The Queen v Lepp[1998] QCA 411

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 229 of 1998

Brisbane

[R. v. Lepp]

THE QUEEN

v.

CHANTAL ANN LEPP

(Applicant) Appellant

McPherson J.A.

Pincus J.A.

Muir J.

Judgment delivered 4 December 1998

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

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 4 December 1998

1. I agree with the reasons of Muir J. for dismissing both the appeal against conviction and the application for leave to appeal against sentence.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 4 December 1998

1. I have read the reasons of Muir J. in which the facts and issues are fully set out.  The point taken, as to the appeal against conviction, was in essence based on a single sentence in the judge’s summing-up:  "But if you heard that the girl has this capacity for violence, it might at least reduce the force of one’s normal expectation:  but no more than that".  It is not the law that proof of general propensity to engage in violent behaviour can assist the Crown, where the question is whether or not the accused had an intention to kill.  That is so, not because propensity evidence is always excluded, but because it can never be admitted unless it has a "specific connection with the commission of the offence charged":  Pfennig (1995) 182 C.L.R. 461 at 485.

2. The general effect of the passage from the summing-up in which the sentence I have quoted occurs, which passage is set out in the reasons of Muir J., was that the jury should not use against the appellant evidence of a tendency towards violent behaviour.  The sentence was capable of being understood as a qualification of that proposition and, if so understood, was erroneous.  In my opinion, however, it is very unlikely that the inclusion of this sentence, couched in rather abstract language ("reduce the force of one’s normal expectation") could have made a difference to the outcome of the trial.  Its inclusion did not cause a substantial miscarriage of justice to occur.

3. As to the sentence of imprisonment imposed, it is plain that the judge was influenced, as Muir J. points out, by the thought that, when not incarcerated, the appellant was likely to place other people and particularly Mrs Lennon at risk of physical harm.  Had the sentencing judge not adopted that view, the sentence would have been substantially lower.  There was no professional opinion placed before the judge on the question whether it was likely that the appellant would become reconciled to Mrs Lennon and to society as a whole, within say 5 years or 10 years.  Any such opinion would have had to be tentative and provisional, since there is no certain means of predicting whether a violent offender will reoffend.  What underlies the sentence, in my view, is an opinion which the judge formed that the appellant’s bitterness and hatred would not abate but endure.  The result of the sentence, under s. 161A of the Penalties and Sentences Act 1992 and s. 166(1)(c) of the Corrective Services Act 1988, is that the appellant will not be eligible for release on parole until she has served 12.8 years and, under s. 161D of the Penalties and Sentences Act 1992, her sentence cannot be remitted.  If it should appear before the period of 12.8 years expires that the appellant is very unlikely to reoffend, still that whole period must be served;  that, however, is simply a consequence of the statutory provisions to which I have referred.

4. Although the sentence imposed is not a light one, considering the circumstances of the case I am not prepared to hold that it is manifestly excessive.

5. I agree with the orders proposed by Muir J.

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 4 December 1998

1. The appellant appeals against her conviction by a jury on a charge of attempting unlawfully to kill one Hilary Lennon on 21 August 1997 at Ipswich. She also appeals against the sentence of 16 years imposed on her for that offence.

The evidence in the trial

2. The complainant, Mrs Lennon, a Family Services officer with the Department of Families, Youth and Community Care, became the appellant's Family Services officer in January 1996. In that capacity she had responsibility for the appellant's case management and assisted her in matters such as obtaining accommodation, court appearances in relation to criminal charges and then of writing pre-sentence reports in relation to such court appearances.

3. The appellant was born on 24 June 1979. By January 1996 she had acquired a reasonably extensive criminal history. Her first conviction, for wilful and unlawful damage to property, was on 15 December 1994. On 30 March 1995 she was convicted in the Ipswich Children's Court of aggravated assault on a female, assault occasioning bodily harm, stealing and assault with intent to resist arrest. On 13 December 1995 she was convicted in the Lismore Children's Court on one charge of breaking, entering and stealing and another of breaking, entering and stealing coupled with malicious damage.

4. Whilst Mrs Lennon was assisting the appellant, the appellant made frequent threats to kill her. In July 1996 the appellant wrote a lengthy and rambling letter to Mrs Lennon in which she made a number of death threats.

