R v Murray[2014] QCA 160

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The applicant, Rohan Murray, was originally charged that on 26 May 2012 he intentionally did grievous bodily harm to his girlfriend, Marnie Coolwell.  He pleaded not guilty and the trial commenced.  Shortly after midday on the first day of the trial on 28 October 2013, the prosecution presented a new indictment charging him with grievous bodily harm simpliciter.  He was arraigned, pleaded guilty and the allocutus was administered.[1]  The jury on the first indictment was discharged and the prosecution did not proceed on that indictment.  The applicant was sentenced for grievous bodily harm simpliciter to five years imprisonment with an order that he be eligible for parole on 16 June 2015 to be served cumulatively[2] upon a sentence imposed in August 2011 which is discussed later in these reasons.  He has applied for leave to appeal against his most recent sentence contending that it was manifestly excessive.  He was represented at sentence but was self-represented in this Court.

[2] When this application first came on for hearing on 8 April 2014, he appeared to dispute whether his guilty plea was free and informed and stated that he wished to appeal against his conviction.  The Court explained to him what this would entail, adjourned his application for leave to appeal against sentence to a date to be fixed and directed that he file by 24 April 2014 any application for an extension of time to appeal against conviction, together with any application to adduce evidence and any supporting affidavits.  The Court also encouraged him to attempt to get legal representation but explained that if he was unsuccessful he would have to appear for himself.

The applicant's contentions

[3] The applicant, who remains self-represented, has now applied for an extension of time to appeal against his conviction.  He sets out as the grounds for the extension that his lawyers told him he could not appeal against his conviction and so he appealed only against his sentence; it was not until the appeal hearing when the judges explained matters that he realised he needed to appeal against his conviction.  In his proposed notice of appeal, he states his grounds as:

"(A)  I was poorly represented as I received incorrect legal advice to plead guilty.

(B)  I was denied the right to present my defence and have it considered by a Judge/Court as I had no committal hearing to hear any evidence.

(C)  I was advised by my legal advisor to plead guilty but I was not informed that I was pleading guilty to the facts that they alledged.

(D)  I did not intend to plead guilty but on the day of my trial I was advised that I had no good prospects of raising a defence of accidental.

(E)  I was told I was facing numerous years therefore I pleaded guilty out of fear and frustration."  (errors as in original)

[4] He has not filed any affidavit material in support of his application for an extension of time.  In his outline of argument he states that his lawyers did not want to listen to his version of events which was that he threw a door handle across the room hoping to smash the window and without any intention of hitting the complainant.  The injuries she suffered were accidental.  His barrister told him on the morning of the trial that he did not have good prospects of succeeding with such a defence and advised him to plead guilty.  He emphasised that the prosecutor's statement that he exhibited a lack of concern for the victim was wrong.  He apologised to her immediately after the incident and pulled the door handle from her head, placing a towel over her wound.  He did his best to administer first aid.  He left only when he knew her friend and father were almost there to care for her because he knew that they were unhappy with him.  He apprehended that there was a miscarriage of justice as he had no committal hearing to test the evidence of the witnesses.

[5] He had always wanted to plead not guilty.  There were changes in his legal representation prior to trial but all his lawyers wanted him to plead guilty.  His lawyers did not listen to his instructions.  His version of the relevant events was as follows.  The complainant did not come home and she had the keys to the unit.  He had to enter through a window.  The next morning he tried to unlock the screen door by removing screws on the door.  The handles on each side of the door fell out.  When the complainant arrived home sometime later she was angry about the door.  She unlocked it with a key and told him to fix it.  They argued about the door and about which of them had been unfaithful.  He tried to fix the door.  Their argument became louder and he was angry and frustrated.  He thought if he smashed a window with the door handle she would be quiet.  Unfortunately the door handle hit the complainant in the head.  He immediately rushed to help her and apologised.  He pulled the door handle from her head and wrapped her head in a towel.  He tried to comfort her and told her he was sorry.

