R v Civic[2014] QCA 322

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Jackson J and the orders proposed by his Honour.

2. ATKINSON J:  I agree with the reasons for judgment of Jackson J and the order proposed by his Honour.

3. JACKSON J:  On 29 April 2013, Mirko Civic was found guilty of the offence of manslaughter by a jury and convicted.  He applies for leave to appeal against the conviction.  On 21 May 2013, he was sentenced to a term of imprisonment of 10 years and a declaration was made that the conviction was a conviction of a serious violent offence.^[1]  He applies for leave to appeal against the sentence.

Leave to appeal against conviction

4. The deceased victim was Jonathan Charles Turner. On 17 January 2011, at about 8 o’clock in the evening, a fight between the applicant and the deceased occurred on a path alongside a block of building units or flats at Harrington Court, Paradise Island Drive, Surfers Paradise, City of the Gold Coast.  It is not in contest that Stephen Pringle and Daniella Zamparutti lived in Unit 5, Harrington Court, which was towards the rear of the block.  Before the fight, Mr Pringle and the deceased were inside the unit, when the applicant arrived and parked his car at the car park at the front of the block.  The applicant telephoned Pringle to announce his arrival.  The applicant left his car and went along the path in the direction of the unit.  The deceased left the unit and went along the path in the direction of the applicant.  They met on the path closer to the car park than to the unit, near some bushes.  As Mr Pringle described it, the deceased ran up the path (towards the area of the bushes) and confronted and started punching the applicant.  Mr Pringle was following the deceased up the path.

5. A number of people in nearby residences heard a commotion. Several of them went to their balconies and looked on to the scene of the fight. The bushes obscured their lines of sight to varying degrees. It is uncontroversial that the deceased died after the fight. The applicant formally admitted at the trial that the deceased died as a result of a knife wound and that the applicant caused the death.  Accordingly, the applicant was guilty of the offence of manslaughter unless the killing was authorised, justified or excused by law.  The only defence to manslaughter placed before the jury was self-defence.  Although the applicant’s counsel did not say so, the sole ground of any appeal against conviction is that there was a miscarriage of justice under s 668E(1) of the Criminal Code (Qld), based on criticisms of the conduct of the trial.  It will be necessary to canvas those criticisms shortly, but first it is appropriate to say something more about the factual background.

6. The applicant was 62 years of age. He lived with his son Peter, at Coachwood Drive, Molendinar, City of the Gold Coast.  He was acquainted with both Pringle and Zamparutti.  All of them, it appears, were users of the prescription drug Oxycontin.  It may not matter much, but the applicant was owed a sum of $300 by Zamparutti and/or Pringle, either as a loan, or for some other reason.  In any event, when asked by police: “how come you went around to this house tonight” he responded: “I tell you one thing, I ask for my three hundred dollars for they people owe me …”.

7. According to Pringle’s evidence, on 17 January the applicant made a number of calls to Zamparutti asking about money owing and Oxycontin pills. Pringle said that he answered the calls. He said the applicant was demanding money either from Zamparutti or him, although he didn’t owe the money. He said that:

“Mirko just kept ringing me up and harassing me and abusing me about money, and just, you know, swearing, you know, obviously very highly intoxicated, swearing and making threats, and …”.

8. The gist of it was that the applicant threatened to come over if he didn’t get paid.

9. Zamparutti’s evidence was that her mobile phone was on silent but she knew that the applicant was trying to contact her and she was avoiding him. She said that while she was at the unit the applicant called Pringle’s mobile phone.

10. Both Pringle and Zamparutti said that the deceased was at the unit during the afternoon. Pringle said that Zamparutti was at the unit when the deceased came over. Both Pringle and Zamparutti said that the deceased spoke to the applicant on the telephone. Pringle said that there was yelling and screaming and carrying on, the deceased was given the phone, and he spoke to the applicant. There was a conversation about the applicant coming over.  They were threatening one and another.

