishment for those offences was the deferral by one year of the applicant’s parole eligibility date.
  4. On 20 May 2014, the applicant filed an application seeking an extension of time within which to appeal against his conviction and sentence for the offence of murder.  The proposed conviction appeal was seven months out of time and the proposed appeal against sentence was six months and 17 days out of time.  On the same day the applicant applied for an extension of time within which to appeal against the sentence imposed in the District Court.  That application was five months and 17 days out of time.
  5. In considering applications for extensions of time within which to appeal against conviction or sentence, the Court considers whether there is good reason for the delay in appealing and whether it is in the interests of justice overall to grant the extension.  Where the Court is able to assess whether or not the prospective appeal is viable, the Court may also take such an assessment into account in deciding whether an extension of time should be granted: R v Tait [1999] 2 Qd R 667 at 668 [5].  If an applicant is unable to demonstrate that a proposed appeal has any prospect of success, the application for an extension of time may be refused on that ground alone: Jeffers v The Queen (1993) 67 ALJR 288 at 289.

Proposed appeal against conviction for murder

  1. The proposed ground of appeal against the murder conviction was that “the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence…”: Criminal Code, s 668E(1).  The question under that ground is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty: M v The Queen (1994) 181 CLR 487 at 493.
  2. The solicitor who acted for the applicant in the trial of the home invasion offences and in the murder trial swore an affidavit.  The solicitor deposed that upon the applicant being convicted of murder, and upon the applicant being sentenced for that offence and subsequently, for the offences tried in the District Court, the applicant instructed him to appeal against the verdict and sentences.  The solicitor asked the senior and junior counsel who had appeared for the applicant in the murder trial to draft grounds of appeal.  After several weeks counsel gave the solicitor certain advice.  The applicant still wanted to appeal against conviction and sentence, so the solicitor set about preparing draft grounds of appeal himself.  He did not normally draft grounds of appeal.  The task was onerous because at the murder trial there had been 150 witnesses who had provided nearly 200 statements, there were hundreds of hours of CCTV footage and recorded interviews, the trial went for weeks, and the transcript was therefore very lengthy.  He was obliged to fit in the drafting work in the time available to him after his other work.  He filed the notice of appeal as soon he could in the circumstances and the applicant did not contribute to the delay.
  3. The question then is whether, taking into account that the delay has been explained in that way, it is in the interests of justice to grant the necessary extension of time to appeal.  The explanation for the delay made it clear that the applicant’s then solicitor had and took advantage of full access to all of the evidence adduced at the trial.  In that context, Mr Heaton QC, who with Mr Bonasia commendably appeared pro bono for the applicant, did not foreshadow any challenge to the sufficiency or accuracy of the trial judge’s summing up on the facts or the law.  That is consistent with the fact that defence counsel did not seek any re-direction.  In these circumstances it is possible to assess whether or not the proposed appeal is viable.
  4. The applicant, who was tried together with Donna Lee McAvoy, was convicted of the murder of a police officer, Detective Leeding.  On 29 May 2011, Detectives Leeding and Jackson were the first police officers to arrive at a hotel in response to reports that an armed robbery was taking place.  Detective Jackson gave evidence that she and Detective Leeding went to the hotel in response to radio calls which included information that three persons were armed with weapons and people were lying on the floor of the hotel.  There was other evidence that the applicant was armed with a loaded sawn-off shotgun, he had threatened hotel patrons and employees with his gun while McAvoy tied their hands behind their backs and put the proceeds of the robbery into a bag, the applicant had threatened to shoot a security guard during the robbery, and the applicant had brought extra shotgun shells with him.  Detective Jackson gave evidence that she was aware that at least one of the people inside the hotel had a high powered weapon.  Upon arrival Detective Jackson saw a car with its parking lights on further up the road.  She saw two people inside the hotel.  They had their hands in front of their bodies as if they were carrying firearms and were in a hurry.  Detective Leeding, who was armed with his firearm and was about one or two metres ahead of her, jumped over a fence.  She heard him call out in a “command tone”, “stop, police, police”.  She heard the car that had been parked drive over a speed bump quite quickly and pass with its headlights on.  She went towards the fence.  Detective Jackson then heard two shots close together when she was preparing to jump the fence.  Detective Jackson gave evidence that it was a couple of seconds before she heard the sound of shots being fired that she heard Detective Leeding say in a “command tone” the words “stop, police, police”.  She denied the suggestion that Detective Leeding did not say those words or words like them.  It was put to her in cross-examination that in her notebook she had written the words “stop, police” and that she had also referred to the use of the words “police, police”.
  5. Detective Jackson saw a man holding his hands in a position as if he was carrying a weapon on the other side of the fence.  She took cover.  She saw the gunman run off and saw Detective Leeding on the ground.  There was other evidence which allowed the jury to conclude that the applicant shot Detective Leeding in the face, reloaded the gun, moved towards and looked at Detective Leeding lying incapacitated on the ground, and ran off.  Detective Jackson gave evidence that she did what she did with Detective Leeding to protect other people around the hotel and that she had told the police inspectors’ enquiry in August 2011 that she knew that there would be nobody else (that is, no other police) there for quite some time.  The applicant did not give or call evidence.
  6. It was not an issue at the trial that the applicant and McAvoy were at the hotel and participating in the robbery.  Nor was it in issue that the applicant fired the gun that shot Detective Leeding in his face and caused his death.  The applicant did not seek to argue in the proposed appeal that the prosecution had not proved beyond reasonable doubt the elements of the alleged murder offence.  The only point which the applicant sought to agitate on appeal under the ground that the verdict was unreasonable was an issue concerning self-defence.
  7. It was argued for the applicant at the trial that the prosecution had not excluded beyond reasonable doubt the possibility that the applicant was acting in self-defence when he injured Detective Leeding.  Section 271 of the Criminal Code relevantly provides that “when a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault”.  The applicant relied upon s 271(2) as making it lawful for him to use force for his defence that might cause death or grievous bodily harm.  The trial judge explained to the jury that a question under s 271(1) was whether the applicant was unlawfully assaulted by Detective Leeding; if the jury concluded that Detective Leeding did not assault the defendant unlawfully, self-defence under s 271 was not open.  The trial judge summarised the defence case as being that Detective Leeding unlawfully assaulted the applicant because the jury should not be satisfied that Detective Leeding warned the applicant as required by s 616(5) of the Police Powers and Responsibilities Act 2000.
  8. Section 616(1) – (4) relevantly provides:

