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R v Mallie; ex parte Attorney-General[2009] QCA 109

R v Mallie; ex parte Attorney-General[2009] QCA 109

 

SUPREME COURT OF QUEENSLAND

  

PARTIES:

R
v
MALLIE, William Michael
(respondent)

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

(appellant)

FILE NO/S:

SC No 100 of 2007

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

DELIVERED ON:

1 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2009

JUDGES:

McMurdo P, Chesterman JA and Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.The appeal is allowed

2.The sentence imposed in the Supreme Court at Cairns on 27 November 2008 is set aside and instead the following orders are made:

a.The respondent is sentenced to 10 years imprisonment

b.The offence is declared to be a serious violent offence

c.145 days pre-sentence custody is declared to be time served under the sentence

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – respondent pleaded guilty to attempted murder and was sentenced to eight years imprisonment with parole eligibility after serving two years and six months – respondent had prior conviction for a similar offence – whether sentence manifestly inadequate – whether sentence failed to reflect the gravity of offence and the need for general deterrence 

Penalties and Sentences Act 1992 (Qld), s 9(4), s 306(a)

R v Babsek; ex parte Attorney-General of Queensland (1999) 108 A Crim R 141;[1999] QCA 364, cited

R v Bitossi [1984] 2 Qd R 51, cited

R v Farquhar [1994] QCA 589, cited

R v Forster [2002] QCA 495, considered

R v Harms [2002] QCA 99, questioned

R v Kerwin [2005] QCA 259, considered

R v McGuren [1996] QCA 511, cited

R v Reeves [2001] QCA 91, considered

R v Ryder [1995] QCA 546, considered

R v Sauvao [2006] QCA 331, considered

R v Schaefer [2001] QCA 327, considered

R v Tevita [2006] QCA 131, cited

COUNSEL:

A W Moynihan SC and K Brisic for the appellant

B Devereaux SC and K Hillard for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the applicant

Legal Aid Queensland for the respondent

  1. McMURDO P:  William Michael Mallie pleaded guilty on 7 July 2008 to one count of attempted murder.  He was sentenced on 27 November 2008 to eight years imprisonment with parole eligibility fixed at 5 January 2011, that is, after serving two years and six months.  Pre-sentence custody of 145 days was declared as time already served under the sentence.  The appellant, the AttorneyGeneral of Queensland, contends that the sentence is manifestly inadequate in that it fails to reflect the gravity of the offence and to sufficiently take into account the need for general deterrence.
  1. I would allow the appeal and increase the sentence to 10 years imprisonment. As this would mean Mallie must serve eight years imprisonment[1] instead of two years and six months imprisonment before being eligible for parole, I wish to fully and carefully explain my reasons for doing so.