11. According to Zamparutti, at one point the applicant called Pringle’s number, Pringle threw the phone to the deceased, “then it was on”. She said that earlier the deceased came to unit 5 with a laptop he gave to Zamparutti to sell or trade. After that Oliver Olbison turned up. Zamparutti and Olbison left in Olbison’s car with the laptop.

12. The applicant’s counsel at trial cross-examined Pringle on the footing that a telephone conversation did take place between the deceased and the applicant. He asked the following question and received the following answer:

“And the phone call between Jono and Mirko – the end of it was, pretty much, Jono saying, ‘Well, if you come – come over here and I’ll teach you a lesson’? -- Basically, yeah.”

13. The applicant’s counsel at trial cross-examined Zamparutti on the footing that she was not at the unit when the deceased and the applicant spoke on the phone. However, she said that she was. She repeated that the deceased and the applicant “had it on over the phone”.

14. Evidence as to the start of the fight was given by Pringle. He said that the deceased “like a flash of lightning” got up and ran up the path and “confronted” the applicant. Then, “the first thing [the deceased] did was started punching him”. The deceased was “[s]traight up there and just smacking into him”. The applicant was “on his last legs”. There was no indication that the deceased was going to stop.

15. Pringle said further that the applicant “sort of crouched down” and “then I saw his right hand go like that”. He said he then heard the deceased say: “You’ve stabbed me haven’t you?”; and the applicant say: “Yes, I have”.  He did not see the knife.  After that, the deceased dropped to the ground.  Pringle said he saw the applicant with a knife.  He described the knife as a “long silver-bladed knife, a big fat kitchen knife”.

16. Importantly, Pringle said the deceased did not have anything in his hands when he left the unit to confront the applicant. He did not have a knife with him. Pringle was not challenged on this point in cross-examination.

17. A number of neighbours heard and saw some part of the fight and the applicant holding a knife or something after the fight occurred. Brendon McWilliam saw the applicant at the end of the parking area and heard swearing. The applicant went out of sight down the pathway. He heard scuffling and heard one voice say: “Have you stabbed him?”; and another voice say: “Yeah, I fucking stabbed him”. That voice had an accent. He saw what “looked like a knife” as the applicant backed out of the path. Geoffrey Meek heard yelling and saw the applicant. He could not see the deceased. But he heard a person say: “Just get out of here you old man”. Later he heard a third person say: “You’ve stabbed him”. Christine Ross had just watched the ABC 7.30 Report, which finished at about 8 o’clock, when she heard an “awful sort of guttural growling sound”. She heard a voice say: “You’ve stabbed him”, or “He’s been stabbed”.  She then saw the applicant who left.  Kevin Charles Duncanson heard some yelling and went to his balcony.  He saw the applicant and the deceased.  He saw Pringle “come from the river side or down the back”.  He heard Pringle say: “Have you got a knife?”; and the applicant reply: “yes”.  Pringle bent down and said: “You’ve stabbed”.  Daulat Rathava heard “[s]ome fight was happening” and went out on his balcony.  The deceased was already lying on the ground.  Pringle said “Did you stab John?”.  Daulat didn’t hear any response by the applicant.  Krishna Rathava (Daulat’s wife) heard “some people fighting and swearing” and went out onto the balcony.  The deceased was on the ground.  She saw the applicant leave.  He had a big knife in his hand.  Richard Hunia heard arguing and “the argument got quite bad” so he went on to his balcony to look.  There were three people.  They were arguing about money and swearing.  One of the men said “Call an ambulance - he’s been stabbed”.  He saw the applicant walk away.  He saw the applicant had a knife in his right hand.  Jay Reihana Haerewa heard a screaming match and went out to observe.  He went inside and came out again.  He heard: “I’ve been stabbed.  I’ve been stabbed”.  He saw the applicant leave and it looked like there was something in his hand.

18. Although the deceased’s five stab wounds included a wound to the chest, it was a single stab to his left thigh which was fatal. It went into the thigh for a total distance of 10.5 cm, through the muscles and fat underneath the skin and through the femoral artery and vein. That was the fatal injury. The deceased died from blood loss. There were other stab wounds to the deceased’s leg but they were not the cause of death.

