R v McMartin[2014] QCA 279

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  The applicant was convicted after a plea of guilty of grievous bodily harm with intent and, after a trial, of attempted murder.  He was sentenced in the Supreme Court in Townsville on 29 May 2014, the fourth day of the trial, to 15 years’ imprisonment for the latter offence and to a concurrent term of five years’ imprisonment for the other offence.  One thousand one hundred and seventy-two days spent in pre-sentence custody were declared time already served under the sentences.  The applicant applies for leave to appeal against the 15 years’ sentence on the ground that it is manifestly excessive.  The applicant’s primary contention was that the sentencing judge erred by giving insufficient weight to the circumstance that the applicant had served a total of two years’ imprisonment in New South Wales before being extradited to Queensland for the subject offences.

The applicant’s antecedents

[2] The applicant was 24 at the time of his offending.  His lengthy criminal history in New South Wales commencing in 2001 and concluding in March 2009 included armed robbery, stalking, use of violence to cause fear, assault occasioning bodily harm, harassment and intimidation and use of a weapon to prevent detention.  The last of these offences was committed by the applicant in resisting arrest in New South Wales in an attempt to avoid extradition to Queensland to face trial for the subject offences.  He served two years’ imprisonment in New South Wales for this offence.

[3] On 28 October 2008 in Queensland, the applicant was placed on two years’ probation for the offences of possession of a dangerous drug, breach of a domestic violence order, possession of a knife in public, possession of a weapon and failure to dispose of a needle/syringe.

The offending conduct

[4] Ms Leishman was the complainant in the attempted murder count.  Mr Valenti was the complainant in the other count.  Their residence was a few doors away from the applicant’s residence.  After discovering that the applicant had broken into their unit and stolen money, Ms Leishman and Mr Valenti confronted the applicant about the theft.  He admitted responsibility and promised to repay the money.  He failed to do so and on three occasions in the weeks following the theft there was conflict between the applicant and the complainants.

[5] On 31 December 2008 at about 7.00 pm Ms Leishman followed Mr Valenti to the applicant’s residence.  When they declined the applicant’s invitation to come inside, the applicant became aggressive.  He took up a machete and swung it at Mr Valenti who raised his arm to fend off the blow and was struck on the hand.  Ms Leishman intervened by placing herself between the two men and throwing a stubby at the applicant.  She was then struck a number of times with the machete.  The first blow was to the top of her head.  It fractured her skull.  The next blow was to the face.  It caused a comminuted fracture and damage to the near side of her left eye.  The third blow, which was to her back, knocked her to the ground.  As she was sitting she reached for her phone and was struck twice on the hand causing severe lacerations.  The applicant then poured petrol over her and reached for a lighter.  Ms Leishman took the opportunity to grab hold of her six year old son and ran down the driveway.

[6] Ms Leishman suffered two fractures of the frontal bones of the head, as well as the fracture around the left eye socket.  Plastic surgery was performed on her face and hand.  She suffered long periods of pain and for eight months underwent physiotherapy.  Her forefinger still has limited movement.  As to her other fingers on the right hand, she is unable to straighten them and cannot grip or grasp some objects.  That hand is also hyper-sensitive.  She suffers from chronic migraines and headaches at least four times a week.  She lost 75 per cent of vision in her left eye which droops and becomes dark when she is tired or has a headache.  She has experienced extensive mood and personality changes; now being reclusive rather than outgoing as she previously was.

[7] Mr Valenti sustained cuts to the index and middle fingers of the left hand involving tendons, blood vessels and nerves, and a fractured index finger.  He underwent 16 hours of surgery in which two fingers were stitched back on to his left hand, which was in a brace for three months.  Approximately one month after his surgery, part of his index finger fell off and had to be re-attached.  That finger was misshapen and very stiff at the time of a statement given by him on 10 September 2012.  He was then seeking to have the finger removed.  His middle finger also had limited movement and no sensation.  In cold weather his fingers become blue because of poor circulation and he is required to apply moisturiser to his scars daily.  He was unable to continue with his job as a mechanic because of his injuries and was unable to pay the rent on his unit.  At the time of his statement he was taking anti-depressants.

Consideration

[8] The applicant contended that the totality principle propounded in cases such as Mill v The Queen[1] required that the two years sentence served in New South Wales be taken into account by the sentencing judge who, after considering the totality of the applicant’s offending conduct in New South Wales and Queensland, should have reduced the applicant’s head sentence to 12 or 13 years’ imprisonment.  It was submitted that if the sentencing judge had been dealing with the New South Wales and Queensland offending at the same time, concurrent terms of imprisonment would have been imposed.

[9] The sentencing judge expressly stated that he took into account the two years served in New South Wales and the need to avoid a “crushing” sentence.  After so doing, the sentencing judge regarded a 15 year term of imprisonment appropriate having regard to the applicant’s criminal history and the seriousness of his offending.  The sentencing judge stated that the offending was within “a most serious category of attempted murder”.  He described the protracted and vicious way in which it was perpetrated culminating in the attempt to set fire to the female complainant which was thwarted only by her extraordinary resilience.  Also relevant to the primary judge’s consideration were the grave and permanent injuries resulting from the attack.

[10] The maximum penalty for attempted murder is life imprisonment.  The respondent noted that the sentencing judge had before him a schedule of offences suggesting that offences of attempted murder involving repeated stabbings had previously resulted in sentences between 14 years and life imprisonment.  A review of some of those cases was conducted in R v Tevita.[2]

[11] This Court was not taken to any comparable sentences which indicated that the sentence imposed for attempted murder was manifestly excessive.  Moreover, it was appropriate for that sentence to take into account the gravity of the other Queensland offending which left the male victim not only severely disabled, but deprived of his livelihood, and suffering from psychological damage.  There was the additional consideration that the applicant poses a danger to the community.  In the opinion of Dr Schramm, consultant psychiatrist, the applicant “shows a propensity to developing psychosis and a marked propensity to acting on (sic) a violent manner, both of which would be exacerbated by use of substances such that he must remain abstinent.”  The doctor had earlier described the applicant as suffering from “significant personality pathology”.

[12] The sentence was not shown to be manifestly excessive.

Orders

[13] I would order that the application for leave to appeal against sentence be refused.

[14] MORRISON JA:  I agree with the order proposed by Muir JA and with the reasons given by his Honour.

[15] McMEEKIN J:  I have had the advantage of reading the reasons of Muir JA and agree with those reasons and the order proposed by his Honour.