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R v McClintock[2009] QCA 175

Reported at [2010] 1 Qd R 354

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

SC No 84 of 2008

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

DELIVERED ON:

19 June 2009

DELIVERED AT:

Brisbane 

HEARING DATE:

8 May 2009

JUDGES:

Keane, Fraser and Chesterman JJA

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

ORDERS:

  1.  Appeal against conviction is dismissed.
  2. Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where trial judge gave a majority verdict direction to the jury – where appellant was found guilty of malicious wounding by way of a majority verdict – whether the trial judge failed to properly consider the prescribed matters for making a majority verdict direction under s 59A of the Jury Act 1995 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was convicted of malicious wounding and sentenced to six years imprisonment – whether sentence was manifestly excessive

Jury Act 1995 (Qld), s 59A

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited

Hanna v The Queen [2008] NSWCCA 173, distinguished

R v Young [2005] QCA 32, considered

RJS v The Queen (2007) 173 A Crim R 100; [2007] NSWCCA 241, distinguished

COUNSEL:

J M Sharp for the appellant/applicant

M B Lehane for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

[1]  KEANE JA:  I have had the advantage of reading the reasons for judgment prepared by Chesterman JA.  I agree with those reasons and with the orders proposed by his Honour.

[2]  FRASER JA:  I agree with the reasons of Chesterman JA and with the orders proposed by his Honour.

[3]  CHESTERMAN JA:   The appellant was tried on an indictment which charged her with:

1. Wilfully damaging property;

2. Entering a dwelling with intent to commit an indictable offence at night using actual violence while armed with a dangerous instrument;

3. Assaulting Peter McClintock who was confined to a wheelchair;

4. Attempting unlawfully to kill Peter McClintock: alternatively;

5. Unlawfully wounding Peter McClintock with intent to do him some grievous bodily harm;

6. Unlawfully assaulting Mary Nagy.

[4] On 29 September 2008 the appellant pleaded guilty to the charges contained in counts 1 and 3, wilfully damaging property and the serious assault of Peter McClintock.  After a trial spanning three days the jury, on 1 October 2008 delivered verdicts on the other counts.  The appellant was convicted of count 2, burglary, but acquitted of count 6, common assault.  Those verdicts were unanimous.  The jury, by majority, acquitted the appellant of attempted murder (count 4) but found her guilty of wounding with intent to do grievous bodily harm (count 5).

[5] The appellant was sentenced to one years imprisonment on each of the charges of burglary and serious assault; three months imprisonment for the wilful damage, and six years for the malicious wounding.  She appeals against her conviction on that last mentioned count and applies for leave to appeal against the sentence imposed for that offence.

[6] The only ground of appeal is:

“That the ... trial judge made a wrong decision of law by giving the jury majority verdict directions when he did so, by failing to properly consider the matters prescribed by s 59A of the Jury Act 1995.”

[7] The sole ground for the application for leave to appeal against sentence is that six years imprisonment was manifestly excessive in all the circumstances. 

[8] The appellant and Peter McClintock, who was assaulted and wounded as alleged in counts 3 and 5, had been married in 1984 but separated in July 1997.  In January of that year Mr McClintock had been injured in a motor vehicle accident as a result of which he became a paraplegic and reliant on a wheelchair for mobility.  Mr and Mrs McClintock had three sons about whose custody they quarrelled after the separation.  The oldest son, Sean, lived mostly with his mother, the appellant, but sometimes with his father.  At the time of the offences he was living with Mr McClintock and his companion Mary Nagy the complainant in count 6 of which the appellant was acquitted.

[9] During their separation the relationship between the appellant and Mr McClintock remained acrimonious and they seem to have regarded each other with bitterness.  The dispute concerning custody and welfare of their children continued throughout the decade after their estrangement.

[10]  The dispute exacerbated in the weeks prior the offences.  There had been a hearing in the Family Court which had not resolved the tensions between the parties.  The appellant who had given birth to a daughter, not fathered by Mr McClintock, since the separation became angry when child protection officers attended her house to check upon the welfare of her daughter.  The appellant believed her former husband had wrongly accused her of mistreating the girl.

