R v Dwyer[2008] QCA 117

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree that the application for leave to appeal against sentence should be refused, for those reasons.  I add the following observation in relation to the submission by counsel for the applicant (see para 31 of his Honour’s reasons for judgment) that the learned sentencing judge should have regarded the applicant’s intoxication as reducing the gravity of his offending.

[2] This Court rejected such a position in R v Rosenberger; ex parte Attorney-General [1995] 1 Qd R 677, 678:

"In a number of cases, Bradley (1980) 2 Cr App R(S) 12 is referred to;  there Lord Widgery CJ said:

'This Court finds nothing in the case to indicate that that sentence was other than entirely correct.  It is said that he was in drink.  So he was.  But the day is long past when somebody can come along and say ‘I know I have committed these offences, but I was full of drink’.  If the drink is induced by himself, then there is no answer at all.'

In Lane (1990) 53 SASR 480 at 485 Matheson J, after referring to Bradley, mentioned two earlier South Australian appellate decisions on the point, one of which is authority for the view that intoxication sometimes aggravates the penalty and sometimes mitigates it;  the second contains this statement:

'The ingestion of alcohol very frequently explains why an offence occurred.  It is very unusual for it to be a mitigating factor ...' (486).

Bradley has been referred to in Victoria, in Redenbach (1991) 52 A Crim R 95 at 99, where the Court of Criminal Appeal also referred to Tucker and Lewis as a previous decision of the same Court;  the relevant passages are to be found in (1989) 43 A Crim R 377 (especially at 379).  It was there held that self-ingestion of drugs by an offender did not mitigate the offences in question.  In Redenbach itself the Court said:

'Where, on the other hand, the Court is satisfied that there is something which, whether wholly or partly, excuses the taking of drink or drugs, it will treat that circumstance as going in mitigation, as where a drunken man who had committed an armed robbery showed that his alcoholism was the result of the painful disease from which he suffered ...'

Leaving aside the possibility just mentioned, it appears that ordinarily intoxication, whether by alcohol or other drugs, will not mitigate penalty.  The Courts deal with many cases involving offences, particularly of personal violence, said to have been committed by people who are drunk and sometimes drunkenness is put forward as an excuse for a rape, as it seems to have been here.  The proper policy appears to be generally to decline to give an offender the benefit of a reduction in sentence on the ground of his drunkenness at the time of the offence."

[3] The question arose again three years later in R v Haack ex parte A-G (Qld) CA 442/1998, 18 March 1999, where Pincus JA, with the agreement of Davies JA, said (page 4):

"A central point in the case is that according to the material before the primary Judge, the respondent is an alcoholic with a personality disorder and she was it appears, very drunk at the time of the offence, her blood alcohol reading being .252.  In Rosenberger; ex parte Attorney-General [1995] 1 Qd R 677, following authority in other jurisdictions, this Court held that unless there is something which excuses the taking of alcohol or other drugs by an offender, ordinarily intoxication will not mitigate penalty.  Since Rosenberger was decided, the case has in my view been fairly consistently followed.  The tendency has been to treat instances of violence or attempted violence by a drunken person as not requiring a reduction of sentence on account of the drunkenness."

Thomas JA said (page 8):

"But in the end she must accept responsibility for her own actions including the contribution of her voluntary intoxication."

[4] The exceptional case mentioned in the Victorian case of Redenbach concerned (page 99):

"A drunken man who had committed an armed robbery [who] showed that his alcoholism was the result of the painful disease from which he suffered ... drug addiction which contributed to an offence but which itself resulted from the medicinal use of drugs …"

Those are wholly exceptional cases.

[5] This question has most often arisen in relation to violent crime.  Mention may be made of drug crime not attended by personal violence, where, say, the crime is motivated by the compulsion to feed a personal addiction:  in those cases particular considerations may arise as to deterrence and rehabilitation.

[6] It is timely to re-emphasise that intoxication resulting from the voluntary ingestion of alcohol or drugs cannot generally be advanced as a circumstance mitigating the penalty to be imposed for violent crime committed while the offender was in that condition.

[7]  KEANE JA:  On 2 November 2007 the applicant was convicted, on his own plea, of the manslaughter of Phillip James McMillan ("the deceased").  The applicant's plea was accepted by the Crown in full satisfaction of the charge of murder which had been brought against him.

[8] On 13 November 2007 the applicant was sentenced to 10 years imprisonment for the offence of manslaughter.  Pre-sentence custody of 585 days was declared to be time served under that sentence. 

[9] On 13 November the applicant also pleaded guilty to one count of going armed so as to cause fear, one count of assault, one count of the dangerous operation of a motor vehicle while affected by an intoxicating substance, and three summary offences, one of possession of a knife in a public place and two of driving without a driver's licence while disqualified from obtaining a licence.  He was sentenced to lesser concurrent terms of imprisonment for those offences, and he was disqualified from holding or obtaining a driver's licence for two years.