[6] The complainant rang her father and her friend, Kylie.  They were coming to assist.  The complainant said that her brother and father would be here soon and he panicked.  He stayed as long as he could.  He told the complainant he was sorry and that he loved her, ran to the train station and went to Zillmere.  The complainant, her father and Kylie arrived later at Zillmere and asked the complainant what should happen to him.  She told them to leave him alone.  He and the complainant walked around the corner to see other friends.  He continued to apologise and told her that she really needed to go to hospital.  She said her brothers were nearby, were coming to get him and she insisted that he leave.  He kissed her and she told him she loved him.  He apologised again before running to the train station where he caught a train to his sister's house at Darra.

[7] The applicant emphasised that the prosecutor wrongly stated in respect of previous offending that he assaulted both complainants when in fact he was trying to stop what was happening and apologised.  He also contended that the prosecutor wrongly stated that he did not show any compassion for the complainant when it was he who insisted she go to hospital.  He further contended that the cases relied on by the prosecution as comparable were more serious than his offending and involved a different sort of violence.  A more lenient sentence should have been imposed.

[8] Before returning to discuss these contentions I will set out what happened at sentence.

The schedule of facts at sentence

[9] The prosecutor tendered a schedule of facts[3] without objection.  It included the following.  Ms Coolwell, who was 18 years old, was in a relationship with the 31 year old applicant and they had been together for about six or seven years.  On Saturday, 26 May 2012, she was released from the Brisbane City Watch House after her arrest on a warrant the previous night.  She returned home to her Clayfield unit where the applicant was agitated and had damaged the flyscreen in the front door.  She asked if he was OK and he said he was.  He became more agitated and accused her of lying about where she had been.  He did not accept that she had been in custody.  He ripped the door handle off the front door and walked rapidly towards her.  She was sitting on the bed and fell backwards onto it.  She pleaded with him not to hit her.  He struck her once to the front of the head with the shaft of the handle which was ordinarily inside the door.  The shaft became lodged in her forehead and she bled heavily.  The applicant pulled it out.  She yelled at him, saying that he had made her ugly.  She unsuccessfully tried to stop the bleeding with a towel.

[10] He went to another room and spitefully deleted files from her computer.  She asked him what was wrong but he did not reply.  She rang her sister for assistance and walked towards the kitchen.  He hit her with a closed fist to the right side of her head and then hit her in the head with a frying pan.  She tried to protect her head with her hands.  They continued to argue.  He apologised and asked about his clothes.  She told him that they were not in the unit as he had only recently been released from prison.

[11] He left the unit, came back after a short time and left again, removing some paintings from the wall.  The complainant's friends, Kylie and Kaz, arrived.  At first she was too frightened to leave, but eventually she walked downstairs and got in their car.  They drove to Kylie's home where the applicant was waiting.  Kylie and Kaz remonstrated with the applicant for what he had done.  The complainant had a shower but could not stop the bleeding.  The applicant and the complainant travelled to another friend's house.  He did not seem concerned as her condition worsened.  She began to feel nauseous and dizzy and was still bleeding.  Once they arrived at their destination, others rang for an ambulance.  She told the paramedics that she had fallen down stairs.  They administered morphine and took her to the Royal Brisbane and Women's Hospital.

[12] She had a laceration to the right forehead and right lateral eyebrow, bruising to the right anterior neck, small bruises to the superior right chest and tenderness to the lower right ribs and right abdomen, mild lumbar back pain and, most significantly, a right frontal compound depressed skull fracture, so severe that the right frontal bone had fractured and was associated with extensive right pneumocephalus.  Fragments of the bone were depressed and lying up to 12 mm deep into the inner table of the skull.  She underwent urgent neuro-surgical repair by way of a bicranial incision craniotomy, elevation of the bone fragments, dura repair and repair of the frontal sinus.  The surgery involved elevating the scalp, exposing the skull fracture and surgically removing a section of the skull to gain sufficient access to the brain at the site of the injury.  The protective membrane surrounding the brain was torn and required repair as fragments of bone had been pushed into the brain.  The bone fragments were collected, washed thoroughly with antiseptic solution and carefully put back into position with plates and screws.  A drain was put into position and the skull was closed.  The surgery left a 20 cm wound which was stapled closed and the two wounds in her forehead were stitched.