5. Mrs Lennon ceased to have responsibility for the appellant when she turned 18 on 24 June 1997. Nevertheless, the appellant continued to attempt to involve Mrs Lennon in her affairs. On 19 August 1997 the appellant advised Mrs Lennon to get her personal things out of the office because she was going to set fire to the building that night. She accused Mrs Lennon,  or perhaps the Department, of wanting to come between her and her sister. The following day the appellant telephoned Mrs Lennon who told her that she was no longer in care and should stop telephoning her. The appellant called her “a bitch” and again accused her of wanting to come between the appellant and her sister. A couple of days before 21 August 1997 the appellant informed a person with whom she resided that she was going to kill Mrs Lennon one day. On 21 August the appellant had a conversation with a Mr O'Neill at the caravan park in which she resided. She told him that she was going to town to kill someone and that there “a couple of people that she had to fix up”. At the time this conversation was taking place she took a knife, which was or resembled a carving knife, out of her handbag. She also said words to the effect that “... no-one does that to her sister and gets away with it”. On 21 August the appellant accosted Mrs Lennon in the Ipswich court house. She pressed a kitchen knife to Mrs Lennon's chest saying “turn around bitch and start walking”. Mrs Lennon did so. Six police officers walked towards them and the appellant then moved to behind Mrs Lennon, pressing the knife between her shoulder blades saying “one word bitch and you are dead”. Another policeman observed the appellant with the knife. When he asked her to drop it, the appellant stabbed Mrs Lennon below her right breast making a wound about 4 cm to the right chest area, penetrating the chest wall, causing two rib fractures and penetrating Mrs Lennon's lung. An eyewitness, Sergeant Wilkinson, described the knife blow as having been struck with “a fair degree of force”. After Mrs Lennon fell to the ground she heard the appellant shout “I hope you die. I am coming back to finish you off”. It seems that there were two stabbing motions and that the first may have struck a basket being carried by Mrs Lennon.

6. Constable Hill saw another police officer running, and followed him. He heard a person call out “drop the knife”. Seeing the appellant standing over Mrs Lennon holding a knife, he took out his revolver and threatened the appellant who dropped the knife. After the appellant had been pushed away from the knife, she said “what have I done”. The appellant also said on a number of occasions around this time “no one comes between me and my sister” and “I hope you die Hilary”.

Ground of appeal against conviction

7. The sole ground relied on at the hearing was that the learned trial judge erred in directing the jury that they could use the evidence of previous violence by the appellant to more readily conclude that the Crown had proved intent on her behalf.

8. The passage in the learned trial judge's summing-up, the subject of the complaint, is -

“In respect to her earlier violence about which you heard evidence from her - where she spoke about doing violence to herself, for example - I would warn you it would be wrong for you to approach that upon the basis that she has a propensity to commit violence, in saying she is a violent sort of girl, therefore it is likely that she had the intention to do this harm on this occasion as she obviously intended to do on the other occasions. That would be wrong. The most you can use it for is to say this: ‘Well, if I heard that an 18-year-old girl had stabbed a woman, I might seriously have a doubt that she intended to kill her because it is such an enormous thing’. But if you heard that the girl has this capacity for violence, it might at least reduce the force of one's normal expectation: but no more than that. You do not say, ‘She has a propensity for violence’, intended violence that is, ‘therefore she had it on this occasion.’ I repeat that would be grossly unjust.”

9. The appellant's counsel submitted that, although the above passage contained a warning not to use evidence of previous violent conduct by the appellant as propensity evidence, the learned trial judge, in effect, did precisely that by using the words which I have emphasised in the above quotation.

10. In order to more fully understand the context of the judge's observations it is desirable to have regard to the cross-examination of Mrs Lennon by the appellant's counsel. In the course of the cross-examination the following exchanges took place -

“... Right. Now, with Chantal Lepp, she has an anger management difficulty; would that be a fair thing to say on occasions?-- You could put it that way, yes.

It's quite extreme on occasions?-- It's very extreme, yes.

And when she makes a threat often they're not carried through. She will make many, many threats which she will never carry through; is that correct to say?-- Yes, that's correct.

And often once she starts to make threats or gets angry it just builds and builds and builds, doesn't it?-- It does.

The more things happen or the more she makes threats, sort of the more she seems to encourage herself, so to speak; would that be correct?-- She backs herself into a corner so she can't stop.

And then it just gets more threatening and goes on and on and on?-- Sometimes it just burns out but, yes, sometimes it goes on.

And then within a not lengthy period of time often she changes completely; would that be correct?-- She can change moods very rapidly.

As in within a day she can be extremely aggressive, extremely angry, extremely distressed and threatening and within that same day be quite calm?-- That's correct.

And that happens with a reasonable amount of regularity?-- Yes.

...

Her views of the department and her anger when it does come out would have been similar before that letter as after?-- They were, but many times they were followed up with actions.

Yes. Oh, yes. She often not only threatens but something does happen?-- Yes, that's correct.”

11. It will be recalled that the evidence also revealed that threats made by the appellant included death threats directed against Mrs Lennon.

12. Against that background, the passage from the summing up which is the subject of complaint, seems more favourable to the accused than otherwise. The evidence revealed a person with a limited capacity for self control, who was prone to violence and who had threatened to kill her victim and others. In my view, the learned trial judge was counselling the jury to avoid using the appellant's past violent actions and statements to draw the conclusion that on the occasion of the stabbing, the appellant had formed an intention to kill. In conveying that warning he, unobjectionably in my view, drew attention to the fact that, having regard to the appellant's past pattern of behaviour, one would not so readily conclude, as one might in the case of a girl of similar age but without the appellant's characteristics, that the blow was struck without an intention to kill.

