R v Cummins[1999] QCA 117

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 376 of 1998

Brisbane

[R v Cummins]

THE QUEEN

v

TERRENCE CUMMINS

(Applicant)

Pincus JA

Davies JA

Thomas JA

Judgment delivered 16 April 1999.

Judgment of the Court.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16 April 1999

1. The applicant seeks leave to appeal against a sentence of nine years imprisonment (with a recommendation for consideration of parole after four years) for manslaughter.

2. The deceased was the applicant's 35 year old defacto wife. The applicant garotted her with a tea towel. They were both on a methadone program at the time of the offence. They had commenced a relationship while the applicant was on parole in 1985. The relationship was described as "turbulent" but the applicant denied any physical abuse on his part. Evidence was called on this contested issue and the learned sentencing judge held that the Crown failed to discharge its onus in this respect. Her Honour also accepted submissions from counsel on behalf of the applicant explaining bruising and other damage found to the body of the deceased as having been caused by contact between the deceased's face and the wall whilst the ligature was being applied, and also possibly from other causes for which the applicant was not to blame.

3. A few days before the incident in question, on 14 February 1997 the deceased and her son had moved out of the apartment that they shared with the applicant. The applicant visited them at their new residence two days later. He observed a prostitute, who was an acquaintance of the deceased, using the apartment to entertain a client. An argument ensued between the applicant and the deceased and ultimately the deceased accompanied him back to his residence where sexual intercourse took place between them in the kitchen. The deceased then confessed that she had had sex with the other woman and stated that "she's a better fuck than you anyway". The applicant "snapped" at this point, took a tea towel, placed it around the deceased's throat and began choking her. She challenged him saying "harder, harder" and he did so. When he finally desisted, she was still standing and staggered into the bedroom. When he later went there she appeared unconscious and he tried to resuscitate her by slapping and other methods of resuscitation, including placing her in the shower. The applicant desired to call an ambulance but could not do so as non-payment of telephone accounts meant that an outgoing call could not be made. He obtained the assistance of a friend, intending to take the deceased's body to hospital. However on the way to hospital, a police vehicle passed them and in the ensuing panic they drove into a park and left the body there.

4. The body was found semi-naked in a public park by school children the following morning.

5. The applicant initially told a number of lies to police in an effort to avoid responsibility. However he had on the day following the incident told an old friend of his own involvement, doing so in substantially similar terms to those which were eventually presented to the court. Although the applicant initially told a false story to the police and subsequently declined to be interviewed, on the way to the watch-house he made admissions consistent with the version on which the court was asked to act.

6. He was charged with murder and pleaded not guilty, but guilty of manslaughter which the Crown then accepted in full discharge of the indictment.

7. A post-mortem examination revealed cause of death as neck compression, with intoxication as a contributing factor. The deceased had a very high concentration of drugs in her body namely alcohol (0.198 per cent), and substantial quantities of methadone, oxazepam and morphine. This made her considerably more susceptible to death by neck compression. The marks to the neck indicated the application of a ligature with pressure at the front and a moderate degree of force would have been necessary.

8. The applicant, who was 48 years of age at the time of the offence, has a criminal record which includes one very serious entry of stealing with actual violence whilst armed with a dangerous weapon for which he was convicted in 1978 and sentenced to 12 years imprisonment. He was released on parole between 1985 and 1988, when he was returned to prison for breach. He was then granted leave of absence in 1991 but absconded and was re-arrested in 1992, remaining in prison until some time in 1994. The applicant was also sentenced to eight months cumulative imprisonment in consequence of his participation in a prison riot, and in the event would seem to have served nearly all of the 12 year term.

9. A report by a psychologist (Mr Ryan) was tendered on the applicant's behalf. It describes him as the product of a physically and emotionally abusive upbringing which flowed on into substance abuse and gambling problems, which in turn led to a failed marriage, lost employment and inevitable conflict with the law. It expressed the opinion that at the time of the offence his level of psychological functioning was likely to have been impaired as the result of a "chronic post-traumatic stress reaction, stemming from childhood abuse, exacerbated by the combined effects of heroin and methadone withdrawal in conjunction with the individual and interactive effects of alcohol and Prozac". Mr Ryan considered that the psychological problems were of a chronic nature and would require serious and prolonged psychotherapeutic intervention in order to ameliorate them. The report also expressed the opinion that the applicant was genuinely remorseful.

10. The applicant appeared in person on the present application. He presented a 13 page outline of submissions and substantial oral submissions.