The sentencing proceedings on 7 July 2008

  1. Mallie was 48 years old at the time of the offence and 50 when he was sentenced. It is highly relevant to this appeal that he had a previous conviction on 8 June 1994 for unlawful wounding.  He stabbed his then de facto and the mother of his children with a knife to the chest.  The knife penetrated between the ribs and the victim was hospitalised overnight.  He was sentenced to two years imprisonment, wholly suspended, with an operational period of three years.
  1. According to the prosecutor at sentence, the offence the subject of this appeal, attempted murder, occurred in this way. The complainant was 40 years old. She lived at Napranum with her partner, who was known in that community as "Wizard".  She was friendly with Mallie.  They used to fish and camp overnight together.  When her relationship with Wizard broke down in September 2006, her relationship with Mallie became intimate.  They lived together for about three weeks.  She decided, however, to return to Wizard.  Mallie became jealous and overbearing.  The complainant made plain to him that she considered their relationship over.  Mallie was unhappy and continued to tell her that he loved her. 
  1. The prosecutor said that Mallie continued to frequently telephone the complainant and to leave messages on her mobile. She did not respond. She sometimes saw Mallie riding his bike in the vicinity of her home, but they had no dealings from October 2006 until January 2007 when she began work as a kitchen hand at the single persons quarters at Weipa. At 4.10 am on 2 January, she left her home where she lived with Wizard to start work at 4.30 am. She saw Mallie standing on a street corner with a torch in his hand waving her down. She yelled out that she had to go to work and continued on her way.
  1. The next day, she completed her shift at about 1.00 pm and walked to Wizard's Toyota LandCruiser which she had parked at the back of her work premises. Mallie was standing near the LandCruiser. She offered him a lift to Napranum and he accepted. He asked her to drop him at the "pipeline", adding that he would walk home from there. The "pipeline" is in an isolated area of bushland and beach on the Weipa side of Napranum, along a bush track off the main road. She decided it was too hot for him to walk so far and insisted on dropping him off at his "donga" at Napranum. She stopped the LandCruiser near his home. She was wearing her seat belt and the engine was running.
  1. Mallie suddenly jumped on her, putting his knees against her legs, and stabbed her hard in the left shoulder with a knife. She felt the knife blade snap. Mallie then punched her in the head. She tried to block her face with her right hand whilst trying to undo her seat belt and open the car door with her left. He hit her in the head about 10 times before she managed to get out of the LandCruiser. Her face was bleeding. She crawled away. He jumped on her back, again punching her to the face. They fell down a small slope off the bitumen road and continued to wrestle. She was bleeding profusely. He got her onto her back and sat on top of her. He had another thin filleting-style knife. He brought it down towards her throat. She protectively put her left hand up to her throat. The knife cut her finger and hand. She rolled her upper body over so that her throat was not exposed. She next felt a stab in the middle of her upper back, right on the backbone.  She felt the knife bend.  She managed to roll onto her stomach, take the knife from Mallie and push the knife down onto the ground.  Mallie was leaning down on her head and pushing her head into the dirt and leaves.  Her mouth was bleeding.  She was coughing.  She lost three false teeth. 
  1. Remarkably, she had the presence of mind to sense that she was weakening physically and that her best hope of surviving was to talk to Mallie. She asked him what he was doing. He responded, "I was going to kill you and kill me, too." This was the first thing he had said since he began to attack her. She responded, "God doesn't want us to die.  He wants us to live."  Mallie calmed down and let her get up.  She got into the LandCruiser, taking the knife with her.  She put it down beside the seat next to the driver's door.  She started the LandCruiser and Mallie got into the passenger seat.  She reassured him that she loved him and would leave Wizard for him; she would not say anything to anybody.  They then drove to the Napranum clinic where she immediately complained of his attack on her and received treatment. 
  1. Someone from the clinic telephoned the police who soon arrived and arrested Mallie. Police found that his backpack contained items for a short trip, together with a note which read, "Sorry, woman basher, Wizard." The prosecution submitted that this was a prepared apology by Mallie to Wizard and suggested premeditation consistent with his stated intent to kill the complainant and then himself. Police arranged for Mallie's blood to be tested.  It indicated a zero alcohol reading.  Police took photographs of her injuries and these were tendered at sentence.  This Court has seen those photographs.  They are generally consistent with the prosecutor's account of the attack.
  1. The complainant, miraculously, was required to spend only one night in hospital. She suffered lacerations and scratches, a stab wound three centimetres in length to her left shoulder and a stab wound to the left shoulder blade on her back of one centimetre.  Her left ring finger sustained a reasonably deep wound three centimetres in length requiring four stitches.  She had a blunt trauma to the head.
  1. The complainant's victim impact statement dated 19 August 2008 was tendered and stated the following. The wound to her back was not sutured because it was deep and needed to drain. She could not sleep on her back for some time. She suffered extreme pain for some period after the injury. Her left finger was still numb and her bottom teeth still loose at the time of the statement. She was receiving psychological treatment for a post traumatic stress disorder. She has lost confidence socially. She was unable to keep her job because of her time off work. During the attack she believed she was going to die.
  1. The prosecutor made the following submissions. The appropriate sentencing range for this offence was in excess of 10 years imprisonment. Mallie had a prior conviction for violence against a woman who was his partner. There was an element of premeditation consistent with the use of two knives and the note found in his backpack. The attack was prolonged, vicious and must have been terrifying for the complainant. Giving full credit to Mallie for his early plea of guilty and other mitigating factors, a head sentence of 10 years imprisonment was appropriate.
  1. Defence counsel at sentence emphasised the following matters. Mallie was hoping at the time of the offence to resurrect his relationship with the complainant. He wrote the note found in his backpack not on the day of the attack but at some time in the previous week when he was very angry at the complainant's partner.  Mallie had put the note in his backpack and forgotten about it.  The note referred to prior incidents of domestic violence that Mallie believed Wizard had committed on the complainant.  The photographs of the knives reflected that one had been at least partially damaged when run over by a vehicle after the attack.  Mallie had but one criminal conviction, 14 years before the present offence.  He was supported in court by two members of his large family of Torres Strait Islander descent.  He had been a talented club rugby league football player when a young man.  He had a good work history after completing an apprenticeship as a panel beater, a field in which he had worked for 15 years.  He had three adult children. 
  1. References tendered on his behalf confirmed defence counsel's submission that, in all other aspects of his life, Mallie was a highly respected member of the Torres Strait Islander and broader community in north Queensland; that his involvement in this and the previous offence was out of character; and that he was ordinarily a quiet, controlled person who helped others with their problems. 
  1. Defence counsel also emphasised these matters. In recent times, Mallie had suffered significant health problems. He was a chronic type 1 diabetic. This had resulted in chronic kidney disease and eye problems. He had had a coronary artery bypass which was being monitored at Cairns Base Hospital at the time of sentence. A tendered medical report confirmed this account. Mallie's very significant health problems would make the time he spent in prison more difficult than for the average inmate. Mallie was cooperative with the authorities. He immediately made ready admissions to the police at the Napranum clinic and pleaded guilty at an early stage. Mallie had undertaken counselling and anger management through Wuchopperen Health Service. Whilst accepting that the starting point was a sentence of about 10 years imprisonment, defence counsel contended that, after taking into account the guilty plea and the mitigating factors, a sentence in the range of eight to nine years imprisonment was appropriate.
  1. The judge expressed his perplexity at why Mallie, who was so well regarded in the community and had but one prior (and highly relevant) conviction, had attacked the complainant so viciously and with murderous intent. As Mallie's counsel was also at a loss to provide any satisfactory explanation, the judge ordered pre-sentence and psychiatric reports.