“…if a police officer reasonably suspects a person…has committed an offence punishable by life imprisonment and is attempting to escape arrest…, It is lawful for the police officer to use the force reasonably necessary …to apprehend the person…or to prevent the escape of a person…  The force a police officer may use under this section includes force likely to cause grievous bodily harm to a person or the person’s death.”

Section 616(5) provides:

“If the police officer reasonably believes it is necessary to use force likely to cause grievous bodily harm to a person or the person’s death, the police officer must, if practicable, first call on the person to stop doing the act.”

  1. The applicant accepted that when Detective Leeding and Detective Jackson arrived at the scene, and when Detective Leeding opened fire, the applicant was attempting to flee from the hotel and escape arrest whilst armed with a loaded firearm.  It was not submitted for the applicant that the jury could not reasonably be satisfied beyond reasonable doubt that Detective Leeding reasonably suspected that the applicant had committed an offence punishable by life imprisonment (armed robbery), the applicant was attempting to escape arrest, and (subject to the issue about s 616(5)) it was lawful for Detective Leeding to use force reasonably necessary to apprehend the applicant or to prevent his escape, extending to reasonably necessary force likely to cause grievous bodily harm to or the death of the applicant.
  2. The applicant argued, however, that the evidence in the prosecution case did not exclude beyond reasonable doubt a hypothesis that Detective Leeding had not called upon the applicant to stop, or had not allowed the applicant sufficient time to comply with such a command, before Detective Leeding opened fire upon the applicant.  The applicant referred to evidence in the prosecution case that the relevant events occurred within a period of 4.14 seconds and argued that there was too short a period for Detective Leeding to have issued the required warning and allowed the applicant a reasonable opportunity to comply before Detective Leeding opened fire.
  3. Having regard to the evidence described in [9] and [10] of these reasons those arguments could not succeed.  In particular, it was reasonably open upon Detective Jackson’s evidence for the jury to consider that the prosecution had excluded beyond reasonable doubt any hypothesis that the warning was not given, or not given in sufficient time for the applicant to stop before Detective Leeding opened fire.
  4. The applicant referred to the evidence of Mr Qui that whilst he was in a phone booth outside the hotel he heard two shots in close succession, he saw a man holding a shotgun outside the hotel, and he did not hear any yelling until he heard a male voice after the shots.  That evidence suggests that this was a volatile and stressful situation for Mr Qui, who also suffered a slight injury at the time of the first gunshot (a scratch in one leg which drew blood).  In those circumstances, it was not reasonably arguable that the evidence that Mr Qui did not hear yelling precluded the jury, acting reasonably, from accepting the evidence of Detective Jackson and concluding beyond reasonable doubt that the applicant heard in sufficient time and intentionally failed to obey a clear warning given by Detective Leeding to the applicant.
  5. A number of other submissions were made for the applicant in relation to the reasonableness of Detective Leeding’s conduct in opening fire.  It was submitted that the applicant was “simply attempting to escape”, he “was presenting no further threat to members of the public”, his escape was made more difficult by the encumbrance of the heavy bag containing coins which he carried, no shots were fired at Detective Jackson and only one shot was fired by the applicant at Detective Leeding, and the actions of Detective Leeding “dramatically increased the risk of a deadly confrontation with the applicant”.  The mere fact that the applicant was encumbered by a heavy bag when attempting to escape whilst armed with a shotgun could not conceivably be regarded as having rendered unreasonable Detective Leeding’s conduct in attempting to prevent that escape in the way he did.  The jury could consider that the armed applicant attempting to escape arrest presented a very serious threat to the public (including the hostages in the hotel and other police officers) and to find that the conduct of Detective Leeding in opening fire after the applicant ignored Detective Leeding’s warning was reasonably necessary and lawful.