[10]  The applicant seeks leave to appeal against the sentence imposed for the offence of manslaughter.  He contends that this sentence was manifestly excessive.

Circumstances of the offence

[11]  On 22 March 2006 the applicant had been drinking heavily from about 3.00 pm in the afternoon.  His state of intoxication was such that he was refused further service at both of the establishments where he had been drinking.  At about 10.30 pm, the applicant and a friend, Mr Paton, returned to the home of the deceased where the applicant had been living since he had moved out of his parents' house following a falling out with them.  The deceased was also the applicant's employer at the local darts club.

[12]  The applicant and the deceased became involved in an argument.  The deceased was seen by Mr Paton to "yell and scream" at the applicant.  When Paton had left the house, the deceased threw some objects at the applicant which missed him.  The applicant was very angry and he felled the deceased with a punch.  He then kicked him several times as he later admitted to police.  The applicant left the room to calm down.  He went outside and smoked a cigarette.  When he returned to the room where the deceased was on the floor, the applicant saw that the deceased was not breathing. 

[13]  At 11.39 pm, the applicant telephoned his former girlfriend and told her that he had hit the deceased and that he was not moving.  She advised him to call an ambulance, but he refused, saying that they would ask "too many questions".

[14]  He made further telephone calls to his ex-girlfriend and to his father.  In one of his calls to his ex-girlfriend, he threatened her with retribution if she told the police what he had told her about his assault on the deceased.  The applicant called his father at 12.22 am.  His father arrived at the unit within five minutes and, on arrival, told the applicant to call an ambulance.  The ambulance arrived at about 12.45 am.  At this time, there was no sign of life from the deceased. 

[15]  The applicant initially gave ambulance officers and police a false story to the effect that he had come home to find the deceased unconscious on the floor.  He subsequently admitted his role in the death of the deceased.

[16]  The blows to the deceased caused severe multiple facial fractures, traumatic shock, elevated blood pressure and cardiac arrhythmia.  The deceased died of cardiac arrest.  He was 51 years of age.

[17]  The applicant intended to plead not guilty on the basis that there was an issue as to the cause of the death of the deceased.  There was medical evidence to the effect that the deceased suffered from coronary arteriosclerosis which led to what was said to be "a massive heart attack".  This evidence supported the hypothesis that the heart attack was brought on by the stress of the argument which preceded the applicant's attack.

[18]  About a fortnight before the matter was due to be tried, the Crown sought advice from a cardiologist who expressed the opinion that there was no doubt that the applicant's assault on the deceased precipitated the cardiac arrest which led to his death.

[19]  Following the receipt of this opinion, the applicant agreed to plead guilty to manslaughter, and the Crown agreed to accept that plea on the basis that the Crown could not prove that the applicant had acted with the intention to kill the deceased or to do him grievous bodily harm.

The applicant's personal circumstances

[20]  The applicant was 22 years old at the time of the offences and 24 years old when he was sentenced.

[21]  The applicant has a significant criminal history.  When he was 17 years old, he committed offences of arson and breaking and entering.  When he was 18 years old, he assaulted a 14 year old boy causing him bodily harm.  The applicant was affected by alcohol at the time.  In December 2002 he was sentenced to two and a half years imprisonment with a parole recommendation after 10 months for those offences.  His history includes breaches of bail conditions and numerous street and traffic offences.

[22]  The offences of assault and going armed so as to cause fear for which he was also sentenced on 2 November 2007 were committed on 22 August 2005.  The applicant became engaged in a dispute with his next door neighbour.  He threatened the neighbour's wife, who was in her yard with her children, with a knife.

[23]  The offence of dangerous operation of a motor vehicle occurred on 23 February 2006 when he drove his vehicle onto the kerb and collided with the leg of a bystander.  He drove away.  He was subsequently located by police and found to have a blood alcohol reading of 0.1.

The sentence

[24]  The Crown Prosecutor submitted that the range of sentences was between 10 and 12 years imprisonment.  The applicant's Counsel submitted that the appropriate range of sentence was between nine and nine and a half years, without a serious violent offence declaration under s 161B(3)(b) of the Penalties and Sentences Act 1992 (Qld) ("the Act").  The learned sentencing judge took the view that the range of sentence in this case was between eight and 11 years after taking into account the applicant's plea of guilty on the one hand and his history of personal violence on the other.

[25]  The learned sentencing judge accepted that the applicant's delay in calling for help for the deceased could not be said to have deprived the deceased of a chance of survival.

[26]  The learned sentencing judge regarded the applicant's criminal history as a reflection of his problems with alcohol and aggression.