13. If, contrary to my view, the summing-up is to be taken as prejudicial to the appellant, I would nevertheless dismiss the appeal, on the basis that the evidence supporting the conclusion that the appellant had an intention to kill when striking Mrs Lennon was overwhelming and that no substantial miscarriage of justice occurred.

Appeal against sentence

14. It is contended on behalf of the appellant that the sentence imposed was manifestly excessive and that an appropriate sentence would have been 10 years imprisonment. Reliance is placed, in particular, on R v. Byers (C.A. No. 436 of 1994, 28 February 1995, unreported), R v. Farquhar (C.A. No. 349 of 1994, unreported) and R v. Ryder (C.A. No. 259 of 1995, 6 October 1995, unreported). Byers was a case in which the appellant, in cold blood, shot her sleeping de facto husband in the head intending to kill him and claim an insurance policy. The sentence imposed by the trial judge was 12 years imprisonment with a recommendation for parole eligibility after three years. The Attorney-General appealed against the recommendation but not against the head sentence. The appeal was allowed, but Pincus J.A. and Thomas J. observed in the course of the joint reasons -

“A recent decision of this Court (R v. Hewitt C.A. 405 of 1993, 3 December 1993, unreported) suggests a range of between 12 and 18 years imprisonment for offences of this type and seriousness.”

The appellant in Farquhar was 33 years of age. Whilst the complainant was unconscious on the floor, she kicked him in the head with her bare feet, banged his head on the floor and jumped on his stomach. She also hit him on the head with a bottle. The complainant was left with serious permanent injuries which changed him from a “fit active, man, to a person with  problems including lack of co-ordination, speech problems (and) memory problems”. The appellant had been convicted in June 1989 of unlawfully wounding the complainant by stabbing him four times. The sentence of 8 years imprisonment was left undisturbed on an appeal by the prisoner who complained about the lack of a recommendation for parole.

15. The sentence imposed in Ryder was 10 years. The complainant was the divorced wife of the applicant who had no previous convictions. There had been a history of matrimonial disharmony. The applicant stabbed the complainant without prior warning or any immediate provocation. He then attempted to choke her and struck her head on the floor a number of times. The applicant then telephoned the ambulance and gave himself up to the police. The Court left the sentence of 10 years imprisonment, which was not the subject of the application, undisturbed, but recommended that the applicant be considered for parole after serving a period of four years of his sentence. In the course of his leading judgment, Macrossan CJ noted the “possibly spontaneous nature of the attack ... and the history of domestic turbulence ... which was of a long-standing nature” as well as the age  of the applicant (55 years) and lack of previous convictions.

16. Mr Bullock, who appeared for the Crown, relied principally on R v. Chivers [1993] 1 Qd R 432 to support the sentence. The applicant in that case was a 53 year old man recently discharged from a psychiatric unit who, without provocation, shot a social worker visiting him at home. The applicant, who had no antecedent criminality, immediately expressed remorse. The Court substituted a sentence of 16 years imprisonment for the life sentence. The maximum sentence for attempted murder is life imprisonment. The sentence under appeal thus fell short of the maximum but it may be thought to be at the high end of the spectrum.

17. There are aspects of the appellant's conduct which heighten its degree of seriousness. Her attack was premeditated. Her defenceless victim had given her support and assistance whilst carrying out her duties as the appellant's case manager. The attack was perpetrated in the Ipswich Court buildings in view of police officers and, after it had taken place, the appellant expressed a wish that her victim die.

18. Not surprisingly, the learned trial judge referred in his sentencing remarks to the appellant's disturbing lack of remorse. But, as the learned trial judge remarked -

“... her personal fault is to some extent diminished since her personal responsibility must to some extent depend upon her incapacity to control these things. That responsibility is seriously diminished.”

19. However, her conduct lacks some of the features which tend to mark the worst acts of attempted murder such as a sustained and remorseless attempt at taking a victim's life, the existence of a motive or personal profit or gain and the display of deliberate cruelty. In imposing the sentence, the learned trial judge appears to have been particularly influenced by two factors -

a.his conclusion that the appellant “is a grave threat to society”; and

b.the desirability of providing “protection for the public”.

20. There is ample evidence to support the conclusion that the appellant, whilst her present mental condition remains, poses a continuing threat to Mrs Lennon and other members of society. The protection of members of the public from the perceived risk of future violence on the part of the convicted person is a factor which a sentencing judge is entitled to take into account: R v. Chivers [1993] 1 Qd R 432 at 436; R v Pedder (C.A. No. 16 of 1964, Court of Criminal Appeal, Qld, 29 May 1964, unreported) and Veen v. The Queen (1979) 143 CLR 458 at 477 per Mason J. The appellant's history of criminal violence also offers support for the learned trial judge's approach, despite her young age.

21. When regard is had to the considerations which appear to have weighed heavily with the learned trial judge, it cannot be said that the sentence was manifestly excessive. I would dismiss the appeal against conviction and the application for leave to appeal against sentence.