[11]  On the evening of 23 November 2007 the appellant was driven by her partner to the house of friends.  She had been drinking before she went and drank more at the house.  She had had episodes of illness and depression for which she had been prescribed medication.  She gave evidence that she intended to kill herself and to that end packed some medication into a bag and concealed her sharpest carving knife in her partner’s car.  In the course of the evening the appellant left the friends’ house taking with her the bag containing her medications.  She went to the car, retrieved the knife, and set out to walk to the appellant’s house.  It took her several hours although only a few kilometres separated the houses.  She walked through bushland assisted, she said, by a large stick which she found along the way.

[12]  She said her intention was to kill herself by a combination of an overdose of the prescription drugs and knife wounds.  As an act of revenge against her former husband she intended to commit suicide on his front verandah where, she said curiously, she thought her body would not be discovered for some time.

[13]  She arrived at Mr McClintock’s house at about 3.00 am on 24 November 2007.  Almost immediately her parents drove up.  They had become concerned about the appellant and were looking for her.  They spoke to Mr McClintock whom they woke and got out of bed.  The appellant observed her parent’s arrival and hid in Mr McClintock’s garage.  While there she slashed a tyre on his vehicle with the knife.  That act is the subject of count 1 in the indictment.

[14]  After her parents left, the appellant went onto the front verandah and knocked on the front door.  Mr McClintock, who had just returned to bed, got back into his wheelchair and pushed himself to the front door.  He opened it slightly and saw the appellant, holding a large stick.  She had not discarded it despite emerging from the bush.  She had, however, left the bag containing the drugs slung over a fence post.

[15]  Mr McClintock’s evidence was that he asked the appellant what she was doing at his house.  She said she wanted to talk to him.  He told her to go home and come back at a more civilised hour.  The appellant became abusive and refused to leave.  She said she wanted to talk to him then and there and complained about the call made on her by the child protection officers.  Mr McClintock tried to close the front door but the appellant pushed hard against it.  He tried again but the appellant kicked it violently and “booted the door” into him.  The impact propelled his wheelchair backwards and spun it around.  This assault is the subject of count 3. 

[16]  The appellant’s precipitate entry into Mr McClintock’s house, armed and with the intent, found by the jury, to assault him was the subject of count 2, burglary.  According to Mr McClintock after the appellant entered the house she said repeatedly that she intended to kill him.  She grabbed him around the neck and they struggled.  Mr McClintock tried to break her grasp on his neck.  The appellant broke free and took hold of the knife which she had concealed in the back of her trousers.  She lunged at Mr McClintock stabbing him in the chest.  She pulled the knife from the wound and attempted a second blow but he grabbed her wrists and held the knife away.  In the course of the struggle he was knocked from his wheelchair onto the floor.  His companion, Ms Nagy and his son Sean, came into the room and assisted to restrain the appellant and take the knife from her.  Ms Nagy’s complaint that the appellant had tried to kick her was the subject of count 6 in the indictment but was not accepted by the jury.

[17]  The appellant gave evidence.  She said that when she walked onto the front verandah she decided that, before taking her own life, she should ask why Mr McClintock “wanted to make it so hard” for her.  She knocked on the front door.  Her account of the conversation which ensued when Mr McClintock opened it does not differ materially from his.  She admits she was “somewhat” intoxicated and that the conversation became loud and heated.  Having pushed her way into the house “Something snapped inside [her].”  She took the knife from the back of her trousers and:

“… stepped forward and hit him with the knife and then he’d had hold of my left hand and ... pulled the knife away ... out of my grip.  I ... let go at the same time that he grabbed the knife and ... threw it ... to his left side and at that point he still had hold of my left hand and I grabbed hold of him around the throat with my right hand.”

[18] She denied intending to kill Mr McClintock, and denied saying she intended to.   She said she:

“… just wanted him to feel some of the pain that [she had] been through over the years.”

