R v Seijbel-Chocmingkwan[2014] QCA 119

SUPREME COURT OF QUEENSLAND

[1] GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.

[2] MORRISON JA:  This is an application for leave to appeal against a sentence imposed on the applicant on 24 June 2013.  The applicant pleaded guilty to two charges, the first of attempted murder, and the second of dangerous operation of a motor vehicle.  In respect of the first charge the applicant was sentenced to ten years imprisonment.  In respect of the second the sentence was 12 months imprisonment, to be served concurrently with the sentence on the first charge.  In addition, the conviction on the first count was declared to be a serious violent offence under s 161B(1) of the Penalties and Sentences Act 1992 (Qld).

[3] The sole ground for the appeal, if leave is granted, is that the sentence was manifestly excessive.

The applicant’s personal circumstances

[4] The applicant was born on 20 January 1970, in Thailand.  The offences occurred on 5 November 2010, and the applicant was therefore close to 41 at that date.

[5] The applicant was one of eight children and grew up in a household where physical discipline was a relevant feature.  She achieved well at school and eventually attended university, becoming qualified as a teacher.  For several years she worked as a teacher in various sectors of the industry in Thailand.  She moved to Australia in early 1997, where she enrolled in a six month English language course at the University of Queensland and met Paul Seijbel (“Seijbel”).  She then moved to Lismore to do an English language course at the Southern Cross University.  Toward the end of 1997, she returned to Brisbane and commenced a relationship with Seijbel.  The applicant continued to study at the Sothern Cross University, where she graduated from a business course in mid-1999.  Upon graduating she returned to Brisbane and commenced living with Seijbel.  Ultimately they had two children, a daughter born in 2000 and a son born in 2002.

[6] The applicant returned to the workforce in various forms of work, to support her continued study.  She completed an enrolled nursing course and commenced work as an enrolled nurse in various nursing homes.  In 2008 she re-enrolled at Griffith University and completed a nursing degree.

[7] In about 2009, after 12 years of marriage, the relationship with Seijbel broke down and they separated.  The end of the relationship was acrimonious and there were disputes as to the custody of the children, which remained unresolved in late 2010.

[8] Seijbel formed a friendship with another woman, Tieu.  The applicant had suspected her former husband of infidelity, and become pre-occupied with her failing marriage.  She was jealous of his new relationship.

[9] Between November 2009 and February 2010 the applicant committed a series of seven assaults on her daughter.  These were described as “excessive discipline”[1] or “something in excess of domestic discipline”.[2]  Those matters were initially raised by Seijbel, after the applicant had separated from Seijbel, in circumstances where there was an advantage to him to raise them, because of the disputes about custody and residence of the children.  The applicant’s daughter had raised incidents of physical abuse.[3]  As a consequence the applicant attended the Logan Adult Mental Health Service in February 2010.  She was reported to be very down because she was not allowed to see her children, and she was speaking of feelings of depression and suicide at that point.  She acknowledged that she had difficulty in controlling her anger and said that she had thrown objects at her daughter when she was being disobedient.

[10] The applicant continued with the Logan Community Mental Health Service, seeing a psychiatric registrar.  The registrar’s letters revealed comments about the applicant’s low mood, particularly in circumstances of her suspicions in relation to Seijbel’s infidelity.  She was coping poorly, having had her children removed from her, and facing the charges that were ultimately brought in respect of the assaults on her daughter.

[11] She was convicted of the assaults on her daughter, having pleaded guilty.  As a consequence she was sentenced on 16 September 2010 to six months imprisonment, but immediately released on parole.

[12] Without objection, counsel for the applicant referred the learned primary judge to part of what was said by Boddice J in a Mental Health Reference in respect of the applicant:

“The [applicant] has experienced significant major stressors in her life believing her husband was unfaithful, she became depressed – her marriage – felt her marriage disintegrating.  There was no doubt she had vulnerable personality traits.  These traits caused her to react severely to those major stressors to perceive destruction of her family life.  This led to moments of violence including an episode resulting in the [applicant] being charged with the assault of one of her children.”[4]

[13] The offences the subject of the application to this Court occurred on 5 November 2010.  Thus the applicant was on parole at the time.  The applicant’s mental state was poor in the time between when she was convicted of the offences against her daughter, and when the offences the subject of this application occurred.  Her counsel told the learned primary judge that the applicant acknowledged “that she was having both suicidal and homicidal ideations during this period of time”.[5]

Circumstances of the current offences

[14] An agreed statement of facts was tendered, setting out the circumstances of the offences.[6]  The learned primary judge also had the benefit of some evidence of the view taken by psychiatrists of the applicant’s mental state at the time.

