R v Rochester; ex parte Attorney-General
[2003] QCA 326
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- Notable Unreported Decision
- Appeal Determined (QCA)
- R v Rochester; ex parte Attorney-General[2003] QCA 326
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R v Rochester; ex parte Attorney-General[2003] QCA 326
R v Rochester; ex parte Attorney-General[2003] QCA 326
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Appeal against Conviction & Sentence |
ORIGINATING COURT: | |
DELIVERED ON: | 1 August 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 July 2003 |
JUDGES: | Williams JA and Mackenzie and Helman JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1. In CA No 362 of 2002 |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of attempted murder and unlawful stalking with circumstance of aggravation – where offence of attempted murder committed by way of stabbing with a knife – whether a jury could draw an inference beyond reasonable doubt that he had an actual intent to kill at the time of the stabbing EVIDENCE – WITNESSES – REFRESHING MEMORY – GENERALLY – where witness gave evidence by telephone – where it was discovered that she had “notes” with her – where notes were made available to counsel and the issue was fully canvassed with her – whether the jury could have found her evidence to be reliable CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where appellant sentenced to 10 years imprisonment – where extensive criminal record – whether sentence imposed manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where offence involved a life-threatening injury – where offence committed in a public place – where it involved a breach of a Domestic Violence Order – whether sentence imposed manifestly inadequate Dinsdale v The Queen (2000) 202 CLR 321, cited Malvaso v The Queen (1989) 168 CLR 227, cited R v Cummins [2001] QCA 237; CA No 287 of 2000, 19 June 2001, cited R v Forster [2002] QCA 495; CA No 10 of 2002, 14 November 2002, cited R v Hardie [1999] QCA 352; CA No 178 of 1999, 24 August 1999, cited R v Jurcik [2001] QCA 390; CA No 87 of 2001, 21 September 2001, distinguished R v Reeves [2001] QCA 91; CA No 276 of 2000, 13 March 2001, cited R v Schaefer [2001] QCA 327; CA No 89 of 2001, 10 August 2001, cited R v Sharp [1999] QCA 393; CA No 144 of 1999, 17 September 1999, cited |
COUNSEL: | The appellant in CA No 362 of 2002 and the respondent in CA No 399 of 2002 appeared on his own behalf R G Martin for the respondent in CA No 362 of 2002 and the appellant in CA No 399 of 2002 |
SOLICITORS: | The appellant in CA No 362 of 2002 and the respondent in CA No 399 of 2002 appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent in CA No 362 of 2002 and the appellant in CA No 399 of 2002 |
[1] WILLIAMS JA: At the outset of his trial the appellant pleaded guilty to a charge of unlawful stalking with a circumstance of aggravation and to a charge that on 2 February 2001, with intent to do grievous bodily harm, he in fact did grievous bodily harm to his wife, Wendy Rochester. At the same time he pleaded not guilty to a charge of attempting unlawfully to kill his wife. The prosecution did not accept those pleas in satisfaction of the indictment and the matter proceeded to trial on the attempted murder charge. The jury returned a verdict of guilty of attempted murder and he was sentenced to imprisonment for 10 years. The appellant appeals against his conviction on a number of grounds, and also seeks leave to appeal against sentence on the ground that it is manifestly excessive. The Attorney-General has also appealed against the sentence, claiming it is manifestly inadequate.
[2] On the hearing of the appeal the appellant appeared on his own behalf. Amongst the material placed before the court was a letter from Legal Aid dated 19 February 2003 recording that the appellant had withdrawn instructions for Legal Aid to represent him. At the outset of the hearing before this court the appellant addressed some concerns about his representation. However, it is clear that since February 2003 Legal Aid has not been acting for him, and that was clearly confirmed on 14 April 2003 when the matter was mentioned before the President. On that date the appellant indicated a number of issues he wished to raise on the hearing of the appeal and it was for that reason that he was given additional time in which to prepare an argument on his own behalf.
[3] No formal application was made for an adjournment when the matter came on before this court, and indeed there was no proper basis for this court to adjourn again the hearing of the appeal.
[4] The prosecution case against the appellant was strong, if not an overwhelming one.
