R v Brennan[2013] QCA 316

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant was convicted of the murders of his estranged wife, Pauline Austin, and her 14 year old daughter, Kelly Morris, both of whom were shot in their Mareeba home in the early evening of 19 October 2009.  He was sentenced to the mandatory term of life imprisonment on both counts, with an order that he not be released before serving a minimum of 22 years.  (By statute,[1] the sentencing judge could not have set a non-parole period of less than 20 years.)

[2] The appellant appealed against those convictions on the ground that they were unreasonable, and sought leave to appeal against the sentence on the ground that the setting of the non-parole period beyond the statutory minimum rendered it manifestly excessive.  In the course of the hearing he was given leave to add a ground to the conviction appeal, that the trial judge erred in permitting the prosecutor to address on matters which were not the subject of evidence, concerning DNA specimens.

[3] The evidence in the Crown case fell broadly into five categories: threats the appellant had made to Ms Austin in the weeks prior to the killings; his conduct over the course of the day on 19 October 2009; what occurred when he arrived at Ms Austin’s house; the forensic evidence as to how she and her daughter died; and the appellant’s actions and admissions after the shootings.

Evidence of threats prior to the killings

[4] The appellant and Ms Austin were married for about six years.  In October 2009, they were separated; the appellant had moved to Townsville.  A number of witnesses gave evidence of statements made by the appellant threatening to harm Ms Austin and her daughter.  Sandra Muccignat, who was the de facto wife of a friend of the appellant’s, James Portelli, said that a few weeks before Ms Austin’s death in October 2009, the appellant had complained that Ms Austin had been involved with another man for four months.  He said that he wanted Ms Austin assaulted and her daughter sodomised.  (Ms Muccignat conceded that those assertions did not appear in her statement.)

[5] Another witness, Christopher Turner, was acquainted with both the appellant and Ms Austin.  In September 2009, he had stayed for some days at Ms Austin’s house and described an incident in which the appellant came to the house and confronted him.  There was a verbal altercation in which the appellant said abusive things about Ms Austin.  The rest of that day, the appellant made a number of phone calls to Mr Turner’s and Ms Austin’s mobile phones and Ms Austin’s home phone, leaving abusive messages.  In one of those messages, he threatened to cut Mr Turner’s and Ms Austin’s throats from ear to ear.

[6] On 29 September 2009, as a result of that conduct, an application for a domestic violence order was served on the appellant and he was charged with two offences of using a carriage service to make threats.  The application and charges were returnable on 19 October 2009.  In the interim, the appellant rang his brother, Terry Brennan, who lived in New South Wales.  According to the latter, the appellant offered him US $20,000 to come to Queensland and bash Ms Austin.  Mr Brennan declined.

The appellant’s conduct over the day leading up to the shootings

[7] The appellant returned to Mareeba for the court hearing on 19 October 2009, staying with Mr Portelli at his property outside the town.  He pleaded guilty to the charges against him, and a domestic violence order was made with a condition that he not contact Ms Austin, her son, Liam, or Mr Turner.  Some acquaintances of the appellant and Ms Austin happened to be outside the Mareeba courthouse that day.  Ms Austin, when she emerged from the courthouse, approached one of them, Patricia Stewart.  The appellant walked past them as they were speaking.  Ms Stewart heard him say “I’m going to fucking kill you, you slut”.  Ms Stewart’s son, Michael Fitzgerald, heard the appellant speak to Ms Austin; his recall was that he had said something like “Time to put a stop to this”.  His father, David Fitzgerald, who was also present, had a different recall; it was that the appellant said “I’ve got to get my things in order and I’m going to slice you, you bitch”.  All three witnesses denied the proposition put to them in cross‑examination that the appellant had said nothing at all to Ms Austin.

[8] At about 11.00 am that day, the appellant went to a hardware store and bought .22 bullets, but shortly before leaving the store, returned to the counter and exchanged them for .22 high velocity bullets.

[9] The appellant spoke to his brother, Terry Brennan twice again that day.  Around the middle of the day he told his brother that Ms Austin had cost him another $1,000, that she had alleged he “caved her head in” with a baseball bat and that he intended to go around to her house and do precisely that.  Towards evening, in another conversation, he informed his brother that he had just got a gun and he was going to go around and kill “them”. He said that he would sodomise the girl and rape Ms Austin with a baseball bat.