[15] On Friday, 5 November 2010, Seijbel and Tieu had been shopping.  Tieu’s 16 year old daughter was with them.  At about 4.00 pm the applicant telephoned Seijbel and told him that she wanted to pick their son up from after school care.  Seijbel refused to permit that, saying that he was on his way to pick the son up.  The applicant became angry and yelled at Seijbel over the phone.  As a consequence Seijbel telephoned the day care centre and told them not to allow the applicant to pick the child up.  Thereafter, the applicant repeatedly telephoned Seijbel’s mobile phone, but he ignored her calls.

[16] Seijbel and Tieu collected his son from the after school care centre and drove to Tieu’s house.  They arrived at about 5.00 pm and parked in the driveway.  Tieu’s daughter got out of the car first, and went to the front door of the house.  Seijbel’s son went inside the house.  Tieu got some shopping out of the car, and Seijbel went to the boot to collect some groceries.  Tieu took a step towards the house when she felt a movement behind her, and heard a loud crash.  She turned to see that the applicant had driven her car into the back of Seijbel’s parked car.  Seijbel had been standing at the back of the car getting some groceries from the boot.  The force of the collision moved Seijbel’s car sideways, and he was knocked over.  Seijbel could recall little of what happened, other than hearing the applicant yelling, “I will kill you all”, and hearing Tieu call for help.[7]

[17] Tieu saw the applicant reverse her car, and then drive into the back of Seijbel’s car a second time, moving it further across the driveway and causing her own car to become stuck with that of Seijbel’s.  Seijbel sustained some minor bruising to his hand and his legs, but had a large bruise to his buttocks.

[18] Tieu felt terrified and started to walk into the house.  She looked back to see where Seijbel was, and “saw the [applicant] open the door of her car, lean in towards the centre console and pick up a knife with her right hand”.[8]  The knife was about 25 centimetres in length.[9]  The applicant got out of the car and ran towards Tieu, shouting, “I kill you, I kill you” and also “I’ll kill both of you”.

[19] The applicant stabbed Tieu to the left shoulder, three times.  Tieu grabbed the applicant’s hand and held onto it to stop her.  Tieu shouted, “Help me, help me, she kill me, she kill me”.  During that struggle the applicant pushed Tieu to the ground, causing her to land with her back against the hedge.  The applicant stood behind Tieu and tried to strangle her with her free hand, while Tieu managed to hold onto the hand which held the knife, preventing further injury.

[20] Tieu’s daughter approached, and lent over to help her up.  The applicant kicked out with her leg, striking Tieu’s daughter in the face, and said, “I’ll kill you too”.[10]

[21] Tieu saw blood coming from her shoulder and started to lose strength in her hand.  The applicant turned the knife towards Tieu’s chest and Tieu thought she was going to die.  By then Seijbel had recovered sufficiently to get up and walk to the front door.  He saw the applicant and Tieu engaged in a struggle on the ground but did not see a knife.  A neighbour intervened and pulled the applicant away from Tieu.  Tieu was assisted to the house and given first aid.

[22] A neighbour restrained the applicant, who took a biro from her pocket and stabbed herself in the chest two or three times, saying she wanted to kill herself.  A short time later an ambulance took Tieu to the hospital.

[23] Tieu’s injuries were serious.  There was a two centimetre laceration to her left kneecap, a two centimetre laceration to the left shoulder, a two centimetre skin tear to her left shoulder blade, and a penetrating wound to her left chest that resulted in a pneumothorax.  She remained in hospital for three days and required a tube to drain the pneumothorax.  She was readmitted two days after discharge, after coughing blood, but was released soon thereafter.  She continues to experience pain in her shoulder and is now on a disability pension.

[24] The applicant told the ambulance paramedics that she had been driving at 30 to 40 kilometres an hour when she drove into Seijbel’s car.  When assessed by a psychiatric registrar at the hospital, she described feelings of hopelessness and helplessness.  She told the registrar that she had decided to kill Tieu, who she perceived as Seijbel’s new girlfriend, and then herself, in an effort to “set her [the applicant’s] children free”.[11]

[25] The agreed statement of facts contains the following in relation to the applicant’s mental state:

“The [applicant] was referred for further psychiatric assessment.  She was found to have been labouring under a major depressive episode (or at least an adjustment disorder with anxiety and depressed mood) that would have significantly affected her judgement and ability to control her impulses.  Dr Donald Grant described her actions as “those of a woman with a vulnerable personality and a long history of difficulty in controlling her actions who was responding to overwhelming emotions at the time of the incident”.  The Mental Health Court determined she was not of unsound mind at the time of the incident and was fit for trial.”[12]

The applicant’s contentions

[26] The central point advanced by the applicant was concerned with whether the learned primary judge had proceeded on the basis of a finding of premeditation in the commission of the offence.  It was contended that his Honour’s reasons left it unclear as to whether he proceeded on that basis or not.  The contention was that in light of the serious consequences of such a finding, the degree of satisfaction necessary to support that finding would approach satisfaction beyond reasonable doubt.  Further, if his Honour proceeded on the basis of premeditation, then such a finding was not reasonably open on the evidence.  Thus it was submitted that the available evidence did not permit the drawing of an inference, as the only reasonable inference, that the offence involved premeditation.