[13] She was placed in intensive care and the next day was awake and mobilised and able to understand and respond to simple commands.  She was moved to the neuro-surgical ward for recovery including cognitive testing which indicated her basic cognitive functions appeared intact.  After seven days she was discharged but did not keep follow-up appointments.  If left untreated, her skull fracture was likely to endanger her life.  But for surgical intervention, she was at grave risk of developing seizures, and/or a life threatening brain infection, such as cerebral abscess or meningitis.

[14] Police were unable to locate the applicant and a warrant was issued for his arrest which was executed on 24 June 2012.  He declined to be interviewed and was remanded in custody.  He made incriminating statements in his phone calls to the complainant from prison which were recorded.  At times, they professed their love for, and at other times roundly abused, each other.

[15] During the prosecutor's submissions the judge summarised the schedule of facts as follows:

"HIS HONOUR:  [S]hortly after being released on parole he's gone to the unit of his girlfriend. She hasn't come home that evening. He's apparently become a big agitated about that. When she's come home he questions her about it. She says she's been in the watchhouse overnight. He doesn't believe her. He ends up striking her in the front of the head with a doorhandle that he's ripped off a door. This leaves the pointed part of the door handle embedded in her forehead. She has to take it out herself after about 15 seconds.

Not contented with that he later delivers closed fist right-sided punch to her head and also hits her with a frying pan to the head. As a result of one or more or all of those things she – she's eventually taken to hospital, is found to have suffered a right frontal compound depressed skull fracture, which is the grievous bodily harm together with other injuries that are not grievous bodily harm. And she undergoes some significant and emergency surgery to repair that and recovers in hospital over the next seven days. She hasn't fronted up for follow up, so we don't know what, if any, of her ongoing problems are.

[PROSECUTOR]:  Yes, your Honour.

HIS HONOUR:  Is that a fair summary?" (errors in original)

[16] The prosecutor accepted that it was a fair summary.  Neither defence counsel nor the applicant dissented.  When his Honour specifically asked defence counsel if the schedule of facts was accepted, he responded affirmatively and the applicant did not dissent.[4]

The applicant's antecedents

[17] The following matters were put forward at sentence.  The applicant was an Aboriginal man who was 31 at the time of his offending and 32 at sentence.  He had a lengthy criminal history in Queensland, New South Wales and Victoria extending over 15 pages.  It commenced with a conviction as a child of unlawful assault for which he was placed on youth probation.  He continued to offend as a young adult, principally by way of property offences.

[18] The following offences of violence, however, were particularly relevant.  In May 2000, he was convicted in the Brisbane District Court of stealing from the person and assault occasioning bodily harm and sentenced to an effective term of 12 months imprisonment.  In February 2005, he was convicted in the Ipswich District Court of stealing and sexual assaults and was sentenced to an effective term of two and a half years imprisonment with parole eligibility after nine months.  Of even more direct relevance, in August 2011 he was sentenced in the Brisbane District Court to an effective term of three years imprisonment with a parole release date set on 12 April 2012 for attempted robbery in company whilst pretending to be armed and armed robbery in company with wounding and using personal violence.  His parole was suspended shortly after his release and before the present offending on 3 May 2012.  He committed his most recent offence about six weeks after his release on parole.  Since his arrest on 24 June 2012 he had been serving the remainder of his 2011 sentence.

The submissions at sentence

[19] The prosecutor stated that he offered to accept a guilty plea to grievous bodily harm about a week earlier.  The prosecutor emphasised the applicant's lack of concern for the complainant after he had injured her so gravely.  This was an offence of domestic violence warranting a strong deterrent sentence and the principle of denunciation was also relevant.  He had prior convictions for violence and committed this offence whilst on parole.  Community protection was also relevant.  Any claims of rehabilitation must be looked at sceptically.  The applicant used a weapon when the complainant was backing away, attempting to shield her face and begging not to be hit.  There were no closely comparable sentences but the matters of R v Thomason; ex parte Attorney-General;[5] R v Wiggins;[6] R v McGrady and McGrady;[7] and  R v Major; Ex parte Attorney-General[8] supported a sentence of six to seven years imprisonment which should be served cumulatively on his present sentence which expired on 16 June 2014.  Parole eligibility should be fixed after two years from that date on 16 June 2016.

