R v Harris[2000] QCA 217

COURT OF APPEAL

McMURDO P

PINCUS JA

CHESTERMAN J

CA No 370 of 1999

THE QUEEN

v.

JOHN EDWARD HARRIS Applicant

BRISBANE

DATE 02/06/2000

JUDGMENT

THE PRESIDENT:  The applicant was charged with murder and pleaded guilty to manslaughter.  He was acquitted of murder after a trial.

On 29 October 1999 he was sentenced to 10 years' imprisonment which necessarily involved a declaration that the conviction was for a serious violent offence.  The sentence was cumulative upon the sentence the applicant was currently serving.

The applicant had an extensive criminal history.  In 1989 he was convicted of drug offences and property offences.  Later that year he breached his probation and community service orders.  In 1990 he committed further offences of dishonesty and offences involving drugs.  He was placed on further probation orders.  In 1992 he was convicted of grievous bodily harm, assault occasioning bodily harm whilst in company and armed with an offensive weapon and further property offences.  He was sentenced to a total effective term of imprisonment of four years with a recommendation for parole after 12 months.

In 1994 he committed a large number of property offences for which he was sentenced to an effective term of seven years' imprisonment with a recommendation for parole after two and a half years and a recommendation that he receive treatment for drug addiction.  Also in 1994 he was convicted for breaching home detention and for supplying a dangerous drug within a correctional institution.

He was on parole in respect of the seven year sentence at the time this offence occurred.  His full time discharge date on the earlier sentence was 25 January 2002, two years and three months after the date of his sentence on this offence.  His sentence then effectively is 12 years and three months when this sentence of 10 years is added to the time he must serve in respect of the breach of his parole. The Prosecutor at sentence submitted, because of the cumulative effect of any sentence imposed, the appropriate head sentence was in the range of nine to 10 years although otherwise a sentence of 11 to 12 yeas would be called for.

Defence counsel at the sentence submitted that a sentence of seven and a half years cumulative was appropriate bearing in mind the early plea of guilty.  This submission is maintained in this application.  The applicant claims the appropriate range was six to eight years cumulative imprisonment.

The deceased was an amphetamine addict who supplied drugs to the applicant and others and shared a flat with the applicant for the three months prior to his death.  He owned a number of weapons including a .22 pump action rifle, a

.22 lever action rifle and a hand gun which he usually carried.

The applicant and the deceased had been good friends but also had many arguments, sometimes ending in blows.  The applicant usually got the worst of the arguments.  The deceased had pointed guns at him and discharged guns near him in the past.  Some days earlier, the applicant, in tears, asked the owner of the premises, who was collecting the rent, to have the deceased removed from the premises.

On the day of the killing, the applicant who was a regular amphetamine user had taken a considerable quantity of that drug.  He came home to find the deceased asleep on a couch and three acquaintances in the flat.  He ordered the acquaintances out of the premises and picked up a firearm which he loaded.  One of the male visitors went into the deceased's bedroom and got a pump action rifle.  The applicant pointed his gun at that man and told him to empty the bullets.  The visitor did not comply, so the applicant worked the lever on the gun, removing the safety catch and pointed the gun at him.  The visitor then immediately emptied the bullets from the gun and left.

Troy Mandalis then arrived and the deceased began to wake up from his sleep.  The applicant had taken the gun in order to ask the deceased to leave without giving the deceased the opportunity to pull a gun on him.  Mandalis told the applicant to put the safety catch back on as a safety precaution.  The applicant did not do so but continued to rant and to request the deceased to leave, at the same time jabbing towards the deceased with the loaded gun and with his finger on the trigger.

The whole episode involving the applicant holding the gun must have taken well over 30 minutes.  The gun discharged, to the surprise of both the applicant and Mandalis, killing the unfortunate victim.  The cause of death was a shotgun wound to the head from a distance of about one metre.

The applicant asked Mandalis to help him assist in disposing of the body but Mandalis refused.  The applicant wrapped the body in blankets, sheets and a tarp and disposed of it and the gun in the Glass House Mountains area.  He thoroughly cleaned the flat and disposed of the lounge suite on which the deceased was lying at the time of his death.

In his interview with police, he lied to minimise his involvement in the matter. 

A review of other comparable sentences does support the sentence imposed in this case.  For example, in Clements, 279 of 1992, the applicant was sentenced to 13 years' imprisonment for manslaughter, cumulative upon a sentence he was then serving.  He was convicted after a trial, having been found not guilty of murder.  At the time of his sentence on 14 September 1992, he was serving a minimum term of imprisonment of six years commencing on 26 June 1990 with provision for an additional term of two years.  The offence of manslaughter preceded chronologically that of the New South Wales offence.