[27] In that respect, the applicant’s contentions focused on the fact that the knife had been used only after the vehicle had been rammed twice, and the applicant exited her vehicle and then returned to it in order to obtain the knife.  That conduct, it was said, was inconsistent with an inference of premeditation.  Further, the applicant pointed to the fact that the Crown had initially charged the applicant with attempted murder in relation to her use of the car, but that count was abandoned when the Crown accepted a plea to the count of dangerous operation of a motor vehicle, in full discharge of the indictment.  It was contended that the acceptance of the plea in full discharge of the indictment could only be viewed as an acknowledgement by the Crown that there was insufficient evidence of an intention to kill in relation to the car incident, and inferentially therefore, that there was insufficient evidence of any intent to kill at any point before the incident involving the vehicle.

[28] The final contention was that the case could be properly characterised as one involving a lack of premeditation, a plea of guilty and significant factors in mitigation, and therefore a sentence of less than 10 years imprisonment, without a declaration of serious violent offence, was appropriate.

The respondent’s contentions

[29] Whilst the respondent accepted that the learned sentencing judge did not seem to make any specific finding as to the pre-planned access to the knife, it was contended that the sentencing reasons disclosed acceptance by his Honour that the offending was not done on the spur of the moment.  It was contended that the trigger for aggression was the argument had earlier in the afternoon.  The respondent contended that no error in principle had been demonstrated, and the sentence was not manifestly excessive.

Discussion

[30] Before the primary judge the Crown contended that premeditation could be inferred from a number of matters which included:

(a) the nature of the knife; here the submission was that it was not the sort of instrument one could commonly see carried in the console of a car, which suggested a degree of premeditation;

(b) the manner in which the applicant’s vehicle was driven across the lawn and into Seijbel’s car.[13]

[31] The applicant’s counsel contended that when the applicant saw the “happy family” scene with Seijbel taking groceries from the boot of the car, she became greatly upset and “then lost the plot”.[14]  The submission was that the events:

“occurred with a great deal of spontaneity in circumstances where [the applicant] was already angered and distressed on a constant basis but … she had no plan to go around there on this particular day and simply attack the complainant”.[15]

[32] In the course of addressing the primary judge, counsel for the applicant referred to the facts in this way:

“This, I think, as described in the Mental Health Court, was blind rage of a volatile, unwell woman, not some – and it’s in the background, of course, where she has clearly expressed both homicidal and suicidal thoughts pervading her mind but her reaction was really to seeing cat food and things of that nature coming out of the boot of the car.  The domestic comfort that appeared to be going on at the house.  And her first action was to ram into the car several times.  She then seemed to alight from the car and then, as I understand the facts, I might stand corrected, it seems as though she paused and went back and retrieved the knife as opposed to getting out of the car carrying it.”[16]

[33] That characterisation of the facts was not said to be incorrect.  It seems appropriate, therefore, to proceed on the basis that that was the correct characterisation of what occurred.

[34] In the reply submissions to the primary judge, the Crown resisted the suggestion that the intent to kill was formed after arriving at Seijbel’s house.  Notwithstanding that the applicant’s account to the psychiatrists had been to deny an intent to kill having been formed prior to arriving in the vicinity of the house and seeing Tieu and Seijbel, the Crown maintained that the “irresistible inference” was that the intent to kill was formed at some point between the acrimonious phone call earlier that afternoon and the applicant’s arrival at the house.[17]

[35] In the sentencing comments the learned primary judge referred to defence counsel’s submission that the knife had been in the car for some time, for reasons to do with the conditions under which the applicant was working as a nurse, and the submission that the applicant had “lost the plot” when she drove past Seijbel’s house, but there was no plan to go to Tieu’s house in advance.[18]  He went on:

“On the state of the evidence before me, I’m not prepared to go so far in terms of accepting the facts.  It seems to me that consistently with the facts that are agreed in exhibit 3, the inference is available on the balance of probabilities that you did deliberately drive to Ms [Tieu’s] house and your state of mind when you were going there was not something that was equable until you suddenly saw an unexpected scene.

