SUPREME COURT OF QUEENSLAND

[1] McMURDO P:  Unlike my colleagues, I would grant this application for leave to appeal against sentence, allow the appeal, set aside the sentence imposed at first instance of life imprisonment, and instead substitute a sentence of 17 years imprisonment.  I would declare the conviction to be a conviction for a serious violent offence.  The declaration that 189 days spent in pre-sentence custody between 29 January 2005 and 5 August 2005 be deemed time already served under the sentence would remain.

Background

[2] Francis Robert Keenan was charged, together with Stephen Edward Booth and Dion Francis Spizzirri, with attempting unlawfully to kill Darren Thomas Coffey on 8 December 2004 at the Gold Coast.  Each pleaded not guilty and their joint trial commenced before jury on 28 February 2007.  The jury found Booth not guilty on both counts.  They found Keenan not guilty of attempted murder but guilty of the alternative count of doing grievous bodily harm with intent.  They were unable to reach a verdict in respect of Spizzirri.  (Spizzirri was acquitted on all counts on 4 September 2007 after a retrial.)  The primary judge sentenced Keenan to life imprisonment.  Keenan appealed to this Court against his conviction and applied for leave to appeal against his sentence. 

[3] On 11 December 2007, this Court, differently constituted, allowed his appeal against conviction, set it aside and instead entered verdicts of acquittal for the offence of malicious act with intent under s 317(e) Criminal Code and for the alternative offence of grievous bodily harm simpliciter under s 320 Criminal Code.  This Court noted that it was then

"unnecessary to deal with the application for leave to appeal against the sentence of life imprisonment, the maximum sentence able to be imposed.  In case the sentence is used as a comparable sentence for convictions under s 317 Criminal Code, we think it prudent to make the following brief observation.  Despite the serious aspects of the case and Keenan's concerning antecedents, we are unpersuaded that this was an appropriate case in which to impose the maximum penalty of life imprisonment".[1] 

The Crown successfully appealed from this Court’s orders to the High Court of Australia, which set aside the orders and dismissed the appeal against conviction.  The High Court remitted the determination of the application for leave to appeal against sentence to this Court.[2]

The contentions on behalf of Keenan

[4] Keenan’s counsel now contend that the sentence of life imprisonment was manifestly excessive and that the primary judge placed undue emphasis upon Keenan’s criminal history.  They submit that the appropriate sentencing range for an offence of this kind was between 10 to 17 years imprisonment.  In this case, 10 years should have been imposed but for a unique feature of Keenan’s post-offence chronology.  Keenan was arrested on 29 January 2005 and remanded in custody.  His committal hearing proceeded from 1 to 5 August 2005.  He was committed for trial on only two counts of common assault and released on bail.  He was subsequently charged, tried and convicted of murder and, on 15 March 2007, sentenced to life imprisonment.  He was released from custody after this Court’s decision on 11 December 2007.  On 4 February 2009, two days after the High Court decision, he surrendered himself into custody.  They submit that, in light of these extraordinary events and the effective double jeopardy to which Keenan has been subjected, a sentence of seven years imprisonment should be imposed.

The sentencing proceedings

Keenan's antecedents

[5] Keenan was 32 at the time he committed this offence and 34 at sentence.  He had a significant, concerning and relevant criminal history.  He was placed on probation, without conviction, for drug offences in August 1993. 

i) The 1995 conviction for manslaughter

[6] In 1995, he was convicted and sentenced to eight years imprisonment for a manslaughter offence committed in September 1993 when he was on probation.  The circumstances of that offence were as follows.  He was originally charged, jointly with Batt, Burridge and Marshall, with murdering Darryl Murray.  Batt died of a heroin overdose before his trial.  Burridge pleaded guilty to murder.  Marshall was convicted of murder after a joint trial with Keenan.  The jury were unable to agree as to the verdict in Keenan's case.  On the third day of Keenan’s re-trial on the charge of murder, the prosecution accepted his plea of guilty to manslaughter. 

[7] In sentencing Keenan, the judge explained Keenan’s role in the offence.  Marshall believed that Murray had informed on him to police about his criminal offending.  Marshall planned revenge and enlisted Keenan, Batt and Burridge to help.  Burridge, Batt and Keenan arrived at a house where Murray was staying.  Keenan knew he was expected to assist in Marshall's assault on Murray.  Murray was a powerfully built young man trained in martial arts.  Marshall sent a message to Keenan requesting his "piece", meaning a gun.  Keenan, however, did not act on that request.  All participants in Murray's subsequent killing took amphetamines intravenously beforehand.  It was difficult to ascertain what happened next because of the conflicting evidence.  Murray was called into a room where he was either injected with, or injected himself with, a liquid substance which was not amphetamine.  It may have been battery acid.  Later, in Keenan's presence, Keenan's co-offenders attacked Murray.  When Murray was unconscious, his assailants took him to another room where he was again attacked by Keenan's co-offenders.  Keenan witnessed this violence.  At some stage, Murray was struck in the head with an axe.  He died at the house not long after.  Keenan helped others put a sheet or cloth around Murray whilst Murray was still breathing and was present when he died. 

