R v Difford[2001] QCA 359

COURT OF APPEAL

THOMAS JA

WILLIAMS JA

WHITE J

CA No 105 of 2001 

THE QUEEN  

v. 

DARREN BRUCE DIFFORD

BRISBANE

DATE 03/09/2001

JUDGMENT

THOMAS JA:  Justice White will deliver the first reasons.

WHITE J:  The applicant for leave to appeal against sentence pleaded guilty to attempted murder and deprivation of liberty on one indictment and to various drug offences on another indictment on 5 April 2001. 

The Court below considered matters put before it in mitigation of sentence pursuant to section 13A of the Penalties and Sentences Act 1992.  But for those considerations the learned sentencing Judge would have imposed a sentence of life imprisonment for the attempted murder.  After making an adjustment to reflect those section 13A matters his Honour imposed a sentence of 12 years for attempted murder.

The other sentences imposed were two and a half years' imprisonment for deprivation of liberty, 4 years for the production of methylamphetamine, 2 years for the possession of methylamphetamine and 12 months' imprisonment for the possession of utensils associated with that production. In practical terms it is only the sentence of 12 years for the attempted murder which the applicant maintains is manifestly excessive.

Mr T Ryan, who appears for the applicant, submits that 10 years ought to have been imposed after making due allowance for section 13A matters and that his Honour fell into error by taking a penalty of life imprisonment as the starting point before reduction.  Mr Ryan submits that a starting point of in the vicinity of 18 years was appropriate, perhaps as high as 20.

The applicant was 32 years at the time of these offences.  He had a significant criminal history, the most serious of which was a conviction for armed robbery in New South Wales in 1984, for which he was sentenced to 5 years' imprisonment.  He had a number of drug, stealing and assault offences over the ensuing years, some of which involved terms of imprisonment by way of penalty.

A set of agreed facts was tendered on sentence, and although there were some differences between the complainant and the applicant there was nothing in those differences which his Honour rightly thought would affect sentence which required resolution by him.  The complainant, a 22 year old man, the applicant and other persons concerned in the attempted murder and deprivation of liberty of the complainant were involved in the distribution of amphetamines in the Caboolture area.

A female associate of the complainant, one Moore, rightly or wrongly suspected that the complainant had provided information to police concerning the smuggling of drugs into the Woodford Correctional Centre.  She restrained the complainant on 23 May 1999 at the unit that they shared until two other males came and took the complainant by car to Apex Park, Caboolture. 

One of those men invited the applicant to the park, saying that they had a "dog".  The applicant collected an associate, who had petrol, and they joined the others at the park where the complainant was then assaulted by others than the applicant.  The complainant was pushed into the boot of the applicant's car and driven for about an hour and a half into the country.  The applicant drove the car.  There were two other passengers, apart from the complainant in the boot.  These two gave various directions until the applicant was told to stop the vehicle.  He then illuminated the scene with the car headlights.

By now it was after midnight.  One of the other men filled three syringes with battery acid or some other fluid taken from a battery which had been brought in the motor vehicle.  The complainant having been taken from the boot was then injected with the contents of the needles which caused him to feel sick.

One of the assailants then obtained a 5-litre petrol tin containing petrol from the vehicle and doused the complainant with petrol.  Another of them attempted to set fire to him, but the flame of his cigarette lighter kept going out in the windy conditions.  The applicant then took a piece of paper from the car, wiped it on the complainant so that it was then soaked in petrol, lit it and threw it on the complainant, setting him alight.

The complainant started running around and collided with a tree and the car.  His assailants found this amusing and laughed at him.  As the complainant attempted to extinguish the fire by rolling onto the ground one of the other assailants doused him with the rest of the petrol at a time when some part of his clothing was smouldering and his hair was still alight.  The complainant ran off into the bush and hid.  The car containing the assailants drove off.