The pre-sentence and psychiatric reports and resulting sentencing submissions

  1. The sentencing proceeding resumed on 27 November 2008 after the pre-sentence report and psychiatric report had been prepared. The pre-sentence report shed no more real light on Mallie's offending. It contained the following information. Mallie said he had the knives in his bag because he intended to go fishing. The Indigenous Justice Group spokesperson reported that Mallie was no longer wanted in the Napranum community because the victim was living there. Mallie "expressed confusion about his behaviour at the time of the offence and denied any anger toward the victim. … [Mallie] expressed remorse for his actions and voiced shame for his behaviour."
  1. Dr James B Woolridge's psychiatric report noted the following. Mallie denied that he frequently telephoned or texted the complainant after their relationship ended. By contrast, he claimed that she would often ring him when Wizard had been violent towards her. It was at least Mallie's perception that, up until the commission of this offence, there was some prospect that the complainant would return to stay with him. On the day of the offence, he waited outside the complainant's work place to see if she would give him a lift home. He had his backpack with him containing knives because he planned to go fishing with another person, but this person went drinking instead. He hoped that the complainant might decide to come and live with him. He became upset when she dropped him off and told him she was staying with Wizard. He did not agree that he was angry with the complainant at this time. He was unable or unwilling to articulate what he was thinking. His health was poor.  He suffered from insulin dependent diabetes mellitus.  He had developed a retinopathy and his kidney function was quite severely impaired.  He was hypertensive and has severe coronary artery disease which necessitated coronary bypass surgery in January 2008.  He believed the result of the surgery was not as good as expected.  He suffered from gout.  Mallie was also "on multiple medications for these disorders which are likely to significantly shorten his life". 
  1. Dr Woolridge noted that Mallie did not give a history suggesting past mental disorder. Mallie described his childhood as "not too good". His father was habitually violent towards his mother when he was "drunk and sparked up". He and his siblings would try to prevent his father from assaulting his mother. He had not formed any relationships with women after breaking up with his de facto in around 1994 until his relationship with the complainant. He had been treated for depression whilst in custody awaiting sentence but this seemed to be more a reactive depressive illness rather than one which bore on his actions at the time of the offence. He showed no signs or symptoms of psychotic illness.  He had no formal thought disorder, paranoid ideation, delusional thinking or hallucinatory experiences.  He did not seem to be cognitively impaired.  He was profoundly remorseful for his actions and professed mystification as to how he could have done what he did.  He did not seem to have ongoing anger towards the complainant.  He was ashamed of his behaviour. 
  1. Dr Woolridge concluded that Mallie found in his relationship with the complainant someone who shared his passion for fishing. He became upset when he learned that Wizard had been abusing her. This may have rekindled memories and feelings associated with his own early life experiences of domestic violence between his parents. "Mallie has the capacity to act out, with potentially fatal violence, in situations where he is jealous, thwarted and frustrated." He was, however, deeply remorseful for this offence.
  1. The prosecutor, in response to Mallie's claims recorded in the pre-sentence report, stated that he had made contact with the complainant who denied that she had initiated contact with Mallie and led him to believe there was some future in their relationship.
  1. Mallie's counsel confirmed that Mallie's instructions were that he had ongoing contact with the complainant prior to the commission of the offence which led Mallie to believe there was still a prospect of their relationship resuming. On the day of the offence, Mallie had intended to go fishing with his brother. He packed his bags, including the two fishing knives, for that purpose. The backpack also contained toiletries and clothes. He met up with the complainant by coincidence and then accepted her offer of a lift home. When the complainant told him that there was no prospect of their relationship continuing and she was returning to her partner, he became upset and committed the offence. Since the sentencing proceedings were adjourned in July, Mallie had undergone further surgery for blocked arteries at the Princess Alexandra Hospital in Brisbane and stents were inserted. The procedure was not fully successful and he had grossly swollen legs with blisters. He required further surgery on the blocked arteries. Additionally, he had become completely blind in his left eye. Defence counsel again submitted that prison would be extremely difficult for him because of his poor health. She tendered two further references attesting to Mallie's good character.  After referring to R v Jurcik[2] and R v Rochester; ex parte A-G (Qld)[3] and R v Lester,[4] she repeated her contention that a head sentence in the range of eight years imprisonment was appropriate, adding that no declaration under Part 9A Penalties and Sentences Act 1992 (Qld) should be made; instead, a parole eligibility date should be set after about one third of the sentence.
  1. The prosecutor reasserted his submission made at the first hearing that a head sentence of 10 years imprisonment should be imposed.
  1. The judge observed that this contention seemed inconsistent with Rochester and Jurcik which supported a lower head sentence.