[8] The judge was not satisfied that Keenan personally inflicted any violence on Murray.  Keenan was, however, present to lend encouragement, knowing that the infliction of violence leading to bodily harm was intended.  Keenan was on probation.  A sentence of 11 years imprisonment would have been appropriate but for the mitigating factors.  These were Keenan's plea of guilty; his rehabilitation (he became drug-free and literate whilst in prison); his youth; and 259 days of pre-sentence custody were unable to be declared under s 161 Penalties and Sentences Act 1992 (Qld).  The judge reduced the sentence to eight years imprisonment[3] because of  these mitigating factors.

ii) Further convictions

[9] On 29 September 1995, Keenan pleaded guilty, together with four others, to assault occasioning bodily harm in company in May 1994.  The offence was committed in prison on a fellow prisoner whilst Keenan was on remand for the killing referred to in the preceding paragraphs.  Keenan was not the instigator of this prison assault.  At 21, he was the youngest of the offenders.  He did however take an active role.  He was one of the first to enter the victim’s cell and he kicked the victim throughout the violent episode.  Keenan was sentenced to 15 months imprisonment cumulative on the eight year sentence for manslaughter. 

[10] In 2001, Keenan was convicted and sentenced to three months concurrent imprisonment for wilful damage.  It seems he also committed this offence whilst in prison.  In 2005, he was convicted and fined for possessing dangerous drugs and utensils on 5 October 2004, about two months before the present offence.  In 2006, he was again convicted and fined for possessing dangerous drugs on 20 November 2006, almost two years after the present offence and apparently whilst on bail for it.

The prosecutor's submissions at sentence

[11] The prosecutor emphasised that the victim, Coffey, was rendered a paraplegic in the offence.  He tendered Coffey's victim impact statement.  Coffey wrote of the detrimental impact of his paraplegia, not only on himself but on his extended family, particularly his two sons aged 13 and 16 and his father.  He has suffered despair, frustration, anger and suicidal thoughts.  His day to day life has become extremely difficult.  He has bravely tried to adjust to his new life.  He expressed guarded optimism that in time he would settle into it.  He was in poor financial circumstances because of his inability to work.  He recognised the need to retrain to obtain appropriate employment but that would take some years. 

[12] The prosecutor referred the judge to R v Wilkie[4] and R v Chambers, Harrison & Fisher; ex parte A-G (Qld).[5]  He contended that in light of Keenan’s bad criminal history, lack of remorse, and the planned vicious and callous nature of the present offence with its dreadful consequences for Coffey, the maximum penalty of life imprisonment was warranted.

The submissions on behalf of Keenan at sentence

[13] Keenan's counsel at sentence made the following submissions.  Keenan had a supportive family.  He had been in an 18 month relationship with a woman with whom he had a 13 week old son.  Keenan turned to alcohol and marijuana after his father was sent to prison for refusing to give evidence to the Fitzgerald Inquiry about illegal "SP" bookmaking.  Keenan was then drawn into the drug scene.  His counsel emphasised that Keenan was unaware a gun would be present during the commission of the offence on Coffey.  This distinguished Wilkie, where the offending was more serious than Keenan’s.  Counsel referred to R v Anderson[6] and R v Witchard & Ors; ex parte A-G (Qld).[7]  He submitted that Keenan should be sentenced to between 12 and 15 years imprisonment.

The judge’s sentencing remarks

[14] In sentencing Keenan, the primary judge made the following observations.  Keenan’s victim was rendered paraplegic by bullets fired into his spine.  His condition is irreversible.  He was confined to a wheelchair and subject to problems, including severe leg spasms.  He was finding it difficult to settle into the life of a paraplegic.  He was 37 years old at Keenan's sentence and had two sons then aged 13 and 16 who were obviously affected by his plight.  The consequences for him were "horrendous". 

[15] Coffey had engaged Keenan's wrath by misappropriating between six and seven thousand dollars claimed by Keenan and probably the proceeds of an unlawful transaction which Keenan had Coffey carry through on Keenan's behalf.  Coffey double-crossed Keenan and kept the money.  Coffey and Keenan's niece, Vonda Muir, "went to ground".  They feared Keenan and regularly moved.  Keenan pursued them by leaving threatening phone messages.  On one occasion, Keenan phoned Vonda Muir and threatened to "cave Coffey's skull in".  Jeremy Jupp eventually learned of Coffey's location.  Jupp told Spizzirri, who told Keenan.  On the morning of 8 December 2004, Spizzirri, at Keenan's request, summoned Jupp to Keenan's property.  Keenan then drove his own car, with a passenger armed with a baseball bat, towards where they believed Coffey was residing.  Keenan was aware that the passenger had the baseball bat.  Spizzirri, with Jupp as his passenger, drove there in another vehicle.  Spizzirri was armed with a shortened .22 calibre weapon. 

[16] The two vehicles stopped at a service station where the four protagonists discussed strategy.  They then drove down Crescent Avenue to satisfy themselves that, as Jupp had earlier reported, Coffey was still in the white van parked outside the house.  They regrouped near the end of the avenue.  The plan was for Keenan's passenger to enter the van and beat Coffey.  Jupp was then to drive away in Coffey's van.  They put the plan into execution.  After Keenan's passenger moved into the van with the bat, Vonda Muir emerged.  Keenan brought her to the ground.  This was not caring protectiveness towards his niece, but rather Keenan was removing an impediment to the assault on Coffey.  In the meantime, Spizzirri had left his vehicle and fired five shots into the fleeing Coffey.  Spizzirri ran back to his vehicle and Keenan and his passenger, satisfied that Coffey had been "felled", ran back to Keenan's vehicle.  Keenan had continued to chase Coffey whilst Spizzirri was firing at him and only desisted once Coffey fell to the ground.  The judge added:

"This suggests to me that you were probably not surprised by the use of the gun, although I make no finding that you were expressly aware that Spizzirri was taking the gun with him.  Your conduct during the firing, and following it, is consistent with your expectation that serious harm was to be done in some way to Coffey."