[10] In the interim, the appellant had returned to Mr Portelli’s house and complained to him about the fact that the hearing had cost him $1,000 and he could not go near Ms Austin or the children, and also about the fact that, in his perception, Ms Austin was having an affair so soon after the end of their marriage.  Mr Portelli said that the two men went separately into Mareeba that afternoon, and he visited Ms Austin.  Leaving her house, he saw the appellant on foot and drove with him to get some food.  He dropped the appellant off later near a service station.

[11] At about 5.30 pm, Ms Muccignat’s son was leaving work and saw the appellant in his station wagon.  The two pulled over to talk.  According to Mr Muccignat, the appellant said that this would be the last time he saw him.  He said that Ms Austin would pay for the trouble that she had put him through.  She was seeing another man; if he was there, he would shoot him.  The appellant mentioned that Ms Austin had set her dog on him on a previous occasion and the animal had bitten him on the calf.  He said that he intended to rape her with a baseball bat and that he would like to smash her so that no other man would ever look at her.  He said also that he should inject her with strychnine because he had been told it was a slow painful death.  Mr Muccignat offered the view that if he were to do anything he should leave the children out of it, to which the appellant said that these were just thoughts; he was going to return to Townsville and get on with his life.

The shootings

[12] Liam Morris was the twin brother of Kelly Morris.  He was twice interviewed by police, the recordings being tendered as evidence pursuant to s 93A of the Evidence Act 1977.  The first interview took place on the night his mother and sister were shot.  Liam said that at about 6.30 or 7.00 pm he had been playing on his computer in the dining area of their house.  His sister was sitting on the couch in the lounge room (of which the dining area formed part) watching television.  His mother was standing behind her, also looking at the television.  Liam heard his mother exclaim “Oh, my God”, and looked up to see the appellant standing just inside the front door holding a gun and a baseball bat.  The appellant spoke to his mother in “a real deep voice, like threatening her”; she and Kelly began to scream.  Liam fled through the back door; as he went, he heard two gunshots.  He ran to a neighbour’s house where he called police.

[13] Another neighbour heard the screams of two females, one of which stopped before the other.  She saw a boy (plainly, Liam) run from the house before the first scream had stopped.

[14] Liam was interviewed again a couple of weeks later and provided some more detail.  He said that he heard the first gunshot as he was a couple of steps from the back door and a second shot within two or three seconds of it.  When the appellant came through the front door he said something.  Liam’s mother was screaming.  She called Kelly to her and held her away from the appellant, hugging her and trying to defend her.  Ms Austin was side on to the appellant and Kelly was facing away from him, with her head towards him.  The last that Liam saw was the appellant walking towards them.

[15] Liam said that a week or two before the killings, the appellant had come to the house with Mr Portelli.  He heard yelling and came out of his room to see the appellant tipping a table up; everything on it fell to the ground and smashed.  On that occasion, his mother’s dog had bitten the appellant on the calf.

[16] On the night of 19 October, police went to Ms Austin’s house.  There seems to have been some delay before they entered, presumably because it was unknown whether the appellant was still there.  In the lounge room they found Kelly dead, in a sitting position with a large amount of blood around her and through the kitchen area.  There was a trail of blood down the hallway and a good deal of blood in the toilet and leading to a bedroom.  In the bedroom, they found Ms Austin still alive.

[17] The baseball bat was found in the entry between the kitchen and lounge room.  It had blood on it, but there was no evidence as to its quantity or source, other than that there was no projection pattern on it. (A pattern of that kind would have been consistent with blood having been expelled from a wound on impact with the bat.)  Scrapings were taken from under Kelly Morris’ fingernails.  It was admitted during addresses at the trial that she had DNA material emanating from her mother under her fingernails.

The pathologist’s evidence

[18] Ms Austin died in hospital.  A pathologist conducted post-mortems on her body and that of her daughter.  Kelly had a gunshot wound between her temple and left ear, just below the level of the hairline.  There was an abrasion around the wound and particles of gunpowder within it, but there was no deposit on the skin surface of the carbon which would be produced by a gunshot.  The injury would have killed her very quickly, if not instantaneously.

