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R v Hester[2008] QCA 277
R v Hester[2008] QCA 277
SUPREME COURT OF QUEENSLAND
PARTIES: | v HESTER, Benjamine Albert (applicant) |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | |
DELIVERED ON: | 12 September 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 August 2008 |
JUDGES: | Holmes JA, Mackenzie AJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal against sentence refused |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where the applicant was convicted on his plea of guilty of two counts of attempted murder – where the offences involved the use of samurai swords against the applicant’s ex-girlfriend and her step-father’s partner – where the arm of one complainant was severed in the attack – where the applicant received an effective sentence of 15 years imprisonment – where the applicant suffered from an organically induced personality disorder arising from a closed head injury – whether the sentence was manifestly excessive having regard to the applicant’s impairment CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where the learned sentencing judge found that there would be a risk to the complainants upon the applicant’s release – whether the learned sentencing judge gave adequate notice to defence counsel that he may make such a finding – whether the finding was supported by evidence Channon v The Queen (1978) 33 FLR 433; (1978) 20 ALR 1, applied R v Chivers [1993] 1 Qd R 432, cited R v Kerwin [2005] QCA 259, cited R v Neumann, ex parte Attorney-General [2007] 1 Qd R 53; [2005] QCA 362, cited R v Tevita [2006] QCA 131, cited |
COUNSEL: | C Reid for the applicant S G Bain for the respondent |
SOLICITORS: | Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent |
[1] HOLMES JA: I agree with the reasons of, and order proposed by, Mackenzie AJA. The applicant’s head injury and its sequelae might have been given greater weight in mitigation, but the learned sentencing judge’s approach to it as a sentencing factor was in accordance with what was said in Channon, and the sentence of 15 years, taken as a whole, was not manifestly excessive.
[2] MACKENZIE AJA: The applicant pleaded guilty to two counts of attempted murder (counts 1 and 3) one of unlawful wounding (count 5) and one of assault with intent to commit a crime (count 6). He was sentenced to 15 years imprisonment for counts 1 and 3, four years imprisonment for count 5 and imprisonment for one year for count 6. The application for leave to appeal is concerned only with the sentences on counts 1 and 3. There were two issues argued, that the sentences were manifestly excessive, and that the learned sentencing judge erred in finding that there would be a risk to the victims in counts 1 and 3 when the applicant is released. One facet of this is that it is argued that the learned sentencing judge did not give adequate notice to or allow the applicant the opportunity to be heard on the issue of being a continuing threat to the two victims.
The Facts
[3] The applicant and the complainant in count 1, Jennifer McLeod, had been in a relationship for about four years prior to the commission of the offences. After some difficulties in it, Ms McLeod terminated it on 12 February 2004. It may be noted at this point that the applicant had suffered a closed head injury in a motorcycle accident in June 2003 and thereafter suffered from an organically induced personality disorder. He did not take her refusal to have anything further to do with him well.
[4] The relevant history of the relationship breakdown is as follows. Towards the end of 2003, the applicant and Ms McLeod had been living at her sister's home. After an incident in which property was damaged, the applicant was asked to leave. After that, Ms McLeod went to live with her step-father, Stephen Foster, who is the complainant in count 5, and his partner, Margaret Tschirbig (the complainant in count 3). For the sake of completeness, the complainant to count 6 is a neighbour, Mr Hyland, who saw the final incident and came out onto the street to intervene.
[5] Ms Tschirbig was not prepared to have the applicant at the house and, as a result, she suffered some harassment by means of telephone calls and text messages. He persistently tried to contact Ms McLeod as well. Her employment was terminated because of the disruptive nature of the calls. On 15 February 2004 he sent a message asking her to ring him one last time for old times’ sake. She sent an email telling him emphatically that she did not wish to speak to him ever again. She continued:
"Can't you just accept it and move on with your life because none of this is ever going to change …".
She asked him to stop the harassment. He responded by asking for various possessions that he claimed back and informed her that he had been with another woman for weeks. In a footnote he said that Mexican said to say "hi". Whether that was a real person or a voice he later claimed was giving him malign advice is not clear, but she had heard of someone of that name whom he said was one of his friends. She said she was scared of him, interpreted it as a reference to him, and was frightened by the message.
[6] On 19 February 2004, Toogoolawah police received a call from the applicant's mother saying that he had left with a samurai sword and a knife saying that he was going to drive into a power pole. About an hour later, his mother reported that he was home again. When the police arrived, the applicant was standing in the lounge room with a butcher's knife against his throat. He was taken to Ipswich hospital under an emergency examination order under the Mental Health Act 2000 (Qld). After being examined and given some medication he was released the following day.
[7] On the day of his release, there was a frightening incident where he came to Ms McLeod's home. During the course of it, he was plainly agitated over the break-up of their relationship. After some time he damaged a pedestal fan. Eventually he asked her to go to the railway station with him. After some conversation about that, which included a threat to kill Ms Tschirbig, she went to the station with him. On the way and at the station he continued to try to persuade her to resume the relationship. About the time he got on the train he said:
"Ring me in three weeks or I'll kill Margaret."
In consequence of this incident, domestic violence orders were taken out against him by Ms McLeod and Ms Tschirbig.
[8] On 25 February 2004 he telephoned Ms McLeod when she was home alone. He talked to her for about an hour. About an hour and a half or two hours later, she heard his car, which had a distinctive sound, in the street. She hid under a bed but could hear that he had come into the house. She waited in that hiding place until Mr Foster came home. About half an hour later, two uniformed police officers arrived. They had been sent there because the applicant's father had rung the police and told them that the applicant was coming with a sword to the women’s house. The prospect that that was contemplated by him was supported by an email from his treating psychiatrist to the applicant’s general practitioner reporting that the applicant had telephoned him to say that he felt like slicing up his girlfriend.
[9] The offences occurred on 7 March 2004. At about 7.00 pm, Mr Foster, Ms Tschirbig and Ms McLeod had just arrived home. The phone rang and a male voice whispered "hello". The call was then terminated. Shortly afterwards Mr Foster thought he heard a noise at the front screen door. He thought he saw a person. After going to a place where he could get a better view, he saw the applicant was there. He then dialled 000. While he was doing so, the two women ran screaming towards him. The applicant came in holding two samurai swords, one long and one short. The applicant lashed out with the larger sword, as a result of which Ms McLeod received an injury to her thumb. Mr Foster crash tackled him and the women ran from the house. After a considerable struggle during which Mr Foster received an injury to his arm, he lost hold of the applicant.
[10] The applicant pursued the women outside. They had run to a nearby home to seek refuge but had been unable to gain entry. The applicant found them at the doorway. Ms Tschirbig interposed herself between Ms McLeod and the applicant, who struck her a number of times with the smaller sword. The force was such that her lower arm was severed.
[11] By this time, Mr Hyland, the complainant in count 6, had seen what was happening and ran to the scene. He armed himself with the longer of the two swords which had been discarded by the applicant and put himself between the applicant and the two women. The applicant tried to continue his attack on the women, telling Mr Hyland that he did not want to kill him. The women fled. Ms Tschirbig made good her escape but the applicant pursued Ms McLeod. Mr Hyland continued to protect her. Then Mr Foster arrived armed with a length of chain. Ms McLeod ran to Mr Foster and the applicant then threatened him and lunged at Ms McLeod. Mr Foster swung the chain and struck the applicant. By this time other neighbours were calling out that the police were on their way. The applicant ran to his car and drove home to Toogoolawah. When the police went to his home there, he surrendered without incident. He admitted his involvement in the offences.
The Issues in the Application for Leave