R v Batchelor[2009] QCA 150

SUPREME COURT OF QUEENSLAND

HOLMES JA:  Justice McMurdo will deliver his reasons first.

McMURDO J:  On 6 March this year, the applicant was convicted on his pleas of guilty of attempted murder, burglary with actual violence while armed with a dangerous weapon and stealing.

On that first count, he was sentenced to a term of 13 years’ imprisonment, on the second to four years’ imprisonment and on the third to one year imprisonment, the sentences to be served concurrently.  A period of 324 days was deemed time served under the sentences.

Necessarily the offence of attempted murder was declared a serious violent offence.  He applies for leave to appeal his sentence of 13 years on the basis that it is manifestly excessive.  It is argued that the sentence should have been 11 years’ imprisonment.

These offences were committed on 14 April 2008 when the applicant was aged 20.  For a few weeks prior to then he had been living in the home of the co-offender, Robert Mitchell, who was then aged 40 years.  The applicant had known Mitchell all of his life, as Mitchell had been a friend of his father.  Mitchell was a tradesman and he gave the applicant some work. 

Mitchell had been in a relationship with a woman which she had terminated.  Mitchell was so angry about this that he decided to have the woman’s daughter murdered.  She was a woman in her 20s, living with her mother.  Mitchell asked the applicant to kill her.  He said to the applicant that he wanted to make the mother suffer and that the best way to do it would be to kill the daughter.  He asked the applicant to do that, and the applicant agreed.  They discussed how that might occur.

Mitchell was familiar with the house where the women lived and had done some work there.  He knew the security arrangements and the likely movements of the women.  He described how the daughter would drive her mother to work early each morning before returning home to get ready for work herself and that this would give the applicant an opportunity to get inside the house before the daughter returned.  He told the applicant that he should “trash” the house to make it look like a break and enter and then when the daughter returned, he should stab her and kill her.

He asked the applicant: “Do you need anything to help you do it?” And the applicant replied: “Drugs”.  Mitchell said, “All right, I’ll get you some money”.  Over the following week, Mitchell would ask the applicant from time to time questions such as “Are you still willing to do it?  Are you still right to do it?”  And a few days prior to 14 April 2008, Mitchell gave the applicant at least $300 to $400 to buy drugs.  The applicant bought drugs, including speed.

Mitchell gave the applicant his beanie, in which the applicant cut a hole, enabling him to see.  The applicant had his own knife, which was about 15 to 20 centimetres long, and he had some white rubber gloves.  He and Mitchell spoke about wearing the beanie and the gloves so that he would not be recognised or leave any fingerprints.

Mitchell told him that he had installed sensor lights in the woman’s house and how the applicant could approach the house without activating them.  Mitchell told him to go inside if the house was unlocked but otherwise to wait outside for the daughter to come home.

On the afternoon of 13 April, Mitchell asked the applicant whether he was “right for tonight”.  That night, Mitchell and the applicant had a further discussion about the proposed killing.  At about 3 am on 14 April, Mitchell woke the applicant up, asking him whether he was “right to go.”  The applicant said he was and picked up his knife and beanie.  They travelled in Mitchell’s car to the woman’s house and stopped when they were near it.  Mitchell told him to keep an eye out because the women would soon be driving out.

A few minutes later, the applicant saw a car leave the house, after which the applicant went to the house and was able to enter through an unlocked door.  He then went through the house, tipping things over and pulling things out of drawers.  He had waited in the house for about 20 minutes when the car returned.  The young woman walked into the house with her back to the applicant, the lights were off and it was still dark.  He then stepped towards her and swung at her with the knife, thrusting the knife into her chest and stomach area.  He stabbed her several times.

Somehow she got out of the house and was able to run across the road to neighbouring houses.  When the applicant saw this, he started running back towards where Mitchell was in the parked car.  As he did so, items which he had stolen from the house dropped out of his pockets.  He made his way back to Mitchell and told him that he had not killed her.  As they drove off, the applicant put the beanie, the knife, his jumper and his pants into a plastic bag and he put on other clothes.  Mitchell drove to a place where the applicant got out of the car and put the bag into a drain.  They then returned to Mitchell’s house.