[19] Ms Austin had a gunshot wound behind her right ear, with loss of the skin surface surrounding the wound.  There was no soot or gunpowder abrasion over the adjacent skin.  It appeared that the bullet had grazed the back of her ear before entering her head behind it.  The graze wound had some black discolouration associated with it, but the pathologist could not say for certain that it was soot, and he saw no powder material in it.  The path of the bullet was from the right side of the head to the left, slightly from the back towards the front and slightly upwards.  There was a fracture at the bottom of the skull with an associated skin tear and contusions that might have been caused by a direct blow from an implement, but it could also have been the result of landing against a hard surface.  It was also conceivable, but unlikely, that it could have been a blowout effect from the gunshot itself.  Both the gunshot wound and the skull fracture were potentially lethal.

[20] The pathologist said that he was confident that the wound inflicted on Kelly Morris was the result of a contact or near contact discharge of the firearm.  The position was not so clear with respect to Ms Austin.  The gunshot entry wound in her case was likely to have been cleaned when she was treated in hospital.  The gun had not been discharged from a distance.  It was not a foot or more beyond the skin surface, because there was soot within the wound; but he could not confidently say that it was a contact gunshot.

The appellant’s conduct after the shootings

[21] The appellant returned that evening to Mr Portelli’s house.  According to Mr Portelli, he was agitated and tearful.  He said that he thought he had shot Kelly.  Portelli expressed disbelief and said that he would ring Ms Austin, to which the appellant responded “I think I’ve shot Pauline too”.  Liam had run away, he told Portelli.

[22] The appellant produced a .22 magnum revolver, took some bullets out of his pocket and asked Mr Portelli to shoot him.  When Portelli declined, the appellant produced some strychnine crystals which he mixed with water in a coffee cup.  They then drove to a farm which the appellant owned about a kilometre and a half away, with the intention that the appellant would kill himself there.  On their arrival, he changed his mind and decided that he wanted to go back to Mr Portelli’s house.  Before they did so, they concealed the revolver under some lawn clippings in the garden.  Portelli had picked up the bullets which the appellant produced; he hid them with the gun.

[23] On their return to Mr Portelli’s house, the appellant drank the strychnine.  Before it took effect, he telephoned his brother, his ex-wife, Gail Clarke, his son, Billie, and his daughter Kylie.  Terry Brennan said that the appellant told him, “I’ve done it”.  He asked what the appellant had done; he responded “they’re fucking dead”.  Ms Clarke said that the appellant had telephoned her and immediately said “I’ve shot them”.  She asked who, and he said “Pauline and her daughter”.  He told her that they were dead and that he had killed them.  The appellant’s son was declared a hostile witness, but eventually conceded that he had signed a statement according to which his father had rung him on his mobile and said “I’ve just done something terrible”.

[24] After the appellant began to convulse, Mr Portelli made a number of triple 0 emergency calls, in the course of one of which he put the appellant on to speak to the police emergency operator.  A recording of the call was played to the court; in it, the appellant informed the operator that he had "just shot the wife and kid”.  The police arrived, as did an ambulance which took the appellant to hospital.  While he was in hospital, his hands were swabbed; no gunshot residue was detected on them.  His clothes were found to have no DNA material on them other than his own.

[25] The police were directed by Mr Portelli to the appellant’s farm, where they found the revolver.  It held four live rounds and two spent cartridges.  Another seven live rounds were scattered around it.  When the revolver was later tested, biological material containing Kelly Morris’ DNA was found on its muzzle and front sight.  The ballistics expert who examined the revolver said that it was a single-action revolver.  To fire a round it was necessary to manually cock the hammer of the gun with the thumb and then depress the trigger.  He performed a number of tests on the weapon and found that the hammer could not be cocked without depression of the trigger, and that the gun was not prone to discharge without operation of the trigger.

[26] The appellant’s vehicle was searched.  In it were a box of latex gloves and a box of .22 magnum ammunition, from which 15 rounds had been removed.  A bag belonging to the appellant was found close to the front of Ms Austin’s house.  It contained some takeaway food, a partly consumed drink, some rolls of tape and latex gloves.  There were two cigarette butts on the ground nearby.

