R v Sydes[1999] QCA 252

COURT OF APPEAL

McMURDO P

PINCUS JA

THOMAS JA

CA No 124 of 1999 

THE QUEEN 

v. 

PHILIP FRANCIS SYDES

BRISBANE

DATE 07/07/99

JUDGMENT

THE PRESIDENT:  Mr Justice Pincus will deliver his reasons first.

PINCUS JA:  The applicant was convicted of manslaughter on a plea of guilty.  He shot and killed a man who had come onto his property, and the learned primary Judge sentenced him to eight years imprisonment with a recommendation for parole after three years.

The basis of the Judge's sentence, which is challenged by Mr Martin of senior counsel who appears for the applicant, is that there was knowledge on the part of the applicant of the location of the victim, and that is a matter which has concerned me.

The applicant is a middle-aged man with no significant criminal history.  The applicant and the victim lived on adjoining properties and there were bad relations between them.  The victim and his family thought that the applicant was behaving in a perverted way towards that family.  As to that, the Judge below said to the applicant:

"You may have had cause to believe that whether it were correct or not.  I want to make it clear that I make no finding whatever that you" -

that is, the applicant -

"were behaving in that way."

The way in which the deceased came to be killed was a matter which had to be deduced principally from the applicant's various accounts to the police and the physical damage to the deceased in his car.  The deceased had gone on to the applicant's property about 10 p.m. one night to remonstrate with the applicant because he had been told by his wife that the applicant had been looking at her while she was in having a shower.  As I have mentioned, sentencing was done below and must be done here on the basis that there is no finding against the applicant in that respect.

The applicant told the police that the deceased drove his car up to the applicant's house.  The applicant said the deceased roared up the driveway knocking over wheelie bins located near the house and got out of the car yelling and screaming at him.  He said the deceased had made threats to use great violence against him.

There were three shots fired.  The first went into the bonnet of the car, the second one was a little higher; it went through the windscreen, and a fragment of the bullet hit the deceased and killed him, ultimately.  The deceased got out of the car, apparently, after being hit and was still able to run away.  A third shot was fired but not in the direction of the deceased.

The Judge's view, as I have mentioned, was that when the second shot was fired the applicant knew the deceased was in the car.  His Honour did not find that there was any intention to shoot the deceased, but he found that the applicant shot at the car knowing the deceased was in it, and it is this point, in essence, on which the application turns.

It was pointed out during the course of the hearing in this Court that under the terms of section 302(1)(b) of the Criminal Code murder is committed:

"if death is caused by means of an act done in prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life".

Since in this case the conviction was for manslaughter only, one must sentence, in my view, on the assumption that there was neither intention to kill nor intention to cause grievous bodily harm, nor circumstances such as to bring the matter within section 302(1)(b).

Mr Martin argued that there was no foundation in the evidence before the Court for the finding which the Judge made and he pointed out that His Honour had to make that finding on the basis indicated in the decision of this Court in Morrison in [1999] 1 Queensland Reports 397.  The principal judgment in that case was delivered by Williams J who made these observations at page 421, speaking of sentencing procedure.  His Honour said: 

"In practice in most cases no evidence will be called as part of the sentencing procedure.  Often any dispute will be treated informally; the Judge will be left to decide between conflicting statements made from the Bar table.

There will in general be no problem if the sentencing Judge imposes sentence on a particular basis provided that proof beyond reasonable doubt is required of any disputed factual issue which, if proved, is likely to result in a heavier sentence."

The reference to a disputed factual issue does not quite fit this case because, as Mr Martin has correctly said, the finding which the Judge made that when the second shot was fired the applicant knew the deceased was in the car was not a submission advanced by the Crown.  So in that sense there was no dispute, but consistently with the spirit of Morrison it is clear, at least it seems clear to me, the Judge should not have made that finding adverse to the applicant unless he was satisfied beyond reasonable doubt that it was correct.

The fact was that the fatal bullet went through the windscreen and the applicant said that he fired through the windscreen, so presumably he knew where the bullet was going.  The difficult point, really, was what the state of knowledge was as to location of the deceased at that point.  It is conceded on behalf of the Crown that the Judge's finding cannot stand and we are invited to do the best we can with the matter, ourselves.  It is necessary briefly to refer to some of the passages in the evidence in which the applicant discussed this question with the police, or made observations relevant to it.