On the evening of 15 April, Mitchell and the applicant were told by someone else living at the same house that the police had arrived in relation to the stabbing.  Mitchell and the applicant discussed the fact that the applicant still had the shoes he was wearing and that they had to get rid of them.  They left in Mitchell’s car and drove to a park, where they disposed of the shoes.

On 16 April, police contacted the applicant.  He voluntarily accompanied them to the police station where he took part in a recorded interview.  At the conclusion of the interview, he directed them to the drain and to the park where his clothes and the knife had been left.

The young woman suffered three stab-like lacerations to her chest, a laceration to her abdomen, and five superficial lacerations to her right arm.  A wound to the left side of her chest had caused a pneumothorax.  Fortunately she made a full recovery from the physical injuries. 

However at the sentencing hearing last March, she continued to suffer significant emotional and psychological damage.  In her victim impact statement, she said that she feared that her life was never going to be the same again, because she suffered nightmares, panic attacks and felt that she was very depressed.  She felt that she could never be alone again.  She has had to move out of the family home where the offence took place.  The sentencing Judge said that she may or may not recover from the psychological damage. 

The applicant had no significant criminal history.  The only previous offence was for possession of a pipe for which he had been fined.  That absence of a criminal history was considered by the sentencing Judge, as well as the mitigating factors of the applicant’s youth, his cooperation with the police, which the Judge described as extensive and his early plea of guilty.  His Honour also had regard to the fact that the applicant was influenced to commit this offence by an older person. 

His Honour was asked to take into account also the fact that the applicant was impaired by drugs at the relevant time.  As to that, his Honour said that the ingestion of drugs was wholly voluntary and that he did not think that much mitigation should result from the fact that the applicant was a methyl amphetamine user.

His Honour described this as a serious example of attempted murder, pointing out that the applicant had readily agreed to murder a complete stranger in her own home for no more than a few hundred dollars’ worth of drugs and he had agreed to do so simply because Mitchell wanted revenge upon the young woman’s mother.

His Honour regarded the aggravating features as the premeditation and planning which was involved, as well as the fact that the victim was wholly unrelated to him and that he had laid in wait for her in her own home to attack her with a knife.

His Honour referred to R v Bird & Schipper[1] as a case having some features similar to the present one and in particular involving a premeditated attack upon a complete stranger. 

In her thoughtful and thorough submissions for the applicant, Ms Morgan argued that his Honour gave insufficient weight to the extent of the applicant’s cooperation with authorities, the fact that the complainant made a complete recovery from her physical injuries and what was said to have been the applicant’s addiction to drugs at the time of the offence and his subsequent efforts towards rehabilitation.

Undoubtedly the applicant was cooperative.  The facts of the applicant’s participation, as I have recited them, are set out in a statement signed by the applicant and provided to police.

It may be inferred that the applicant would have been prepared to give evidence against Mitchell.  As it happened, Mitchell committed suicide, so the occasion did not arise.

The applicant’s drug addiction and prospects of rehabilitation were not the subject of particular remarks by the sentencing Judge.  His Honour was told by the applicant’s counsel that the applicant was addicted to amphetamines, and at the time of his arrest, weighed only about 40 kilograms.  His Honour was told that Mitchell was able to dominate the applicant by financing his drug habit.  That explained how the applicant was persuaded to do Mitchell’s bidding.  But that was recognised by his Honour in his sentencing remarks in observing that he was to be rewarded with money for drugs.

It cannot be said that any of these circumstances were overlooked by his Honour, rather the argument is that the sentence was manifestly excessive in those circumstances.

In R v Tevita,[2] McPherson JA said that to some extent, all attempts are alike in that they involve the element of intention, but that “the severity of the sentence imposed necessarily varies with the seriousness of the injuries inflicted on the person targeted and the extent to which the intention was put into effect by the accused’s acts”.  His Honour there referred to the comment by Williams JA in R v Rochester,[3] that the approximate range for attempts to kill was generally from 10 years to about 17 years’ imprisonment.  That range has been confirmed in several cases: see for example R v Sauvao,[4] R v Kerwin[5] and R v Cole.[6]  Williams JA had identified the same range of 10 to 17 years in R v Reeves,[7] with the approval of this Court in R v Forster.[8] 

Undoubtedly the most serious feature of the present case was the degree of premeditation and planning of the offence.  There is no criticism, and nor could there be any, of his Honour’s identifying this as a singular aggravating feature. 

