R v Schuurs[2000] QCA 278

DAVIES JA:   The applicant was convicted of manslaughter after a trial on 14 October last. On 4 November, he was sentenced to 10 years imprisonment. The consequence of this under part 9A of the Penalties and Sentences Act 1992 is that, the offence being one against a provision mentioned in the schedule, the applicant was convicted of a serious violent offence. He seeks leave to appeal against that sentence.

There are two arguments which Mr Rafter for the applicant advanced. The first is that, having regard to comparable sentences, and he took us to a number of sentences none of which, as he correctly conceded, were closely comparable to this case, that the sentence here was manifestly excessive. And the second submission made by Mr Rafter was that there was a lack of parity between the sentence imposed on the applicant and that imposed on his co-offender Mitchell.

The circumstances of the offence was that the three accused persons, Semyraha, the applicant and Mitchell, went to the house of the deceased, so they said, to collect a debt of $1500 which it appears was a debt arising out of drug dealing. To that end, the applicant supplied a car which he drove to the scene and a 22 calibre rifle and ammunition with which it was apparently intended to shoot the deceased in the leg if he did not pay.

At the deceased's house it was the applicant who confronted the deceased and demanded payment. According to the applicant, the deceased then retired into the house and returned armed with a knife in each hand. The applicant then retreated to a position behind the car and instructed Semyraha to shoot the deceased in the leg. Semyraha did shoot the deceased but did so in the chest killing him.

Both the applicant and Mitchell were guilty of manslaughter,  Mitchell after pleading guilty, the applicant after the completion of the trial against him and Semyraha. I mention only that it seems to me that the applicant was fortunate not to have been convicted of murder.

There were a number of factors which, in my view, made the applicant's conduct more serious than that of Mitchell. The first of these was the supply of the car and the rifle and ammunition, the second was the confrontation by the applicant of the deceased and the third is the instruction by the applicant to Semyraha to shoot the deceased.

The learned sentencing Judge, in my view quite rightly, concluded that that made the applicant's conducted more serious than that of Mitchell. In addition, as I have mentioned, Mitchell pleaded guilty but, presumably, that was taken into account at least partly in the recommendation which his Honour made for parole in her case after four years.

His Honour, incidentally, concluded that there was no indication of remorse on the part of either Mitchell or the applicant.

Apart from the facts I have mentioned, there was very little between the applicant and Mitchell either as to the commission of the offence or as to other relevant matters. As to the former, Mitchell knew of the intention to shoot the deceased in the leg if he did not pay. She was aware of the presence of the rifle in the car and she, as it appears all of them, had a financial interest in the recovery of the money. As to other matters, they were both young. The applicant was 18 and Mitchell 17 and neither had any relevant previous convictions.

The substantial difference between the sentences imposed on the applicant and Mitchell is caused not by any substantial difference in the terms imposed but by the fact that the term of 10 years imposed on the applicant meant that it was a serious violent offence making him ineligible for parole until he had served 8 years of the 10 year term, approximately twice that which will elapse before Mitchell is eligible for parole.

However, this Court has held that at least generally that factor should be ignored when considering parity of sentencing (see Crossley CA 477 of 1998 18 June 1999 per Pincus, Justice of Appeal at 14, McPherson, Justice of Appeal at 5). Accordingly in my view, there was no lack of parity in the sentences imposed on the applicant and Mitchell.

As to the question generally of the level of sentencing, as I mentioned earlier, Mr Rafter has taken us to a number of cases none of which he conceded was closely comparable to this one. The last of those to which he referred was Bojovic CA Number 4 of 1999 8 June 1999 in which Bojovic was in fact the person who actually committed the offence. On the other hand, there was no weapon involved and, as Mr Rafter has conceded, the deceased was the aggressor in that case.

I do not find that case closely comparable to this or useful in any way in determining what the appropriate sentence was in this case. Nor do I find Sydes, to which Mr Rafter referred and upon which he relied of CA Number 124 of 1999, of much assistance because it was pointed out in that case the sentence which was imposed in that case was itself, curiously, lenient.

I think it is implicit in what I have already said about the applicant in my view being fortunate not to have been convicted of murder, that in my view this was a very serious case of manslaughter. The common intention of the parties including the applicant was to shoot the deceased with a rifle. The shooting, on the applicant's part, was in my opinion a serious act of manslaughter justifying the sentence imposed both on the authorities referred to by the learned sentencing Judge and on the additional authorities referred to in this Court. I therefore refuse the application.

McPHERSON JA:   I agree.

MULLINS J:   I agree.

DAVIES JA:   The application is refused.

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