The judge's sentencing remarks

  1. In sentencing Mallie, the judge made the following observations. The 48 year old was at the time of the offence a respected member of the Napranum community where the incident occurred. The victim was a close friend who had been subjected to violence from her partner whom she left to commence a short intimate relationship with Mallie. A month later she again left her partner to live with Mallie. Mallie knew that she had again been physically abused by her partner. This caused him considerable distress.  He intended to go fishing on the day of the offence but this arrangement fell through and he met up with the complainant.  She gave him a lift to his home.  He had his fishing gear with him.  When she confirmed her intention to end her relationship with Mallie and to stay with her violent partner, Mallie lost control and violently attacked the complainant, stabbing her with such force that the knife broke.  He continued his attack with another knife, attempting to cut the complainant's throat but instead cutting her hand which she used to protect herself.  Once the complainant had placated Mallie, he did not resume his attack but assisted her and drove her to the clinic at Napranum. 
  1. Mallie had been a responsible citizen with a good work record. In recent years he had not abused alcohol. He had a prior criminal conviction for violence against his then de facto partner for which he was sentenced to a fully suspended term of two years imprisonment with an operational period of three years. The sentence suggested that the offence was not as serious as the present one. The judge referred to Jurcik, Rochester and Lester where sentences of nine, 10 and nine years imprisonment were imposed respectively after convictions of attempted murder following a trial.  When the circumstances of the present case were compared to those, Mallie's absence of premeditation supported a sentence of eight years imprisonment. 
  1. The judge considered the following matters were favourable to Mallie. He pleaded guilty at an early stage. He had a history of "previous good behaviour" and a good work record, particularly for someone of his background. He and his siblings had sometimes intervened to try to prevent violence between Mallie's parents. He had maintained contact with his large family who are supportive of him. Mallie was in very poor health so that any term of imprisonment would be more onerous for him than for others. Favourable references had been tendered on his behalf speaking of his good character. Dr Woolridge in his report referred to Mallie's emotional turmoil flowing from the indecision and conduct of the complainant. This understandably frustrated Mallie.  Until she dropped him off at his home on the day of the offence, he perceived that there was a prospect of the complainant returning to him.  He may have displaced his anger against the complainant's partner and Mallie's own father onto the complainant.  Taking into account all these factors, the judge decided that a serious violence offence declaration was not warranted and instead set parole eligibility after two and a half years imprisonment.