[19]  The trial commenced on 29 September 2008.  The prosecution called Mr McClintock, Ms Nagy, Sean McClintock and the arresting police officer.  The prosecution case closed at 3.24 pm and the trial was adjourned until the next morning at 10.00 am.  The appellant’s counsel then opened her case following which the appellant gave evidence.  Her testimony concluded at midday.  Counsel’s addresses were finished by 1.00 pm.  The court adjourned until 2.15 pm when the trial judge commenced summing up.  The court adjourned at 3.06 pm until 9.00 am on the third day when the summing up continued until 9.27 am when the jury retired to consider the verdicts. 

[20] The trial was probably the first to be conducted after the enactment of s 59A of the Jury Act 1995.  That section provides:

59AVerdict in criminal cases for other offences

(1)This section applies to a criminal trial on indictment other than the following trials—

(a) a trial for an offence mentioned in section 59(1)(a); or

(b) a trial before a jury as mentioned in section 59(1)(b).

(2)If, after the prescribed period, the judge is satisfied that the jury is unlikely to reach a unanimous verdict after further deliberation, the judge may ask the jury to reach a majority verdict.

(3)If the jury can reach a majority verdict, the verdict of the jury is the majority verdict.

(4)For the definition in subsection (6), prescribed period, paragraph (a), the periods mentioned in subparagraphs (i), (ii) and (iii) are the periods reasonably calculated by the judge.

(5)A decision of the judge under subsection (4) is not subject to appeal.

(6)In this section –

majority verdict means –

(a) if the jury consists of 12 jurors – a verdict on which at least 11 jurors agree; or

(b)if the jury consists of 11 jurors – a verdict on which at least 10 jurors agree.

prescribed period means –

(a)a period of at least 8 hours after the jury retires to consider its verdict, not including any of the following periods –

(i)a period allowed for meals or refreshments;

(ii)a period during which the judge allows the jury to separate, or an individual juror to separate from the jury;

(iii)a period provided for the purpose of the jury being accommodated overnight; or

(b)the further period the judge considers reasonable having regard to the complexity of the trial.”

[21]  None of the offences charged against the appellant fell within the ambit of subs (1). 

[22]  On the first day of the trial the judge drew counsel’s attention to the section and noted that:

“... we are dealing here with a trial in which a majority verdict is permissible in certain circumstances.  ... my inclination is that the [jury] should be told that their verdict must be a unanimous one, but that if they are having difficulty in reaching a verdict then they should let the Court know and we will see where matters proceed from there.  ... if it’s ... after less than eight hours’ deliberation, then matters will not alter.  It will still have to be a unanimous verdict or it will be a question of a Black direction or a ... discharge.  If it is after the eight hours, the question of what the jury is told ... is something that needs to be discussed, but I can’t see any reason why they could not be asked whether the ... position ... is a division of 11 to one or some other division.  If it is the former, then a majority verdict can be taken.”

[23]  Just before the court adjourned on the first day and after the jury had retired the trial judge adverted again to the change in the law wrought by s 59A.  His Honour said:

“... it provides that if after deliberations of at least eight hours, not including meals, any time that they had been separated or whether they are overnight accommodated ... or I can extend the time in a complex matter.  I don’t think we’re dealing with that sort of case here.  If after that time the Judge is satisfied the jury is unlikely to reach a unanimous verdict after further deliberation ... the Judge may ask the jury to reach a majority verdict.”

[24]  At 2.19 pm on the third day the trial judge reconvened the court in the absence of the jury to discuss with counsel some questions it had asked.  One question was:

“If we can’t agree on a point, is that enough grounds for reasonable doubt?”

[25]  His Honour answered that question:

“... any verdict, whether it be a verdict of guilty, in which case you would have to be satisfied beyond a reasonable doubt of each element of the offence, or a verdict of not guilty, let us say because you were not able to be satisfied beyond a reasonable doubt about some element of an offence, must be unanimous, must be the verdict of each and every one of you.”

[26]  The jury retired again at 2.26 pm.  At 7.54 pm that evening the trial judge spoke to counsel to point out that at 8.15 pm on his reckoning the jury would have been deliberating for eight hours.  His Honour referred to the definition of “prescribed period” in s 59A(6) and indicated that the jury had broken from deliberations during meals for an aggregate period of two and three quarter hours.  His Honour said:

“Under the new legislation, I have power, although not the obligation, if I’m satisfied they’re unlikely to reach a unanimous verdict after further deliberation, to ask the jury to reach a majority verdict, that is, a verdict of 11 to one.  Now, the fact that the jury have been deliberating for so long, given the relatively short compass of the evidence and its uncomplicated nature, I think would probably justify the conclusion that they’re unlikely to reach a unanimous verdict, although one can never be certain ... and there was some indication in the request for redirections of some possible disagreement.  Now, does anybody want to say anything about those matters ...?”

