R v Selby[2013] QCA 261

SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  I agree with the reasons of North J and the order he proposes.

2. MUIR JA:  I agree that the application for leave to appeal should be refused for the reasons given by North J.

3. NORTH J:  After a trial in the Supreme Court the applicant was convicted before a jury of malicious act with intent.^[1]  The learned trial judge sentenced the applicant to imprisonment for a period of eight years and a declaration was made that the applicant was convicted of a serious violent offence.^[2]

4. The applicant seeks leave to appeal on the grounds that the sentence was manifestly excessive. The applicant, who represented himself, did not contend that the term of imprisonment imposed was excessive. His submission in both the written outline and at the hearing of the application was that the declaration of a serious violent offence meant that the sentence was excessive.

5. The circumstances of the offence were outlined in the sentencing remarks by the learned trial judge.^[3]  The applicant and the complainant, Potts, were in dispute.  The genesis of the dispute was an alleged assault by the applicant upon a Ms Jones.  The complainant and some of his friends took objection to the applicant’s conduct towards Ms Jones and over a period preceding the events the subject of the offence insults were exchanged.  The day before the offence the applicant spoke to a police officer about his rights if Ms Jones were to return to his premises and assault him.  The officer gave some advice about meeting like violence with like violence and self defence and advised the applicant to ring the police.  On the afternoon of the offence the applicant and the complainant communicated by telephone.  There were two telephone conversations where insults and threats were exchanged.  During the last of the telephone conversations the complainant stated that he was coming to the applicant’s house.  The applicant took a rifle owned by a housemate, found some ammunition and loaded the rifle.  When the complainant arrived at the scene he was accompanied by three associates, one of whom was on crutches and another wearing a surgical boot because of a broken ankle.  The three associates stayed in the motor vehicle while the complainant alighted and went to the centre of a cul-de-sac outside the applicant’s house and called out to the applicant.  The complainant had armed himself with a wooden scabbard for a sword which was behind his back and down his shorts and not visible, but which was probably produced when he saw the applicant approaching from the side of his house with the rifle at his shoulder pointed at him.  After a brief exchange of comments the applicant shot the complainant in the back on the right hand side as he turned away to protect himself.  The applicant further assaulted the complainant with the butt of the rifle and kicked him when he was on the ground, but the grievous bodily harm was caused particularly by the bullet.  The evidence was that the wound would have resulted in the death of the complainant but for the fact he was immediately taken to hospital and received medical treatment.  The applicant made a telephone call to the emergency number reporting the event.  His Honour concluded that the applicant had been seriously afraid for his own safety and that he was remorseful to some extent about what had happened which was also illustrated by initial co-operation with the police.

6. At the time of sentencing the applicant was 29 years of age.^[4]  He had a significant criminal history particularly in South Australia where in 2007 he was convicted of aggravated serious criminal trespass, aggravated assault, theft and damaging property, for which he was sentenced to three years and nine months imprisonment.  His Honour noted that a significant number of references were tendered by persons speaking generally of the applicant’s good character and that it appeared that as a youth he had a problem with drinking, using methylamphetamine and smoking cannabis.  His Honour accepted that the applicant was remorseful and noted that whilst in custody awaiting trial he had completed courses and obtained diplomas to assist him in overcoming offending, to deal with anger management, drug offending and to improve working skills.

7. Before his Honour, the prosecutor submitted that a sentence within the range of eight to nine years with a declaration that the offence was a serious violent offence was appropriate. Counsel for the applicant accepted the general range for the sentence, but submitted that a declaration should not be made. His Honour was referred to a number of authorities and sentences that supported the term of imprisonment imposed,^[5] and it is worth noting that it was common ground between the parties before him that a potential range of eight to nine years was appropriate.  Significantly, his Honour imposed a sentence at the bottom of the range suggested by both counsel.

8. In submissions before his Honour concerning whether a declaration should be made the learned prosecutor pointed to the protracted attack upon the complainant including the bludgeoning of his head after he had been shot and a continuation of that until the intervention by other persons. The prosecutor submitted there was an element of premeditation evidenced by the circumstances that the complainant had time to arm himself with the firearm, retrieve the ammunition and load the firearm and to wait at the side of the home. The prosecutor pointed to the serious injuries inflicted upon the victim and that the offence involved the intentional use and discharge of a firearm. Defence counsel pointed to the evidence of remorse on the part of the applicant both in the aftermath of the offence and demonstrated more recently by his conduct and also his attempts at rehabilitation. He also pointed to the evidence that although the offending was not spontaneous, the evidence of certain recorded telephone calls suggested that the applicant held a fear for his safety. Further, he submitted that the imposition of a declaration in conjunction with a sentence in the range suggested to the learned trial judge would result in an excessive sentence by reason of the time the applicant would have to serve before being eligible for release on parole.

9. In respect of the issue of whether a declaration should be made his Honour said:^[6]

“It seems to me, however, that a declaration that this is a serious violent offence is called for; although you may well have been in fear of the attack proposed on you by Mr Potts, you had some opportunity to call the Police and could have barricaded yourself in the house while they arrived or have chosen to try to threaten Mr Potts with a less brutal attack than the one which you carried out on him.