[17] Keenan had a "vengeful motivation to teach Coffey a serious lesson for having had the audacity to betray [him]".  Keenan engineered the plan to inflict serious harm upon Coffey and relied on his "lieutenants directly to inflict the injury".  The conviction had "the very disturbing stench of gangland retribution … This sort of intentional, vengeful, vicious crime, with such horrendous permanent consequence to the victim, demands a strongly punitive and deterrent response from the Court."

[18] The judge referred to Keenan's prior convictions for offences of violence and noted that he had served those sentences in full.  He committed this offence just a year after his release from custody.  The judge considered Keenan to be "a violent and remorseless criminal [who] constitute[d] a potential danger to the community if at large". 

[19] The judge distinguished the cases relied on by Keenan's counsel at sentence (R v Anderson[8] and R v R v Witchard & Ors; ex parte A-G (Qld)[9]).  The judge then considered the cases referred to by the prosecutor (R v Wilkie[10] and R v Chambers, Harrison & Fisher; ex parte A-G (Qld)[11]), noting that in Chambers, the offending was less serious than Keenan's. 

[20] Coffey's insight into his injuries puts him in a position as victim at or close to the worst end of the range of these types of offence.  Life imprisonment is reserved for the worst category of case.  Keenan deliberately planned the offence for his own vengeful motivation and involved three others.  The grievous bodily harm was inflicted by shots from a gun.  Consistent with the jury's verdict, this was within the probable contemplation of the plan.  Keenan's prior conviction for manslaughter was also "referable to vengeful motivation in the context of betrayal".  His commission of the present offence only a year after release from a long prison sentence did not suggest sanguine or any sound prospects of rehabilitation.  R v Aston[12] and Veen v The Queen [No 2][13] were authority for the principle that where life imprisonment was not mandatory it should be imposed only where the court was "plainly not satisfied imprisonment for a long, finite term will suffice".  This case warranted the imposition of the maximum penalty of life imprisonment.

Conclusion

[21] The maximum penalty for this offence against s 317(e) Criminal Code is life imprisonment.  The central question in this application is whether this serious example of a planned, vengeful, violent attack, which resulted in grave and permanent injury to the victim, by an offender with prior convictions involving serious personal violence, warranted the maximum term of life imprisonment.  If Keenan's life sentence remains, he will be eligible to apply for parole after he has served 15 years,[14] but parole may never be granted.  He may be in custody for the rest of his life.  He was 34 years old at sentence and 32 when he committed this offence. 

[22] As the sentencing judge recognised, where a sentence of life imprisonment is not mandatory, it should be imposed only where the court is plainly satisfied that imprisonment for a long, finite term will not suffice: see Veen v The Queen [No 2].[15]  Courts do not lightly impose life imprisonment when exercising the sentencing discretion.  It has the effect of handing the judicial sentencing discretion to the executive. 

[23] Hunt J explained the impact of a life sentence on an offender in R v Petroff:[16]

"The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment of offenders generally.  Such a sentence deprives a prisoner of any fixed goal to aim for, it robs him of any incentive and it is personally destructive of his morale.  The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by the prison authorities."[17]

[24] More recently, in Buckley v R,[18] Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ noted:

"In R v Leitch, the New Zealand Court of Appeal said that, when considering the exercise of its discretion, a sentencing court 'will ordinarily consider whether the protective purpose of preventive detention could reasonably be met by an available finite sentence of imprisonment'. Similarly, in the recent Victorian case of R v Davies, Charles and Nettle JJA said that, before answering the critical question whether the case was of such exceptional rarity that an indefinite sentence should be imposed, it was necessary first to consider what fixed term of imprisonment would have been appropriate.  …  An indefinite sentence is not merely another sentencing option. Much less is it a default option. It is exceptional, and the necessity for its application is to be considered in the light of the protective effect of a finite sentence."[19] (footnotes omitted)

[25] In R v Robinson,[20] this Court (Keane JA, Williams JA and Muir J agreeing) stated:

"… the imposition of a sentence of life imprisonment for an offence other than murder is exceptional. It is incumbent on a sentencing judge to consider whether the purposes which are reflected in the sentence could be met by a lesser sentence so as to avoid the 'banalisation' of a sentence of life imprisonment."[21]

[26] Keenan was found not guilty of attempted murder, an offence which, like the offence of intentionally doing grievous bodily harm under s 317(e) on which Keenan was convicted, carries a penalty of up to life imprisonment.  The parties have referred to some decisions of this Court relating to attempted murder.  In R v Reeves[22] and R v Witchard & Ors; ex parte A-G (Qld),[23] this Court stated that the appropriate range for the offence of attempted murder was generally from 10 to 17 years imprisonment.

[27] Counsel for the respondent also placed reliance on R v Griffith[24] which he contended was a comparable sentence although for attempted murder.  Griffith's co-offender, Cole,[25] was sentenced to an effective term of 19 years and three months imprisonment.  Griffith and Cole purchased balaclavas and stole two vehicles to use in their getaways.  The high powered semi-automatic M1 carbine used as the weapon in the attempted murder had been in Griffith's possession and used beforehand.  Griffith and Cole formed a cold-blooded plan to shoot whoever was in charge of the jewellery shop in order to steal jewellery.  The victims did not suffer serious physical injuries but they had grave psychological consequences.  Another co-offender, Knox, was shot down during the course of the robbery.  Griffith had a serious criminal history, including 10 years imprisonment for rape, attempted rape, indecent assault, and breaking and entering a dwelling house; and six years imprisonment for breaking and entering a dwelling house with intent, attempted extortion, written threats to kill, false pretences, and six counts of breaking and entering a dwelling house with intent.  He also had convictions for attempted escape from prison; taking part in a riot; being unlawfully at large from home detention; and numerous other offences of dishonesty and drug offences.  He was 40 years of age and 42 at sentence.  Griffith was convicted after a lengthy trial.  The primary judge considered his anti-social tendencies and his propensity for life-threatening crime was so great that his prospects of rehabilitation were slight.  This Court held that the sentence of life imprisonment was appropriate and refused Griffith's application.