[5] The appellant and his wife met in about 1984 and commenced living in a relationship shortly after their first meeting. They married in about 1993. There are two children of the relationship. It is clear that the 17 year relationship was a somewhat volatile one. There were numerous arguments, some separations, and at times violence from each one directed towards the other. However, that background evidence as to the relationship was not of critical relevance at the trial.
[6] It is sufficient for present purposes to say that the appellant gave evidence of events which occurred on 2 February 2001. At that time the parties were living apart, but the children were with the appellant. After driving the children to school he went to the doctor because he was “pretty crook”. He was prescribed some medication and returned home. He cooked an evening meal for the children, and the daughter made some telephone calls to the Beenleigh Tavern where his wife had been working. Shortly thereafter the appellant decided to go to the Tavern “to check and see if Wendy had actually given notice and left the hotel.” He left his car in the carpark and as he said in evidence: “I went up to go into the – Pete’s bar where Wendy worked.” His evidence was that he then “stopped for a minute and just thought about things. I went back to the car . . . And got the knife.” In submissions to this court he said that he only went as far as the entrance to the bar before returning to the car. According to his submissions in this court he was primarily concerned with locating a wheel brace to defend himself against the bouncers if they should endeavour to eject him from the hotel. However, he located a knife in the boot of the car which he said was one he used when he went fishing. His evidence was that he “put it in the back of my pants” and then went in to “where Wendy was working”. He then asked his wife, “Do you want to talk to me?” To which she replied, “No.” According to the appellant his wife said, “What have you got behind your back?” At that stage he said in evidence that he pulled the knife out. He said, “I wanted to hurt Wendy, I think.” His evidence went on: “I think I stabbed her because I didn’t use any force – real force with the knife, you know. I think I stabbed her. I’ve always believed I stabbed her.” When asked whether at the time he had an intention to kill he replied, “Of course not.”
[7] The appellant has placed a number of submissions before the court in writing. There is what amounts to an outline of argument filed 21 May 2003 and a very lengthy handwritten document entitled “The Life of Rod and Wendy Rochester”. Throughout all of the material, and in oral submissions to this court, the appellant frankly admitted to stabbing his wife. But he steadfastly asserted that he never intended to kill her, and therefore the verdict of attempted murder returned by the jury was unsustainable.
[8] Evidence as to the injuries sustained by Wendy Rochester was given by the Surgical Registrar at the Princess Alexandra Hospital, Dr Wysocki. Relevantly he said:
“. . . there was a 4 centimetre stab wound to the left upper quadrant of the abdomen. The further trajectory of this wound was that there was a laceration in the left – left dome of the diaphragm as well as a laceration of the anterior or the front part of the stomach. The contents of the stomach had spilt to within the chest. There was a nonbleeding laceration to the liver, the left lobe of the liver. There was also a contusion of the left lung and there were two stab wounds to the upper chest and both were superficial to the ribcage. There was a laceration to the left cheek.
. . .
I would say that the entry point or the distance travelled would have been at least 3 inches, 7 and a-half centimetres.
. . .
the wound on the left side of the chest which was superficial to the ribcage . . . had penetrated the full thickness of the skin, but had not actually penetrated the muscle layers between the ribs.
. . .
there was a 1 centimetre wound to the upper right chest.”
[9] When asked what would be the effect of the wound to the abdomen had the patient not received treatment he replied: “It is highly likely that the patient would have died due to infective complications arising from those injuries.”
[10] The jury also had before it the conduct of the appellant which evidenced the offence of stalking. His wife, who had left the matrimonial home on 22 January 2001, had obtained a Domestic Violence Order against the appellant. In breach of that order he telephoned her making threats, telephoned family members threatening his wife’s life, put posters depicting his wife naked up at her work with a caption inviting sexual favours, turned up at her work and dumped a bag of her clothes on the floor, and otherwise harassed her. The essential matters were not disputed by the appellant in his evidence; rather he tried to concentrate on allegations that she was guilty of violence towards him and was otherwise acting in an inappropriate manner for a wife and mother.
[11] Of particular relevance to the attempted murder charge was evidence that the appellant on 31 January 2001 rang his wife’s father and said, “Say goodbye to your fucking daughter”. And that on 30 January 2001 he telephoned his wife’s mother and in the course of that conversation told her that he was going to kill Wendy.