Whilst armed with a loaded sawn-off rifle, he went to a Brisbane City Council bus depot and demanded money.  Another council employee approached and was killed when the loaded rifle was discharged.  He was not questioned until July 1989 when he made recorded admissions.  He had absconded on bail in respect of the offences of breaking and entering.  He claimed to have loaded the gun only to frighten someone if necessary and the gun was accidentally, not deliberately, discharged.  Clements had an extensive criminal history for offences of dishonesty involving non-custodial sentences and later prison sentences of up to three years.  He was 24 years old and had had a difficult upbringing.  Adopting the totality principle espoused in Mills v. The Queen (1988) 166 CLR 59, the term of 13 years' imprisonment was replaced with one of 10 years' imprisonment which, as I have noted, was cumulative upon the term he was then serving.

In R v. Griffin and Dunkerton, the applicants were convicted of manslaughter after a trial.  Dunkerton was sentenced to 12 years' imprisonment and Griffin to nine years' imprisonment.  The deceased discharged a shotgun into the air when he heard the car of Griffin's brother revving in a driveway near the deceased's shed.  Griffin told Dunkerton to get a gun from their nearby home.  The deceased fired two more shots into the air.  Dunkerton returned with the gun.  He had had past experience with guns during some months of military service.  The Judge accepted that Dunkerton deliberately pointed and discharged the gun in the general direction of the deceased without an intention to harm or kill but in a criminally negligent way.  Dunkerton had an extensive criminal history including a conviction for dangerous driving causing death for which he was sentenced to 18 months' imprisonment, assault of a correctional services officer in 1980, assault occasioning bodily harm in 1995, drug offences and offences of dishonesty extending over seven pages of criminal history.  Griffin also had an extensive criminal history extending over five pages including an offence of having possession of a weapon whilst unlicensed but had not previously been sentenced to a term of imprisonment.  Griffin and Dunkerton initially lied to police about their involvement and a number of defences were raised at trial.  Griffin had spent 302 in custody, not solely in respect of this matter, and therefore that time could not be the subject of a declaration of presentence custody.  In effect, it added two years to the nine year sentence imposed on Griffin.  The sentences were not altered on appeal. 

In R. v. Whelen, Whelen shot and killed a pizza delivery man mistakenly believing that he was someone who was planning to harm him.  He was convicted of manslaughter after pleading not guilty to murder.  Whalen was sentenced to 10 years imprisonment but had already served a little over 10 months in custody awaiting trial making an effective sentence of 11 years and eight months.  The Court of Criminal Appeal noted that the sentence was a substantial one but within the appropriate range.

As has often been noted there is a wide range of sentences imposed for the offence of manslaughter but these comparable Court of Appeal decisions demonstrate that this sentence was within the appropriate range.  The applicant had a shocking criminal history including serious prior convictions for offences of violence for which he had been sentenced to substantial terms of imprisonment.  His criminal history was worse for example than that of either Griffin or Dunkerton. The applicant's departure from acceptable community safety standards in his use of the gun was gross.  He picked up a gun which he loaded whilst affected by amphetamines.  He then pointed the gun with his finger on the trigger and used a jabbing motion towards the deceased without the safety catch on, despite pleas from Mandalis to put the safety catch on.  He committed this offence whilst on parole.  Even giving appropriate consideration to the totality principle referred to in Mills I am not persuaded the sentence was manifestly excessive.  A sentence of 12 years imprisonment would have been appropriate in this case but for the applicant's plea of guilty and the fact that he was to serve another two years and three months imprisonment in respect of another matter.  The sentence of 10 years imprisonment in all the circumstances takes proper effect of the mitigating factor of the plea of guilty and the totality principle and is not manifestly excessive.  I would refuse the application for leave to appeal against sentence.

PINCUS JA:  The learned primary Judge had the advantage over us that he could, perhaps, better assess the degree of fault, because he saw and heard the witnesses at the trial and in particular the applicant himself.  Apart from that remark, I have nothing to add to the President's reasons and I agree with her Honour that the application should fail.

CHESTERMAN J:  I note that in Shelton (1979) 1 Criminal Appeal Reports 202 Lord Justice Roskill said:

 "The offence of manslaughter almost more than any other offence varies in degree from near murder at one extreme to almost an accident on the other".

In my view this case falls in the first category.  I cannot see that the sentence imposed was excessive.  I agree with the President and the reasons she gives.

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

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