In that context, it is significant that you had been advised by Sergeant Mabb just the day before of the potential to call the Police in circumstances such as these.  You also had the potential to use the air rifle rather than a point 22 rifle, and could have fired a warning shot even if that were called for rather than immediately rushing Mr Potts and shooting at him.

This was a case where you did not have to behave like that and where there was, therefore, a compelling inference that you wished to inflict serious violence upon Mr Potts …

In addition to those issues, [the prosecutor] submitted that the protracted nature of the attack; the evidence that there was some degree of premeditation about your obtaining a firearm, the likelihood that Mr Potts did not present a serious threat and the nature of the weapon you used took this outside the norm of offences of this nature.  He also pointed to the fact that there was no real evidence that you desisted from attacking Mr Potts and that Mr Potts suffered very serious injuries.”

(Emphasis added).

10. In the course of his sentencing remarks, the learned sentencing judge expressly referred to the decision of this court in R v McDougall and Collas.^[7]  His Honour specifically drew attention to the circumstances in that case where the offenders had the opportunity to cool down before embarking upon a course of conduct that involved the infliction of a serious level of violence which justified the imposition of a declaration.^[8]  In that case this court said:^[9]

“[19]It is where the making of a declaration is discretionary that a difference in views has arisen about whether declarations are available as a sentencing tool, when the circumstances are not beyond the norm for that offence.  The following observations may assist sentencing courts:

• the discretionary powers granted by s. 161B(3) and (4) are to be exercised judicially and so with regard to the consequences of making a declaration;

a critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80 per cent of the head sentence before being able to apply for parole.  By definition, some of the offences in the Schedule to the Act will not necessarily – but may – involve violence as a feature, such as trafficking in dangerous drugs or maintaining a sexual relationship with a child;

• the discrete discretion granted by s. 161B(3)(4) requires the existence of factors which warrant its exercise, but the overall amount of imprisonment to be imposed should be arrived at having regard to the making of any declaration, or not doing so;

• the considerations which may be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing;

• the law strongly favours transparency and accessible reasoning, and accordingly sentencing courts should give reasons for making a declaration, and only after giving the defendant an opportunity to be heard on the point;

• for the reasons to show that the declaration is fully warranted in the circumstances it will usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them;

• without that last feature, it may be difficult for the reasons to show that the declaration was warranted;

• where a discretionary declaration is made, the critical question will be whether the sentence with that declaration is manifestly excessive in the circumstances; accordingly the just sentence which is the result of a balancing exercise may well require that the sentence imposed for that declared serious violent offence be toward the lower end of the otherwise available range of sentences;

• where the circumstances of the offence do not take it out of the “norm” for that type, and where the sentencing judge does not identify matters otherwise justifying the exercise of the discretion, it is likely that the overall result will be a sentence which is manifestly excessive, and in which the sentencing discretion has miscarried; probably because of an incorrect exercise of the declaration discretion.

[20]The considerations which may lead a sentencing judge to conclude that there is good reason to make a recommendation apt to bring forward the offender’s eligibility for parole will usually be concerned with the offender’s personal circumstances which provide an encouraging view of the offender’s prospects of rehabilitation, as well as due recognition of the offender’s co-operation with the administration of justice.

[21]The considerations which may lead a sentencing judge to conclude that there is good reason to postpone the date of eligibility for parole will usually be concerned with circumstances which aggravate the offence in a way which suggests that the protection of the public or adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required by the Act having regard to the term of imprisonment imposed.  In that way, the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside “the norm” for that type of offence”.

(Footnotes omitted and emphasis added)

11. I have already noted that his Honour accepted that the applicant was remorseful and noted the attempts the applicant made at rehabilitation.  The applicant’s co-operation with the due administration of justice was limited however.  Although there were some indications of co-operation, his conviction followed a trial at which he raised the defence of self-defence maximising his prospects of an outright acquittal.

12. Notwithstanding the matters in the applicant’s favour, in the view I take his Honour was justified in making the declaration. The applicant consciously chose to arm himself with a firearm in circumstances where he had opportunity to barricade himself and call the police, advice he had been given by a police officer the day before. His conduct was premeditated and planned. He advanced upon the complainant and discharged the firearm intentionally inflicting a serious, life-endangering injury. As his Honour noted, the compelling inference was that the applicant wished to inflict serious violence upon the complainant. These matters are indicative of a more serious and violent example of the offence. In the circumstances before his Honour, the sentence imposed was not manifestly excessive and the imposition of the declaration was appropriate. I have given consideration to the issue of whether the imposition of the declaration in combination with the sentence imposed results in a manifestly excessive sentence. It is true that the effect is to impose a significant period of imprisonment before the applicant is eligible for parole. Nevertheless in the circumstances the combination of the sentence with the declaration is not a manifestly excessive sentence.^[10]

13. I would refuse the application.