Both counsel answered in the negative.

[27]  His Honour went on:

“... what I am at present inclined to do, is tell the jury ‘At this stage I have the power to ask you to attempt to reach a verdict by a majority of 11 to one.  I will now ask you to continue your deliberations with a view to reaching such a verdict on each of the counts you are considering.  If and when you reach a verdict, I will ask you ... whether it is a unanimous verdict or a verdict of 11 and after your speaker has indicated which it is, I will ask you all in open Court to acknowledge that what he or she has said is the case.’

...

Anybody want to say anything about those things?”

Again both counsel answered in the negative.

[28]  The court then received another question from the jury.  It asked whether they would be identified individually when they returned a verdict.  The jury was recalled to the court room and told that because of the concern their names would not be read out.  The trial judge then gave this further direction.

“Yesterday I told you that the verdict which you must return in each case must be a unanimous verdict, that is, the verdict of each and every one of you.  At this stage of the proceedings, however, I have the power to ask you to attempt to reach a verdict by a majority of 11 to 1.  So I will now ask you to continue your deliberations with a view to reaching such a verdict on each of the counts you are considering.

If and when you reach a verdict I will ask you after it has been delivered ... in response to a question by my associate whether it is a unanimous verdict or a verdict of 11;  that is, a majority verdict.  And after the speaker has indicated which of those it is I will ask you all in open Court to acknowledge that what he or she has said is in fact the case.  So I now ask you to retire and further deliberate ... with a view to reaching a majority verdict, that is, a verdict of at least 11 of you.”

[29]  The jury then retired at 8.15 pm.  The trial judge asked counsel whether they had any complaint about the direction.  Again they both answered in the negative.  At 8.36 pm the jury indicated that they had reached verdicts on counts 2, 4 and 6 but had a further question which is not recorded and which does not appear to be relevant to the appeal.  The jury returned to the court room and was addressed by his Honour on the question they had raised.  Having given that further direction the trial judge took their verdicts on counts 2, 4 and 6.  As mentioned earlier the verdict on count 2, burglary was guilty by a unanimous agreement.  The verdict on count 4, attempted murder, was not guilty by majority.  The verdict on count 6, common assault, was unanimously not guilty.  As the trial judge had said he questioned the jury with respect to each verdict to ascertain whether it was unanimous or by majority.  The jury then asked to retire again and consider the verdict on count 5.  They retired at 8.42 pm and returned at 8.47 pm to return a verdict by majority of unlawfully wounding with intent to cause grievous bodily harm. 

[30]  The appellant submits that:

“Determining whether the ‘prescribed period’ has elapsed is not simply a matter of calculating the number of hours the jury have been deliberating in accordance with ... subsection 59A(6)(a).  It is not the case that the mere passing of eight hours of deliberation triggers the proper application of the majority verdict provisions.  The ‘prescribed period’ is ... at least eight hours, excluding periods for meals, refreshments and when the jury is separated, or ‘the further period considered by the judge to be reasonable considering the complexity of the trial’.”

[31]  The appellant complains that barely eight hours of deliberations had passed before his Honour directed the jury that they could return a majority verdict and the trial judge “made no explicit reference to the second aspect of the definition ... the further period considered reasonable having regard to the complexity of the trial”.  The submission continues that majority verdict is a departure from a “long standing principle of a fundamental character” and that the trial judge erred in moving so quickly to take a majority verdict and without giving thought to whether, in the circumstances, the prescribed period was more than the eight hours that had elapsed.  In not doing so the appellant argued s 59A had not been properly applied and the trial had not been conducted according to law.

