R v Smith[2005] QCA 1

SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  The appellant was convicted after a trial by jury in the Supreme Court on two counts of manslaughter on 20 July 2004.  He had been charged, in each case, with murder.  On the following day he was sentenced to 10 years imprisonment and a period of 53 days of pre-sentence custody was declared to be time served under the sentence.  He appeals against his convictions and seeks leave to appeal against that sentence.  This appeal was heard with the appeal in R v Palmer^[1] and this judgment is being given on the same day as judgment in that appeal.

1.The appeal against conviction

(a)The relevant facts

2. The appellant was convicted of manslaughter because the jury were satisfied beyond reasonable doubt that he supplied a .303 rifle and ammunition to Brennan Brett Emmett knowing that Emmett intended with the rifle to shoot two people whom he had told the appellant were in the boot of his car. The jury did not convict the appellant of murder because, presumably, they were not satisfied beyond reasonable doubt that when he supplied the rifle to Emmett he knew that Emmett intended to kill either of the persons then in the boot of the car or to do grievous bodily harm to either of them.

3. The supply by the appellant of the rifle to Emmett occurred, according to the appellant, at about 12.30 am on the morning of 23 December 2002 in circumstances which I outline below. However it is of some relevance first to outline briefly the circumstances in which those persons whom Emmett said were in the boot of his car came to be there notwithstanding that those circumstances were not at any relevant time within the appellant's knowledge.

4. The persons who were in the boot of the car were Sharon Clark and James Hunt. They had been brutally assaulted by Guyon Ronald Clark, Sharon Clark's estranged husband and Emmett both of whom pleaded guilty to their murder by shooting. Sharon Clark was living with James Hunt and Guyon Clark had earlier indicated his intention of killing them. Clark and Emmett, together with Emmett's de facto wife Joanne Palmer had, a little earlier that night gone to the house in which Sharon Clark and James Hunt resided, found them in bed together and Guyon Clark and Emmett had brutally beaten them senseless including with a baseball bat. Clark had then placed their senseless bodies in the boot of Hunt's car in which Emmett and Clark then drove to the appellant's house about 28 kilometres away.

5. The facts within the appellant's knowledge may be taken from the appellant's interview with Detective Senior Constable Rutherford and Sergeant Hildred. This was the only evidence which was directly relevant to the topic as neither the appellant nor Emmett, the only persons present and awake at the relevant time, gave evidence at the trial. The interview was in two parts. After the appellant had given what now appears to have been an incomplete account of what took place, Constable Rutherford left for a short while and then returned saying that he had reason to believe that the appellant was not quite telling the whole truth and the appellant then added further facts. The following account is a composite of the two.

6. On the day in question the appellant was sleeping in his bed with his de facto wife Rachel Nagle in a house which they occupied on a property about 28 kilometres from Goondiwindi. Also sleeping elsewhere in the house was their 12 month old child, Rachel Nagle's parents and her three sisters.  Ms Nagle's father was an alcoholic and incapacitated.  The appellant was the only able bodied man in the house but he had consumed a substantial amount of alcohol and was "pretty pissed".

7. At about 12.30 am he was woken by Emmett whom he knew. No other person entered the house. Emmett asked him for his gun. The appellant had two guns, a .22 rifle and a .303 rifle.  Emmett told the appellant that he had two people in the boot.  The appellant at first refused Emmett's request for a gun but Emmett grabbed him by his shirt and said "Well you'll be in the boot too if you don't give me the gun".  The appellant saw that Emmett had a "look in his eye".  He said he feared for his life.  He thought to call out to others for a brief second but did not because he did not want to die.

8. The appellant selected the .303 rifle and handed it to Emmett. There were two live rounds in it at the time. The appellant said that he understood when he handed the gun to Emmett that Emmett was going to shoot the two people who were in the boot. That must be because Emmett told him that. Emmett also took a box of ammunition. At no time was Emmett armed before the appellant handed him the rifle. Emmett, who appeared to be in a hurry, then left. At no time whilst Emmett was present did Rachel Nagle wake. The appellant said that he thought then of ringing the police but thought that if they caught Emmett he might "come back for me".

9. The appellant then went back to sleep and was later woken again by Emmett. He thought it was about 4.00 am. Emmett asked him to go into the kitchen and there he saw Guyon Clark and Joanne Palmer both of whom he had also met before, apparently at Emmett's house. He said that this was the first time he realized that Emmett had taken his ammunition box with spare ammunition in it.