[12] The only piece of that evidence which raised an issue of any concern on appeal is the conversation with his wife’s mother in which the threat to kill was made. I will return to that later.
[13] The appellant’s principal ground of appeal against conviction is that the jury verdict was unreasonable; as he put it in his written submissions: “There was insufficient honest grounds to convict”.
[14] Bearing in mind that the appellant had pleaded guilty to doing grievous bodily harm with intent, the only question for the jury was whether his intent was so limited, or whether, as contended for by the prosecution, his intent was to kill.
[15] Given the way in which he armed himself with the knife, the nature of the injuries sustained by his wife, the threats directed to his wife, and his general attitude to his wife as evidenced by all the particulars of stalking, there was ample evidence from which a jury could draw the inference beyond reasonable doubt that at the time he stabbed he had an actual intent to kill. It is not without significance that the stabbing was to the abdomen, a particularly vulnerable area, and also to the left side of the chest where the heart is located. The submission was made by the appellant that the force used was not great, and that if he had intended to kill he would have used significantly more force. That was matter for the jury to consider, but in all the circumstances it could not be said that the evidence was not capable of supporting the conclusion reached by the jury.
[16] The appellant’s written submissions also make a series of complaints about the competence of his legal representation at trial. Those issues were aired before the President on 14 April 2003, and the respondent in consequence has obtained affidavits from the solicitor and barrister who then represented the appellant. The main complaint about the legal representation focuses on the appellant’s belief that the history of the relationship should have been explored in greater depth. It appears that his legal representatives at trial pointed out to him that such issues were not critically relevant when it came to the question of his intent at the material time, and over emphasis on such matters could prove counterproductive. It is clear from a perusal of the record that counsel at trial canvassed the relationship issues to a sufficient extent to allow the jury to understand the nature of the relationship, and it cannot be said that they failed in their duty to their client by not exploring those matters further.
[17] The appellant also complained about the advice that he plead guilty to stalking, but as he admitted on oath whilst in the witness box all the particulars of that charge there is no substance in that complaint.
[18] The written material submitted by the appellant asserts that he wishes to call “fresh evidence”. The relevant witnesses would primarily be his two children. The submission with respect to the calling of fresh evidence faces two insurmountable hurdles. Firstly, all the evidence was available at trial and the witnesses were not called. Secondly, and even more importantly, the evidence is irrelevant to the critical issue as to the appellant’s intent at the time of stabbing. That “fresh evidence” would only go to the nature of the relationship between the appellant and his wife. The appellant contends that he would not have left the two relatively young children at home if he had intended to kill his wife. One of the difficulties for him is that he has admitted having an intent to cause his wife grievous bodily harm and presumably concern for his children did not deter him from forming that intent.
[19] There is also mention in the written material of evidence from some police officers who were not called at trial. Neither the written material nor oral submissions make it clear what evidence they could give. The suggestion appears to be they could give evidence as to complaints by the appellant about his wife’s conduct. As already noted such would not be material evidence on the only issue before the jury.
[20] None of the additional evidence referred to by the appellant would be material to the only issue for determination by the jury, namely the appellant’s intent at the time of the stabbing.
[21] The remaining ground of appeal was concerned with the evidence of Wendy Rochester’s mother, Dawn Griffin. Material placed before the trial judge, and confirmed by evidence obtained by the Director of Public Prosecutions for purposes of the appeal, established that due to the illness of her partner she was unable to travel to Brisbane from Mackay for the hearing. In consequence leave was given for her evidence to be taken by telephone. When asked a general question in cross-examination about documents she indicated that she had some “notes” with her. That raised concerns about the reliability of her evidence. After hearing submissions from defence counsel the learned trial judge directed that the “notes” be retrieved by police officers in Mackay and faxed to Brisbane. After the “notes” were available to counsel Dawn Griffin was recalled to give further evidence by telephone link. All issues as to the “notes” were fully canvassed with her. Undoubtedly that was a matter referred to by defence counsel in his address. Importantly all issues as to the credibility of the witness because of her having possession of the “notes” whilst initially giving evidence were before the jury. There is nothing to support the “conspiratorial” allegations raised by the appellant.