[32]  The appellant points to a remark made by the trial judge when discussing with counsel the questions raised by the jury at 2.19 pm, on 1 October.  His Honour had remarked that some of the questions appeared to be a “result of an unnecessarily over-cluttered indictment”.  From this observation the appellant submits that the trial was complicated and that more than eight hours deliberation was required to constitute the prescribed period. 

[33]  In my opinion the criticisms of the trial judge’s application of s 59A should not be accepted.  It is clear from what was said that his Honour fully appreciated that the prescribed period was eight hours deliberation, excluding defined periods, or a longer time where the complexity of the trial made it reasonable to allow a further period.  His Honour referred to the “relatively short compass of the evidence and its uncomplicated nature”.  It is, I think, obvious that he did not regard the case as one in which the prescribed period was more than eight hours.  It is true he made no express statement to this effect but it is a clear inference from the manner in which the trial judge approached the question of taking a majority verdict.  It is noteworthy that neither counsel objected to the trial judge’s calculation of prescribed period in accordance with s 59A(6)(a).

[34]  Moreover it is plainly right that the issue for the jury with respect to counts 4 and 5 was simple.  The only question that had to be addressed was whether, when the appellant entered Mr McClintock’s house and stabbed him, she intended:

(a) To kill him;

(b) To cause him grievous bodily harm.

[35]  If she stabbed Mr McClintock with the intention set out in (a) she was guilty of attempted murder.  If that was not her intention but she had the second intention she was guilty of count 5.  All the other elements of the offence were proved beyond any doubt.  The evidence as to intention came from the undisputed facts of what the appellant did from which an inference could be drawn: Mr McClintock’s evidence of what the appellant said about her intention; her evidence of what she said and of her subjective intention.  There was not much for the jury to consider.  The evidence was short and easily comprehensible.

[36]  The trial judge had expressly referred on the first day to his power to fix a prescribed period in excess of eight hours in a complex matter, but noted that “I don’t think we’re dealing with that sort of case here.”  His Honour was, with respect, quite right.  It is, I think, correct as the respondent submits that the trial judge had formed the opinion that the prescribed period was eight hours and that the complexity of the trial did not require any longer period.  It is clear that his opinion did not change.  Neither counsel sought to persuade him to a different view.  The brevity and simplicity of the evidence was not such as to warrant a different opinion. 

[37]  There is no reason to think that the trial judge did not appreciate the terms and import of s 59A(6).   His Honour appears to have considered that no further period, beyond the eight hours, was necessary.  This determination is quintessentially an assessment for a trial judge appraised of the issues raised during the course of the proceeding and the length and complexity of the evidence.  It is not the sort of assessment with which an appellate court would readily interfere.  In this case there is no warrant for interference or for disagreeing with the trial judge’s assessment. 

[38]  The second precondition of taking a majority verdict is that the judge must be satisfied that the jury is unlikely to reach a unanimous verdict after the prescribed period and with the benefit of further deliberation.

[39]  It must be accepted that in this case there was no clear indication from the jury that they were unlikely to reach a unanimous verdict. The fact was inferred only from the length of the jury’s retirement and the earlier request for a redirection with respect to what might constitute grounds for reasonable doubt.  The jury’s question was an equivocal indication of deadlock, at best.  His Honour did not give a direction in accordance with Black v The Queen (1993) 179 CLR 44, and then wait, nor did he ask the jury directly whether they were likely to reach a unanimous verdict if given further time. 

[40]  As with the first precondition a judge’s satisfaction on the unlikelihood of a jury reaching a unanimous verdict is not readily amenable to appellate correction.  There are many indicia of jury behaviour, apparent to a trial judge, which do not appear in a transcript.  The reaction and inter-reaction between judge and jury, judge and counsel and counsel and jury can be discerned by experienced practitioners present throughout a trial but are unexpressed in the spoken word which forms the only record of trial.

[41]  That having been said it is appropriate to caution that a majority verdict may not be taken unless there is sufficient evidence of the unlikelihood of a unanimous verdict.  Without such evidence a judge cannot be satisfied in accordance with s 59A(2).  The most certain way of ascertaining the fact is to question the jury about the prospect of unanimity.  Another would be to give a Black direction after the expiration of the prescribed period and wait a further reasonable time (which the judge must assess).  If there is still no verdict the existence of the requirement might be inferred.   The trial judge initially contemplated following this course but in the end did not do so. 