10. Emmett then told the appellant that they had "knocked off" Guyon Clark's wife and the man she was having an affair with. The appellant understood that to mean that they had shot those people dead. Emmett handed the rifle back to the appellant. They also produced a bundle of clothes which the appellant told them to put under the house. They were subsequently found in a meat safe under the house. The clothes were splattered with the blood of the deceased persons.

11. The appellant said that he had met Emmett a few times before the night in question. He had met him at the Royal Hotel in Goondiwindi and had been to his house where he had met Joanne Palmer and Guyon Clark. This appears to have been a couple of months before the night in question. He had never had a problem with Emmett before.

12. Rachel Nagle who gave evidence said that she did not wake on either of the occasions to which I have just referred although she woke at what she thought was about 3.00 am to feed their 12 month old daughter. After feeding her she fell asleep in the lounge room with her daughter and did not go back to bed. She woke again at about 5.30 am. Shortly after that she noticed a CD walkman which had not been in the house before. She said that she asked the appellant how it got there and he said that Emmett had given it to him as a birthday present. In fact it had belonged to the deceased James Hunt.

13. The appellant went to Year 10 at school but apparently did not properly learn to read and write. He was described by Ms Nagle as "not that bright. He knows about cattle and his work, but from reading and writing he's not too good at". She also agreed with the proposition that he tended to rely on her or his mother in relation to organizing things in his life. But there was no evidence that he was intellectually impaired or could not understand what he was being asked or what was said to him. A report by a clinical psychologist of a psychological assessment of the appellant on 15 September 2003 was tendered on sentence but was not before the court on his trial.

(b)The grounds of appeal

14. Four grounds of appeal against conviction were argued. They were:

"(b)That the trial Judge erred in Law when he ruled that the defence of Section 25 'Sudden or Extraordinary Emergency' was not open to be left to the jury on a charge of Murder.

(c)That the trial Judge erred in Law when he ruled that the defence of Section 25 'Sudden or Extraordinary Emergency' was not open to be left to the jury on a charge of Manslaughter.

(d)That the trial Judge failed to direct the jury adequately or sufficiently in relation to the defence of compulsion and how its provisions applied to the facts of this case.

(e)That the trial Judge misdirected the jury by not directing them sufficiently on the elements of and distinctions between the 2 types of compulsion and further failed to direct them sufficiently in relation to the question of reasonableness in the circumstances that then applied to the Appellant."

(c)The relevant Code provisions

15. Section 25 of the Criminal Code is in the following terms:

"25Extraordinary emergencies

Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise."

16. Section 31 of the Code is relevantly in the following terms:

"31Justification and excuse – compulsion

(1)A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say –

…

(c)when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person's presence;

(d)when –

(i)the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat;  and

(ii)the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat;  and

(iii)doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.

(2)However, this protection does not extend to an act or omission which would constitute the crime of murder …

… "

(d)Grounds (b) and (c)

17. It is convenient to consider grounds (b) and (c) together. These raise the question whether the defence of extraordinary emergency should have been left to the jury on the charges of murder or manslaughter. The learned trial judge refused to leave that defence to the jury on either charge.

18. It was submitted to this Court on the appellant's behalf that the learned trial judge should have allowed both the defences of compulsion and extraordinary emergency to go to the jury, notwithstanding the opening words of s 25, because it was submitted that, if the jury were satisfied beyond reasonable doubt that the facts on which they were directed did not found a defence of compulsion, it would have been open to them to fail to be satisfied beyond reasonable doubt that those facts together with some other facts did not found a defence of extraordinary emergency. That was so, it was submitted, because the facts relied on to found the defence of extraordinary emergency were wider than those relied on for the defence of compulsion.

19. The principal facts which might give rise to the defence of compulsion under s 31 were that the appellant was woken in the middle of the night by Emmett. Emmett "had that look in his eye" and asked for the appellant's gun in a fairly aggressive way, telling him he had two people in the boot and, when the appellant refused, grabbed him by the shirt and said "Give me the gun or you'll be in the boot too". Additional facts which were relevant to that defence were that the appellant lived in a remote location, that his partner, child and members of his family were in the house and that there were no other members of the household who could have assisted him if he had attempted to resist Emmett. It was these facts, and no others of significance, which the appellant's counsel also submits gave rise to a defence of extraordinary emergency. It is therefore not correct that the facts relied on to found the defence of extraordinary emergency were wider than those relied on for the defence of compulsion. It remains to consider the circumstances in which the opening words of s 25^[2] exclude its operation.

