R v Deans[2000] QCA 516

SUPREME COURT OF QUEENSLAND

1. PINCUS JA:  The circumstances giving rise to this application for leave to appeal against sentence are set out in the reasons of Williams J and those of Cullinane J.

2. Before the sentencing judge, it was said on the applicant's behalf that he was concerned about his own safety because the complainant had threatened him on a number of occasions. The judge inferred, correctly as it appears to me, that the applicant bought the shotgun, use of which constituted the offence in question, because of “some concerns you had”, by which his Honour meant concern about the possibility of an attack on him by the complainant. The criminal history of the complainant was tendered and it can be seen to include three offences involving violence in 1993, two in 1996 and two in 1998. The complainant had been on three occasions sentenced to imprisonment for such offences.

3. On the face of it, then, there is nothing improbable about the applicant's case, argued below, that the complainant made threats against him and that the applicant took them seriously. But a difficulty which the applicant faces is that there was nothing to suggest that, on the occasion in question, the complainant made any threat or acted in a threatening manner. The learned primary judge appeared to take the view that a general deterrence was a factor which needed to be given weight. His Honour remarked that:

“the use of firearms to settle disputes is totally unacceptable and must be sternly discouraged”.

4. We have not been referred to, nor have I found, any closely comparable case; but such authority as we have been given supports the view that the sentence imposed is as Williams J remarks, “at the top of the range”. Considering the applicant's youth, the fact that he had never previously committed an offence warranting a custodial sentence, and his co-operation with the police, there is something to be said for the view that we should alter the sentence. But I have in the end been unable to be persuaded that the sentence imposed is manifestly excessive; it does not appear to me to be at such a level as to justify this Court's making an order reducing it.

5. I agree with Williams J that the application should be refused.

6. WILLIAMS J:   Most facts relevant to the determination of this application for leave to appeal against sentence are set out in the reasons for judgment of Cullinane J which I have had the advantage of reading.

7. There are some factual aspects referred to by Cullinane J on which I wish to add something.

8. Before the sentencing judge the prosecutor referred to the “dispute” between the applicant and the complainant and went on to say that “this concerned” the applicant and “he then went out and purchased a 12 gauge semi-automatic shotgun. This he kept in his bedroom at his residence.” The clear inference is that the shotgun was purchased specifically against the background of the dispute. Counsel for the applicant before the sentencing judge, after referring to the fact that the applicant was living with his mother on the Gold Coast, went on to say: “He had returned to Goondiwindi, a town where his father and two other siblings lived, to attend a funeral. He was concerned about his own safety.” The situation would therefore appear to be that the shotgun was purchased on the Gold Coast and actually taken by the applicant to Goondiwindi when he returned there for a limited period of time.

9. Counsel for the applicant on sentence referred to threats from the complainant directed to the applicant whilst the latter was living on the Gold Coast. No specific particulars thereof were given. When the sentencing judge asked for particulars of threats made in Goondiwindi on the day of the shooting, counsel replied: “The only threats that I can point to on the day in question immediately prior to the firing of the shot is the abuse exchanged between the two young men which was overheard by a number of other people.” That was described by Cullinane J in his reasons as “some taunting of the applicant by the complainant”.

10. What, however, is significant in my view is that prior to that abuse the applicant had already pointed the shotgun at the complainant. The prosecutor outlined the complainant’s conduct as follows. He had been walking with a girlfriend to a friend’s house in the area when he saw the applicant’s motor vehicle outside a house. Whilst his girlfriend went to a shop the complainant walked to the front of that house and began talking to another local resident. The prosecutor went on: “He looked up and saw this prisoner holding a shotgun and he saw this through one of the resident’s windows. The complainant then noticed that the prisoner walked to the front door, was in the doorway and walked on to the verandah. It was at this time that he pointed the firearm at him.” It is clear from the prosecutor’s outline that the abuse commenced after the firearm was pointed at the complainant. That was accepted by counsel for the applicant before the sentencing judge. He said: “its clear that Deans took the initiative by simply presenting a loaded firearm at the door of the house.”

11. The offence of unlawful wounding attracts a wide range of sentences because of the variety of circumstances in which it may be committed. The seriousness will often depend significantly on the nature of the weapon used. The use of a firearm will always be regarded as an aggravating circumstance. Here that is mitigated to some extent because, though the firearm was pointed towards the complainant, it was accepted that the applicant had no intent to injure and that he should be sentenced on the basis of negligent use of a firearm.

12. However, in my view, the fact that he had specifically acquired the firearm against the background of the feuding between he and the complainant, and the fact that he pointed the firearm in the general direction of the complainant from the door of the house before there was any exchange of abuse, makes this particular offence a serious one. That is compounded by the fact that he was on probation at the time.

13. In all the circumstances a sentence of 3 years imprisonment with a recommendation of eligibility for release on parole after serving 12 months is at the top of the range but not, in my view, manifestly excessive. The timely plea of guilty, the age of the applicant, and such background mitigating circumstances as exist are all reflected in the early parole recommendation.

14. I would refuse the application for leave to appeal against sentence.

15. CULLINANE J:  The applicant seeks leave to appeal against a sentence of three years imprisonment imposed for an offence of unlawful wounding to which he pleaded guilty.  The learned sentencing judge recommended he be eligible to be released on parole after 12 months.

16. The appellant was 19 at the time of the offence. He and the complainant had been friendly but a falling out had occurred between them. The applicant had been accused by the complainant of stealing some of his property and sleeping with his girlfriend. According to the applicant he had been the subject of threats by the complainant and as a result had left Goondiwindi where they both lived and where the offence was subsequently committed. He had purchased a 12 gauge shotgun because of concerns he had about the complainant who had a criminal history which included offences of violence.