The appellant’s evidence

[27] The appellant gave evidence.  He said that he was annoyed about the allegations made against him in the domestic violence order application, but he denied having spoken to Ms Austin after his appearance at the Mareeba courthouse.  He had bought the ammunition from the hardware store because he intended to shoot two horses at his farm, using a rifle which he understood Mr Portelli to possess.  He had changed the ordinary .22 bullets for magnum bullets because the former would not have been adequate to kill a horse.  It was a coincidence that the bullets fitted into Portelli’s revolver, about which, at that stage, he knew nothing.  He saw it for the first time later that day, when Portelli produced it at his house.  He, the appellant, put one of the bullets he had purchased into it and fired it at a tree.  He had also bought screwdrivers and tape at the hardware store, because he liked the feel of the screwdrivers and needed the tape to fix up a refrigeration container which he owned.

[28] After discussion with Mr Portelli, the appellant had decided that he would take the gun to Ms Austin’s house with the idea of examining her phone records and internet records to see if she was having an affair, something which she had denied.  He would use the gun, he said, to prevent Ms Austin from harming herself, as he claimed she was given to doing, or damaging her property.  Immediately after the conversation, however, he and Portelli both planned to go into Mareeba; he because he needed to see a real estate agent about the sale of his farm, and Portelli to buy some hay.  Portelli wrapped the gun in a towel and handed it to the appellant, but he declined to take it, saying that because he had a domestic violence order against him he could not afford to be pulled over with the gun in his car.

[29] The two men left Portelli’s property in separate vehicles.  Before driving into town, the appellant went to his farm and collected some strychnine which he had used for baiting dingos, with the idea that he would kill himself if it were established that Ms Austin was having an affair.  Arriving in Mareeba, he saw that Portelli’s vehicle was parked at Ms Austin’s house.  He waited in a car park nearby until Portelli drove away from Ms Austin’s house, and then walked to the road to intercept him.  Portelli drove with him to get something to eat and then returned him to his own vehicle.  At that point, Portelli produced the gun, still wrapped in the towel, and handed it to the appellant. (In cross-examination, Mr Portelli denied that the revolver was his, that he had ever seen it  before the appellant produced it that evening, asking him to shoot him, or that there was any discussion between them about the appellant going to Ms Austin’s house to have it out with her about the supposed affair.)

[30] The appellant decided that he would go and see Ms Austin to find out the truth.  He had a baseball bat and ball which he intended to give to Liam.  When he arrived at Ms Austin’s house he took the revolver with him; he had not looked to see whether it was loaded or not.  He took the bat as well in case the dog attacked him.  He walked into the house, entered the kitchen and moved towards the dining room.  Ms Austin came at him and grabbed hold of the gun, which she began to point at him.  Kelly came towards the pair of them and was pulling her mother away by the left arm.  The gun went off and Kelly fell backwards.  Ms Austin looked at the appellant, put the gun to her forehead and fired it.  He took the gun from her and, believing she was dead, left the house and returned to Portelli’s property.  He did not wash or change his clothes after he arrived there.

[31] Under cross-examination, the appellant said that he had only fired one bullet from the gun prior to going to Ms Austin’s house.  He did not know that there were other rounds in it and had no idea where the 15 rounds missing from the ammunition box found in his car were.  He had only taken one bullet from the box of ammunition.  Portelli had produced the seven bullets which they had hidden with the revolver.  He did not cock the revolver and he did not know whether it was cocked at the time it was fired.  Ms Austin, he said, was capable with guns.  Although he was 6 foot 3 and she was about a foot shorter, she had managed to get the gun away from him.

[32] The appellant denied intending to kill Ms Austin or her daughter.  He had made some threats of hurting Ms Austin, but he had never suggested that he would insert a bat into her vagina or that he would kill her, and he had not offered money to his brother to assault her.  He had never made any threat concerning Kelly.  When he told the emergency operator that he had shot Ms Austin and Kelly, that was because he expected to die shortly and felt he could not explain what had happened, particularly to Ms Austin’s two sons.

The unreasonable verdict ground

[33] Counsel for the appellant[2] contended that his version of events was open on the evidence, given the absence of any DNA material or gun residue on his clothes and person.  Had he shot Ms Austin and her daughter at close range, he could be expected to have on his clothes or person traces of their blood or tissue and to have gunpowder residue on his hands.  The absence of such material was inconsistent with his guilt.  The fact that Kelly Morris had her mother’s DNA under her fingernails was consistent with his version of events.  His apparent confessions after the shootings could be attributed to his unsettled, suicidal state of mind.