20. I would construe the opening words of s 25 as excluding its operation where the provisions of the Code relating to acts done upon compulsion are brought into operation;  that is, where the act and what is said to be the compulsion require the application of s 31(1)(c) or s 31(1)(d).  This will be when the evidence establishes an act which, arguably, was done in response to actual and unlawful violence or serious harm threatened to the actor or to some other person.  That was the case here.  The act said to be done upon compulsion was the act of handing over the gun and the act of compulsion was said to be Emmett's threat.

21. A somewhat similar construction has been given to a similar phrase in s 23: "Subject to the express provisions of this Code relating to negligent acts and omissions".^[3]  It was held that s 23 was excluded by these words in circumstances in which, on the evidence, the accused was in charge of a motor vehicle.  The Crown was thereby obliged to prove criminal negligence.  Here, by analogy, s 25 is excluded once the evidence establishes a threat and an act done apparently in response to it.  The Crown is then obliged to exclude the operation of s 31(1)(c) and s 31(1)(d).

22. It is true that the defence of compulsion does not extend to an act or omission which would constitute murder: s 31(2). However, as already mentioned, the act of the appellant, handing over the loaded rifle to Emmett, was the act said to be done upon compulsion within the opening words of s 25. It is therefore excluded from the operation of s 25 by those words. The fact that the protection of s 31 is not extended to that act if it was accompanied by knowledge that Emmett intended to kill or do grievous bodily harm to one or both of his victims does not affect the earlier exclusion of s 25.

23. Were it otherwise s 25, which might be thought to require less by way of justification or excuse than s 31, would provide a defence to an act to which s 31 applies in circumstances in which s 31 would not provide a defence because of the seriousness of the offence; that is if, and only if, that act was one of killing, done with the intention of killing or doing grievous bodily harm or of aiding in killing with the knowledge that the principal offender intended to kill or do grievous bodily harm. That would be an absurd result. It was not a construction relied on by counsel for the appellant though it had been relied on for the appellant at trial.

24. These grounds of appeal must therefore fail.

(e)Grounds (d) and (e)

25. These raise the question whether the directions given by the learned trial judge on the defence of compulsion in respect of the charge of manslaughter were inadequate or contained misdirections. The inadequacy was said in oral argument to be a failure to mention all of the factors from which compulsion could be inferred. The learned trial judge specifically mentioned in this respect that Emmett woke the appellant in the middle of the night, that he held or grabbed his pyjama front or shirt front, that he "had that look in his eye", that he mentioned two people in the boot of his car and that he threatened the appellant that if he did not give him the gun he would be in the boot too. His Honour was criticized for not adding that it was in the middle of the night at a remote location in circumstances in which the appellant was frightened of Emmett and had no prospect of help from others in the house.

26. However the learned trial judge in summing up the arguments for the appellant referred to the fact the appellant's counsel described Emmett as a man capable of gross violence, of enormous violence and was shown to have been a brutal man notwithstanding that there was no evidence that this was known to the appellant. His Honour also referred to the argument by the appellant's counsel that the appellant was young, placid by nature and not a quick thinking or articulate man. In view of the fact that the time of night and remoteness of the location, and that the appellant said he was frightened, would plainly have been in the jury's minds, I think that his Honour's summary of the relevant factors was adequate. Accordingly ground (d) must fail.

27. In oral argument what was said to be a misdirection was as to the requirement of s 31(1)(d)(ii).

28. The learned trial judge directed the jury in respect of s 31(1)(c) in the following terms:

"If you accept that view of the facts - that those things occurred as Smith told Mr Rutherford they occurred - you consider whether the look in the eye, the grabbing of the shirt, the threat to put Smith in the boot of the car along with the others was actual and unlawful violence threatened to Smith and that the act of giving the rifle to Emmett was reasonably necessary in order for Smith to resist that actual and unlawful violence.  And, no doubt, the implicit threat to put Smith in the boot of the car with the others would be actual and unlawful violence which was threatened to Smith.  So looking at that part of section 31, you are concerned with whether, in the circumstances described as you find them to be, it was reasonably necessary for Smith to give the rifle to Emmett to resist the threat made to him."

No criticism is made of this part of his Honour's direction.