The submissions on appeal

  1. On behalf of the appellant, Mr Moynihan SC, who appeared with Ms Brisic, made the following submissions. The judge erred in finding no element of premeditation or preparation because of the note and the knives in the backpack. The judge further erred in considering the complainant's desire to end their relationship and Mallie's resulting emotional turmoil in any way justified or mitigated Mallie's irrational and determined violent assault on the complainant. The judge also erred in giving undue weight to Mallie's health problems which it seemed could be managed as well in jail as in a remote Indigenous community. Any deterioration in his health could be managed adequately by Corrective Services under the powers given by s 176 Corrective Services Act 2006 (Qld).[5]  The judge gave insufficient weight to the factors he was required to give primary regard to under s 9(4) Penalties and Sentences Act, particularly the need to protect members of the community from risk.  Mallie was a mature offender with a similar episode of violent offending arising out of jealousy and frustration.  R v Reeves,[6] confirmed in Rochester,[7] establishes that the appropriate sentence for attempted murder is somewhere between 10 and 17 years imprisonment.  In Lester[8] this Court noted that more severe sentences had been imposed recently for offences involving violence.  Even with the mitigating features of this case, the sentence which should have been imposed was one of 10 years imprisonment. 
  1. Counsel for the respondent, Mr Devereaux SC, who appears with Ms Hillard, emphasised that Mallie did ultimately desist from his violent attack and assisted the complainant. This factor made this case remarkable. The judge was entitled to accept the submissions made by defence counsel that there was no element of premeditation. Mallie's poor health was a significant factor properly taken into account in mitigating the sentence. The references tendered on Mallie's behalf attested to his special qualities. His prior conviction, although serious and of a concerningly like kind, occurred long ago. He was otherwise of good character and he had a good employment record. He had accepted responsibility for his actions and was remorseful. Rochester and R v Sauvao[9] demonstrated that the sentence imposed was within the appropriate sentencing range. 

Discussion

  1. The learned primary judge's finding that this offence was not premeditated was generous to Mallie in light of the note found in the backpack, his stated intent to the complainant during the attack and his subsequent conduct. Neither Mallie nor his counsel at sentence or on this appeal provided any plausible innocent explanation for that note. The defence, however, strongly submitted at sentence that the offence was not premeditated. In the end, the prosecution at sentence did not gainsay that defence contention. In those circumstances, and although I would have reached a different conclusion, it is impossible to conclude that the judge was wrong in finding that the offence was unpremeditated.
  1. But, on any version of events, Mallie viciously attacked the complainant, intending to kill her, by stabbing her left shoulder with a knife, snapping the knife blade. He then punched her about 10 times to the head causing her face to bleed.  When she managed to extricate herself from the vehicle, he followed, armed with another knife, and wrestled with her.  He sat on top of her and again tried to stab her, this time to the throat.  He cut her left hand and a finger as she tried to protect her neck.  He stabbed her a third time in the middle of her upper back on the backbone, causing the second knife to bend.  His attack on the complainant was prolonged, determined and vicious and, on his own admission, done with murderous intent.  Accepting the absence of premeditation, this offence remains a relatively serious example of the offence of attempted murder. 
  1. If, as Mr Moynihan contends, the judge treated as mitigating the fact that Mallie committed the offence because he was in emotional turmoil after realising the complainant would not resume their relationship, then that was an error. When one party to a broken relationship intentionally commits serious violence against the party who seeks to end the relationship, this is not a mitigating feature. It is seriously anti-social conduct warranting a condign sentence to appropriately reflect society's disapprobation and the need for general and specific deterrence: Lester[10] and R v Babsek; ex parte Attorney-General of Queensland.[11]  I am unconvinced the experienced sentencing judge was intending that this factor be a circumstance of mitigation.  I consider that his Honour was merely stating the relevant background facts and context of this case so as to understand and explain how Mallie, who clearly had many fine attributes and was otherwise respected in the community, could act in this dreadful way. 
  1. Ultimately, the questions raised by Mr Moynihan of whether the judge gave undue weight in mitigation to that factor, or to Mallie's very significant health problems, merge into a consideration of whether, in the light of all the exacerbating and mitigating factors, the sentence imposed (eight years imprisonment with parole eligibility after two years and six months) was manifestly inadequate. In determining that question, it is helpful to discuss to some of the cases the parties referred to at first instance and in this Court.
  1. Reeves can be quickly factually distinguished from the present case.  Reeves was convicted after a trial and was sentenced to 14 years imprisonment.  He and others formed a carefully executed plan to kill the complainant with a specially prepared bullet to be fired from a sawn-off rifle.  The complainant was lured to a house and shot.  The bullet penetrated his left buttock and left groin around the base of the penis.  He had a number of operations which were life-threatening but was ultimately left without any major injury.  Reeves had a lengthy criminal history including convictions for assault causing bodily harm, wounding, robbery and other offences of violence.  In an ex tempore decision, Williams JA, with whom the other members of the Court agreed, noted that:

"In all of those circumstances, bearing in mind that the authorities indicate that the appropriate range for the offence of attempted murder is generally from 10 to 17 years, a sentence of 14 years, given the facts and circumstances of this case, is not in my view manifestly excessive."