To the extent that the facts in exhibit 3 show that you had earlier in the afternoon, had a disagreement with Mr Seijbel about picking up your son.  It appears quite likely to me that you attended the house in an already enraged state.”[19]

[36] In my view his Honour clearly rejected the submission that there was no premeditation or planning, and the applicant merely lost the plot when she was confronted with the scene at Seijbel’s house.  So much seems plain from the statement by his Honour that he was “not prepared to go so far in terms of accepting the facts”, which he made having just discussed the defence submissions.[20]  True it is that his Honour expressed his conclusion then in terms of an inference being available on the balance of probabilities, namely that the applicant deliberately drove to Tieu’s house in an already enraged state, but given the nature of the submission that was being made, it seems plain that his Honour made a finding that there was premeditation or planning, and the events did not occur as a matter of spontaneity upon being confronted with the scene at Tieu’s house.

[37] The contention is that if his Honour proceeded on that basis, that finding was not reasonably open on the evidence.  I do not accept that submission.  There are a number of matters which point the opposite way:

(a) earlier that afternoon Seijbel had denied the applicant’s request to collect her son, which prompted an angry and vocal response over the telephone, and then repeated phone calls which were ignored;

(b) a short time after Seijbel and Tieu arrived back at Tieu’s house, the applicant arrived, and drove at 30 to 40 kilometres an hour across the front lawn of the house, hitting the rear of Seijbel’s car;

(c) prior to the offence the applicant had expressed suicidal thoughts;[21]

(d) the concession by the applicant’s counsel that in the period leading up to these events the applicant had suicidal and homicidal ideations;[22]

(e) the lack of any innocent reason advanced as to why the applicant was driving past Tieu’s house so soon after the upsetting phone call with Seijbel.[23]

[38] In my view it is important to bear in mind that premeditation does not necessarily connote some sort of deliberative process or deep laid planning.  In R v Kerwin[24] the offender broke into his estranged wife’s house at night, and attempted to strangle her.  The offender had caught a taxi to the complainant’s house, telling the driver that he would only be 10 minutes and to leave the meter running.  He then broke in, by smashing a window next to the front door, and started abusing the complainant saying, amongst other things, “I’m going to kill you”.  A contention that the sentence should be affected by the fact that the attack was not planned or premeditated led to the court expressing this view:[25]

“… it is hardly correct to speak of a case as one of an unpremeditated attack when the event is explicable only as the manifestation of a determination to harm the complainant which must have built up in the applicant against the complainant before he decided to break into her home.”

[39] Further, in R v Mahoney[26] the offender attacked the complainant after a period of argument over groceries and household tasks.  The offender has obtained a kitchen knife, hid it in a tea towel, and followed him into the laundry where she stabbed him.  She told police that prior to the first stab she had intended to kill the complainant.  Referring to that Martin J said:

“There is, I think, evidence of some degree of deliberation.  This is not the type of offence sometimes seen in this Court where, during an argument, a knife is simply grabbed and immediately used, nor is it, though, a circumstance where considerable deliberation was given over time to what might be done to end this argument or relationship.”[27]

[40] In my view his Honour did not need to say more than he did in order to indicate the finding he was making.  He specifically dealt with the submission that there was no premeditation or planning, pointing to the two aspects, namely the explanation that the knife had been in the car for some time, and that the applicant “lost the plot” when confronted with the scene at Tieu’s house.  It was that submission which his Honour rejected saying that, “on the state of the evidence before me, I am not prepared to go so far in terms of accepting the facts”.  His Honour clearly rejected the submission that there was no premeditation or planning.  That was confirmed when his Honour said that it “appears quite likely to me that you attended the house in an already enraged state”.  In the context of rejecting the submission that there was no premeditation or planning, that statement can only be understood as a finding to the contrary.

Was the sentence manifestly excessive?

[41] Before the primary judge, each counsel submitted that appropriate sentences in cases of attempted murder using a knife have an appropriate starting point of 12 to 14 years.[28]  A number of comparable cases were argued.  For the Crown:  R v Kerwin[29]; R v Sauvao[30]; R v Evans[31]; and R v Lester.[32]  For the applicant:  Lester; R v Rochester; exparte A-G (Qld);[33] and R v Mallie; ex parte A-G (Qld).[34]  Before this Court the applicant added R v Mahoney.

[42] Sauvao involved a 43 year old man who pleaded guilty to one count of attempted murder and one of breaching an apprehended violence order.  The victim was his de facto wife, with whom he had lived (on and off) for about four years, and with whom he had three small children.  He was sentenced to nine years imprisonment and a serious violent offence (“SVO”) declaration was made.  On appeal it was only the SVO declaration that was an issue.

[43] The circumstances of the offence in Sauvao were that he attempted to stab the victim with a small, serrated knife about 20 centimetres long.  They had separated and he was making jealous and aggressive accusations that she had a boyfriend.  The knife snapped on the victim’s denim jacket, causing her no harm at all.  However, he continued to attack her by punching, kicking and hitting her head into a chair and a pole.  Bystanders intervened and stopped him, but for which he would have persevered.