[27]  The learned sentencing judge expressed particular concern as to the applicant's failure to call for help for the deceased for at least an hour after he had rendered him comatose.  Her Honour accepted that the applicant was severely intoxicated and in a state of panic at the time, but took the view that the applicant's conduct after the assault showed a disturbing callousness about what he had done.  In imposing a sentence of 10 years imprisonment for the offence of manslaughter, her Honour said that she was "satisfied that it is appropriate that [the applicant has] to serve 80 per cent of that sentence before being eligible to apply for parole."

The arguments on the application for leave to appeal

[28]  On behalf of the applicant, it is argued that the sentence of 10 years imprisonment was outside the appropriate range.  In this Court, the appropriate range was said to be eight to nine years.

[29]  On the applicant's behalf, attention is drawn to the circumstances that the applicant did not use a weapon in his attack on the deceased, and that there was perceived provocation for his attack.  These circumstances are said by the applicant's Counsel to make this case analogous to R v Matthews,[1] where this Court set aside a sentence of 10 years imprisonment, and substituted a sentence of nine years, for an unlawful killing of a woman while in an amphetamine induced rage brought on by the offender's false belief that his victim had been involved in a burglary of his home which led to his wife suffering a miscarriage.  The level of drug toxicity in the victim meant that she was especially vulnerable to neck compression.  The offender in that case was 31 years old at the time of the killing.  He had a lengthy history which commenced when he was 18 with an offence of armed robbery with actual violence and included an assault occasioning bodily harm in company.  The balance of that offender's history was concerned with offences of dishonesty.  The offender eventually confessed to his responsibility for the death of his victim, albeit some years later and after police had been alerted to his involvement by others.  He said he had been troubled by what had happened "every day since".[2]

[30] R v Matthews is distinguishable from the present case in a way which is significantly adverse to the applicant by the present applicant's persistence in his attack on the deceased, and the lack of remorse reflected in the callousness of his conduct after he had beaten the deceased into a state of unconsciousness.  The learned sentencing judge was entitled to regard this as a particularly disturbing feature of the criminality of the applicant's offending and as an indicator that he continues to pose a danger to the safety of others.  It is to be contrasted with the situation in R v Matthews where the remorseful offender did not pose such an evident danger to the community.

[31]  On behalf of the applicant, it is argued that her Honour should have taken into account the applicant's state of intoxication and panic as factors which lessened the callousness of his conduct.  But the learned sentencing judge did not treat these matters as irrelevant in point of principle.  Rather, her Honour rejected the suggestion that panic and intoxication provided a plausible explanation for the applicant's conduct in the factual circumstances of this case, bearing in mind the contents of his telephone calls to his ex-girlfriend.  That view was open to her Honour.  The applicant had a sufficiently clear appreciation of the circumstances to make self-interested attempts to conceal his guilt, and to threaten his ex-girlfriend if she informed on him. 

[32]  It is also argued on the applicant's behalf that her Honour should have taken into account the circumstance that, by imposing a sentence of imprisonment of 10 years or more for the offence of manslaughter, s 161A of the Act would automatically make the offence a serious violent offence in respect of which the applicant would be obliged to serve eight years before becoming eligible for parole.  But it is quite clear that her Honour was fully alert to this consequence of the sentence which she imposed.

[33]  In R v Mooka,[3] de Jersey CJ, with whom Williams JA agreed, reviewed a number of this Court's decisions relating to sentences for manslaughter and observed that, in such cases, "the sentencing Judge's discretion is comparatively wide.  It must be because, as often noted, the circumstances of manslaughters are infinitely various."[4]

[34]  In R v Sebo; ex parte A-G (Qld),[5] Holmes JA, in a decision in which the other members of the Court agreed, reviewed again this Court's recent decisions relating to sentences for a brutal killing with limited provocation by a relatively young man without previous criminal history who has co-operated with the administration of justice.  Holmes JA concluded that in such cases the sentence "might properly have fallen between 9 and 12 years." 

[35]  On the applicant's behalf, it is said that R v Sebo should be distinguished because it was a case of intentional killing which would have been murder were it not for the availability of the defence of provocation under s 304 of the Criminal Code 1899 (Qld).  The further point was made that, in this case, it was accepted that the applicant did not act with the intent to kill or to do grievous bodily harm to the victim.  But these points ignore the fact that the review of the authorities in R v Sebo was not confined to cases where the partial defence of provocation reduced the offence from murder to manslaughter.

[36]  In the light of the recent review of the authorities by Holmes JA in R v Sebo, there is little purpose in yet another review of the authorities in this area.  Bearing in mind the range identified in R v Sebo, and the wide discretion which must be allowed a sentencing judge in such cases, it cannot be said that the sentence imposed in this case was outside the appropriate range. 