At page 92 of the record it is recorded that the applicant said to police, and this was an interview on the same evening as the offence was committed:

"... I put on in through the windscreen of the car on the driver's side 'cos I could ... when he went back to the car to get somethin'.

Did he have anything in his hands then?-- Yeah, but don't ask me what."  And then there is something [unintelligible].

The matter is returned to at page 104 of the record, where the applicant said, "I fired a warning shot" and that seems to be the first shot; he said: 

"I fired a warning shot and he just kept comin' and then he went into the, went back into, in, got in his car to get somethin' else.  I dunno what was going on, he had his dog with him too (unintelligible) Rottweiler."

And then at page 128 the applicant said to police:

"Well, he's still ravin' and rantin' and carryin' on sayin' what he's gonna to do me and that, then he went back to the car and got in the car, oh, no, he didn't get in it.  He got in the driver's side and he got somethin' out long, probably two metres long.  I couldn't see what it was."

And at page 136 the applicant said:

"Phil, the second shot, this is when he was getting the long thing out of the car."  Phil answered "Yes."

Did you, could you see him at this stage?‑‑ Yeah, I could see him.

How were you able to see him?‑‑ In the moonlight.

Okay.  And how close have you aimed near him?‑‑ Oh I aimed down in front of the car again, same as (unintelligible).

And whereabouts was he in relation to the car?‑‑ Well, he was gettin' somethin' out of the front seat.

From which side of the car?‑‑ The driver's side.

Okay.  So when you've shot how close to him would you've shot (unintelligible) on the car, how far would he have been from the shot?‑‑ Oh, a fair way.  He would've been here at the front, front driver's door.  Near the front driver's door with that long thing."

Now, in the course of discussion between Mr Martin who appeared below and the Judge, that last passage was referred to.  Mr Martin referred to it then and conceded that there was an inconsistency, because it is plain that the applicant could not have, as he said, seen the deceased out of the car near the front driver's door.  It is perfectly plain that when the fatal shot was fired the deceased was in the car, because that's where he was hit.

The question is on what basis the sentencing should take place.  Mr Martin has emphasised the fear which the applicant said he was suffering from.  He has drawn our attention to the fact that in 1993, on the facts placed before the primary Judge, the applicant had had, or believed he had a severe attack made on him on his own property which had caused brain damage and resulted in his being on a disability pension;

Mr Martin contended that this was a matter that had to be taken into account in favour of the applicant.  I think that is correct. 

My view of the case, however, is that it is quite a serious case of manslaughter.  Conceding in favour of the applicant that he had reason to be apprehensive because of the threats which were directed at him and conceding in his favour that the matter could have developed into a stage when he was in imminent danger of being physically harmed, it had not reached that stage.  The person who was killed was in fact not close to him but was in his car at the time when he was killed and there was no such necessity to take this extreme step as would in any way justify what was done, legally or morally.

It is pointed out by the primary Judge that the applicant had a number of weapons.  The one which he in fact used was a high powered weapon.  That is not a point, perhaps, of any great significance because even a low powered weapon could have achieved this result.

The hard facts of the matter are that, being in fear of a person who came onto his property in a rowdy way shouting threats, the applicant fired a number of shots.  The fatal shot was fired, apparently, at the windscreen.  The most favourable view of the facts, from my perspective, is that at that stage the applicant did not know precisely where the deceased was but knew very well that he was at least in the vicinity of the car.  So you have a man who not knowing where the person who is the object of his attention is, fires a shot in his direction and whether it hits him or not is a matter of chance.  In fact it hits him and kills him.

I said during the course of the hearing, and I adhere to the view, that the sentence which the Judge imposed of eight years imprisonment with a recommendation for parole after three years seemed a lenient one on the findings - curiously lenient because, as I have attempted to suggest, on the judge's finding this must have been very close to a case of murder and was a very bad case of manslaughter indeed.  On what I regard as the proper view of the case, which does not involve any finding that the applicant knew the deceased was in the car, but does involve a finding that he did not know where he was but he knew he was somewhere in that vicinity, it still remains quite a serious case of manslaughter.

The view which I come to therefore is the sentence the Judge imposed (although imposed in a defective way, for the reason which I have mentioned) was a correct sentence and the application should be refused.

THE PRESIDENT:  I agree with the reasons given by Mr Justice Pincus and with the order he proposes.

THOMAS JA:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal is refused.