[44] Particular features of Sauvao were that:-

(a) but for the offender’s confession it was unlikely that the use of the knife would have been known; the victim herself was not aware of it;

(b) the offender stayed at the scene for a while, then handed himself in to police, and cooperated in giving a full interview, going beyond what was known and adding details to his disadvantage;

(c) the knife was one which the offender had in his bag, for use when he ate lunch;

(d) the offender had previously thought of doing something similar, but had not acted on it.

[45] The Court of Appeal reviewed comparable cases, including Lester, Kerwin and Rochester.  It concluded that Sauvao had unusual features including:  the attack had no element of premeditation; the attack was in a very public place (a railway station); there was no element of attacking a victim alone, by surprise; he had no criminal history; there was no significant physical injury; he did not dispute his guilt; his remorse was profound; and his admissions formed the basis of the attempted murder charge.

[46] The Court held that the nine year sentence was “unremarkable”.  It quashed the SVO declaration for two reasons.  First, there was nothing in the offence itself, in terms of its duration, force or consequences that took it out of the ordinary run of cases.  There was no element of community protection and the danger of repetition was remote.  Secondly, the offender had cooperated utterly.  The discount he got for cooperation and remorse was not recognised appropriately because the difference between the nine year sentence with a declaration, and a 10 year sentence, was only nine and half months, which was a minor reduction in the circumstances.

[47] On any view the applicant’s offence is more serious than in Sauvao.  The actual attack was more serious in that life threatening wounds were inflicted.  It was a sustained attack, and involved attempted strangulation as well as stabbing.  Threats to kill were made against Seijbel and Tieu’s daughter.  The consequences of the attack are far more serious, as Tieu’s victim impact statement[35] and the evidence of medical treatment[36] reveals.  There is no real suggestion of remorse,[37] and little by way of cooperation with the authorities, apart from a timely plea of guilty.

[48] Further, on the primary judge’s acceptance that the applicant’s offence involved a degree of premeditation, this case is distinguishable from Sauvao.  As well, the applicant was sentenced to 12 months imprisonment on the second count, and therefore that sentence had to reflect both offences, an element absent in Sauvao.

[49] However, Sauvao did not involve an offender who suffered mental illness.  That contributed to the applicant’s conduct leading to the offences in that she had impaired judgment and a reduction in capacity to resist impulses.

[50] Rochester, Lester, Evans and Kerwin were all convictions after a trial.  None of them, therefore, can be said to reflect the discount applicable for an early or timely plea of guilty, or co-operation with the authorities.

[51] In Rochester the offender was convicted of attempted murder of his wife, to whom he was married for 17 years in a somewhat volatile marriage, and from whom he was separated.  He was sentenced to 10 years imprisonment.  There were appeals by the offender and the Attorney-General against the sentence.  The offender went to see his wife at her workplace (a tavern).  He paused at the door and went back to his car to get a knife which he put in the back of his pants.  He stabbed his wife in the abdomen, lacerating the stomach and causing the contents of the stomach to spill into the chest.  There was also a laceration to the liver, contusion of the left lung, and stab wounds to the chest.  The injuries were life threatening.

[52] Rochester had a very extensive criminal record.  Part of that concerned stalking his wife, who had obtained a domestic violence order.  He had breached that order in a variety of ways including: making telephone threats against his wife’s life; putting up posters of his wife, naked, inviting sexual favours; and otherwise harassing her.

[53] The Court held that “any sentence less than 10 years … would have been manifestly inadequate”, but 10 years should not be interfered with.

[54] Rochester involved more serious injuries and there was a degree of premeditation, but the attack was only directed at one person, and not sustained.  The applicant, by contrast, inflected a sustained, two pronged attack on Tieu, and threatened and assaulted Tieu’s daughter.  In both Rochester and this case the offender committed the offence while subject to other legal constraints, the applicant being on parole and Rochester being in breach of a domestic violence order.  Whilst Rochester had a more extensive criminal history than the applicant, that does not, in my view, make up for the distinction in the nature of the offending conduct.

[55] In Lester the offender attacked his wife’s new partner, punching and kicking him, and then stabbing him with a knife.  He was sentenced to nine years imprisonment with a SVO declaration.  The nine years was reached by reducing 10 years by 12 months for the period of custody already served.  It can be viewed, therefore, as a 10 year sentence in reality.

[56] The precipitating cause was the separation of Lester from his wife.  The offence was committed while he was on bail for breaking and entering his wife’s home; he was subject to a domestic violence order; and he was on a suspended sentence for offences of assault occasioning bodily harm.  He came upon his wife and her new partner (a former friend).  In the attack Lester stabbed at the complainant, who fell on his back with Lester on top of him.  Lester then continued to stab him, two or three times.  The complainant dislodged Lester, who then picked up a steel pole and began to hit him.  When the complainant responded in the same way, Lester finally desisted.

