R v Schaefer[2001] QCA 327

COURT OF APPEAL

THOMAS JA

BYRNE J

HOLMES J

CA No 89 of 2001

THE QUEEN

v.

JAMES OWEN SCHAEFERApplicant

BRISBANE

DATE 10/08/2001

JUDGMENT

THOMAS JA:  Justice Holmes will deliver the first reasons.

HOLMES J:  The applicant for leave to appeal is 23 years of age.  He was 22 at the time of committing the offence of attempted murder.  That offence was committed on 4 March 2000.  He was sentenced to 15 years' imprisonment. 

The applicant has had a bitter relationship with his mother. When he was about seven she separated from his father.  His younger brother stayed with his mother but he went with his father and had only intermittent contact with her mainly on school holidays.  He seems to have harboured a deep resentment for what he perceived as her neglect of him and to have got on very badly with her over the years.  He has a minor criminal history with what seems to amount to a couple of instances of petty theft.  Of some significance, however, was a conviction on 7 April 1997 for three offences of aggravated assault and one unlawful assault.  These were committed on his mother.  At that time he was 19.

On 4 March 2000 the applicant spent the day with his mother attending the races and visiting a friend of the mother's.  They were in her vehicle.  He directed his mother to a bush road on the pretext of showing her a swimming pool.  When they were out of the car and walking along he stabbed her with a knife.  She sustained some seven or eight stab wounds to the abdomen, back and arm as well as a compound fracture to the nose.  The applicant left her there believing her dead and was apprehended next day heading north in her car.

I have mentioned a long-standing resentment on the part of the applicant for what he saw as his unhappy childhood but it appears that the source of friction closest to the offence was the mother's receipt of an inheritance of some $300,000 from her mother.  The applicant perceived himself as entitled to some of that money.  She took the position, obviously correct as a matter of law, that he had no entitlement and told him if he were to get anything it would be when she died and the estate passed to him and his brother.  This grievance on his part seems to have been a significant cause of the attack.

The applicant was interviewed after his apprehension by police and made it very clear that he wanted his mother dead and was disappointed not to achieve that.  Why the relationship between them was so very bad did not really emerge either in that interview or in other interviews with a psychiatrist and a psychologist although the applicant referred to his mother as having suppressed him from the time he was born.

The psychiatrist who saw him, Dr Heffernan, considered him to have an anti-social personality disorder and to impose an ongoing risk to his mother.  The psychologist, Mr Peros, regarded his offence as probably the result of a long-standing paranoid delusional system involving his mother with an increasing sense of resentment and entitlement and an anti-social predisposition.

The applicant pleaded guilty and it is accepted it was a timely plea.  The learned sentencing Judge in the course of his sentencing comments referred to the applicant's demeanour during the sentence which he considered redolent of continuing anger to the mother and also observed an absence of any sign of remorse.  His Honour referred to a significant motive of financial gain.  He recognised that the plea of guilty was timely but observed it was largely overwhelmed by other facts.

Before us Mr Hunter's submissions centred on the timely plea of guilty not having been sufficiently recognised.  He argued it was either a case of a sentence outside the proper sentencing range having been discounted or alternatively a case of a sentence within the range not having been sufficiently discounted.  It was submitted on the part of the defence that the proper sentencing range was between 10 and 16 years.  The Crown suggested perhaps that should be extended to 18 years.  It perhaps is not helpful to talk in terms of range as it can be said I think that 15 years is clearly within the range for a ferocious and premeditated attack.

So far as the discount for a timely plea of guilty is concerned it must be recognised that fundamental to the approach is an acknowledgment of the remorse which can often be discerned from the fact of such a plea of guilty.  In this case the plea of guilty was not accompanied by any other indication of remorse and indeed such indications as there were of the applicant's attitude were to the contrary. The reality is that the case against him was overwhelming.  The victim had survived bearing the evidence of the attack and the applicant had admitted not just the assault but made very clear his intent to kill.  In circumstances like that the weight to be accorded a guilty plea cannot be great.

On the whole although I have a concern that this sentence was high for a youthful offender I cannot reach the conclusion that it was outside the proper sentencing range in all the circumstances.  I would dismiss the application for leave to appeal.

BYRNE J:  I agree generally with Justice Holmes.  My only reservation concerns her Honour's remarks with respect to the plea of guilty. 

The matter which has caused me some concern in the case is whether, notwithstanding the absence of remorse, sufficient credit was given for the resource savings associated with the plea of guilty. 

On balance, however, considering all the circumstances, I am not satisfied that the sentence which was actually imposed is manifestly excessive.  I would therefore refuse the application.

THOMAS JA:  This was a very bad and serious case of attempted murder.  The applicant was driven by long-standing hatred and the desire for financial gain.  It is close to the worst category of cases of attempted murder.  The maximum sentence in such matters is life imprisonment. 

It seems to me that some cases of attempted murder, of which this is one, reveal more serious criminal intent and criminal action than some cases of actual murder.  I therefore have reservations about the so-called range of sentence of 10 to 16 years that was suggested to the learned sentencing Judge by the Crown Prosecutor below.  I doubt that there is any clear range or at least a recognisable area of confined limits for sentences in serious cases of this kind. 

Of course, Courts attempt to identify an appropriate median in such cases.  If it needs to be identified I think that Byers, Number 430/1994 28 February 1995 suggests that if there is such a range it might well go up to 18 years but of course each case depends upon the seriousness of the conduct revealed.  In the present case the applicant presents an ongoing risk.  His plea of guilty was not activated by remorse and there was an overwhelming case. 

It is important as Justice Byrne has noted that proper discounts be granted for pleas of guilty.  However, I think that a sentence of 15 years in the present case gives proper recognition of the plea.  I accordingly agree that the application should be refused.  That will be the order of the Court.

-----