[42]  Neither course is mandated by the section but one or both should provide grounds for the satisfaction required. 

[43]  In this case, scant though the material was, the trial judge’s assessment of it was seen to be correct by the rapidity with which the jury reached its majority verdicts.  Within minutes of being informed of the possibility of delivering a verdict if 11 of the jurors agreed, they had acquitted the appellant of attempted murder but convicted her of wounding with intent to cause grievous bodily harm.  Of course this validation of the assessment was ex post facto.  Nevertheless it makes criticism of the judge’s ruling difficult to sustain even though the material on which the inference of deadlock was based, was slender. 

[44]  The appellant relied upon two decisions of the New South Wales Court of Criminal Appeal, RJS v The Queen (2007) 173 A Crim R 100 and Hanna v The Queen (2008) 73 NSWLR 390.  The authorities are of limited application because the equivalent legislation in New South Wales is substantially different to s 59A.  The cases decide, unsurprisingly, that if the statutory preconditions to taking a majority verdict are not complied with, the verdicts will not have been delivered according to law, and the trial process will have miscarried. 

[45]  Section 55F of the Jury Act 1977 (NSW) provides that a majority verdict may be returned if a unanimous verdict has not been reached after a period of time, not less than eight hours, that the court considers reasonable having regard to the nature and complexity of the trial.  The section therefore requires a trial judge to determine, as a question of fact, what is a reasonable time, which must be longer than eight hours.  In Hanna after a five week trial on charges of fraud the trial judge accepted a majority verdict after the lapse of eight hours.  Her Honour did not consider what was a reasonable time.  She thought it was enough that eight hours had passed.  Defence counsel urged the judge against taking a majority verdict so soon.  The prosecutor did not support the judge’s proposed course, nor argue against the defence submission.  The Court of Criminal Appeal found that the statutory precondition to a majority verdict had not been complied with and the conviction was quashed.

[46]  The case is nothing like the present in which the statutory preconditions were satisfied, there was no objection to the course propounded and followed by the trial judge, and there was one issue for the jury’s attention with respect to which the relevant evidence was in short compass.

[47]  In RJS Spigelman CJ said ((2007) 173 A Crim R 100 at 104):

“The requirement of unanimity on a jury in a criminal case is a long-standing principle of a fundamental character.  When Parliament modified this principle it did so by inserting two significant qualifications expressly requiring the attention of the trial judge …

...

These two matters are essential pre-conditions which Parliament required to be met.  Each precondition involves a judgment by the trial judge of a character with which this Court is reluctant to intervene.”

[48]  Notwithstanding the difference in the preconditions between the two Acts, the Chief Justice’s remarks, with respect, are apposite.  A majority verdict may only be taken where the preconditions have been satisfied.  A trial judge must turn his or her mind to the terms of s 59A and the evidence relevant to the preconditions.  No a priori rules can be laid down as to what will constitute sufficient materials for their satisfaction.

[49]  In the present case the trial judge considered the terms of the section and determined that they had been complied with.  There is nothing in the record of the trial to indicate that he was wrong. 

[50]  In my opinion the appeal should be dismissed.

[51]  There is also an application for leave to appeal against sentence.  The appellant does not complain about the head sentence of six years imposed on count five but submits that the trial judge erred in not ordering that she be eligible for parole after serving two years.  A number of points were urged.  The first is that no account was taken of her pleas of guilty.  But she did not plead guilty to count 5, or offer to do so.  The fact that she pleaded guilty to other, lesser, charges is irrelevant.

[52]  Next it is pointed out that the appellant was sentenced on the basis that her intention to do grievous bodily harm was not premeditated, and that she had no criminal history.  So much may be accepted but the first basis displayed a finding of remarkable benevolence towards the appellant.  It is, to my mind, scarcely credible that she did not attend Mr McClintock’s house intending to attack him.  She went there armed with a large, sharp, carving knife.  The conviction of burglary, with circumstances of aggravation, indicate the jury’s satisfaction that when she forced her way into the house she intended to assault Mr McClintock.  Her assertion that she went to the verandah to commit suicide looks extremely dubious when one recalls that her stated means of terminating her life were to take an overdose of drugs and slit her wrists.  She left the drugs behind, in the bag, which she slung over a fence post.  She did, however, take the knife and the large stick onto the verandah.  The stick, she said, she used to force her way through the bush but she did not discard it with the bag, when she emerged from the bush.  Her explanation for choosing the verandah as the site for her death was ridiculous.  She claimed it was a site where her body would not be found for some time.  The front verandah of an inhabited house, near the front door, does not meet that description.