[57] The complainant had lacerations to his cheek, toes, and left leg, injuries to his forehead and shoulder, and bruising to is nose.  He subsequently developed a haematoma in the neck.

[58] Lester was 38 years old, and had a substantial criminal history for unlawful assaults.  It was accepted that the use of the knife was not premeditated.  The question for the Court of Appeal was whether the ferocity and persistence of the attempts to stab the complainant were, in light of his previous criminal conduct, sufficient to justify imprisonment of 10 years or more.  The Court[38] held that “while a sentence of 10 years for this offence was a high one, [the Court] cannot be satisfied that it was so high as to be manifestly excessive”.[39]

[59] The applicant’s offences are worse than Lester.  Premediation was involved, the injuries were more serious, and the attack was not confined to one victim.  Whilst Lester had a more extensive criminal history, the seriousness of the offence was of a lesser order than that of the applicant.

[60] In Kerwin the offender broke into his estranged wife’s house at night and made a sustained attempt to strangle her.  He was sentenced to 12 years.  At the time of the offence he was on a suspended sentence for an assault occasioning bodily harm.  That assault was on a friend of the wife, who sought to rescue her from Kerwin’s violence.  Kerwin’s relationship with his wife had been one characterised by violence, involving a number of convictions for assaults, and breaches of domestic violence orders.  One such order was in place on the night of the offence.

[61] Kerwin broke in and verbally abused his estranged wife.  He then struck her across the head several times, threatening to kill her.  He then started to strangle her, in front of her eight year old daughter.  She blacked out.  When a neighbour went to the house Kerwin came to the door and said he should go away as “They are both dead”; and “I’ve killed them”.  Police arrived to find him in the process of strangling the complainant, which he continued to do after being directed by the police to get off her.

[62] Kerwin was 46 at the time of the offence.  Excessive alcohol consumption had played a significant part in his history of violence; he had little insight into the seriousness of his offending, and showed no remorse.  The complainant (and her daughter) suffered psychological harm, and she feared for her safety at the time when Kerwin would be released from custody.

[63] The Court held that the 12 year sentence was not manifestly excessive.  Factors which mattered to that conclusion were the fact the attack occurred in front of the daughter, that he persisted in the attack after the intervention of others, and he had to be physically pulled off the complainant.  It was described as “a serious case of attempted murder”.[40]

[64] Kerwin has aspects similar to the applicant’s case.  The applicant’s attack took place in front of the complainant’s daughter, it was persisted in after the intervention of the daughter who was threatened and assaulted in turn, the applicant had to be pulled of Tieu, and it was premeditated in the way described at [40] above.

[65] Evans involved a wife’s attack on an estranged husband, using a motor vehicle.  Evans was about 40 years old at the time, and had been married to the complainant for about three years.  The relationship after separation was characterised by abusive and violent behaviour by the wife.  That included threats to kill him and attacks with various weapons (a mattock, knife, a car, a phone and a timber level).

[66] The complainant had formed a new relationship and a child had been born.  On the day of the offence the complainant was wheeling the child in a pram when his former wife drove a four-wheel drive vehicle at them.  He ran into an adjacent lot, pushing the pram.  She followed in the vehicle, hitting him and the pram with the bullbar.  He retrieved the baby and ran to some cars for protection.  She rammed one of the cars, sideswiped the others, then drove off.  Her explanation that she was just trying to scare the complainant, and did not mean to kill him, was evidently rejected by the jury.

[67] The offences were accepted as not being premeditated, but arising from a lack of self-control.  The offender had three previous convictions for breaching a domestic violence order, and had just come off probation a few days before these offences.

[68] The sentence of 10 years, with a declaration of serious violent offence, was held not to be manifestly excessive.  The argument for that contention, which was limited in scope, was that there had been no serious injury to anyone, and assistance could be gained from a manslaughter case[41] and a then pending decision on s 538 of the Criminal Code.[42]

[69] The decision in Evans is of little assistance here in respect of sentence, given the limited scope of the contentions advanced in that case, and the correspondingly truncated nature of the reasons of the Court.

[70] Mallie proceeded on a plea of guilty to a charge of attempted murder.  The sentence was eight years, with 145 days of pre-sentence custody being declared as time served.  The Attorney-General appealed, and the sentence was increased to 10 years, with an automatic SVO declaration.

[71] Mallie was 48 at the time of the offence.  He had a previous conviction for unlawful wounding, when he stabbed his then de facto with a knife.