19. After the stabbing, the applicant returned to his home at Coachwood Drive.  There he met Zamparutti and Olbison who were waiting for him.  Zamparutti had intended to ask the applicant for more Oxycontin.  The applicant’s son, Peter Civic, turned up after some time.  A number of neighbours observed the events.  Not long afterwards, police attended and the applicant was arrested.  He had a deep cut extending from the webbing between the thumb and the first finger on his right hand.  He was taken to Southport Hospital and treated.  After he arrived at Coachwood Drive, the applicant gave accounts of what had happened to a number of the witnesses.

20. Zamparutti observed that when the applicant arrived he was very drunk and was holding the steering wheel, with a knife in his hand. He said: “I killed him, I killed him” and “They stabbed me. They stabbed me”, referring to his hands. He took the knife upstairs with him. Olbison observed the applicant “get out of the car still holding a knife” and that “he was drunk”. He showed Olbison the cut to his hand. He took the knife with him.

21. Carl Melcheck saw the applicant sitting in his car and being approached by Zamparutti. A short time after that, Peter Civic arrived home on a motor bike. He heard the applicant say to Peter Civic that he had cut himself and that: “I stabbed him, he – he stabbed me, I stab [sic] him back”. Muriel Melcheck was with her husband. She saw the applicant talk to Peter Civic after Peter arrived. She heard the applicant say: “I cut myself” and “No, it’s self-defence, self-defence”. She also heard him say: “…he grabbed the knife and I stabbed him”.  Andrea Louise Buckley heard yelling and ran out and had a look.  She saw the applicant “walking frantically up and down the footpath, hysterical, I would say, saying that he had taken a knife, picked it up and stabbed him”.  The applicant said: “I’m a murderer, call the police”.  She agreed in cross-examination that she’d heard him say “I took the knife with me and I picked it up and stabbed him”.  Stephen Etches was attracted by distraught voices and went out to have a look.  The applicant was on his own driveway.  He was saying: “I’ve stabbed him, I’ve stabbed him”.  He did not remember the applicant saying: “He stabbed [me], so I stabbed him”.

22. Margarita McGill heard screaming from the applicant’s house. She saw the applicant walking up the drive carrying a large silver kitchen knife. He told her that, “someone had stabbed him and he had stabbed someone. He said that he had been cut on the hand, but I couldn’t see that, but I could see the knife in his hand”. She saw the applicant speak to Zamparutti. Shortly after that she saw Peter Civic come home. Joshua Blake heard a commotion and went to see what was happening outside. He was with his mother, Ms McGill. He heard the applicant yell out: “he came at me so I cut him”. He saw the applicant had a knife. He heard Peter Civic arrive on his motor bike. He heard the applicant say to Peter Civic that “somebody had cut him or somebody had tried to cut him and so he got the guy.” He heard Zamparutti talking to the applicant. The applicant said: “he was coming at me or he threatened me so I got him first.”

23. Sgt Bradley Miller spoke to the applicant at the Gold Coast Hospital. He noted that the applicant had said “no one comes to my house to kill me” and “he tried to stab me first”.

24. Jason John Sheldon was a police officer who attended the applicant’s home. He retrieved a silver knife that had blood stains on the handle of it from a drawer in the kitchen.

25. Wayne Rassmussen was a scientific officer employed by Qld Police Service. He took photographs and made examinations inside Zampuratti and Pringle’s unit. There was a knife block containing knives. There were no knives missing from the knife block.

26. An account given by the applicant to Constable Vardanega at the Gold Coast Hospital was that he acted in self-defence.  He said he had never seen the deceased in his life.  He was there about $300 that he lent Pringle and Zamparutti to pay rent.  He said Pringle said to him (on the phone): “You ask one more time for money I come and kill you”.  The applicant said: “I coming down to your place”.  He said that when he called from the car port: “The other bloke jump down on me”.  He said: “I took a knife off him because I took a blow, I took a blow.”  He denied having a knife when he arrived at the units.  He described the deceased running from the apartment towards him.  He said that the knife was at Paradise Point and that he had dropped it.