  6. Taking into account that the delay in bringing this application was explained in the way summarised earlier in these reasons, I concluded that the arguments which the applicant proposed to advance on appeal lacked sufficient substance to justify the necessary extension of time for an appeal.  My view was that those arguments would inevitably fail.

Proposed appeal against the sentence for murder

  1. The ground of the proposed appeal against the sentence for murder was that the sentence was manifestly excessive.  The challenge was necessarily to the sentencing judge’s discretionary decision to defer the date for eligibility for release on parole beyond the statutory minimum then applicable of 15 years to 20 years.
  2. The trial judge summarised the circumstances of the offence and stated that the applicant planned the robbery anticipating that he would need to use his weapon; he killed a brave, young police officer acting in the course of his duty, that had grievously affected the officer’s young family, colleagues and the wide community, and the applicant had not shown any remorse.  The sentencing judge found that the applicant fired the shot at Detective Leeding’s face with an intention to kill him or cause him very serious, life threatening harm, and that the applicant did so in a choice either to kill Detective Leeding or to be captured.  The sentencing judge considered it to be significant that the crime was the deliberate shooting of a police officer acting in the course of his duties to protect the public.  The circumstance that the applicant had come armed to the scene anticipating the possibility of police intervention, his subsequent behaviour in firing the shot deliberately at Detective Leeding with an intention to kill him or cause him very serious life threatening harm, and his subsequent behaviour in reloading his firearm, returning to where Detective Leeding was lying, and making no attempt to assist him, illustrated his determination to use extreme violence to achieve his ends.  The sentencing judge was persuaded that the combination of the applicant’s lack of remorse, the deliberateness of the killing of a police officer acting in the execution of a duty, and the applicant’s criminal history made it appropriate to extend the period before the applicant would be eligible for parole to 20 years from the time of the applicant’s arrest.  (That effectively took into account the time the applicant had already spent in custody of approximately two and a half years).
  3. The applicant was 38 years old when he committed the offence and 41 years old at the time of sentence.  He had a significant criminal history, including an offence to which the sentencing judge made particular reference of armed robbery of a bank in company with actual violence.  The applicant fired a shot from a high-powered weapon which passed through a wall and easily could have struck an employee in the next room.  For that offence the applicant was sentenced on 11 July 1997 to eight years imprisonment.  The sentencing judge referred also to a sentence imposed in November 1990 of four years imprisonment for armed robbery of a convenience store in company with actual violence and to an offence committed on 30 December 2010 (which was the subject of the remaining application for an extension of time).
  4. The applicant articulated the suggested error in the sentence as being that it was difficult to see how any benefit was given to the applicant for his pleas of guilty to the charges other than murder.
  5. Section 13(1) of the Penalties and Sentences Act 1992 does not make it obligatory for a sentencing judge to reduce a sentence because of the entry of a plea of guilty to that offence or any other offence.  The applicant did not seek to argue that the pleas of guilty evidenced remorse.  The circumstances identified by the sentencing judge (which were not the subject of any proposed challenge) amply justified the exercise of the discretion to defer the pre-existing parole eligibility date.  Even allowing for the suggested requirement of leniency on account of the pleas of guilty, the deferral of the parole eligibility date could not be regarded as manifestly excessive in the particular circumstances of this case.