[28] The only case to which this Court has been referred in which a life sentence was imposed for the offence of doing grievous bodily harm with intent under s 317(e) is R v Wilkie.[26]  Wilkie was convicted after a trial of three counts of armed robbery in company with personal violence; armed robbery in company with personal violence and wounding; doing grievous bodily harm with intent to do grievous bodily harm; and two counts of deprivation of liberty.  He was sentenced to life imprisonment for doing grievous bodily harm with intent and to lesser concurrent sentences on the remaining counts.  The intentional grievous bodily harm offence occurred in the course of criminal conduct which also included the armed robbery in company with personal violence and wounding, and the two counts of deprivation of liberty.  Wilkie and another offender robbed the night manager at the Chevron Hotel, Surfers Paradise.  One offender was armed with a shotgun.  The other wore a balaclava or stocking over his head.  The night manager was repeatedly bashed about the head with the shotgun and shot in the hip at close range.  He suffered a fractured skull and an extradural haematoma.  The offenders also attacked another employee who suffered three broken ribs.  Both victims were tied up when the offenders left.  The night manager would have died within a couple of hours without medical treatment.  Wilkie also committed one previous and two subsequent armed robberies in company, all of which involved actual personal violence against the law-abiding victims. 

Wilkie was 43 years old at sentence and was serving a six year term of imprisonment for another armed robbery committed in the same time frame as the offences of which he was convicted after trial.  In New Zealand, he had convictions for property offences for which he was placed on probation.  He was fined for assault and had a conviction for cultivating marijuana and for possession of stolen property.  He had not previously been to prison.  He conducted his own defence at his trial which lasted six weeks.  The sentencing judge considered Wilkie was of "undoubted intelligence and ability".  He showed, however, a complete lack of remorse, was violent and ferocious, and would allow no-one to stand between him and what he wanted.  This Court concluded that the sentences were heavy but Wilkie's crimes were planned, vicious, callous and remorseless; the life sentence was appropriate.

[29] The following graph is supplied by the Queensland Sentencing Information Service (QSIS).  It relates to sentences imposed from July 1999 to December 2006 for offences against s 317(b) or (e)[27] (doing grievous bodily harm with intent or unlawful wounding with intent to do grievous bodily harm).  It shows that no such offenders were sentenced to more than 18 years imprisonment and only three per cent of those offenders were sentenced to 18 years imprisonment.

[30] A serious aspect of Keenan's offending was the diabolical consequences of it for the victim, Coffey, who will be a paraplegic for the rest of his life.  In that respect, there are some similarities between this case and that of R v Ho, Le, Le and Le,[28]  a single judge decision but one where neither the offenders nor the Attorney-General actively sought to appeal from the sentences imposed.[29]  All four offenders were convicted after a lengthy trial of attempted murder.  An Van Le was also convicted of doing grievous bodily harm with intent; and unlawful wounding with intent to do grievous bodily harm.  The remaining offenders (Ho, Ghi Van Le and Linh Van Le) were also convicted of doing grievous bodily harm and unlawful wounding.  The judge found that the offenders formed a plan to go to the victims' house after an episode earlier that day at a nearby soccer field.  It was likely that there was "very much more in the facts and circumstances behind these events than simply a dispute at the soccer ground".[30]  The offenders embarked in a planned way on a terrible mission, although the level of cold-blooded pre-planning was not as sinister as in R v Cole.[31]  They planned to use at least two guns to kill a man in a house in a suburban street where there could be a serious risk of death or injury from the shooting to uninvolved bystanders.  One victim was tragically and permanently disabled in the shooting.  At 20, he had lost the use of his lower limbs and forever confined to a wheelchair.  He was not an aggressor but he was shot in the back.  Each offender had a criminal history.  The judge sentenced Ho, An Van Le and Ghi Van Le to 16 years imprisonment for attempted murder, and Linh Van Le to14 years imprisonment for attempted murder.  An Van Le was also sentenced to 10 years concurrent imprisonment for doing grievous bodily harm with intent and to eight years concurrent imprisonment for unlawful wounding with intent to do grievous bodily harm.  Lesser concurrent terms of imprisonment were imposed for the remaining offences.

[31] Serious as Keenan's offending was, it does not in my view approach the seriousness of cases like Wilkie and Griffith where this Court upheld the extraordinary sentences of life imprisonment.  Wilkie committed a carefully planned series of four separate armed robberies involving a loaded gun in company.  All these offences involved actual physical violence to the victims.  In Griffith, the offender again planned with others to rob in company, whilst armed with a loaded semi-automatic M1 carbine,  the proprietors of a jewellery store, and to use whatever violence was necessary to effect their purpose.  A co-offender, Knox, was shot dead in the course of the robbery.  Griffith was older than Keenan.  His criminal history was at least as bad as and probably even more serious than Keenan's.  An important distinguishing feature which takes this case out of those extraordinary cases where life imprisonment is warranted, was that on no view of the facts was Keenan directly aware that Spizzirri was armed with a rifle, let alone a loaded rifle, and that Spizzirri intended to use the loaded rifle in the course of the plan to wreak Keenan's revenge on Coffey.  The sentences imposed in Ho, Le, Le and Le from which there was no Attorney-General's appeal also suggest that a life sentence was not warranted in Keenan's case. 