  1. Plainly, the facts of Reeves have very little in common with the facts of this case and the statement as to the appropriate range, which has often been referred to in subsequent cases, is specifically limited to the facts and circumstances of that case.
  1. In Rochester, Rochester pleaded guilty to aggravated unlawful stalking and doing grievous bodily harm with intent but not guilty to attempted murder of his wife.  He was convicted after a trial and sentenced to 10 years imprisonment.  The Attorney-General appealed against the adequacy of the sentence.  Rochester had separated from his wife after a 17 year volatile relationship.  He visited her in the hotel where she worked.  He armed himself with a fishing knife and stabbed her.  She suffered a four centimetre stab wound to the abdomen which lacerated the diaphragm, liver and stomach, spilling the contents of her stomach into the chest cavity; a contusion of the left lung; two further stab wounds to the upper chest superficial to the ribcage; and a laceration to the left cheek.  The most serious wound was seven and a half centimetres deep.  The complainant would probably have died without medical attention.  Rochester had a previous history of stalking the complainant and had previously threatened her life.  He had told her mother he was going to kill his wife.  This Court dismissed his appeal against conviction.  This Court concluded that, given Rochester's criminal history and the circumstances of the commission of the offence, any sentence less than 10 years would be manifestly inadequate, but the sentence was within range bearing in mind the principles apposite to an Attorney-General's appeal derived from Malvoso v The Queen[12] and Dinsdale v The Queen.[13] 
  1. Rochester was an even worse example of attempted murder than Mallie's.  Although Rochester was a trial, Rochester pleaded guilty to the almost as serious offence of doing grievous bodily harm with intent.  It demonstrates only that a sentence of 10 years imprisonment was at the very lowest end of the appropriate range in the circumstances apposite there.
  1. In Lester, Lester was convicted after a trial of attempted murder.  He was sentenced to nine years imprisonment with a declaration that the offence was a serious violent offence.  Lester violently attacked his estranged wife's partner, knocking him to the ground, kicking him in the face and then stabbing him with a sharp-bladed knife which had been lying on a nearby card table.  The knife broke in the attack when the complainant managed to extricate himself from underneath Lester.  Lester then picked up a steel tent pole and hit him about the head and shoulders.  After complainant armed himself with another tent pole, Lester desisted, returned to his car and drove away.  The complainant suffered a three centimetre laceration to the cheek; lacerations to his toes; a four centimetre laceration to the left leg;  a Vshaped injury to his forehead, abrasions to his left shoulder blade; bruising to his nose; a stab wound to his face from which blood was streaming and a haematoma in his neck.  Lester was 38 at the time of the offence.  He had a substantial criminal history for assaults, including an assault occasioning bodily harm for which he was sentenced to nine months imprisonment wholly suspended for an operational period of three years.  The offence of attempted murder was committed during that operational period.  Lester had served approximately 13 months on remand for this and an unrelated offence of breaking and entering, so that this custody could not be declared as time served under s 161 Penalties and Sentences Act.  The judge therefore reduced the sentence to reflect this.  The question for this Court was whether the effective sentence of a little more than 10 years was within the appropriate sentencing range. 

This Court noted that Lester's offence was not premeditated but it was ferocious, persistent and Lester had prior convictions for offences of violence.  This Court helpfully reviewed a wide range of authorities, including R v Bitossi,[14]R v Farquhar,[15] R v McGuren,[16]Jurcik and R v Harms.[17] The sentence imposed in Harms of nine and a half years imprisonment for a callous and premeditated execution-style shooting to silence a person whom it was thought was informing on an illegal drug operation was too low and appeared outside the appropriate range.  In the remaining cases, sentences of between six and nine years imprisonment had been imposed for the offence of attempted murder after a trial.  This Court noted that Farquhar, Bertossi and McGuren were decided some time ago and that since then sentences for offences of violence had increased. 