Proposed appeal against the sentence imposed for the home invasion offences

  1. The applicant was 38 years old at the time of the “home invasion” offences (see [3] of these reasons).  These offences were planned.  The applicant and an associate forced their way into the house of some people the applicant knew.  There were three adults, including a pregnant woman, and a young child present.  The applicant menaced the adults with a gun and he physically assaulted one of the men.  He intended to rob and terrorise them.  The applicant told his victims that it was a lesson in respect.  He succeeded in his intention of making them fear him; they were too afraid to go to the police.  The offences did not come to light for some years.  The sentencing judge found that the applicant had not shown any remorse.  His history spoke of a “chilling propensity for violence” and he was “a dangerous man”.
  2. The sentencing judge noted that because the applicant had earlier been sentenced to life imprisonment there could not be a cumulative sentence.  The question for consideration concerned the parole eligibility date.  The sentencing judge considered that, whilst the judge who sentenced the applicant for murder was aware of the applicant’s convictions for these offences, they were not then taken into account in fixing the non-parole period.  Her Honour took into account the need to avoid an oppressive sentence but considered that there should be additional punishment for the home invasion offences.  A deferment of the parole eligibility date was the only way to impose such a punishment.
  3. The applicant did not point to any error of principle or otherwise in the sentence.  The submission for the applicant was instead that the further deferral of the parole eligibility date by 12 months “compounded” the error which was submitted to have been made in the sentence imposed for murder.  Giving full weight to the severity of the sentence for murder and the need to ensure that the aggregate punishment for all of the offences did not exceed what was required for the totality of the applicant’s criminality, having regard to the absence  of remorse or any other significant mitigating factor, the deferral of the parole eligibility date by only 12 months could not reasonably be regarded as a manifestly excessive punishment for these very serious offences committed long before the murder.  Furthermore, there was no satisfactory explanation for the delay in applying; whilst the affidavit of the applicant’s former solicitor to which I have referred recited that the applicant gave instructions to appeal this sentence, that affidavit did not specify when those instructions were given and it did not include any explanation for the delay in applying for leave to appeal against this sentence.
  4. MORRISON JA:  I have had the advantage of reading, in draft, the reasons prepared by Fraser JA in respect of the applications for extension of time within which to appeal against conviction and sentence.  The reasons given by Fraser JA reflect those of my own for concluding that each of the applications should be refused.  For those reasons I joined in the orders made on 21 July 2015, refusing the applications for extension of time.
  5. FLANAGAN J:  I agree with the reasons given by Fraser JA.
Close

Editorial Notes

  • Published Case Name:

    R v Abell

  • Shortened Case Name:

    R v Abell

  • MNC:

    [2015] QCA 144

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, Flanagan J

  • Date:

    14 Aug 2015

Litigation History

Event Citation or File Date Notes
Primary Judgment - - Criminal
Appeal Determined (QCA) [2015] QCA 144 14 Aug 2015 -

Appeal Status

{solid} Appeal Determined (QCA)