11. The first point, which occupied a considerable portion of the applicant's submissions, involves an attack upon the psychological report that was tendered on his behalf and relied on heavily by his counsel (in his presence) during the extended hearing before the learned sentencing judge. The applicant told us that he had not read the report until he came to prepare the present appeal. We have had considerable difficulty in understanding precisely the applicant's objection to the report, other than the fact that he was deprived of an opportunity of instructing that it not be used. He describes it as "a false document" and sought to demonstrate this by tendering a report from another psychologist (Mr Chittenden) prepared in 1996. The applicant alleges that there must have been a conspiracy between his solicitor (Mr B Ryan) and the psychologist (Mr T Ryan) who is the solicitor's brother, but was unable to suggest the purpose of such a conspiracy. It was said however to encompass a desire not to refer to Dr Chittenden's report "because that's just going to be too messy and that's going to make him look very amateur". His concern seems to derive from Mr Ryan's failure to refer to a bashing and shooting incident in Boggo Road prison as the cause of the applicant's mental and psychological problems. The applicant went on to mention that he has commenced a civil action against the Corrective Services Commission in relation to that particular incident. His concern seems to be that Mr Ryan's report ascribes his condition at the relevant time to earlier incidents, particularly those in his childhood rather than to the incident in Boggo Road prison. The question of causation might be a matter of importance in his civil proceeding, but it was immaterial in the present criminal proceeding. The point that mattered was that at the material time his psychological functioning was diminished. He would be no further assisted whether the original cause was his unfortunate childhood or a traumatic incident in prison.

12. Dr Chittenden's report contains the following entry - "Mr Cummins is a very angry man and at times feels like hitting something. He is quite afraid that if anybody should confront him, he may lose control and hit them". We agree with the submission of Mr Moynihan on behalf of the Crown that that report is more prone to be damaging to the applicant than the report of Mr Ryan. It is true that Mr Ryan's report, like most such reports, has both positive and negative aspects, and that it concludes with the observation:

"... Mr Cummins' psychological problems are of a chronic nature and therefore will require serious and prolonged psychotherapeutic intervention in order to ameliorate them.  Whilst Mr Cummins appeared to be genuinely remorseful for his actions in regard to the current offence, he did not evince confidence that he would be likely to pursue the necessary psychotherapy to overcome the emotional deficits, which predisposed him to committing this offence.  A positive rehabilitative prognosis could only be made in regard to Mr Cummins were he willing to address these deficits".

However the report as a whole was helpful to the applicant's cause, and his counsel made a proper forensic decision in tendering it on his behalf.  The question whether such a report, which tends to involve sensitive issues, should be shown to a disturbed client is one that depends upon the instructions that are given (or not given) by the client to counsel in the particular case.  It does not necessarily involve a miscarriage of justice for such a report not to be shown personally to the client, although a client might by appropriate instructions be able to insist that it be shown to him or her.  We are not aware of any duty on counsel per se to show such a report to the client.  The position between counsel and client in the conduct of a trial was described by Gleeson CJ in R v Birks:^[1]

"As a general rule, a party is bound by the conduct of his ... counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted.  Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics.  The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case."

13. In the present case Mr Ryan's report was tendered at the outset of the applicant's counsel's submissions on the first day of the hearing before White J. Counsel then presented an outline of its structure, and after her Honour had read it, proceeded to highlight matters mentioned in the report. In the course of doing so counsel drew attention to the point that his client had mentioned one incident of violence to his first wife, but none with respect to the deceased.

14. The applicant's counsel concluded his submissions with the comment that Mr Ryan's report had "shortened my submissions considerably". A concern was then raised by the Crown Prosecutor concerning a conflict that was now evident between the facts stated by the Crown and those stated on behalf of the applicant. The matter was then adjourned. Approximately a month later evidence was called on behalf of the Crown and by the defence. Further submissions then ensued and her Honour then passed sentence.

15. Upon the appeal, Mr Moynihan for the Crown indicated that he did not accept that the applicant was not shown Mr Ryan's report. Such a matter would need to be properly proved.[2] For the sake of argument however we are prepared to assume that the report was not read by the applicant. He was present when it was tendered and portions of it were relied on. There was adequate opportunity thereafter for him to ask for it but he did not do so. The report was properly relied on by his counsel who made a forensic decision on behalf of the applicant in doing so. Overall it would seem to have been of assistance to the applicant, including its acceptance of the genuineness of his remorse, and of his diminished psychological functioning at the relevant time.