[32] For these reasons, I consider the primary judge erred in determining that imprisonment for a long, finite term was not an appropriate sentence and that life imprisonment was warranted.  It is then necessary to consider what sentence should have been imposed.

[33] Keenan did not have the mitigating benefit of a plea of guilty and showed no remorse or insight into his dreadful actions.  He had two previous convictions for serious offences of violence which I have described in detail earlier in these reasons.  Manslaughter, unlike the present offence, is not an intentional offence and Keenan's role in the manslaughter offence was not a dominant one.  The same cannot be said about his conviction for assault occasioning bodily harm in company in 1995.  Keenan planned revenge on Coffey, and organised for others to help him in his plan to cause serious harm to Coffey.  Coffey is now a paraplegic.  It was fortunate that law-abiding members of the public uninvolved in this dispute were not injured.  Keenan was 32 when he committed this offence.  I am not persuaded he has no prospects of rehabilitation after a lengthy period of incarceration.  He has been at large for significant periods following his arrest for this offence in January 2005.  There has been considerable delay in finalising the prosecution of this matter.  Keenan has had something of an emotional rollercoaster ride following his acquittal by this Court in December 2007 and the subsequent re-instatement of his conviction by the High Court in February 2009.  Nevertheless, the proposal put forward by his counsel at this appeal, that Keenan should receive a sentence of a mere seven years imprisonment for the commission of this dreadful offence, can only be described as preposterous. 

[34] The relevant sentencing principles are those in s 9(4) Penalties and Sentences Act 1992 (Qld).  These principles must be applied with proportionality to the objective circumstances surrounding Keenan's offending to determine the appropriate sentence.  After weighing up the many aggravating features of this case, including Keenan's criminal history, and the few matters in Keenan's favour, a sentence of no greater than 17 years imprisonment is warranted.  Under this sentence, Keenan would be eligible for parole after serving 13.6 years imprisonment, only about 17 months earlier than his present eligibility under the life sentence.[32]  Unless he commits further offences, he will not have to serve any more than 17 years imprisonment. 

Summary

[35] This example of doing grievous bodily harm with intent was not within that exceptionally rare category of such cases where the indefinite sentence of life imprisonment was warranted.  For the reasons I have given, I would grant the application for leave to appeal, allow the appeal, set aside the sentence imposed at first instance, and instead impose a sentence of 17 years imprisonment.  I would declare the conviction to be a conviction for a serious violent offence.  The declaration that 189 days spent in pre-sentence custody between 29 January 2005 and 5 August 2005 be deemed time already served under the sentence remains.

[36] KEANE JA:  On 13 March 2007 the applicant was convicted upon the verdict of a jury of doing grievous bodily harm with intent to do grievous bodily harm.  He was acquitted by the jury of attempted murder. 

[37] On 15 March 2007 he was sentenced to life imprisonment.  A period of 189 days pre-sentence custody was declared as time served for the offence.

[38] The applicant appealed against his conviction.  He was successful in this Court which set aside the verdict of the jury and entered a verdict of acquittal,[33] but was ultimately unsuccessful in the High Court of Australia which restored the conviction.[34] 

[39] The applicant had also sought leave to appeal against his sentence on the ground that it was manifestly excessive.  That application was remitted by the High Court to this Court.  It is that application with which this Court is now concerned.

The circumstances of the offence

[40] The Crown case was that the applicant, his two co-accused, Booth and Spizzirri, and another man, Jupp, were parties to a plan to exact revenge on the complainant who had misappropriated $6,000 or $7,000 due to the applicant for illicit drugs delivered by the complainant to a purchaser at the applicant's request. 

[41] The complainant decamped and the applicant spent some time trying to locate him.  When the complainant was located, the applicant and his companions ambushed the complainant.  Spizzirri fired five shots at the fleeing complainant.  The complainant was struck in the spine.  As a result he was rendered irreversibly paraplegic.

[42] There was no evidence that the use of a gun had been discussed with the applicant in connection with the attack upon the complainant.  One of the applicant's companions was, however, armed with a baseball bat.  Further, the applicant had sent text messages to the complainant's female companion threatening them with serious physical violence.  In this regard, with specific reference to the complainant, the applicant said that he was going to "cave his skull in".

[43] The learned sentencing judge found that the applicant engineered a plan to inflict serious harm on the complainant and relied on his companions to inflict that harm.  His Honour found that there was in the applicant's organisation of the attack on the complainant "the very disturbing stench of gangland retribution".

[44] The learned sentencing judge sentenced the applicant on the basis that "[t]his sort of intentional, vengeful, vicious crime, with such horrendous permanent consequence to the victim, demands a strongly punitive and deterrent response from the Court."

The applicant's personal circumstances

[45] At the time of the offence, the applicant was 32 years old.  He was 34 years old when he was sentenced.

[46] The applicant has a serious history of criminal activity including crimes of violence.  In 1991 in Victoria he was sentenced to 18 months imprisonment for attempted armed robbery, burglary, attempted burglary and theft. 

[47] In September 1993 he committed manslaughter for which he was sentenced to eight years imprisonment on 17 July 1995.  While he was in custody awaiting trial, he participated in a serious assault on another prisoner for which he was sentenced to 15 months imprisonment to be served cumulatively upon the sentence for the manslaughter. 

[48] The offence of present concern was committed a little more than a year after he was released from custody for these earlier offences.

The sentence

[49] The learned sentencing judge described the applicant as "a violent and remorseless criminal" who constitutes "a potential danger to the community … at large".

[50] At sentence the applicant's counsel argued for a sentence of imprisonment in the range between 12 and 15 years.  The Crown Prosecutor urged that the applicant should be imprisoned for life.

