R v Cummins[2001] QCA 237

COURT OF APPEAL

McMURDO P

DAVIES JA

JONES J

CA No 287 of 2000

THE QUEEN

v.

PAUL GERARD CUMMINS Appellant

CAIRNS

DATE 19/06/2001

JUDGMENT

THE PRESIDENT:  The applicant was convicted, after a three day trial in the Supreme Court at Townsville, of attempting to murder his elderly mother by hitting her at least three and perhaps six times with a piece of wood.  He was sentenced to 14 years' imprisonment.  The applicant claims his sentence is manifestly excessive and contends that a sentence of 12 years' imprisonment was appropriate.

It seems the applicant has a serious alcohol problem and had been drinking heavily for some time prior to the attack.  The day before he had argued with his mother, who was an invalid confined to a wheelchair, about his girlfriend; the complainant said the applicant had threatened to "slice her up" that night.

The next evening the applicant again visited his mother.  The complainant noticed that a piece of wood from a broken cupboard had been moved from her backyard into her house and was concerned the applicant may attack her with it.  The applicant indeed armed himself with the piece of wood and then attacked the complainant, delivering at least three and perhaps as many as six blows to her head.  During the attack the applicant was heard to say, "I'll kill you, you cunt."  The complainant called for assistance from another son who, although he had been drinking, was able to disarm the applicant and assist his mother.

The applicant fled.  The complainant was unconscious and covered in blood.  The complainant was taken to hospital and treated for three lacerations to the scalp, the largest eight centimetres in length.  Six sutures were placed in the lacerations which were deep, travelling through the skin, the subcutaneous tissue, the ponecrosis of muscle and the further facial layer before arriving at the periosteum, the last layer before the actual bone.  The wounds became badly infected and required surgery to re-open and explore the wounds and a prolonged course of intravenous antibiotics to combat the infection.  It seems the complainant spent four days in hospital.

The applicant had a most serious criminal history.  After being convicted of a number of relatively minor offences, he was sentenced to a total period of five years' imprisonment for the offences of unlawful use of a motor vehicle, indecent assault, sodomy, stealing, and robbery in company with personal violence.  All these offences arose out of the one episode on 6 March 1982.  He was subsequently convicted of property offences which occurred before this date, for which he also received concurrent sentences.  In 1987 he was placed on probation for wilful destruction of property and stealing; sentenced to 200 hours' community service for possession of property suspected of being stolen and was sentenced to six months' imprisonment for burglary.  He has a number of convictions for relatively minor drug offences.  In 1989 he was sentenced to seven years' imprisonment for rape with a recommendation for parole after three years.  In 1999 he was ordered to perform 40 hours' community service and to pay compensation of $600 for an offence of stealing.

The victim impact statement demonstrated that the complainant was devastated by her son's attack upon her and at the time of sentence she was still suffering from both the physical and emotional effect of the attack.

The applicant was a man of mature years, 40 at the time of the offence and 41 at sentence.

Not surprisingly, there are no truly comparable sentences to which we have been referred.  The range of sentences imposed for the offence of attempted murder is as wide as the facts which constitute such offences.

The applicant has relied on the following three cases, none of which give great assistance, but I will deal with them briefly.  In Byers CA No 436 of 1994 Byers was sentenced to 12 years' imprisonment with a recommendation for parole after three years for the premeditated and cold-blooded attempted murder of her husband by shooting him whilst asleep.  The motive was to profit from insurance policies she had taken out.  She had no prior convictions.  On the Attorney-General's appeal, the recommendation for early parole was removed.  The sentence clearly appears to be at the lower end of the appropriate range.

In Farquhar CA No 349 of 1994 Farquhar was sentenced to eight years' imprisonment for the attempted murder of her partner by jumping on his head and hitting him on the head with a bottle following an episode of domestic tension.  The complainant suffered serious consequences requiring him to spend a period of about five months in hospital, followed by parental care and twice weekly treatment.  At sentence his balance remained greatly impaired and he was reduced from being a fit, active man to a person with problems, including lack of co-ordination, and speech and memory difficulties.  He can no longer walk any great distance.  He cannot stand for long periods, cannot run and is subject to epileptic fits.  Farquhar had a prior conviction for unlawful wounding involving the same complainant, for which she was given two years' probation with medical, psychiatric and psychological treatment.  It is unclear whether or not she pleaded guilty.  Her application for leave to appeal against sentence was dismissed.  There was no Attorney-General's appeal against sentence.

In Reeves CA No 276 of 2000 Reeves was convicted after a trial in the Supreme Court at Townsville.  Reeves and others formed a plan to kill the complainant with a sawn-off rifle and a modified bullet.  The complainant was shot through the left buttock and left groin and the gunshot penetrated the muscle at the base of the penis and into the buttock.  The complainant required a number of operations which were life-threatening, but was apparently left without any major consequential injury.  The applicant was sentenced to 14 years' imprisonment.  He had a lengthy criminal history including convictions for bodily harm, wounding, robbery and other offences involving violence.  The Court dismissed the application for leave to appeal against sentence, noting the

high degree of planning and criminality in the applicant's conduct.

The sentence imposed in this case was not lenient, but the applicant was a mature-aged man with an extensive and serious criminal history for offences of violence, including violence against women.  His attack upon his elderly, invalid mother in her own home was apparently unprovoked and unexplained.  He did not have the mitigating benefit of an early plea of guilty or remorse.

In all the circumstances, I am not persuaded that the sentence imposed was manifestly excessive.  I would refuse the application for leave to appeal against sentence.

DAVIES JA:  I would agree.  I would only add that Mr Lynham, who appeared for the applicant and who said everything that could possibly be said on his behalf, sought to present the case as one in which the offence was unpremeditated.  I cannot accept that.  In addition to the facts which the President mentioned, that it seems apparent that he brought the piece of wood into the house some time before he assaulted his mother with it, the only inference being, it seems to me, that it was brought in expressly for that purpose, on the night before this occurred he was heard to say that he intended to slice her up.  All of this, in my view, leads only to the conclusion that the attack upon his mother was premeditated.

I also agree with the reasons which the President has given for refusing the application, and I would refuse it.

JONES J:  Yes, I agree with the reasons expressed both by the President and Justice Davies, that the application should be refused.

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

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