[22] As will be obvious from the above summary of relevant evidence, and the fact that the only question for the jury was as to the appellant’s intent, the material passage in the evidence of Dawn Griffin was that in which she recounted that the appellant told her in a telephone conversation on 30 June 2001 that he was going to kill Wendy.
[23] It is true that the appellant answered “No, I wouldn’t say that to her mother.” when the evidence of Dawn Griffin was put to him in evidence in chief. Under cross-examination he admitted other parts of the subject conversation with Dawn Griffin but maintained he did not say he was going to kill Wendy.
[24] So far as the telephone conversation with Wendy’s father was concerned he said he was drunk at the time and neither admitted nor denied making the alleged statement.
[25] In all of those circumstances there is nothing in the issues raised by the appellant about the evidence of Dawn Griffin such as would call for this court to set aside the jury verdict.
[26] The appeal against conviction must be dismissed. That leaves for consideration the issues raised with respect to the sentence.
[27] The appellant’s main complaint about the sentence appears to be that, as he will have to serve 80% of the 10 year sentence, he will be aged about 60 when released. That would deprive him of the opportunity of being with his children whilst they are growing up, and deprive him of the opportunity of having his son learn a trade with him. In support of his argument he referred to R v Jurcik [2001] QCA 390 where a sentence of nine years imprisonment upon conviction of attempted murder was upheld on the offender’s appeal. The appellant here pointed out that Jurcik would have been eligible to apply for parole after serving four and a half years whereas he would not be eligible to make such an application until he had served eight years.
[28] Jurcik was an unusual case and does not really provide a comparative sentence for present purposes. Jurcik had availed himself of sexual services provided by the complainant, who was a prostitute, on several occasions over a period of some months. His wife contracted a severe case of thrush which led to serious arguments between Jurcik and his wife. He believed that the complainant was the source of that infection and that led to the stabbing incident which resulted in his conviction for attempted murder. Jurcik had no prior convictions for offences involving violence, and his criminal history was very limited.
[29] The appellant here has a very extensive criminal record. His first imprisonment was in 1967 when he would have been aged 18. He has some 12 previous convictions for assault or related offences covering the period 1976 to 1999; some attracted custodial terms, others attracted only a relatively small fine.
[30] Counsel for the Attorney-General in support of the appeal seeking a heavier sentence relied on the appellant’s criminal history, the nature of the offence involving as it did a life-threatening injury, the fact that the offence was committed in a public place where a number of persons were present, and the fact that it involved a breach of a Domestic Violence Order. Reference was made to the decisions of this court in Schaefer [2001] QCA 327, Sharp CA 144 of 1999, Cummins [2001] QCA 237, Hardie CA 178 of 1999, and Forster [2002] QCA 495, all cases of attempted murder. Counsel for the Attorney conceded that Schaefer, where a sentence of 15 years was upheld, and Sharp where a sentence of 17 years was upheld, were worse cases. The circumstances of both Cummins and Hardie, where 14 years imprisonment was upheld made them worse cases than the present. Forster, where a sentence of 12 years was upheld is a more comparable case, though a rifle was the weapon used there.
[31] Those cases confirm the observation I made in Reeves [2001] QCA 91 that the “appropriate range for the offence of attempted murder is generally from 10 to 17 years”.
[32] Given the appellant’s criminal history and the background circumstances to the commission of the offence any sentence less than 10 years upon his conviction for attempted murder would have been manifestly inadequate. However, I am not persuaded that a sentence of 10 years imprisonment is so low as to warrant interference by this court on an Attorney’s appeal bearing in mind the principles derived from Malvaso v The Queen (1989) 168 CLR 227 at 234 and Dinsdale v The Queen (2000) 202 CLR 321.
[33] Ultimately I have come to the conclusion that the sentence of 10 years imprisonment should stand.
[34] It follows that the orders of the court should be:
(1) In CA 362 of 2002
(i) appeal against conviction dismissed
(ii) leave to appeal against sentence refused.
(2) In CA 399 of 2002
(i) appeal against sentence dismissed.
[35] MACKENZIE J: I agree with the orders proposed by Williams JA for the reasons given by him.
[36] HELMAN J: I agree with the orders proposed by Williams JA and with his reasons.