27. Some of the evidence summarised above supported the possible defence of self-defence. But other parts of the evidence did not. The evidence that supported a finding that the applicant had brought the knife with him and had first used it in the fight to stab the deceased tended to negate the applicant’s versions of events.  That was particularly so because the applicant had explicitly said that it was the deceased who had the knife and that the applicant had taken a blow from it before he had taken it from or used it upon the deceased.  If the jury disbelieved the applicant’s assertions that the deceased had brought the knife and first used it against the applicant, that was damaging to the possible defence of self-defence.

The applicant’s contentions

28. The applicant’s counsel on appeal made many contentions, in no less than three written outlines of argument. The amended notice of application for leave to appeal contained no less than 17 grounds (although not all were numbered) and there were several sub-parts to most of the grounds. It is not warranted that this Court deal with each of them separately.

29. One category of complaints may be dismissed out of hand. The applicant’s counsel on appeal made many submissions by reference to the contents of statements given by witnesses for the prosecution before the trial, as though they were in evidence at the trial. No basis was laid for doing so.

30. Second, the applicant’s counsel on appeal made a number of criticisms of the police investigation. He submitted that there were a number of things which were not investigated or were not investigated thoroughly enough. Again, no basis was laid for doing so. A number of such criticisms were no more than rhetorical questions about what might or might not be revealed if further investigations were carried out. That is not a basis on which the applicant is able to demonstrate a miscarriage of justice in this case.

31. Third, the applicant’s counsel on appeal sought to tender further evidence. The further evidence was contained in a statutory declaration by the applicant’s son, Peter Civic. Its purpose was to demonstrate that the knife used in the stabbing, and taken back to his home by the applicant, did not come from the applicant’s house and was not, therefore, a knife that the applicant took to the fight.

32. The statement is dated 18 March 2013. It was available at the applicant’s trial, but Peter Civic was not called as a witness either by the prosecution or by the applicant. The statement acknowledges that Peter Civic had given an earlier statement to police, in which he identified the relevant knife as one that belonged to his father. By the 18 March 2013 statement, Peter Civic had retracted his earlier statement and explained it as the product of chronic drug abuse affecting his mental state, and said that he was hallucinating on the day in question. The 18 March 2013 statement also contains a detailed hearsay account of the incident, which Peter Civic says his father told him, although it is not clear when.

33. Peter Civic’s explanation in the 18 March 2013 statement for his retraction of the statement that the relevant knife was the applicant’s knife should be mentioned. Peter Civic believes that Zamparutti had hidden “my dad’s the [sic] knife with the Christmas decorations which [knife] was missing for some time when I tried to locate it”. He says that, in the “following December” (ie December 2011) he found the applicant’s “cake” knife among the stored Christmas decorations. Peter Civic’s thesis is thus that the knife was hidden in the Christmas decorations by Zamparutti after Christmas 2010, but before 17 January 2011, when the deceased was stabbed. There is no reason why Zamparutti would have hidden the applicant’s knife in the Christmas decorations then. It is not possible to assess Peter Civic’s credibility as a witness based on the materials available on the application for leave to appeal.  Even so, there must be real doubt as to whether Peter Civic was likely to have been a credible witness on this point, bearing in mind his earlier statement that the relevant knife belonged to his father.  But apart from his general credibility, Peter Civic’s thesis or explanation for the applicant’s missing “cake” knife is incredible.  To refuse to receive that evidence as “new evidence” (as opposed to fresh evidence) does not lead to a miscarriage of justice within the meaning of s 668E(1) of the Criminal Code.^[2]  The evidence should not be received.  Even if it were received, in my view, that evidence would not require that the conviction be set aside to avoid a miscarriage of justice, because the applicant has not demonstrated that there was a significant or a real possibility that the jury would have found him not guilty with the benefit of this additional evidence.^[3]

34. There was another aspect of the evidence that Peter Civic might have given raised by the applicant. Peter Civic’s 18 March 2013 statement refers to the applicant drinking “two bottles” of whiskey after Peter Civic met the applicant at their home but before police arrived. The applicant’s counsel on appeal did not explain how that evidence might have assisted the applicant’s case. The evidence at trial included scientific and medical evidence as to the applicant’s level of blood alcohol, sampled some time after the event, and its effect. The trial Judge directed the jury as to the question of the applicant’s intention on the charge of murder that:

“…There is, as you know, evidence showing that the accused was very drunk when the fatal stabbing occurred.  That evidence, which includes [the] evidence of Dr Swain, is relevant to the issue of intent.