16. The report was rightly received and no error has occurred in the sentencing process by reason of its reception. There is no merit in this particular point.

17. Further submissions were made by the applicant, in the course of reference to sentences in other cases. He objected to being more severely dealt with by reason of his criminal record, submitting that he had been treated differently because he had spent 12 years in prison. He went on to submit that "12 years in prison certainly makes you a far better person than far worse". That may sometimes be correct, but the relevant reference was to his conduct in committing the crime and the nature of the conviction rather than to the fact that he had spent time in prison. The relevance of prior convictions in the sentencing process is well recognised. Inter alia they may show an attitude of disobedience of the law, or moral culpability or propensity.[3]

18. Some of the applicant's submissions revealed misunderstanding of the decided cases. One of these was Schafferius[4] which is concerned with the admissibility of hearsay statements made by a patient to an expert witness. In the present case the patient was a party, that is to say the accused, and quite apart from the fact that his own counsel tendered the report, it records statements made by a party. The version of events contained in the report was plainly adopted by the applicant's counsel.

19. The applicant further submitted that the large ingestion of alcohol and other drugs by the deceased was not taken into account by the learned sentencing judge. However a perusal of her Honour's reasons shows that it was expressly taken into account.

20. We do not propose to canvass all points raised in the course of the applicant's submissions. We have dealt with points to which we understand the applicant to have given particular emphasis

21. The remaining question is whether the sentence actually passed was manifestly excessive and whether it is inconsistent with any identifiable sentencing pattern in relevant manslaughter cases.

22. The cases of principal relevance are R v Whiting; ex parte Attorney-General of Queensland [5] and R v Auberson; Attorney-General of Queensland v Auberson.[6]

23. Whiting's case repudiated the former tendency, encouraged by R v G,[7] to treat cases of manslaughter in domestic situations as attracting a lower level of sentencing than other forms of manslaughter. In that case, upon an appeal by the Attorney-General, a sentence of eight years for the manslaughter by Whiting of his wife was increased to eleven years. That case on the whole was a more serious example of the offence than the present one. There was little evidence concerning the events before the killing, and there was evidence that Whiting had in the past used violence against his wife. Further, although Whiting had no individual previous conviction as serious as that of the present applicant, he had a number of convictions which amounted to a history of episodic violence to women. There are however some features in common including a killing upon a break-up of a relationship, the existence of remorse and of psychiatric problems, and the existence of a psychological explanation of the offender's conduct. Whiting had a pre-morbid anti-social personality disorder although he was not suffering from any major depressive illness. Account must also be taken in this applicant's favour of the vulnerability of his victim as the result of her excessive intake of drugs and alcohol. However when one also takes account of the marks and injuries actually inflicted and the evidence of "moderate force" being used along with the nature of the attack, not too much should be made of this circumstance. Further, it was correct for her Honour to mention the circumstances in which the body was left. Not only was there indignity to the deceased, but it was part of the applicant's initial attempt to tell a false story to the police so that he would escape responsibility entirely. On an overall comparison then, Whiting was a more serious example of the offence though some points of comparison are possible.

24. Auberson was a case where a sentence of nine years was upheld upon appeals by both the Attorney-General and Auberson. Auberson killed his wife in circumstances suggesting a virtually complete loss of self-control after an altercation with his wife who was leaving him. That case also contains some evidence of stimulus or provocation on the part of the victim, including a threat to "go for all the money I can, go for your super". His response included strangling, beating her with bathroom scales and cutting her throat. Auberson then attempted suicide by driving his car over a 40 metre cliff, being a suicide attempt described by Pincus JA as one of a kind which was fairly likely to succeed. Auberson also was extremely remorseful. The trial judge had left the issues of provocation and diminished responsibility to the jury, and the verdict was "guilty of manslaughter with provocation". Auberson had a good work history, had no prior criminal convictions and pleaded guilty at an early stage. It is to be noted that the court considered that the nine year sentence was "at or near the bottom of the range".

25. In comparison with the above matters, particularly Auberson, we do not consider that it can be said that the present sentence of nine years imprisonment with the recommendation for consideration of parole after four years is manifestly excessive. Indeed, a reading of her Honour's sentencing remarks indicate an approach that was quite favourable to the defence submissions and a full comprehension of everything that could be said in the applicant's favour. They reveal no error, and the sentence was in our view appropriate.

26. We would refuse the application.