SUPREME COURT OF QUEENSLAND

[1]  CHESTERMAN JA:  I agree that the application for leave to appeal against sentence should be refused, for the reasons given by Martin J.

[2]  WHITE JA:  I agree for the reasons given by Martin J that the application for leave to appeal against sentence should be refused.

[3]  MARTIN J: On 27 March 2007 the applicant was convicted by a jury of the manslaughter of his de facto partner.  On 19 April 2007 he was sentenced to a term of 14 years imprisonment.  The sentence took into account, among other things, nine summary offences and two charges of assault occasioning bodily harm to which he had pleaded guilty.

[4] On 8 October 2010 this Court refused an application for an extension of time to appeal against conviction but granted an extension of time to apply for leave to appeal against sentence.

[5] The ground upon which the appeal would be based if leave was granted is that the sentence is manifestly excessive.

[6] The applicant was born on 13 March 1971.  He was 34 years old at the time of the offence and 36 years old at trial.

[7] The offence of unlawful killing occurred in December 2005.  The applicant and the deceased had been drinking heavily.  The deceased’s blood alcohol content was later determined as being .227 and it appears that the applicant would have been similarly affected.

[8] There were no witnesses to the fatal assault.  The applicant confessed to a number of persons that he thought he had killed his partner.  Shortly after, he told his stepfather there was no point in trying to wake his de facto partner as she was dead.  She was found to have been stabbed and struck with a cricket bat.  Both weapons were found near her body.

[9] It appears that the applicant had dragged the deceased to the bathroom and then back to the bedroom where the attack had initially begun.  It appears that he attempted to clean her wounds after the assault upon her.  There were 13 stab wounds to her front, seven or eight to her back, one to the right upper arm, one to her right thigh, and her hands showed signs of defensive injuries.  Only one of the wounds proved fatal and, according to the pathologist, only mild minimal force was necessary to inflict that wound.

[10]  The jury acquitted the applicant of murder and convicted him of manslaughter.  It was accepted, for the purposes of sentencing, that the jury must have had a reasonable doubt about the applicant’s capacity to form the requisite intent because of intoxication.

[11]  The learned sentencing judge took into account the applicant’s criminal history.  Apart from minor property offences the applicant’s previous convictions were for offences of violence which he committed upon the deceased over a period of about 10 years.  His Honour thought it reasonable to infer that both the applicant and his victim were alcoholics.  Domestic violence orders were made on a number of occasions for the protection of the deceased.  It appears that as often as they were made they were breached by the applicant.  These breaches usually arose when one or both of the parties had engaged in excessive drinking.  In 1995 he was convicted of assault occasioning bodily harm on his partner.  He struck her twice with a closed fist because she ignored his demand to cease drinking.

[12]  Three years later he was again convicted, this time of three separate counts of assault occasioning bodily harm committed over a two month period.  On the first of those assaults, he punched his partner in the head and then smashed her head against a door after she had refused to go home with him.  The second assault was constituted by hitting her over the head with an iron bar, as well as kicking her in the face with his foot and twice in the chest.  The third assault consisted of a punch in the face when she refused to get up.

[13]  Only a year later he was convicted of common assault and assault occasioning bodily harm when he grabbed his partner by the hair, pushed her head into a bedroom wall and kicked her twice in the stomach.  On that occasion he was sentenced to four months imprisonment to be served as an intensive correctional order.

[14]  In 2002 he was again convicted of assaulting his partner and breaching a domestic violence order.  This time the offences consisted of punching her twice to the face.

[15]  When the applicant was being dealt with for the manslaughter conviction, he also pleaded guilty to a number of summary offences mostly concerning breaches of bail conditions.  An ex officio indictment was also presented in which he was charged with two counts of assault occasioning bodily harm relating to the deceased.  He pleaded guilty to those.  The first occurred in 2004 when he kicked and punched his partner and threw a child’s bicycle at her.  The second was in 2005 when he struck her twice with a broom handle.

[16]  During the submissions made on sentencing the Crown Prosecutor contended:

(a) that a sentence of 12 years imprisonment on the manslaughter conviction should be imposed and, then

(b) that the subsequent offences (by which he meant the charges to which the applicant pleaded guilty at the hearing) should be taken into account by imposing a total sentence of 14 years imprisonment.

[17]  The applicant’s counsel at trial did not argue that that sentence was outside the range.