When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, may be regarded for the purpose of ascertaining whether such an intention, in fact, existed.”

35. Had Peter Civic given evidence that the applicant drank a large quantity of alcohol soon after arriving home, the applicant may not have received the benefit of that direction. Even if Peter’s evidence on this point had been received, in my view, that evidence would not require that the conviction be set aside to avoid a miscarriage of justice. There was, in any event, evidence from Pringle, Zamparutti and Olbison that the applicant was drunk prior to Peter Civic arriving home after the stabbing.

36. The applicant’s counsel on appeal made numerous submissions that the conduct of his counsel at trial was so incompetent that there had been a miscarriage of justice. Applications for leave to appeal or an appeal based on the competence of counsel have been considered in a number of cases, including the recent example of Nudd v The Queen.^[4]

37. It was submitted that the applicant’s counsel at trial should have called the applicant to give evidence. Nudd was a case where a similar contention was advanced.  In many cases, perhaps, it will not be possible for an appellate court to effectively review the quality of an essentially forensic decision as to whether a defendant should or should not give evidence.  But the difficulty in this case is made very clear by two considerations.  The applicant was tried on the charge of murder.  His successful defence of that charge was based either on the prosecution’s inability to prove his intention to kill, or cause grievous bodily harm to, the deceased, or that the applicant proved that the fatal stab was caused by some provocation by the deceased.  Had the applicant given evidence, his evidence may have tended to dispel either of those potential grounds of his successful defence on the charge of murder.  And he would have been exposed to cross examination on the (ultimately unsuccessful) defence of self defence.  There was a real risk attached to him giving evidence.

38. Further, in my view, in order to avoid the outcome that the applicant is bound by the conduct of the trial by his counsel, it would be necessary in the present circumstances for the applicant to challenge the adequacy of the advice which he was given about his right to give evidence and also to show that, if properly advised, he would have decided to give evidence. No attempt was made by the applicant’s counsel on appeal to prove either of those things.

39. Next, the applicant challenged whether the applicant had been properly interviewed by his counsel for the trial “so as to get his side of the story”. The challenge is made in the absence of any evidence to support it. Therefore, it must be rejected.

40. Further, the applicant challenged the failure of his counsel at trial to call Peter Civic as a witness. I have dealt with the points raised about the evidence that Peter Civic may have given already. In any event, there were additional potential detractions in calling Peter Civic to give evidence, including the loss of the procedural right of the last address to the jury, that may have informed the decision at trial.

41. Criticisms are made by the applicant’s counsel on appeal of the conduct of his counsel at trial in failing to challenge the credibility of Pringle and/or Zamparutti further. First, it is submitted that they should have been cross-examined on their criminal histories, in order to show that they were drug dealers or addicts who lacked credibility. It is submitted that undermining Pringle’s credibility would have undermined his evidence that the applicant and the deceased argued on the telephone before the fight. However, the applicant’s counsel on appeal does not tender any evidence to suggest that the applicant’s instructions at trial were that they did not argue. On the contrary, the cross-examination at trial by the applicant’s counsel proceeded on the footing that there was such a conversation between the applicant and the deceased, although Zamparutti was not at the unit at the time.

42. The other material fact given in Pringle’s account of the fight, and the moments beforehand, is his evidence that the deceased did not take a knife to the fight. Otherwise, Pringle’s account tended to support a possible defence of self-defence, because it showed that the deceased attacked the applicant with his fists at the outset of the fight. There is no apparent reason to think that an attack on Pringle’s credibility based on his drug habits, or activities as a drug dealer (if that be the fact), or prior criminal history, would have been likely to undermine Pringle’s credibility on the point that the deceased was not carrying a knife before the fight as he flew out the door of the unit and up the path.