[20] Defence counsel emphasised that, as the complainant was not cooperating with the prosecuting authorities, the prosecution case turned entirely on her recorded phone calls with the applicant.  Counsel was not supplied with a schedule of those phone calls until the previous Thursday and was unable to confer with the applicant until Friday morning, and then only by telephone.  Until the morning of the trial, they had no opportunity to discuss the prosecution's offer to accept a plea of guilty to grievous bodily harm simpliciter.  His guilty plea was not early but in the circumstances, it was timely and utilitarian.

[21] The applicant's counsel accepted that the applicant had used the door handle as a weapon but emphasised that it was simply the nearest thing to him at the time so that the offending was not premeditated.[9]

[22] Defence counsel conceded that this was a serious episode of domestic violence but contended that it was not as serious as the cases on which the prosecution relied.  He asked the judge to bear in mind when listening to the tapes, that the applicant and the complainant used offensive terms to each other as terms of endearment.  These included the terms "fuckwit", "cunt" and "dog".

[23] The judge expressed concern that the complainant and the applicant had formed a relationship when she was but 12 years old and he was an adult, but added that he would not consider this factor in sentencing.

[24] Defence counsel emphasised that the offending occurred on the spur of the moment.  The applicant had a dysfunctional upbringing with alcoholic parents and a violent father.  He did not attend school after grade 7, had been in and out of prison and was not in regular employment.  He began using heroin when he was 12 years old and later also used methylamphetamine and cannabis.  He had a seven year old child from a previous relationship but had little to do with the child.  He took amphetamines the night before the offending and was still suffering its effects at the time.  He and the complainant were mutually jealous.  Their dysfunctional relationship was exacerbated by alcohol and drug abuse and was a typical domestic violence cycle where they would argue, fight with each other and make up.  The head sentence suggested by the prosecution did not take into account the applicant's grossly dysfunctional background or that his sentence must be served cumulatively on the three year sentence he was currently serving.  His head sentence should be reduced to five years with parole eligibility after the applicant had served one half of the earlier three year sentence and one third of the present sentence, that is, on about 26 June 2014.

[25] In reply, the prosecutor supported his original contentions and submitted that such a sentence would not give any additional punishment for this offending.

The judge's sentencing remarks

[26] The judge set out the concerning aspects of the offending, emphasising its savagery and the serious consequences for the complainant.  She had not provided a victim impact statement and had since expressed her love for him.  This was not a mitigating feature as her attitude had been formed in the context of an abusive relationship.  The applicant had a lengthy criminal history including offences of violence.  He was released on parole on 12 April 2012 and committed this offence six weeks later.  The sentence for this offence would be cumulative upon his three year sentence for attempted robbery and robbery which had a fulltime release date of 16 June 2014.  The judge accepted that the guilty plea was timely and had real utility so that the sentence should be reduced accordingly.  The applicant had a disadvantaged and violent home life as a child and a history of drug and other problems as an adult.  But he was now 32 years old and it was time he took responsibility for his actions.

[27] His Honour distinguished this case from McGrady, Wiggins and Thomason in that the applicant, in a moment of uncontrolled anger, grabbed an everyday item and used it as a weapon.  His Honour also noted the need for the courts to impose a sentence showing public disapprobation for serious offencesHH of domestic violence like this, citing R v Major; Ex parte Attorney-General.[10]  The judge considered that the sentence must be cumulative and that this brought into play the principle of totality so that the overall sentence was not unduly harsh or crushing.  A sentence of five years imprisonment was appropriate with parole eligibility set at his current fulltime release date, 16 June 2015.