[53]  The evidence points strongly to the conclusion that the appellant went to Mr McClintock’s house armed with a knife intending to use it, as she did, to inflict some serious injury upon him.

[54] Then it is said that the appellant had:

  • A history of depression which worsened in 2007 and gave rise to suicidal thoughts;
  • Expressed sincere and genuine remorse for her actions;
  • A previous good character;
  • Responsibility for her three children for whom she was the fulltime carer and who would suffer during her imprisonment.

[55]  This Court has remarked on several occasions that the last mentioned factor is irrelevant and does not constitute a ground for dissatisfaction with the sentence.

[56]  The question posed by an application for leave to appeal against sentence is not whether a more lenient sentence might have been imposed, and still be within range, but whether the sentence actually imposed is manifestly excessive.  In my opinion it was not.  The case was a serious one.  The appellant stabbed Mr McClintock with a large knife in the chest, near the heart.  It is fortunate he did not die.  He was significantly disabled and had a limited capacity for self defence.  Having stabbed him once the applicant attempted to inflict more injuries and was only prevented by Mr McClintock’s determined self preservation and the assistance of Ms Nagy and Sean McClintock, who combined, were required to subdue the appellant.  Mr McClintock was knocked from his wheelchair during the struggle.  He was, as I said, largely defenceless and attacked in his own home.   The wound was inflicted with an intention of causing grievous bodily harm.  That intention was formed, at the latest, when the appellant forced her way into the house.

[57]  A brief reference to R v Young [2005] QCA 32 is enough to show that six years imprisonment is not excessive.  Young forced her way into the home of her former partner and there attacked another woman with a large knife.  Young was a mature woman, 45, without previous convictions.  She had been treated badly by her partner who owed her money.  She went to the house to demand payment.  Finding the former partner absent she attacked the other woman and stabbed her several times though none of the wounds was deep.

[58]  Young was charged with attempted murder but convicted of unlawfully wounding with intent to do grievous bodily harm.  She was sentenced to six years imprisonment with a declaration that she had been convicted of a serious violent offence.  She complained that the declaration made the sentence excessive.  Her application was refused.

[59]  The circumstances of mitigation personal to this appellant are adequately reflected by the decision not to make a declaration.  That is a significant amelioration in the sentence imposed in Young, the facts of which are very similar. 

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

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Editorial Notes

  • Published Case Name:

    R v McClintock

  • Shortened Case Name:

    R v McClintock

  • Reported Citation:

    [2010] 1 Qd R 354

  • MNC:

    [2009] QCA 175

  • Court:

    QCA

  • Judge(s):

    Keane JA, Fraser JA, Chesterman JA

  • Date:

    19 Jun 2009

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC84/08 (No citation)01 Oct 2008Date of conviction, by majority verdict, of wounding with intent. Ms McClintock was also convicted, by unanimous verdict, of burglary and had pleaded guilty to related counts of wilful damage and serious assault. She was sentenced to 6 years’ imprisonment for wounding with intent; shorter concurrent terms of imprisonment were imposed for the other offences.
Appeal Determined (QCA)[2009] QCA 175 [2010] 1 Qd R 35419 Jun 2009Appeal against wounding conviction dismissed. Statutory preconditions for majority verdict satisfied; jury deliberated for 8 hours and no reason to interfere with judge’s assessment that no further period required; judge’s satisfaction that jury unlikely to reach unanimous verdict, although based on slender material, validated by speed with which jury returned majority verdict. Leave to appeal against sentence refused; sentence not manifestly excessive: Keane, Fraser and Chesterman JJA.

Appeal Status

Appeal Determined (QCA)

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