29. His Honour then directed in respect of s 31(1)(d) in the following terms:

"And the second part of section 31 is this - I'll quote it again:  'A person isn't criminally responsible for an act … ' - that's giving the rifle - '… when the person does the act in order to save himself from serious harm or detriment threatened to be inflicted by some person … ' - Emmett - ' … in a position to carry out the threat and the person doing the act … ' - that's Smith giving the rifle - ' … reasonably believes he is unable otherwise to escape the carrying out of the threat and doing the act … ' - that's giving the rifle - ' … is reasonably proportionate to the harm or detriment threatened'."

30. A little later his Honour further directed with respect to both s 31(1)(c) and s 31(1)(d) in the following terms:

"Now, two things are called for by the section in what Mr Davies called compulsion type 1.  I'm not sure that's an entirely accurate description of it.  The act of giving the rifle must be reasonably necessary in order to resist actual and unlawful violence.

When the section talks about the act being reasonably necessary, it's talking about an objective standard.  That is looking at the situation objectively from outside, as ordinary reasonable persons in society look at it;  was the act reasonably necessary to avoid the threat.  It doesn't matter - the test is not what the person involved himself thought was reasonably necessary.  The test is objective;  what, looking from the outside as ordinary members of society, was reasonably necessary?

And the same comment applies in relation to the second aspect of the section where it talks about the person doing the act reasonably believes he is unable otherwise to escape the carrying out of the threat is not what the person actually subjectively believes, but what is objectively reasonable as a means of escaping the threat."

31. It is plain that in the first two paragraphs in the passage quoted his Honour is talking about s 31(1)(c). And in the third paragraph he is talking about s 31(1)(d) and, in particular s 31(1)(d)(ii). It is in this third paragraph in which it is said the learned trial judge misdirected the jury.

32. The element in s 31(1)(d)(ii) requires:

1. a belief;  and

2. that that belief is reasonably held.

Put more accurately in terms of the burden of proof the prosecution had to prove either that the appellant did not believe that he was unable otherwise to escape the carrying out of the threat or that such a belief was not a reasonable one.

33. It was not argued, or at least not seriously argued either at trial or in this Court, that the appellant did not have that belief. The question, or at least the main question was whether that belief was reasonable. It was in that context that his Honour made the comment contained in the third quoted paragraph.

34. Nevertheless it is correct, in my opinion, as the appellant contends, that the direction was wrong. The question was not what was objectively reasonable as a means of escaping the threat but whether the appellant reasonably believed that he was unable otherwise to escape the carrying out of the threat. His Honour would have stated this correctly if, instead of saying "what is objectively reasonable as a means of escaping the threat" he had said "what is an objectively reasonable belief as to inability otherwise to escape the carrying out of the threat".

35. However, in my opinion, this misdirection favoured the appellant. Leaving aside the way in which the matter should be put because of the burden of proof his Honour told the jury that it was sufficient for the application of s 31(1)(d)(ii) that what was done was objectively reasonable as a means of escaping the threat. But that was not sufficient. What was necessary was a reasonable belief that there was no other means ("is otherwise unable to") of escaping the threat. In other words whilst what was done, here handing over the gun, might be a reasonable means of escaping the threat, the defence would fail if there was another reasonable means of escaping the carrying out of the threat, or possibly even if the appellant could have reasonably believed that there was another means of escaping the carrying out of the threat, in which case the appellant could not have reasonably believed that he was unable otherwise to escape the carrying out of the threat.

36. An explanation to a jury of the operation of s 31(1)(d) is complex for, leaving aside the existence of a belief within the meaning of s 31(1)(d)(ii), the principal questions are of objective fact in par (i), of an objectively reasonable belief as to a negative in par (ii) and of reasonable proportionality in par (iii). Whilst I think that the learned trial judge's direction contained the error which I have outlined, because the existence of the belief was not seriously in issue I do not think that, for the reason given in the preceding paragraph, that error resulted in any substantial miscarriage of justice. There was no request for any redirection on this matter. I would accordingly dismiss the appeal against conviction.

2.Sentence

37. The appellant was 20 years of age at the time these offences were committed and 21 at the time of sentence.  He had no prior criminal history.  It is plain that the jury convicted him on the basis that he handed over the gun with the expectation that it would be used to shoot each of the deceased but not to cause either of them death or grievous bodily harm.  That unusual verdict was no doubt arrived at because the jury thought that the appellant was "not very bright".  A person of average intelligence would have realized that shooting people at what would probably be close range with a .303 rifle would be intended to cause death or grievous bodily harm to them.