[34] It was, in my view, entirely open to the jury to reject the appellant as a credible witness, given the many divergences of his evidence from that of others; particularly as to the making of threats and admissions, and as to the ownership of the gun.  The jury was also entitled to reject the scenario of accidental shooting and suicide as entirely improbable.  The absence of gunshot residue on the appellant’s hands might well be explained by his possession of latex gloves, and it was not inevitable that blood or tissue from the victims would be deposited on his clothes or person.  As the trial judge observed, the existence of Ms Austin’s DNA under Kelly’s fingernails was consistent with their physical contact as the mother tried to shield the daughter.  Against those slender indicia relied on by the appellant, there was an amplitude of evidence pointing to murder.

[35] The jury had before it the evidence of the appellant’s threats to kill Ms Austin and harm Kelly and his clear statements, after the event, that he had shot both.  The appellant went to the house with a loaded gun; his account of not knowing whether it was loaded and the explanation that he intended somehow, at gunpoint, to ensure Ms Austin did not harm herself or her property was, to say the least, implausible.  As to what is known of what happened in the house, the gunshots within seconds of each other which Liam described, and the screams which he and the neighbour heard, were far more consistent with two victims in terror being immediately shot in quick succession, than with the process which the appellant recounted, of Ms Austin’s obtaining the gun from him, pointing it at him, accidentally firing it instead at Kelly, and then, after realisation of the girl’s injury, killing herself.

[36] The post-mortem evidence provided further reasons for the jury to reject the appellant’s version.  He had described Ms Austin as shooting herself in the forehead, when it was clear that the bullet had entered her head behind her right ear.  And the fact that Kelly had sustained a contact or near-contact wound is difficult indeed to reconcile with the notion of an accidental deflection of the gun in her direction as she pulled her mother’s arm.

[37] On the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.[3]  I find myself quite untroubled by any concern that an innocent person has been convicted.

The ground concerning the submissions on the DNA evidence

[38] The further ground of appeal against conviction concerned what the prosecutor was permitted to say in relation to the DNA under Kelly Morris’ fingernails, which was then reflected in the trial judge’s reprise of the submissions in his summing-up.  It is necessary to trace how that evidence came to light.

[39] Defence counsel, at trial (not counsel on the appeal) had mistakenly thought that a list of formal admissions read to the jury included one to the effect that Pauline Austin’s DNA material had been found under her daughter’s fingernails; in fact, no such admission was on the list.  It was, however, consistent with what appeared in the statement of the relevant expert and it was agreed that it should be placed before the jury.  However, the prosecutor complained of being disadvantaged because, not having proceeded on the basis of the admission in leading his case, he had adduced no evidence on the subject; for example, as to how long material would remain under an individual’s fingernails.  He raised with the trial judge whether it would be permissible for him  to say that there was no evidence that there was anything remarkable about one family member’s DNA being found under another’s nails.  His Honour suggested he could go further: to observe that it was common experience that material, for example, from gardening, remained under fingernails.  Defence counsel made no submission on the matter.

[40] The addresses of counsel are not in the record, but it is apparent from the summing-up what each counsel said on the point.  The trial judge reminded the jury of the defence address:

“[Defence counsel] emphasised, by reference to a number of pieces of fact, some of the scientific support for what he was arguing and mentioned, in particular, the fact that Kelly had Pauline's DNA under her fingernails. Of that I remind you, of course, that even on Liam's account, mother and daughter were, as it were, physically proximate to each other. And of course you'll bear in mind there's really no evidence, talking about the length of time that substances may stay on the fingernails. In any event, that plainly enough is a fact that was relied upon in support of the defence case as advanced. And bear in mind it's not for the defence to positively prove its case. If its case raises a reasonable doubt, then that would mean that the prosecution has not discharged the onus upon it.”

In his summary of the prosecutor’s address, his Honour said,

“He addressed the point about the DNA of Pauline under Kelly's fingernails, in effect, asking rhetorically, ‘So what? They share the same house. It could've been placed there in all manner of potential circumstances.’ And there was no particular evidence of just what the DNA material was, whether it was sourced from blood or some other bodily tissue.”