17. The applicant was at the time in Goondiwindi to attend a funeral.

18. The complainant went to the applicant’s house. After a verbal exchange between them, the applicant appeared at the door with the shotgun. It seems that there was some taunting of the applicant by the complainant before the applicant discharged the shotgun in the general direction of the complainant. There was estimated to be a distance of 30 or 40 metres between the parties.

19. The applicant told the police that he did not intend to hit the complainant. One of the pellets struck the complainant on the right side of the chest. It was the view of the investigating police officer that the pellet which struck the complainant was a ricochet. It seems that the splatter range of the shotgun at the distance at which it was fired is somewhere in the order of some one square metre.

20. The learned sentencing judge dealt with the applicant upon the basis that he was guilty of the offence by virtue of criminal negligence.

21. A serious feature of the case is that the applicant was on probation at the time of the offence. The order was made on 21 July 1998 in respect of a number of offences including one of assault. The assault did not involve the complainant. There was a generally favourable report from a probation officer placed before the court dealing with the applicant’s performance whilst on probation.

22. The complainant still has the pellet embedded in his right lung. An attempt to remove it was unsuccessful. A medical report dated 26 July 2000 expressed the opinion that the complainant suffered from a post traumatic disorder. In a statement which was tendered the complainant speaks of suffering some psychological problems since the incident.

23. We were referred to a number of cases. Cases involving criminal negligence tend to involve a wide variety of circumstances.

24. In Ryan CA No 241 of 1984, 26 November 1981 the complainant who was the applicant’s sister-in-law had left a house where they had been living together.  Some days later the applicant confronted the complainant whilst armed with a .22 calibre rifle.  They were both in a small room and a distance of about 10 to 12 feet separated them.  He fired the rifle at her intending to frighten her and she was struck by a bullet but it was not clear whether the bullet had struck her directly or had ricocheted from a curtain.    The injuries sustained were not referred to in the judgment.

25. The applicant was sentenced to imprisonment for 3½ years. He had a considerable criminal record but nothing of a similar nature except for an offence many years earlier of being armed in public so as to cause terror. The head sentence was not disturbed but the Court of Criminal Appeal altered the sentence imposed so as to add a recommendation that the applicant be eligible to be considered for parole after the expiration of 12 months. The case is now almost some 20 years old.

26. We were also referred to Suliman [1999] QCA 228; CA No 65 of 1999, 17 June 1999.  In that case the complainant and the applicant, who were married, had had an argument resulting in the applicant leaving and returning at a very late hour at which time he attacked the complainant.  He dragged her into a hallway near a kitchen and threatened her with a knife, saying that he was going to kill her.  The applicant was sentenced upon the basis that he had no intention of injuring the complainant.  However he did in fact injure her as a consequence of the complainant taking measures to avoid being struck with the knife which had been thrusted towards her.  The complainant suffered lacerations to the ear, left forearm and the right thumb.

27. The applicant had been sentenced to 2½ years imprisonment. The court varied his sentence by adding a recommendation that he be considered for parole after some 9 months.

28. We were also referred to the matter of Blackett CA No 227 of 1990, 12 October 1990.  That was an appeal by the Attorney-General.  It involved the discharge of gunshots which occurred, it was said, without either premeditation or intent to do grievous bodily harm.  It seems that the Court dealt with the matter on the basis of a criminally negligent use of a rifle.  A non‑custodial sentence had been imposed at first instance.  The Court of Appeal set aside the sentence and imposed a term of imprisonment of 18 months with a recommendation that the respondent be considered for  parole after serving a period of 3 months.

29. The statement of facts suggests that very little could be deduced as to exactly what occurred at the time when the complainant was shot. The respondent was a man in his 50s without any prior convictions and it would seem that he was a person who had rendered significant community service. Having regard to the fact that it was an appeal by the Attorney-General, and the other features to which I have referred, I do not regard it as of great assistance.

30. It is difficult to find in these cases any support for the claim by the prosecutor, in his submissions to the learned sentencing judge, that the upper end of the range was five years.

31. What the applicant did in this case was, as should have been obvious to him, an act of great potential danger. As the learned judge said, to use a firearm to settle disputes is totally unacceptable and any sentence must act as a deterrent to such conduct.

32. Nonetheless, the matter must be viewed in the light of a number of important features. These include the background of the threats made by the complainant and the fact that the complainant sought the applicant out.

33. The applicant is now only 20 and apart from the assault, in relation to which he was on probation, he has only a minor criminal history.

34. The applicant pleaded guilty and his plea was acknowledged to be a timely one.

35. The prosecutor acknowledged that the matter “would fall at the end or the lower part of that range – within three years.” He had suggested a range of three to five years.

36. I am inclined to think, notwithstanding the seriousness of the conduct of the applicant in discharging the shotgun in the circumstances in which he did, that the sentence is one which does not make sufficient allowance for the factors that I have referred to.

37. I would grant leave to appeal, allow the appeal and substitute a head sentence of some 2½ years and recommend that the applicant be eligible to be considered for parole after a period of 9 months.

38. I should add that the applicant sought and obtained leave on the hearing of the appeal to read an affidavit of his solicitor, Patrick Thomas Murphy. This deals with information Mr Murphy has obtained from a Correctional Services officer. However, the material is lacking in any detail and is not sufficient to enable the court to form any real impression about the matters with which it deals. It does not in my view raise anything which warrants a reconsideration of the sentence imposed on the basis of its contents.