The Court also considered R v Ryder,[18]R v Schaefer,[19] R v Forster,[20] and Rochester. Ryder pleaded guilty at the commencement of his trial to attempting to murder his former wife, and was sentenced to 10 years imprisonment.  He went to the complainant's house armed with a knife, although he claimed to have an innocent explanation for carrying it.  He then attacked the complainant, causing two serious wounds to the upper part of her body.  He also attempted to strangle her and hit her head on the floor a number of times.  He eventually rang the ambulance, went to the police station, confessed and expressed remorse.  This Court determined that his 10 year sentence was within range but as the offence pre-dated Part 9A Penalties and Sentences Act, added a recommendation for release after four years.  Schaefer pleaded guilty to attempting to kill his mother whom he stabbed seven or eight times with a knife and left for dead in an isolated area.  Schaefer's sentence of 15 years imprisonment was not disturbed on appeal.  Forster was sentenced to 12 years imprisonment after pleading guilty to attempted murder and doing grievous bodily harm.  He shot his estranged wife at her work with a .22 calibre rifle, intending to kill her and then commit suicide.

This Court observed that none of those cases were closely comparable to Lester's.  Harms, Jurcik and McGuren suggested that Lester's sentence was very high.  Rochester and Ryder tended to support it.  Cases involving significant premeditation, like Schaefer and Forster, are likely to attract sentences of 12 years or more.  The Court ultimately concluded that Lester's sentence was high but not manifestly excessive.  As his nine year sentence for a persistent violent attack with a knife when the perpetrator was in a dominant position, had been reduced to reflect time spent on remand and was really a sentence of a little more than 10 years, the serious violent offence declaration was appropriate. 

  1. In R v Sauvao,[21] Sauvao pleaded guilty to attempted murder of his de facto wife and was sentenced to nine years imprisonment with a declaration that the offence was a serious violent offence.  Sauvao had a volatile relationship with his wife with whom he had three small children.  They separated and the complainant obtained an apprehended violence order against him.  He met up with her to spend some time with their children.  He tried to persuade her to meet the people with whom he was living.  She refused.  He became aggressive, jealous and accusatory.  He accompanied her and the children to a railway station.  In the guise of giving her a cuddle, he put his left arm around her neck and put her in a headlock.  With his right hand he tried to stab her in the heart with a small serrated kitchen knife about 20 centimetres in total length.  The blade snapped on the complainant's denim jacket.  She suffered no physical injuries from the knife.  He then punched, kicked and hit her head into a chair and pole.  When some bystanders intervened, he left the scene.  The following day he contacted the complainant, told her that he would hand himself in to the police for attempted murder and did so.  He admitted intending to kill her.  The knife was in his bag to use when he ate lunch.  Without his admissions, he could not have been convicted of the serious offence of attempted murder.  His only relevant criminal history was a breach of a domestic violence order in respect of the complainant.  This Court again noted that the range for attempted murder was generally between 10 and 17 years imprisonment. 

This Court referred to Jurcik who was convicted after a trial of attempting to murder a woman with a knife.  He had previously used her services as a prostitute.  He stabbed her eight times on her body and twice on her hand because he believed she had given him a minor sexually transmitted disease which he had passed on to his wife.  The knife broke, she escaped and fortunately made a full recovery.  Jurcik had no criminal history for offences of violence.  This Court did not disturb Jurick's sentence of nine years imprisonment, with neither a declaration nor a parole recommendation. 

This Court also referred to Forster, Rochester, Lester and R v Kerwin.[22]  In Kerwin, Kerwin broke into his estranged wife's house at night and tried to strangle her in front of their eight year old daughter.  Neighbours were unable to stop him and called police, who pulled him off the complainant.  He had convictions for assaults on the complainant and for breaches of domestic violence orders.  He was subject to the operational period of a suspended sentence for assault occasioning bodily harm at the time of the attempted murder.  He was convicted after a trial and sentenced to 12 years imprisonment. 

This Court considered that Sauvao did not have the aggravating features commonly found in many attempted murder cases where marital breakdown was involved.  Sauvao also had unusual mitigating features.  There was no element of premeditation, he had almost no criminal history and there was no significant physical injury to the complainant.  He pleaded guilty and was profoundly and sincerely remorseful.  His admissions to the police formed the basis of the attempted murder charge.  In those circumstances, this Court concluded that although a sentence of nine years imprisonment was appropriate, there should not have been a declaration of a serious violent offence.  His application for leave to appeal was allowed to the extent of setting aside that declaration.