[72] The complainant had formed a short term intimate relationship with Mallie, but then returned to her former partner.  Mallie continued to contact her.  On the day of the offence she offered him a lift to his home.  On arriving there, he jumped at her and stabbed her in the shoulder with a knife.  The knife blade snapped.  He then punched her about 10 times until she managed to escape the car.  He followed, jumping on her back and punching again.  He got on her back and brought another knife towards her throat.  She deflected that with her hand, receiving cuts on the finger and hand.  She rolled over to protect her throat, and felt a stab to her upper back.  She got the knife away, at which point he was pushing her head into the ground.  He said he was going to kill them both. She told him that she loved him and was going to leave her former partner.  By that ruse she managed to get him to desist.

[73] The complainant only spent one night in hospital.  She had, apart from lacerations and scratches, a stab wound (three centimetres) in her shoulder, another on her back (one centimetre), a deep wound to her finger, and trauma to her head.  The victim impact statement showed considerable psychological trauma.

[74] The Court accepted that it was open to the sentencing judge to find that the attack was not premeditated.  However, the nature of the attack included stabbing, punching, another stabbing in the attempt to cut her throat, and a third stabbing to the back.  It was “prolonged, determined and vicious and, on his own admission, done with murderous intent”.[43]

[75] The Court reviewed, inter alia, Rochester, Lester and Sauvao.  Rochester was seen as worse than Mallie’s case.[44]  Lester was noted as not premeditated, but ferocious and persistent, by a person with prior convictions for violence;[45] and was really a sentence of 10 years because the sentence was reduced for time spent on remand.[46]  Sauvao was said to involve unusual mitigating features, and did not involve the aggravating features commonly found in attempted murder cases where marital breakdown is involved.[47]

[76] Central factors for the Court’s conclusion that 10 years was appropriate were:  though not premeditated, the attack was determined and ferocious, and done with murderous intent;[48] he had a previous conviction for violence; his favourable references had to be considered in light of the offence; he had health problems which would impact on him in prison; he desisted from the attack, cooperated with the authorities, pleaded guilty at the earliest time and was deeply remorseful.[49]  The injuries were not permanent or serious, but the Court considered that they and the violence were worse than that in Sauvao or Lester.

[77] Mallie was not so severe as the applicant’s case.  There was no premeditation, the attack was less serious in terms of the consequences, the attack was directed at only one person, he co-operated with the authorities, and was deeply remorseful.

[78] Mahoney is of no assistance in this particular case.  It was conceded by the applicant to be a less serious case than the present.

[79] The review of the authorities above reveal the difficulty confronting the submission that 10 years was manifestly excessive.  The review shows that:

(a) the attack here was premeditated: unlike Lester and Mallie, but like Rochester and Kerwin;[50]

(b) the applicant’s case involves the aggravating features commonly found in attempted murder offences following marital breakdown: unlike Sauvao and Mallie, but like Kerwin, Rochester and Lester;[51]

(c) the applicant did not cooperate with the authorities (except for a timely plea): unlike Sauvao and Mallie, but like Rochester, Lester and Kerwin;[52]

(d) the applicant has displayed no remorse: unlike Sauvao and Mallie, but like Kerwin, Lester and Rochester;

(e) the applicant’s attack was vicious, determined and persisted in, even after intervention: unlike Lester, Sauvao, Mallie and Rochester, but like Kerwin;

(f) the applicant did not voluntarily desist: like Kerwin, Sauvao, Lester and Mallie, but unlike Rochester;

(g) the applicant had previous convictions for offences of violence: unlike Sauvao, but like Mallie, Lester and Rochester (each of which were more extensive), and Kerwin;[53]

(h) the attack resulted in serious injuries and permanent effects on the victim: unlike Sauvao and Lester, but like Mallie, Rochester and Kerwin;[54]

(i) the applicant’s attack was physically directed not just at the complainant: unlike Sauvao, Mallie, Kerwin, Rochester and Lester; and

(j) the attack took place in a relatively public place: like Sauvao, Rochester and Lester, but unlike Mallie and Kerwin.[55]

[80] Where the applicant’s case differs from all of the comparable cases put forward is that in none of them was the offender suffering from mental difficulties such as that applicable to the applicant.  The learned primary judge was referred to the decision of the Mental Health Court in relation to the applicant, and provided with a copy of the reasons of that court.  Further, the agreed statement of facts contained the passage referred to in [25] above.