43. As to Zamparutti, the question is even more doubtful. It was the applicant’s case at trial that she had not been present when the telephone conversation between the applicant and the deceased occurred. Otherwise, however, her evidence did not greatly inculpate the applicant. On the contrary, hers was the first account, in time, of a statement by the applicant that the deceased had first stabbed the applicant or cut the applicant using the knife. And Olbison and others described the applicant’s state when he arrived home.

44. The applicant’s counsel on appeal criticises the failure of his counsel at trial to cross-examine the witnesses to clarify who at the fight spoke the words: “You have the knife” and who made the reply: “Yes”. In my view, this criticism is without foundation. Some parts of the evidence of the relevant witnesses have been summarised above. The applicant’s counsel at trial, in general, took care to cross-examine the witnesses where their evidence was at variance with any statement that they had previously made or evidence that they had previously given. In any event, the majority of those accounts supported that there was such an exchange or were such exchanges between the applicant and the deceased and/or the applicant and Pringle.

45. The catalogue of complaints of the applicant’s counsel on appeal extends to statements about the facts and the evidence which are inaccurate. For example, it is submitted that counsel at trial failed to obtain the criminal history of the deceased which would have confirmed “if” he was violent and used weapons. An affidavit filed by the respondent shows that in fact the deceased had no disclosable Queensland criminal history.  Similarly, the applicant’s counsel on appeal submits that there was no evidence that the applicant was drunk when he was talking on the phone or when he arrived at the fight.  However, that ignores the evidence of Pringle, Zamparutti and Olbison.  Thirdly, the applicant’s counsel on appeal submits that there was no evidence that Zamparutti was in the unit when any alleged conversation between the defendant and the deceased took place.  But that ignores the evidence of Zamparutti.  Fourthly, it is submitted that Pringle had brought a baseball bat with him and attacked the applicant with a blow to the applicant’s head.  However, no baseball bat was found at the scene by police and there was no evidence of any baseball bat given by the many witnesses who saw the episode involving the fight, at least partially, and who saw Pringle.

46. The last category of complaints made by the applicant’s counsel on appeal relates to evidence of the calls made between Pringle and Zamparutti during the afternoon of 17 January 2011. The applicant’s case was that Zamparutti was not at the unit when Pringle spoke to the applicant on the phone and when the deceased spoke to the applicant on the phone. An exhibit tendered at the trial showed telephone calls made on Pringle’s mobile phone number to Zamparutti’s mobile phone number at: 4.32 pm, 5.19 pm, 6.19 pm, 7.14 pm, 7.15 pm, 7.16 pm and 7.39 pm.  Some of the calls were of zero duration; others were for seconds or minutes.  They tend to support the conclusion that at those times Zamparutti was not at the unit.  However, the list of calls was in evidence.  It does not appear whether it was referred to in counsels’ addresses.  Given that the applicant’s case was not that he did not speak to the deceased on the telephone, whether or not Zamparutti was at the unit when they spoke does not seem to be a point of such significance that, if the evidence was not emphasised by defence counsel, there was a miscarriage of justice in the applicant’s conviction.

47. The application for leave to appeal against conviction should be dismissed.

Appeal against sentence

48. Consistently with the facts previously outlined and the applicant’s acquittal of the offence of murder but conviction of the offence of manslaughter, the trial Judge made relevant findings of fact on sentence, as set out below.

49. The applicant had worked himself into a state over the $300 debt that he wanted paid straight away. In the last of many telephone calls pressing for payment that the applicant made that day, for some reason the applicant felt slighted or insulted or challenged by something said over the phone to him. Though heavily intoxicated, he decided to drive the distance from his home at Molendinar to Paradise Island intending to take up with Steven Pringle whom the applicant considered had insulted or challenged him.

50. The applicant took with him a large sharp kitchen knife. When he reached Pringle’s unit he called by phone to announce his arrival. Soon after, the fight with the deceased occurred. During the course of the fight the applicant stabbed the deceased five times with his knife.