38. That the appellant was not very bright was confirmed on sentence by the opinion of a clinical psychologist Professor Susan Hayes, Associate Professor and Head of the Centre for Behavioural Sciences, Department of Medicine, University of Sydney. Professor Hayes found the appellant to be in the category of borderline intellectual disability functioning at a level lower than 95 to 97 per cent of the population. She also observed him to be insecure and to have low self-esteem. He told her that he responded to threats of violence or aggression by going into a state of panic anxiety. It is likely in the circumstances that the appellant believed that he would be bundled in the boot with the other two victims if he did not hand over a rifle. And it may be that his state of panic caused him to hand over the .303 rifle rather than the less lethal .22 rifle.

39. All of this, in my opinion, makes this a very unusual case. It is true that, by handing over the lethal rifle to Emmett, the appellant played a critical role in the murder of the two victims. But his personal inadequacy and the panic which he probably felt at the time puts this case, in my opinion, at the low end of the range of cases in which a person hands over a gun knowing it is to be used to shoot other people.

40. In imposing the sentence which he did the learned sentencing judge acknowledged the unusual nature of this case and that that posed some difficulties. Nevertheless he thought that the cases of R v Jervis^[4] and R v Schuurs^[5] established a range for offences of this kind of between 10 and 14 years imprisonment.  With great respect to his Honour I disagree with that conclusion.

41. Jervis was also a most unusual case but for different reasons.  It was described by McPherson ACJ as one associated with circumstances of peculiar horror and cruelty.  In the days before the deceased was killed four women including the appellant discussed a plan put forward by one of them, Wiggington, who claimed to be a vampire who needed to drink human blood to survive.  The plan was to use the car of another of the women to drive around the city to locate some unsuspecting victim.  He, or possibly she, would be lured into the car and taken to a place where Wiggington would be able to "feed" on his or her blood.  The deceased was lured into the car, taken to a park beside the Brisbane River where he was killed by means of knife wounds, 15 or more, inflicted to the back of his neck and chest.  The two main arteries in the left upper neck were completely severed.  His spinal column and spinal cord were almost cut through.

42. The appellant, it seems, had supplied the knife which Wiggington had used and had taken some part in luring the victim into the car. The appellant was convicted after a trial of manslaughter, on an indictment for murder, apparently on the basis that, at the very least, she and Wiggington had formed a common intention to carry out the unlawful purpose of wounding the deceased in order to supply Wiggington with blood.

43. That case, as can be seen from that description of the facts, was a very much more serious one than this notwithstanding that the appellant there was only 24 years of age, had no previous convictions and had a good work record. A sentence of 18 years imprisonment was reduced on appeal to one of 12 years which, when account was taken of the time already served in custody, would amount to a little over 14 years imprisonment.  I find it difficult to make any useful comparison between that very serious case and this.

44. Schuurs was convicted of manslaughter after a trial and sentenced to 10 years imprisonment. It followed automatically as it did in this case that he was convicted of a serious violent offence with the consequence that had for his sentence.

45. On the day in question Schuurs and two other people, Semyraha and Mitchell went to the house of the deceased to collect a drug debt of $1,500. To that end Schuurs supplied a car which he drove to the scene and a 22 calibre rifle and ammunition with which it was intended to shoot the deceased in the leg if he did not pay. At the deceased's house Schuurs confronted him and demanded payment. The deceased then retired into the house and returned armed with a knife in each hand. The applicant then retreated to a position behind the car and instructed Semyraha to shoot the deceased in the leg. Semyraha did shoot the deceased but in the chest, killing him.

46. As the learned sentencing judge recognized here, Schuurs was a more serious case than this.  Schuurs supplied the car, the rifle and the ammunition.  It was he who confronted the deceased.  And it was he who instructed Semyraha to shoot the deceased.  A comparison of that case with this, in my opinion, indicates that the appellant should receive a sentence lower than that imposed on Schuurs.

47. That no other comparable decisions were cited by either side is not surprising given the unusual circumstances of this case. In my opinion a comparison of this sentence with that imposed on Schuurs indicates that this was manifestly excessive. I think that a sentence of eight years imprisonment would have been an appropriate sentence.