[37]  It is to be emphasised here that the sentence which was imposed is not shown to be outside the appropriate range by pointing to cases where the sentence ultimately imposed was less than 10 years[6] or where a sentence of 10 years imprisonment was imposed in a case where the offending might arguably be said to have involved greater criminality because, for example, as in R v Mooka, the offender used a pool cue as a weapon.  An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.[7]  In Markarian v The Queen,[8] Gleeson CJ, Gummow, Hayne and Callinan JJ said:

"Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is.  The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached.  As has now been pointed out more than once, there is no single correct sentence (Pearce v The Queen (1998) 194 CLR 610 at 624 [46]).  And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies (Johnson v The Queen (2004) 78 ALJR 616 at 618 [5]; 205 ALR 346 at 348 per Gleeson CJ; at 624, 356 [26] per Gummow, Callinan and Heydon JJ)."

[38]  In the same case, McHugh J said:[9]

"Unfortunately, discretionary sentencing is not capable of mathematical precision or, for that matter, approximation.  At best, experienced judges will agree on a range of sentences that reasonably fit all the circumstances of the case.  There is no magic number for any particular crime when a discretionary sentence has to be imposed.  What Jordan CJ said in R v Geddes ((1936) 36 SR (NSW) 554 at 555 – 556) about the reality of the sentencing process has never been bettered and probably has never been equalled.  With the passage of time, it is no longer cited as frequently as it once was.  But the whole judgment repays careful study.  I make no apology for setting out the crucial passage, lengthy though it is:

'This throws one back upon a preliminary question as to the general principles upon which punishment should be meted out to offenders.  In the nature of things there is no precise measure, except in the few cases in which the law prescribes one penalty and one penalty only.  In all others, the judge must, of necessity, be guided by the facts proved in evidence in the particular case.  The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none.  The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others. When the facts are such as to incline the judge to leniency, the prisoner's record may be a strong factor in inducing him to act, or not to act, upon this inclination.  Considerations as broad as these are, however, of little or no value in any given case.  It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule.

The position of the judge is analogous to that of a civil jury who are called upon to award damages for a breach of contract, or a tort, in relation to goods which have no market value, and for the assessment of the value of which no generally accepted measure exists.  The jury must do the best they can; and so must the judge.  In applying considerations as general as these, it is necessarily not often that it can be said, with reasonable confidence, that the sentence imposed was wrong.' (Emphasis added.)

This passage is not a testament of despair but a perceptive understanding of the reality of the sentencing process by one of the greatest judges that the common law system of justice has produced.  It recognises that the judge must weigh all the circumstances and make a judgment as to what is the appropriate sentence.  In R v Williscroft ([1975] VR 292 at 300), the Full Court of the Supreme Court of Victoria referred to this value judgment as an 'instinctive synthesis of all the various aspects involved in the punitive process.'  This was a candid recognition of the fact that in the end sentencing depends on the judge's assessment of what is the correct sentence.  There is no objectively correct sentence, only a range of sentences that the majority of experienced judges would agree applied to the case.  The only novelty in Williscroft was the description that it gave to the sentencing process."

[39]  In the present case, the consideration of community protection had a strong claim upon the discretion of the learned sentencing judge and the sentence which was imposed was within the appropriate range to give effect to this consideration while at the same time recognising that the applicant had not intended to kill or cause grievous bodily harm to the deceased. 

[40]  The simple but appalling fact is that the applicant's alcohol fuelled aggression resulted in the death of a human being.  That death resulted from a brutal beating.  The applicant persisted in his attack on his victim after any arguable ground of provocation had disappeared.

[41]  The applicant killed a man much older than himself.  The victim was a person who had shown the applicant kindness by providing him with accommodation and a job.  The applicant's savage mistreatment of someone who had treated him kindly is a matter of concern.  The applicant's reaction to having rendered his victim comatose revealed a degree of callous indifference towards others which the learned sentencing judge was entitled to regard as a matter of serious concern so far as the need to protect the community from the applicant's aggression was concerned.  That callousness is very much of a piece with other offences he has committed.  Her Honour was justified in not treating it as "out of character" for the applicant or as a consequence of poor judgment or momentary panic.  The need to protect the community from the applicant was no less compelling in this case than it was, for example, in R v Mooka.  It certainly cannot be said that her Honour was unreasonable in imposing a sentence which reflected that view.

Conclusion and order

[42]  I reject the contention that the sentence imposed on the applicant was manifestly excessive.

[43]  I would refuse the application for leave to appeal against sentence.

[44]  DOUGLAS J:  I agree with the reasons for judgment of the Chief Justice and Keane JA and with the order proposed by them.