[51] The learned sentencing judge concluded his sentencing remarks as follows:

"The maximum penalty of life imprisonment is reserved for the worst category of case. These features of the present case should be noted. This escapade was planned and deliberative. It involved four persons and was explained only by your vengeful motivation. It was carried out significantly substantially by the others on your behalf and inferentially under your direction. The grievous bodily harm was inflicted by shots from a gun, an offence taken by the verdict to have been within the probable contemplation of the implementation of the plan. The grievous bodily harm has rendered the victim a paraplegic.

You present to the Court with a highly significant prior criminal history including participation with others in two violent crimes, manslaughter and assault occasioning bodily harm in company, where, likewise, the treatment of the victim was referable to vengeful motivation in the context of betrayal. You committed this offence only about a year after your release from a long term in prison. That means one could not be sanguine as to your prospects of rehabilitation. There is, indeed, no evidence before the Court providing any sound basis for confidence as to your prospects for rehabilitation.

The circumstances in which life terms might be considered appropriate, where not mandatory, were discussed by the Court of Criminal Appeal in R v Ashton (1991) 1 Queensland Reports 363 and in the same volume at 375, with special reference to the decision of the High Court of Australia in Veen (1988) 164 Commonwealth Law Reports 465. Speaking broadly, those cases indicate that where life imprisonment is not mandatory, it should be imposed only where the Court is plainly not satisfied imprisonment for a long, finite term will suffice.

I am satisfied that this is a case warranting imposition of the maximum penalty. You will be imprisoned for life."

The arguments on this application

[52] On behalf of the applicant it is said that the sentence is disproportionate to the criminality of the offence in question.  It is submitted that the appropriate sentencing range did not exceed 10 years imprisonment, and that this Court should impose a sentence of seven years.  In support of this submission, it is contended that the circumstances of the case do not warrant a sentence of life imprisonment and that the learned sentencing judge placed undue emphasis on the criminal history of the applicant.

[53] On the respondent's behalf it is said that the consequences of the crime for the complainant and the circumstances of gang violence in which it was committed at the instigation of the applicant were so serious as to warrant the imposition of the maximum penalty under the law for this offence.  It is submitted that it was open to the learned sentencing judge to conclude that considerations concerning the need to protect the community against the applicant who has a disposition to commit crimes of personal violence and to deter criminals from having recourse to violence to enforce their claims against each other were so strong in this case that a sentence less than life imprisonment would not be appropriate.

Discussion

[54] On the applicant's behalf reliance was placed on observations made by the Court of Appeal in setting aside the applicant's conviction to the effect:[35]

"Because of the orders we propose, it is unnecessary to deal with the application for leave to appeal against the sentence of life imprisonment, the maximum sentence able to be imposed. In case the sentence is used as a comparable sentence for convictions under s 317 Criminal Code, we think it prudent to make the following brief observation. Despite the serious aspects of the case and Keenan's concerning antecedents, we are unpersuaded that this was an appropriate case in which to impose the maximum penalty of life imprisonment."

[55] The written submissions filed on the applicant's behalf argued that these observations show that "this Court has already concluded that the sentence in the instant case was manifestly excessive".  Reference to what was actually said by this Court shows that this argument is not accurate.  It is clear that the Court was not expressing a view which was apt to be determinative.  Rather, the Court was reserving its opinion as to the correctness of the sentence lest it be thought by other courts that the sentence had the imprimatur of the Court.  It was, of course, unnecessary for the Court to express any view on this point at all in order to determine the issues decided by it, and it is apparent from the language in which the Court expressed itself that the Court was not purporting to determine the question which arises for determination on this application.  That question is whether the Court is persuaded that this is a case where it was not open to the learned sentencing judge in the exercise of his discretion to impose a life sentence.

[56] It must also be acknowledged that the observations on which the applicant seeks to rely could not reflect a definitive appreciation of the extent of the applicant's criminal responsibility, the Court having concluded that he was not criminally responsible at all for the complainants' injury.  The correction by the High Court of this Court's decision has a decisive bearing on the proper appreciation of the criminal responsibility of the applicant for the injury inflicted on the complainant.  In that regard, the applicant's criminal responsibility for the injury inflicted on the complainant depended upon s 8 of the Criminal Code 1899 (Qld) which limited the applicant's criminal responsibility for the harm inflicted on the complainant "by requiring that the nature of the offence committed be such as to be a probable consequence of the common purpose" prosecuted by the applicant and his fellow assailants.[36]  The basis on which the verdict of the jury was restored by the High Court was explained by Kiefel J, with whom Hayne, Heydon and Crennan JJ agreed.  Kiefel J said:[37]

"A jury, properly instructed, was not obliged to conclude that the shooting was an act independent of the common purpose. Such a conclusion depended upon the jury’s finding as to that purpose. It was not necessary to that finding that the jury determine whether the plan of attack included the possession or use of a gun. It was open to the jury to conclude that the common purpose was to inflict serious physical harm upon Coffey and the trial judge was correct to direct the jury’s attention to this inference. The means to be used in the prosecution of that purpose do not assume significance. No further direction was required as to other possible inferences beyond those that were given."

[57] On the applicant's behalf emphasis was placed on the absence of evidence that the applicant was aware that one of his henchmen had a gun and the fact that he did not himself lay hands upon the complainant.  The argument was advanced that the criminal responsibility of the applicant for the injury inflicted on the complainant was less than that of a person who had actually inflicted the injury.  That argument must be rejected. 

[58] In forming an accurate appreciation of the extent of the applicant's criminality, it is necessary to bear steadily in mind that the applicant organised the attack on the complainant.  This was done with a view to inflicting grievous bodily harm on the complainant as a piece of gangland discipline.  The vengeance meted out to the complainant was an example of the enforcement of the criminal values of the underworld. 