[18]  The applicant now submits that the sentence of 14 years imprisonment was manifestly excessive.  The specific area which constitutes the basis for the appeal was the addition of the further two years imprisonment.  It was argued that:

(a) As the sentence exceeded 10 years a serious violent offender declaration was automatically made;

(b) By adding the two years in those circumstances an equivalent of a non parole period of 19.2 months was incurred;

(c) Had the applicant pleaded to the ex officio indictment at an earlier time it was unlikely he would have been sentenced so severely; and

(d) By taking into account the history of violence in arriving at a 12 year sentence, the addition of two years was, in effect, a double punishment as the two years sentence reflected two offences which constituted part of that earlier history.

[19]  The Court was referred to the reasons of Holmes JA in R v Sebo, ex parte Attorney-General[1] (“Sebo”) and what was argued to have been a range established in that case of nine to 12 years for a manslaughter conviction.  After a detailed consideration of a number of other authorities, her Honour said:

“[18] The worst features of the killing in this case were its brutality, the youth and relative defencelessness of the victim, and the limited nature of the provocation which triggered it. (The fact that the fatal assault occurred in a public place seems to me, in this particular context, to have no aggravating effect.) The mitigating factors were the respondent’s relative youth, his co-operation and his lack of any previous criminal history. What the cases cited demonstrate, in my opinion, is that having regard to all of those features, the sentence might properly have fallen between 9 and 12 years. A sentence of 10 years imprisonment, which carried the requirement that the respondent serve 80 per cent of it, was plainly not inadequate. There is no basis on which this court should interfere with the learned sentencing judge’s exercise of discretion.”

[20]  Those conclusions do not propose a sentencing range except in the circumstances specifically referred to by Holmes JA.  Manslaughter is an offence which, perhaps more than any other in the Criminal Code, is susceptible to a very wide range of sentences because of the infinitely various sets of circumstances which can give rise to the offence.[2]  While reference to Sebo and other decided cases can be useful, it must be remembered that “An approach which seeks to grade a criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process”.[3]

[21]  In any event, this is not a case which would fall within the circumstances considered in Sebo.  The applicant for leave was not remorseful, he did not plead guilty, nor did he offer to plead guilty in a timely way.  He was not a young man and he had a considerable history of violence towards the deceased.

[22]  The learned sentencing judge described the events with which he was dealing in the following way:

“The circumstances reveal what can only be described as a terrible situation of constant violence inflicted, in the course of drinking bouts, upon a woman who you were in a relationship with and with whom there must have been some significant bond. It cannot be known what led, on this occasion, to your attacking her with a knife but presumably the catalyst was a drunken quarrel about something or other.

The repetitive and prolonged nature of the attack upon the deceased with the knife makes this a very serious case of manslaughter. The community is entitled to look to the Courts to ensure that sentences, which are commensurate with the criminality involved in brutal attacks on women, are imposed. Here it is common ground that I should take into account the previous history of violence, including the offences to which you have pleaded guilty today and those offences for which you have already been dealt with involving the deceased, and impose a sentence in respect of the manslaughter count which reflects the whole history of the matter. This seems to me to be the sensible way in which to approach sentence in this case.”

[23]  The learned sentencing judge did not, in arriving at a sentence of 12 years on the manslaughter charge, take into account the other matters to which the applicant had pleaded guilty during the sentencing hearing.  In my opinion, the learned sentencing judge clearly distinguished between the criminal history of the applicant for which punishments had earlier been imposed and the extra charges to which he pleaded guilty on the day.

[24]  Had the applicant only been facing sentencing on the two offences of assault occasioning bodily harm alone then he would have been subject to a sentence of at least two years imprisonment and perhaps up to four years.[4]

[25]  It was argued for the applicant that the sentence of two years (assuming it to be the proper sentence) should not have been imposed as part of a global sentence nor cumulatively but rather concurrently.  I do not agree.  A sentence of 14 years properly reflected the seriousness of the manslaughter and of the assaults and was an appropriate overall sentence.

[26]  It would not have been appropriate to have made the two years sentence for the charges of assault occasioning bodily harm concurrent because they were clearly separate offences committed at different times even though they were offences in a 10 year course of conduct.  Had the learned sentencing judge simply ordered that a two year sentence be cumulative upon the 12 year manslaughter sentence then it would have only have resulted in the total period he would need to serve before becoming eligible to apply for parole being reduced by some seven months.  That does not demonstrate a manifestly excessive sentence in these circumstances.  In my opinion, the learned sentencing judge imposed a sentence which was within the appropriate range.  Leave to appeal against sentence should be refused.