[81] Before the learned sentencing judge the prosecutor made this submission in respect of the applicant’s mental state:

“I accept, as various authorities demonstrate, that mental illness which falls short of providing a defence of insanity can still be a mitigating factor particularly where there can be [seen] a causal link between the conduct and the abnormality of mind, however one wishes to put it.  And I accept here that based upon the psychiatric opinion there was an impairment of judgment and a reduction in capacity to resist impulses which has contributed to the conduct leading to the charges.  That being so, this particular case is a vehicle for general and personal deterrence may be seen as being less appropriate.  The flip side of the coin is that someone who labours under a psychiatric illness might find rehabilitation more difficult in the long term and it [may] also present a need for a sentence that provides for protection for the community.  I don’t suggest that there is evidence which would show that this defendant is someone who is a danger to the community at large.  But there is evidence upon which your Honour could be satisfied that she presents as a risk to those with whom she has close relationships because of her impaired judgment and inability or at least a reduction in her capacity to control her impulses.”[56]

[82] In the Mental Health Court it was Dr Grant’s opinions of the applicant which were accepted.  In his view the applicant was suffering from an adjustment disorder with anxious and depressed mood secondary to significant psychosocial stressors at the time of the alleged offences.  That adjustment order was occurring against a background of significant personality vulnerabilities, with probable borderline paranoid traits.  A diagnosis of major depression was not made.  Dr Grant’s view was that the applicant was functioning well at work, and enjoying social contact with friends, and there was no evidence of suffering from psychosis.  In Dr Grant’s view the applicant was clearly enraged and extremely distressed at the precise time of the offences, and had developed a combination of homicidal and suicidal ideation.  However, her actions were related more to her personality vulnerabilities and heightened emotions, along with longstanding difficulties in controlling her anger, rather than being the result of a mental illness.  Dr Grant considered that whilst the applicant’s capacities would have been impaired to some extent by her adjustment disorder, her violent behaviour could not be explained on the basis of mental illness.  It was more related to personality or stress related factors.

[83] The primary judge accepted that the timely plea of guilty should receive an appropriate discount, and that “there should be some significance in the reduction on the account of your mental state”.[57]  His Honour referred to the reasons of the psychiatric assessment, as well as the synopsis in the agreed statement of facts as to the applicant’s mental state, as “sufficient to warrant a reduction of some significance”.[58]

[84] In the end his Honour did not indicate where in the range of 12 to 14 years his actual start point was.  Further, he dealt globally with the discounts for the plea of guilty and the applicant’s mental state saying, “The result to which I come applying those factors is that the term of imprisonment for count 1 on the indictment should be 10 years”.[59]

[85] In my assessment the significant features of the evidence concerning the applicant’s mental state were that whilst the applicant might have been suffering depression, a diagnosis of major depression was unlikely, but instead the view was that the applicant was suffering from an adjustment disorder with anxious and depressed mood.  More significantly is the view that while those conditions may have impaired the applicant’s capacity to control her actions, her violent behaviour could not be explained on the basis of mental illness.  In the end it was accepted that Dr Grant’s description was apt, namely that the applicant’s actions were “those of a woman with a vulnerable personality and a long history of difficulty in controlling [her] actions who was responding to overwhelming emotions at the time of the incident”.[60]  The most significant aspect of the assessments was that, whilst the applicant’s requisite capacities may have been impaired, she was not deprived of any relevant capacity at the time of the offences and her conduct was more related to her inability to control her impulses, so that she was operating in blind rage.

[86] In those circumstances I am unpersuaded that the reduction from the apparent start point of 12 to 14 years, down to 10 years, was not an adequate recognition of the mitigating factors.  The applicant’s timely plea[61] and her mental state, and the discount they may attract, must be balanced against the nature of the offence and the need for denunciation and general deterrence.  I am not persuaded that the sentence imposed can be demonstrated to be manifestly excessive by reason of these matters.

[87] The applicant’s contentions also drew attention to the attempts made by the applicant to better herself by continuing to engage in study and courses whilst imprisoned, and the impact of the mental difficulties suffered by the applicant at the time of the offence and since.

[88] They were matters weighed in the balance by the learned primary judge.  It is difficult to see how they warrant greater weight than he gave them in reaching a sentence of 10 years.

[89] All of the matters raised on the application were taken into account by the sentencing judge.  However, the fact remains that the applicant formed a murderous intent, and then acted on it by a vicious, determined, persistent attack with a knife, and attempted strangulation.  There seems little reason to doubt that, but for the intervention of a neighbour, the applicant would have persisted, and maybe succeeded in killing Tieu.  No remorse has been evident, even now.  The result was to cause serious physical and psychological harm to the victim.

[90] The nature of the attack, the persistence until restrained, and the consequences, outweigh the impact of the rehabilitative efforts (commendable though they are) and the impact of the mental disturbance suffered by the applicant.  As the President said in Mallie[62] when imposing 10 years for that case, “The community rightly expects courts to impose heavy deterrent penalties for such repetitive, gravely anti-social behaviour.”

[91] I am therefore unpersuaded that the sentence imposed on the applicant can be demonstrated to be manifestly excessive.

Conclusion

[92] I would refuse the application for leave to appeal.

[93] MARTIN J:  I agree with Morrison JA.