Conclusion

  1. My extensive review of this Court's potentially relevant decisions involving sentences for attempted murder, especially those arising out of domestic relationship breakdowns and those post-dating the introduction of Part 9A Penalties and Sentences Act, demonstrates that the sentence imposed in this case was manifestly inadequate.  Mallie was a mature man with a chillingly similar 1994 conviction for violence on his then de facto partner.  A concerning aspect of any offence of attempted murder is that the offender intends to kill the victim, making it amongst the most serious of all criminal offences.  Even accepting, as the primary judge did, that Mallie's present offence was unpremeditated, Mallie tried to carry out his murderous intention with determination and ferocity. 
  1. The experienced sentencing judge clearly had considerable sympathy for Mallie. That is understandable as there were many mitigating features. Mallie was otherwise considered a good citizen in the north Queensland community. That said, his favourable references must be considered in the light of his commission of this offence and his 1994 conviction. He suffered grave health problems which will no doubt considerably shorten his life expectancy. The time he spends in custody will be more onerous for him than for others; he may not survive his long prison sentence. Most importantly, he did eventually desist from his murderous attack, cooperated with the authorities, pleaded guilty at an early time and was genuinely and deeply remorseful for his actions which he himself cannot understand. Mallie was fortunate that the complainant was not permanently and seriously physically injured. But this was not for the want of his trying: any one of his three stabbing motions with the two knives could have been fatal to the complainant. The physical injuries she suffered and the violence Mallie perpetrated on her were much greater than in Sauvao where a nine year sentence was imposed and in Lester where an effective sentence of a little over 10 years was imposed.
  1. As this Court recognised in R v Tevita,[23] sentences for the crime of attempted murder will vary greatly from one case to another.  My review of the more recent relevant cases convincingly demonstrates that the sentence imposed by the learned primary judge was manifestly inadequate.  In all the relevant circumstances pertaining to this case, a sentence of at least 10 years imprisonment should have been imposed.  Taking into full account the many matters in Mallie's favour, the fact remains that, with the intention of killing the complainant, he persistently and violently assaulted her with two knives, each of which was damaged during the ferocious attack.  Unsurprisingly, she has suffered serious psychological injuries. Mallie's commission of this offence, coupled with his 1994 offence of unlawful wounding, confirms Dr Woolridge's view that "Mallie has the capacity to act out, with potentially fatal violence, in situations where he is jealous, thwarted and frustrated".  The community rightly expects courts to impose heavy deterrent penalties for such repetitive, gravely anti-social behaviour.
  1. For these reasons, I would allow the appeal, set aside the sentence imposed in the Supreme Court at Cairns on 27 November 2008 and instead sentence Mallie to 10 years imprisonment.  The offence is declared to be a serious violent offence.  One hundred and forty-five days pre-sentence custody from 3 January 2007 to 4 January 2007 and 7 July 2008 to 27 November 2008 is declared to be time served under the sentence. 
  1. CHESTERMAN JA:  I agree with the orders proposed by the President for the reasons given by her Honour.
  1. MULLINS J: I agree with the President.

Footnotes

[1] See Penalties and Sentences Act 1992 (Qld), Part 9A.

[2] [2001] QCA 390.

[3] [2003] QCA 326.

[4] [2004] QCA 34.

[5] This provision allows for an exceptional circumstances parole order.

[6] [2001] QCA 91.

[7] [2003] QCA 326 at [31].

[8] [2004] QCA 34 at [55].

[9] [2006] QCA 331.

[10] [2004] QCA 34 at [4].

[11] [1999] QCA 364 at [13]-[14] and [36].

[12] (1989) 168 CLR 227 at 234.

[13] (2000) 202 CLR 321.

[14] [1984] 2 Qd R 51.

[15] [1994] QCA 589.

[16] [1996] QCA 511.

[17] [2002] QCA 99.

[18] [1995] QCA 546.

[19] [2001] QCA 327.

[20] [2002] QCA 495.

[21] [2006] QCA 331.

[22] [2005] QCA 259.

[23][2006] QCA 131 at [10].

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Editorial Notes

  • Published Case Name:

    R v Mallie; ex parte A-G (Qld)

  • Shortened Case Name:

    R v Mallie; ex parte Attorney-General

  • MNC:

    [2009] QCA 109

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Chesterman JA, Mullins J

  • Date:

    01 May 2009

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC100/07 (No Citation)07 Nov 2008Sentenced on plea of guilty to attempted murder to eight years imprisonment with parole after two years and six months
Appeal Determined (QCA)[2009] QCA 10901 May 2009Sentence manifestly inadequate; sentence increased to ten years imprisonment; appeal allowed: McMurdo P, Chesterman JA and Mullins J

Appeal Status

Appeal Determined (QCA)

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