[41] That amounted, counsel for the appellant said, to permitting the prosecutor, firstly, to address the jury about a matter which was not in evidence – that the DNA under the fingernails had some longevity – and secondly, to reverse the onus of proof in making the point that there was no evidence about the source of the DNA material, which suggested some onus on the defence.  It would have been possible for the Crown to call expert evidence about the transfer of DNA, how long it might remain under fingernails and its resistance to removal by washing.  No such evidence had been tendered, and the submissions in relation to the admission should have been limited accordingly.

[42] I do not think there is any force in the contention that the trial judge’s directions suggested a reversal of the onus of proof when one considers what he said in the same context in summarising defence counsel’s submissions.  The suggestion that the DNA material might have come to be placed under Kelly Morris’ fingernails in any number of ways did not ascribe any particular longevity to DNA, and it was not a proposition which could arise only on expert evidence.  In any event, the trial judge’s point that there had, as witnessed by Liam, been physical contact between the girl and her mother which might have led to the deposit of DNA was, as counsel for the appellant here conceded, one which could properly be made.

[43] In circumstances in which the admission was put before the jury in the course of addresses because of defence oversight, there was no unfairness in not calling evidence about the deposit of DNA material.  Nothing which was said about it transgressed the boundaries of proper submission.  It is apparent that defence counsel at trial was unperturbed by the prosecutor’s submissions on the point, or its reiteration in the trial judge’s address; no re‑direction was sought.  In any event, there is, in my view, no prospect that what was said on the point could have deprived the appellant of a real chance of acquittal.

The application for leave to appeal against sentence

[44] The appellant submitted that nothing in the circumstances of the killings called for the deferral of the parole date beyond the 20 year point.  There was some planning involved, but it was the product of the appellant’s distress after his court appearance.  He did not inflict prolonged suffering on his victims.  Counsel adverted to the considerations identified by Keane JA in R v Maygar; Exparte Attorney-General (Qld); R v WT; Ex parte Attorney-General (Qld),[4] the first of which was the need for community protection.  In that regard, Keane JA observed that a non‑parole period of 20 years would usually provide adequate public protection, particularly given that the prisoner would only be released if the authorities considered it safe to do so at the expiration of the non-parole period.  Other considerations, however, were the need for denunciation of the conduct involved and vindication of the victims who had been made to suffer.

[45] In sentencing, the learned judge dealt with a number of considerations, beginning with those listed in s 9(4) of the Penalties and Sentences Act 1992.  The appellant was 54 years old, of mature years and was, obviously, not entitled to the allowance which might be given a youthful offender; on the other hand, it was a consideration that he would be in his 70s by the time he became eligible for parole.  He had initially admitted his offending, but subsequently had denied his guilt and blamed one of his victims, making the entire process all the more agonising for those affected by the deaths.  That absence of remorse was relevant, but not greatly so, in consideration of the appropriate parole date; it would be more important at the time parole eligibility was reached.

[46] Of great significance in his Honour’s reasoning was the fact that the appellant had murdered not only his estranged wife, but a defenceless 14 year old girl.  Another aggravating feature was that he had committed the offences in complete disregard for the attempts of the court, in making the domestic violence protection order, to protect Ms Austin.  The learned sentencing judge took into account that the killing was not a protracted one, involving torture or gratuitous violence.  Having regard to all of those considerations, he concluded that the non-parole period should be 22 years.

[47] It is apparent from what I have set out that the learned sentencing judge undertook a careful and complete review of all relevant considerations, for and against the appellant.  The result reflected a proper exercise of discretion: the particular features of the murder – the killing of a 14 year old, against whom the appellant had no cause for anger, and of his wife in defiance of the domestic violence protection order meant to safeguard her – warranted the imposition of a longer non‑parole period.  The sentence imposed was not manifestly excessive.

Orders

[48] I would dismiss the appeal against conviction and refuse leave to appeal against sentence.

[49] MORRISON JA:  I have read the reasons of Holmes JA.  I agree with those reasons and the orders proposed.

[50] NORTH J:  After a review of the evidence and the proceedings at trial I share the same view as Holmes JA and am untroubled by any concern that an innocent person has been convicted.

[51] I have read the reasons of Holmes JA and agree with them.  I agree with the orders proposed by her Honour in respect of the appeal against conviction and the application for leave to appeal against sentence.