The application for an extension of time to appeal against conviction

[28] Despite this Court's statements to the applicant on 8 April 2014, he has not filed an application for leave to adduce evidence.  Nor has he filed any affidavit material which could support such an application.  The matters relevant to his proposed appeal against conviction which he raised in his application to extend time to appeal against conviction and in his written and oral arguments go no further than stating that his lawyers strongly advised him to plead guilty to this charge, that he accepted that advice but that after he was sentenced he regretted pleading guilty.  His reason for delay in seeking to appeal against conviction was that he did not know he could do so until this Court informed him on 8 April 2014.

[29] In determining whether to grant an extension of time to appeal against conviction this Court should examine the reasons for delay and whether it is in the interests of justice to grant the extension.  If the appeal against conviction has no viable prospects of success, it is pointless to extend time, and the application should be refused: R v Tait.[11]

[30] An appeal against conviction has special difficulties when the conviction follows from a guilty plea.  A guilty plea will be set aside only where the failure to do so would result in a miscarriage of justice.  As Brennan, Toohey and McHugh JJ explained in Meissner v The Queen:[12]

"A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty.  An inducement to plead guilty … may be offered simply to assist the person charged to make a free choice in that person's own interests.  A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.  There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."[13]

[31] That was also Dawson J's view:

"It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt.  He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.  The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.  Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.  But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside.  For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud."[14]

[32] In this case the applicant is an adult, apparently of sound mind, who understood the nature of the charge and entered a guilty plea in open court after obtaining forthright legal advice.  Had the applicant continued to trial there was a very real risk that he would have been convicted of the much more serious offence of doing grievous bodily harm with intent, punishable by a maximum of life imprisonment rather than the 14 years maximum sentence applicable to the offence of grievous bodily harm simpliciter.  He has produced no evidence of improper inducement or fraud.  The advice to plead guilty, on his account given by all his lawyers, was apparently in his interest.

[33] The schedule of facts was tendered without objection and defence counsel stated in open court without dissent from the applicant that those facts were accepted.  On none of the numerous occasions when reference was made to the facts did the applicant state he disagreed with them.  His belated challenge to the schedule of facts in the present applications, even if established, would not unequivocally establish his innocence.  He has not demonstrated any miscarriage of justice arising from the absence of committal proceedings.

[34] The applicant has not established that to allow the conviction and his plea of guilty to stand would amount to a miscarriage of justice.  As he has not established he has any real prospect of success in his proposed appeal against conviction if an extension of time were granted, it is pointless to extend time.  The application for an extension of time to appeal against conviction should be refused.

The application for leave to appeal against sentence

[35] The undisputed schedule of facts demonstrated that the applicant lacked genuine compassion for, and insight into the serious injury he inflicted on, the complainant.  Even accepting that he told her to go to hospital, in light of his previous conduct this would hardly have been a significant demonstration of concern for her welfare.  The applicant has not established that the prosecutor's explanation of the applicant's prior offending was wrong and, in any case, this was of little significance in light of the applicant's present serious offending as a mature man with a concerning past history of violence against his partners.  It is true that the cases relied on by the prosecution at sentence were of a higher level of violence from his offending as they involved weapons, not a household item picked up in anger, but the sentencing judge appreciated that.  The complainant was gravely injured.  The offence was a serious example of grievous bodily harm in a domestic violence situation.  It required a deterrent sentence, both generally and personally.  His recidivism also made the protection of those with whom he forms intimate relationships a relevant factor in sentencing.  The fact that the young Ms Coolwell, the victim of her abusive relationship with the applicant, was a reluctant complainant is not a mitigating feature.  The only matters in his favour were his guilty plea and his dysfunctional background.  The sentence imposed, which makes him eligible for parole on 16 June 2015, about one year after he completes his August 2011 sentence, was appropriately moderated to reflect these mitigating features.  It was not manifestly excessive, even after considering its cumulative effect.  The application for leave to appeal against sentence should be refused.

ORDERS:

1.The application for an extension of time to appeal against conviction is refused.

2.The application for leave to appeal against sentence is refused.

[36] FRASER JA:  I agree with the reasons for judgment of the President and the orders proposed by her Honour.

[37] MORRISON JA:  I have had the advantage of reading the reasons of the President and I agree with her Honour’s reasons and the orders she proposes.