48. Nor do I think that this is an appropriate case in which to declare the appellant to be convicted of a serious violent offence. There is no doubt that the offences committed principally by Emmett and Clark were very violent and extremely serious. Nor do I intend by what I say to detract from the seriousness of the appellant's conduct in handing over a loaded rifle knowing that it was to be used to shoot two people. But when one has regard, as we must, to the limited intellectual and emotional capacity of the appellant, as explained by Professor Hayes, his passive temperament and the circumstances of his involvement, I think it inappropriate to make such declaration in this case.

Orders

1. Dismiss the appeal against conviction.

2. Grant the application for leave to appeal against sentence and allow the appeal against sentence.

3. Set aside the sentence imposed by the learned sentencing judge.

4. In lieu, sentence the appellant to eight years imprisonment.

5. Declare that a period of 52 days between 24 December 2002 and 13 February 2003 and the night of 20 - 21 July 2004, a total of 53 days, to be time served under the sentence.

49. FRYBERG J:  I agree with the reasons given by Davies JA for dismissing the appeal against conviction.

50. In passing sentence, Chesterman J described the appellant as a simpleton. He also said:

“I take the jury's verdict to reflect the fact that they had a reasonable doubt that when [the appellant] handed his gun to Emmett he subjectively knew or understood that it would be used to shoot Sharon Clark and James Hunt with the intention of inflicting death or grievous bodily harm.  They can, I think, have entertained that doubt only on the basis of [the appellant’s] dimness.”

51. However his Honour did not fully accept the evidence of Professor Hayes. He said:

“There is evidence before the Court from Professor Hayes of that limited intellect.  I repeat, though, the remark I made when dealing with an application to have [the appellant’s] confession excluded from evidence, that Dr Hayes’ assessment of [the appellant's] intellectual capacity appears to overstate his handicap.  He appears to function in the community at a higher level than Professor Hayes’ test results would suggest.”

52. It is implicit in the jury's verdict that the appellant knew and understood when he gave Emmett the rifle that it would be used to shoot the people in the boot of the car. His actions constituted serious criminal conduct. Nothing in the circumstances of the case reduced his responsibility for that conduct; under our law he was fully criminally responsible. I do not think this division of the court should encourage the notion that those who assist in homicide may have their sentences reduced by performing poorly in IQ tests conducted after the event.

53. It is now said that the sentence imposed by the trial judge was so high as to manifest an error in the exercise of the judge’s discretion. A number of factors are said to support this view. One is Professor Hayes’ opinion that the appellant was in the category of borderline intellectual disability, functioning at a level lower than 95 to 97 per cent of the population. As I understand his sentencing remarks, Chesterman J rejected that evidence.  Another is a finding of fact not made by the sentencing judge that it is likely that the appellant believed he would be bundled into the boot with the other two victims if he did not hand over a rifle.  I cannot concur in such a finding.  I do not think it is warranted by the fact that the appellant told Professor Hayes that he responded to threats of violence or aggression by going into a state of panic anxiety, nor by her observation of him as insecure and having low self-esteem. 

54. It is noteworthy that the appellant chose not to give evidence on sentence. That fact can be ignored if one adopts the view that sentencing judges are not as reliable at assessing criminality as clinical psychologists. I do not adopt that view. To my mind, in the absence of evidence from the appellant himself, it is mere speculation to think that the appellant’s state of panic caused him to hand over the .303 rifle rather than the less lethal .22 rifle.

55. I acknowledge the difficulty created by the sentence of 10 years imprisonment imposed in R v Schuurs^[6].  However the decision of the Court of Appeal in that case was simply that 10 years was not manifestly excessive.  As Chesterman J observed in the present case, it is not easy to reconcile a sentence of 10 years in that case with the sentence of 14 years imposed in R v Jervis^[7]. With the benefit of hindsight I now think the sentence in Schuurs was too low.  In imposing it I was to some extent influenced by questions of parity with Mitchell.  She became eligible for parole after four years, and Schuurs became eligible after eight.  As the judgment of the Court of Appeal showed, there was not a problem with parity.  Schuurs should have been sentenced to at least 12 years imprisonment.  The appellant's conduct was not as serious as that of Schuurs.  However the fact that Schuurs escaped lightly does not warrant a reduction in the penalty appropriate to the appellant.

56. I would dismiss the application for leave to appeal against sentence.

57. MULLINS J:  I agree with the reasons for judgment of Davies JA and the orders proposed by his Honour.