R v Haack[1999] QCA 76

COURT OF APPEAL

PINCUS JA

DAVIES JA

THOMAS JA

BRISBANE

DATE 18/03/99

JUDGMENT

PINCUA JA: There were before the Court an application for leave to appeal against sentence by Donna Lee Haack and an appeal by the Attorney-General in the same matter. The former proceeding has, however, been discontinued.

The respondent to the Attorney's appeal who is the offender, was aged 31 years when she committed the offences in question. After the trial had proceeded a little way, she pleaded guilty to charges of attempted murder and assault occasioning bodily harm whilst armed and also pleaded guilty to two counts of wilful damage. For the attempted murder, the primary Judge imposed the term of five years' imprisonment; for the bodily harm, six months;  and for the two wilful damage offences, terms of two years and six months respectively.

The Attorney's appeal challenged the attempted murder and bodily harm sentences and Mrs Clare, on behalf of the Attorney, urges us to take into account, in considering the adequacy of the sentences, the wilful damage offence which I shall deal with a little later.

The person the respondent attempted to murder was a man called Dobson with whom the respondent had been in a relationship for a few weeks. The two had been living together. On the evening before the offences were committed after the two had been out drinking together, Dobson went to bed and while he was in bed the respondent approached him with a knife. He disarmed her and the next morning he moved out of the house.

The first three offences, that is the attempted murder, the bodily harm and the first of the wilful damage offences, were all committed about 10 a.m. the following day. Dobson went to work at a cycle shop, the front of which had wood-framed glass windows with a steel mesh framework behind them. The respondent parked a panel van on a traffic island in front of the shop. When Dobson joined two other men near the front of the shop, the respondent drove the van at him, accelerating hard.  She crossed two lanes of the highway and drove through the front window as Dobson jumped aside. The vehicle struck two motorcycles which were propelled onto Dobson pinning him into a corner. Then the respondent backed her vehicle out, changed her angle of approach, and drove back in towards Dobson. She did this several times and eventually the car became jammed. Dobson, with some difficulty, got the car keys off the respondent. 

The bodily harm charge related to a man other than Dobson who was injured as a result of the respondent's actions, suffering multiple abrasions. There was very extensive damage to the shop. 

It was argued by Mrs Clare, as I have mentioned, that in considering the adequacy of the sentence for the offence of attempted murder, it is necessary for this Court to take into account the extent of the damage to the shop (the subject of the first wilful damage charge) but it does not seem to me that it is desirable or necessary, in the absence of extensive argument, to reach a conclusion on that aspect of the matter.

The case is one in which there is clear evidence of an attempt to kill Dobson, as the Judge recognised. Dobson's injuries however were not extensive and there was, as I have mentioned, a plea of guilty.

Importantly, there are no previous convictions. A central point in the case is that according to the material before the primary Judge, the respondent is an alcoholic with a personality disorder and she was it appears, very drunk at the time of the offence, her blood alcohol reading being .252. In Rosenberger; ex parte Attorney-General [1995] 1 QdR 677, following authority in other jurisdictions, this Court held that unless there is something which excuses the taking of alcohol or other drugs by an offender, ordinarily intoxication will not mitigate penalty.  Since Rosenberger was decided, the case has in my view been fairly consistently followed. The tendency has been to treat instances of violence or attempted violence by a drunken person as not requiring reduction of sentence on account of the drunkenness. Unfortunately, quite a proportion of the cases we have before us involving violence are in this category; that is, where the offender is influenced by being drunk.  I note that intoxication is treated as an aggravating, not a mitigating factor, in dangerous driving cases under section 328A of the Criminal Code. Of course, the present case is one in which dangerous driving could have been charged.

The primary Judge took the view that the respondent's drunkenness did not mitigate the offence "in the broad sense". His Honour went on, "Nonetheless, it is an expression of a pattern of life that you had chosen and which you now say through your counsel that you have given up. If that is so then that is something which reduces sentence." His Honour did not say whether he accepted that the respondent proposed to act as her counsel said, that is to give up drinking heavily. In my opinion, if His Honour did take into account an intention to give up drinking heavily, he made no error. For that intention, that is one to mend the habits which contributed to the commission of the offence, must have been a mitigating factor. Nevertheless, a sentence of five years for attempted murder seems to me lenient.

However, it can be and has been defended on the basis that despite her excessive drinking over a period of years, the respondent had no criminal history prior to the incidents which I have described; that she pleaded guilty fairly early; and that her motive was not commercial gain, or indeed any other rational motive, but merely, it appears to me, the chagrin of a jilted lover.

One circumstance which the primary Judge thought operated in favour of the respondent was that she had attempted to kill by using a car rather than a rifle or a knife. It does not appear to me that any sound generalisation can be based upon these differences. Depending on the circumstances, a car may be a very effective murder weapon. Counsel for the respondent has said in his outline, with respect to that point, that what the Judge observed about the relative heinousness of use of a motor car as a weapon, as compared with rifles or knives, was a recognition that the attempt in the present case was inefficient and bound to fail. That contention has more appeal than the general proposition that use of a car in attempted murder is low on the scale of seriousness.

It is in my opinion a legitimate mitigating factor that the intended victim was not in a highly vulnerable position, but protected by the structure of a shop, so that he was much less likely to be killed or seriously injured by the attempt than he would have been if standing on the road.

One must of course accept the jury's verdict, as I unreservedly do, but there are degrees of depth and seriousness of intent. The impression I have from a reading of the record is that one thing which influenced the respondent's conduct was a desire to make a spectacular public demonstration of her hatred of the victim.

The case is one which has somewhat troubled me - and the Attorney's appeal is not in my opinion one without substance. Despite the argument ably advanced on behalf of the Attorney, however, I am not convinced that the case is one in which we should alter the sentence which was imposed and I would therefore dismiss the appeal.

DAVIES JA: I agree.

THOMAS JA: This is a case where the sentencing Judge was better placed than this Court to assess the respondent and to understand her attitude, character and reaction to the situation.

He had a distinct advantage in being able to see the respondent in Court and in determining the appropriate sentence in all the circumstances.

The respondent was guilty of extraordinary conduct but it seems likely that it was an aberration and there is insufficient material to suggest that such conduct would be likely to recur.

However, the point of concern in the case is that it shows an unwillingness by Ms Haack to accept the breaking off of a relationship with her boyfriend. Courts are rightly concerned at violence by possessive males who cannot accept rejection and who behave violently towards former partners in such situations. Deterrence is needed against over reaction by females in such situations just as it is for males.

These acts were obviously the manifestation of extreme rage by a jilted female. Her intoxication is not in itself an excuse but is part of the overall picture in that it was in part a product of her emotional over-reaction, and of course it could only have added to her already somewhat irrational behaviour. But in the end she must accept responsibility for her own actions including the contribution of her voluntary intoxication.

None of the cases relied on by counsel for the Attorney-General are comparable. The circumstances of this case are, and hopefully will remain, unique. 

In my view, the sentence was light but not so out of range that this Court should interfere. I accordingly agree that the appeal should be dismissed.

PINCUS JA: The order of the Court is, appeal dismissed.