[59] It may be said that the criminality exhibited by the offender in this case might have been significantly worse if the applicant knew that one of his companions in the attack upon the complainant was carrying a gun.  The possibility that a gun might be used heightens the probability of serious harm to the intended victim, and raises the possibility of serious injury to innocent bystanders.  The first point to be made here was made by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen [No 2]:[38]

"… that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed:  Ibbs v The Queen ((1987) 163 CLR 447, at pp 451-452).  That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness.  A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."

[60] Further, it may well be that the use of weapons other than a gun, better suit the purposes of a gangland bashing.  A severe beating that leaves the victim maimed serves as an example to intimidate others and lessens the prospect of police intervention. 

[61] In my respectful opinion, it was open to the learned sentencing judge to take the view that the fact that the applicant did not know that Spizzirri was carrying a gun did not mean that this case was "recognizably outside the worst category".  In that regard, the complainant was pursued by the applicant with a fixed and cold-blooded determination.  As the learned sentencing judge said, the injury inflicted on the complainant was of the most serious kind of grievous bodily harm.  The applicant's antecedents show that he was a man with a disposition to commit violent crimes.  The prospects of the applicant's rehabilitation are distinctly remote. 

[62] As to the suggestion that the learned sentencing judge placed undue weight on the applicant's criminal record, that record was relevant to the issue of community protection.  In Veen v The Queen,[39] Mason J, as he then was, accepted that life imprisonment should be imposed when it is necessary to protect the community from an offender who has a disposition to offences of personal violence likely to cause serious injury, and where the offence is itself so grave as to require a very long sentence.[40]

[63] It is apparent from the sentencing remarks of the learned sentencing judge that he did not, as the applicant argues, approach the sentencing of the applicant on the basis that his past offences warranted a fresh penalty,[41] but regarded the applicant's antecedent criminal history as indicating that the applicant was, like the offender in R v Wilkie,[42] disposed to have recourse to acts of violence to achieve his aims.  The applicant's criminal history could legitimately be taken into account to show that the offence of present concern is not an uncharacteristic aberration on his part and that the applicant has manifested in his commission of this offence a continuing attitude of disobedience of the law so as to indicate the need for a more severe sentence in the interests of deterrence and protection of society.[43]

[64] Next, the applicant urges that he was acquitted of a charge of attempted murder and that this means that the jury were not satisfied beyond reasonable doubt that he actually intended to kill the complainant.  It must, of course, be accepted that the applicant did not intend to kill the complainant, but to say this is not to cast doubt on the accuracy of the learned sentencing judge's view that the injury to the complainant for which the applicant was criminally responsible was a most serious example of grievous bodily harm, and that the applicant organised the attack which resulted in that injury.

[65] In R v Chambers,[44] this Court was concerned with a case of grievous bodily harm inflicted with intent to cause grievous bodily harm.  The victim was left in a permanent vegetative state by an assault by youthful offenders.  Upon the offenders' pleas of guilty, a sentence of 10 years imprisonment was imposed on each of them.  On an appeal by the Attorney-General, the sentence was increased to 15 years imprisonment.  In this Court, the Chief Justice, with whom Helman and Philippides JJ agreed, said:[45]

"The margin between an intention to kill and an intention to do grievous bodily harm is of less significance to sentencing in cases where the damage done is at the worst end of the range, as here. In those cases the damage actually done should weigh heavily in determining sentence.

The other case is R v Bates and Baker [2002] QCA 174, where, following appeal, a sentence of 18 years imprisonment was imposed for manslaughter resulting from what the sentencing judge termed 'a vicious battering'. Those offenders had pleaded guilty. It was substantially the plea which influenced the Court of Appeal to set aside the life term imposed by the sentencing judge on Bates. Once one accepts this sentencing judge's description of the unfortunate complainant as 'a dead man living', there is little to distinguish the case of Bates from the present. There was certainly more premeditation in that case. But on the other hand the crime to which these offenders pleaded involved proof of no intent. Here there is the acknowledged intent to do grievous bodily harm.

Reference was made on appeal to R v Bird and Schipper (2000) 110 A Crim R 394. Schipper was, following appeal, sentenced to nine years imprisonment for doing grievous bodily harm with intent. The consequences to the victim in that case, although serious, do not begin to approach those visited upon this complainant.

Before the learned judge, relying on Fahey, the Crown prosecutor submitted that an appropriate sentence would be 12 years imprisonment. As recently observed in R v Wilde; Ex parte Attorney-General (Qld) (2002) 135 A Crim R 538, that does not constrain this Court now if we believe such a penalty would have been manifestly too low. Otherwise this Court would compound error.

The observation in R v Gerhardt; Ex parte Attorney-General (Qld) [1999] QCA 477, that in determining these appeals the court 'would ordinarily not sentence the respondent to any higher sentence than that contended for by the Crown below' should be approached on the assumption that the sentence contended for below by the Crown was within an appropriate range.

In my view, for offending of this gravity and after allowing for the pleas of guilty and the youth of the offenders, the respondents should be imprisoned for a term of the order of 15 years.

I would regard the 10 years imposed in Fahey as a very low sentence for such offending. Further, the disabilities inflicted on this complainant are even more serious than occurred in that case. Sight cannot be lost of the fact that the maximum penalty is life imprisonment. These offences must reasonably be considered as among the most serious examples of the offence in view of the disastrous consequences to the victim, and that is so notwithstanding the absence of a weapon such as a gun, a knife or a bat. It is the pleas of guilty on the reasoning of Bates and the comparative youthfulness and remorse of the respondents which warrant the imposition of finite lesser terms. Allowing appropriately for the different circumstance that the very similar offending in Mullins nevertheless amounted to attempted murder and not doing grievous bodily harm with intent, and Mullins having gone to trial, and that Bates and Baker's also comparable offending actually led to death and convictions for manslaughter, I consider that an appropriate adjustment should, in this case, after allowing for the pleas of guilty, youthfulness, and remorse and prospects of rehabilitation, have led to the imprisonment of each respondent on this count for 15 years."