It is important to keep this feature in mind when considering cases which are said to be comparable.  Of course this is not the only consideration.  But that feature is absent in many of the cases which are now relied upon by the applicant and in particular, in R v Mallie; ex parte Attorney-General,[9] R v Kerwin, R v Jurcik,[10] R v Lester[11] and R v Sauvao.

The applicant’s argument also cites R v Rochester and R v Forster.  In each of those cases, there was an element of premeditation.  Rochester was convicted after a trial of attempted murder of his estranged wife.  He was aged about 52, and had an extensive criminal record.  He was sentenced to 10 years’ imprisonment.  He appealed his conviction and applied for leave to appeal his sentence.  The Attorney-General also sought to challenge the sentence.  In each case, the appeal or application was unsuccessful.

Williams JA, with whom Mackenzie and Helman JJ agreed, said that any sentence less than 10 years would have been manifestly inadequate, but he was not persuaded that the sentence was so low as to warrant interference by the Court on an Attorney’s appeal, bearing in mind the principles derived from Malvaso v The Queen[12] and Dinsdale v The Queen.[13]

In R v Forster, a 62 year old man shot his estranged wife in the chest.  She was saved only by the intervention of a stranger.  He was sentenced to 12 years, which on appeal was held not to be manifestly excessive.  His was an early plea of guilty.  But the fact that that appeal was dismissed does not constitute the case as authority for the proposition that a sentence higher than 12 years would have been manifestly excessive.  The same applies to the outcome in Rochester.

The respondent here relies on R v Bird & Schipper and R v Tevita.  In R v Bird, a sentence of 20 years’ imprisonment was reduced in this Court, by a majority, to one of 16 years.  That was a more serious case at least because of the permanent physical injuries suffered by the victim, who was an elderly woman.  There was a premeditated plan by Bird and Schipper to rob her, but no premeditated plan to kill.  It was in the course of the attack upon the woman that Bird determined to kill her.  There were other aggravating features including what was described as Bird’s subsequent chilling lack of remorse.  She was aged 17 at the time of this offence.  She pleaded guilty and had no criminal history.  The case is more serious than this because of that victim’s injuries and the absence of any remorse, but in one respect, the present case is more serious for the degree of planning and premeditation that existed here.

R v Tevita was an attempt to kill a physically disabled man who was already unable to walk and capable of only restricted movements of his arms and hands.  He was nevertheless able to live an independent life until the attack upon him, which had a drastic and permanent impact both physically and psychologically and which greatly diminished his quality of life, requiring him to be in full-time care.  The motive was money.  The offender pleaded guilty and was sentenced to 18 years, which the Court held was not manifestly excessive.  Clearly that was a more serious case, at least to the extent of the impact upon the victim.

For the applicant, it is submitted that the permissible range in the circumstances of this case was 10 to 12 years, so that this sentence was beyond that range.  In my view, that cannot be accepted.  None of the authorities cited by the applicant or, for example, the other cases discussed by the President in R v Bird and Schipper, demonstrate that the permissible range in the circumstances of this case ends at 12 years.  Rather the position is that within a broader range, the circumstances of particular cases vary considerably.  In the present case, the nature and extent of the applicant’s acts were very serious.  There was the planning and preparation and the very deliberate cold blooded attack upon a vulnerable woman in the dark in her own house.  But for the mitigating factors rightly identified by the sentencing Judge, the sentence may well have been closer to that in Tevita.  His Honour gave due allowance for those factors and the sentence was not manifestly excessive.

I would dismiss the application.

HOLMES JA:  I agree.

MUIR JA:  I agree.

HOLMES JA:  The application for leave to appeal against sentenced is dismissed.