The complainant eventually was able to extinguish the flames by rolling in the grass.  All his clothes had been burnt off his body and naked he crawled and walked two kilometres to an illuminated farmhouse.  He arrived there at about 3 a.m. and the occupants caused an emergency helicopter to be sent to convey him to hospital.  The complainant suffered severe burns to over three-quarters of his body.  He was in a coma for some time and nearly died on more than one occasion during his hospitalisation as a result of the injuries.  He will have permanent scarring to various parts of his body.  He has undergone at least eight major surgical operations.

The applicant drove home after these events and on advice wiped his car clean of fingerprints.  The police questioned him later that day.  On 14 July 2000 the applicant, who was aware that an investigation was on foot, approached the police and told them that he had driven the complainant in company with three others but that he had no knowledge of the actual incident beyond driving those persons to the spot.

Whilst on remand in respect of these charges the applicant made admissions to an inmate which seriously implicated him in carrying out the crime in the way in which I have indicated.  On 23 May 2000 the police searched the applicant's house and located, amongst other things, an amphetamine production laboratory, including chemicals and residue, which constituted the drug charges.

The applicant contends that the sentence of life imprisonment imposed before reduction of the sentence pursuant to section 13A was manifestly excessive in that it was outside the appropriate range of sentences that could be imposed where the applicant had pleaded guilty, he had given some past assistance and that he was not the prime mover in the offence and the decision to harm the complainant was first made by others. 

It should also be commented that the Crown below had mentioned a prereduction sentence of 18 to 20 years.

His Honour examined carefully whether his discretion to impose a life sentence was fettered by the requirement of section 13 of the Penalties and Sentences Act requiring him to take a guilty plea into account.

He concluded, rightly in my opinion, that his discretion was not so fettered and described the offence as coldly calculated and an attempt to kill in a way which would deter others involved in drugs from going to the police.

In reaching his decision, his Honour considered a number of cases.  The case which Mr Ryan submits here as most parallel is the case of Streeton, CA 99 of 1997, where the applicant was convicted after a trial of setting fire to a six-year-old boy in a school yard after dousing him with petrol.  The boy received full thickness burns to 70 per cent of the body.  The victim was unknown to the applicant.

He had no criminal history and it was clear, on the finding of this Court, that the applicant in Streeton had no remorse for the suffering which he had inflicted upon his victim.  His appeal against a sentence of life imprisonment for attempted murder was dismissed.

As his Honour observed in his sentencing remarks, Streeton was a loner whereas here there was a gang determined to impose their unlawful will upon persons who breached the code of silence amongst criminals.  Other cases which Mr Ryan particularly said that his Honour ought to have had closer regard to were Bird, CA No 318 of 1999, where the applicant's sentence of 20 years' imprisonment following a plea of guilty to the offence of attempted murder was reduced on appeal to 16 years.  In that case, the applicant was 17 years without previous convictions.

Pittas is a case which Mr Ryan submits is of assistance, CA 29 of 1989, where the applicant's sentence of 20 years' imprisonment for attempted murder was not disturbed on appeal.  In that case, the applicant was a hitman who was engaged to kill the victim.

The facts of this case are, of course, quite appalling and there was a strong deterrent effect necessary in considering the sentence which might have been imposed but for section 13A matters.  I cannot say that his Honour erred in any way in concluding that anything less than life was the proper sentence for this appalling crime in which the applicant played a significant part.

Turning to the question of the reduction, in his Honour's view, the applicant was putting himself at a very significant risk in giving the undertakings which section 13A requires and that that warranted a very significant reduction.  It is to be noted that the risk, to a large extent, remains in the future for this applicant.

His Honour engaged in various mathematical exercises which demonstrated that he clearly had in mind some significant reduction and he was mindful of the need to make such reduction for cooperation, particularly in the area of organised crime and made due reference to the authorities.

In my view, the sentence imposed did not fall outside the exercise of a sound sentencing discretion.  Indeed, as Mr Campbell for the respondent has submitted, anything less than 12 years would be inadequate since, even on a 20-year-sentence, this would represent a 40 per cent reduction.  I would refuse the application for leave to appeal against sentence.

THOMAS JA:  I agree.

WILLIAMS JA:  I agree.

THOMAS JA:  The order of the Court is application for leave to appeal against sentence refused.