[66] In this case there can be no adjustment of the kind spoken of by the Chief Justice for "pleas of guilty, and remorse and prospects of rehabilitation".  It was clearly open to the sentencing judge to conclude that the prospects of rehabilitation of the applicant were so remote that a decision as to whether the applicant has become fit to rejoin society should be left for determination by the authorities after the applicant has served 15 years and that the need for the protection of the community warranted a sentence which would ensure that the applicant might remain in lawful custody thereafter until, at some later date, the authorities can be satisfied that the applicant may safely be released.

[67] There is room for debate as to whether the injuries suffered by the complainant in this case are more or less serious than those suffered by the victim in R v Chambers.  There is no definitive legal answer to the question whether a victim left in a permanent vegetative state is "worse off" than a victim who has been left irreversibly paraplegic and who must live each day with the pain and cruel sense of loss involved in that condition.  What can be said, I think, is that it was reasonably open to the learned sentencing judge to proceed on the basis that the injury suffered by the complainant in this case was in the worst category of examples of grievous bodily harm.

[68] On the applicant's behalf reference was made to cases in which lesser sentences have been imposed for cases of intentional infliction of grievous bodily harm.  It is not necessary to refer to those cases.  None of them exhibit the combination of features of serious personal injury and gangland violence organised by an offender with the record of serious criminal violence which are the features which led to the imposition of the sentence in this case.  The applicant's counsel, when pressed by the Court, was unable to refer to any case exhibiting these features in which it has been held that a life sentence was held to be outside the range of appropriate sentences.

[69] It may be said that there must be strong justification for any sentence of indeterminate duration.  The Criminal Code provides that life imprisonment is the maximum penalty available under the law for the offence presently under consideration.  Accordingly, it is not accurate to speak of a sentence of life imprisonment as if it were an indefinite sentence imposed under legislation specifically concerned to permit the imposition of an indefinite sentence.  Nevertheless, it may be accepted for present purposes that, generally speaking, indeterminate sentences are exceptional and must be justifiable on that basis.  In Buckley v R,[46] Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ said:

"In R v Leitch ([1998] 1 NZLR 420 at 429), the New Zealand Court of Appeal said that, when considering the exercise of its discretion, a sentencing court 'will ordinarily consider whether the protective purpose of preventive detention could reasonably be met by an available finite sentence of imprisonment'. Similarly, in the recent Victorian case of R v Davies ((2005) 153 A Crim R 217 at 238; [2005] VSCA 90), Charles and Nettle JJA said that, before answering the critical question whether the case was of such exceptional rarity that an indefinite sentence should be imposed, it was necessary first to consider what fixed term of imprisonment would have been appropriate. The Queensland legislation applied in the present case requires a judge to specify a nominal sentence, which becomes relevant for purposes of review and for the consequences of decisions made on review. The significance of the nominal sentence, however, goes beyond that. In the first place, where a judge, sentencing a dangerous offender, is deciding whether the protection of society requires an indefinite sentence, the protective effect of a finite sentence, fixed according to ordinary sentencing principles, including the need to protect the public (Veen v R (No 2) (1988) 164 CLR 465; 77 ALR 385), is a matter to be weighed carefully. An indefinite sentence is not merely another sentencing option. Much less is it a default option. It is exceptional, and the necessity for its application is to be considered in the light of the protective effect of a finite sentence. Second, the available finite sentence sets the time frame by reference to which the temporal issues earlier mentioned are to be examined. As will appear, in this case the sentencing judge set a nominal sentence of 22 years, having rejected a prosecution submission that it should be life. Since it was clear that, even if an indefinite sentence were not imposed, the appellant would be in custody for many years, estimations of future risk were being undertaken in a temporal context that necessarily gave rise to substantial uncertainty."

[70] Their Honours' observations were made in the context of a discussion of the imposition of an indefinite sentence under s 163 of the Penalties and Sentences Act 1992 (Qld).  It was not necessary for the learned sentencing judge to comply with the requirements of that piece of legislation, but it is clear from his Honour's sentencing remarks set out above that his Honour did turn his mind to whether a determinate sentence would have afforded adequate protection to the community. 

[71] Whether it was reasonably open to the learned sentencing judge to conclude that a life sentence, pursuant to which the applicant, if refused parole after 15 years, might be further detained until satisfying the authorities that he should be admitted to parole is a question which requires consideration of the nature and extent of the danger which the applicant poses to the community and the prospect of his rehabilitation within 15 years.  As I have said, the applicant's prospects of rehabilitation cannot be regarded as other than remote, and I am unable to say that the conclusion at which his Honour evidently arrived in this regard was not reasonably open to him. 

Conclusion and order

[72] No error on the part of the learned sentencing judge has been demonstrated.  I am unpersuaded by the arguments advanced on the applicant's behalf that the sentence imposed on the applicant was manifestly excessive. 

[73] The application for leave to appeal should be refused.

[74] FRASER JA:  In my opinion it was open to the learned sentencing judge to impose the sentence of life imprisonment for the reasons given in his Honour's sentencing remarks.  I agree with the reasons given by Keane JA for rejecting the arguments advanced on behalf of the applicant.  I too would refuse the application.