51. The trial Judge continued that although the applicant realised that he had used the knife to inflict the stab wounds he drove away, taking the knife with him, while his victim bled to death. The verdict of the jury established that the applicant did not act in self-defence. He returned to his house and there the knife was washed and put away. When the applicant spoke to the police he falsely claimed that he had not taken the knife to Paradise Island.  He did so in an attempt to lay a false trail and to bolster the claim to self-defence which the jury had rejected.  The applicant’s alcohol-fuelled anger and very bad judgment in going to Pringle’s unit with the knife, looking to confront Pringle, set the scene for his ultimately deadly actions.

52. The applicant had a criminal history but it was of no significance for sentencing. Despite a claim of remorse by the applicant, his conduct prior to that claim suggested no remorse. The victim impact statements revealed in a moving way the suffering of family members as a result of the death of the deceased.

53. The trial Judge took into account the possibility that imprisonment might be more than usually difficult for the applicant because of his poor health, mental and possibly also physical, although there was no medical evidence to support the claim made in the applicant’s letter about that. The trial Judge stated that he made some allowance for the possibility that imprisonment may be more than usually difficult for the applicant in mitigation.

54. Necessarily, the circumstances of unlawful killings which are manslaughter vary greatly. The appropriate sentences for such offences vary greatly too, depending on the circumstances of both the offence and the offender. It is not suggested that any of the trial Judge’s findings of fact on sentence was wrong. The question then, is whether the sentence imposed of ten years imprisonment with a declaration under s 161B(1) of the Penalties and Sentences Act 1992 (Qld) that the conviction was a conviction of a serious violent offence was manifestly excessive.

55. R v Desalvo^[5] was a homicide conviction consequent upon an acquittal of murder but conviction of manslaughter.  The applicant in that case had gone to a suburban railway station to do a drug deal.  He met the victim and there was some animosity between them.  The applicant was seated in a car when the victim came up to him and spoke to him in an aggressive manner.  Apparently feeling threatened or provoked, the applicant alighted from the car and lunged at the victim with a knife.  He delivered a single stab wound to the body from which the victim died.  At trial, the applicant was sentenced to a term of imprisonment for eight years with a declaration under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) that the applicant was convicted of a serious violent offence.

56. McPherson JA, with whom Williams JA agreed, held that the discretion of the sentencing judge miscarried in that case in making a declaration that the applicant was convicted of a serious violent offence. His Honour proceeded to review the sentence, saying:

“In my view, considering it anew, a sentence of imprisonment for eight years without a declaration would not sufficiently reflect the gravity of the offence committed by the applicant.  For a homicide resulting from a deliberate act like the stabbing in this case, the appropriate head sentence falls properly within the range of 10 to 12 years imprisonment.  Some discounting must, however, be carried out to reflect the applicant’s remorse and his offer before trial to plead guilty to the offence of manslaughter of which he was ultimately convicted at trial.  All matters considered, I would impose a sentence of imprisonment for nine years”.

57. In that case, the offender’s remorse was shown by returning to the scene to provide help to the victim and by giving himself up. There is no such conduct in the applicant’s favour in the present case. Secondly, there is no evidence that the applicant in the present case offered to plead guilty to the offence of manslaughter. Also, in the present case, there was no discretion under s 161B(1) as to a declaration of conviction of a serious violent offence upon the sentence of ten years imprisonment. By definition, the applicant was convicted of a serious violent offence under s 161A(a), because the offence was against s 303 of the Criminal Code and the applicant was sentenced to ten years imprisonment.

58. It is unnecessary in the circumstances of this case to canvass the authorities in greater detail. A useful analysis of many of them appears in R v Mooka.^[6]

59. The applicant’s counsel on appeal made submissions focussed on the applicant’s personal circumstances from his upbringing as a child through to family misfortunes that occurred after arrest. None of this is remarkable for present purposes. Consistently with the trial Judge’s findings set out above, the psychiatric report diagnosed the applicant with a severe personality disorder of mixed type and as having signs of frontal lobe injury, the possible cause for which is alcohol abuse.

60. The applicant’s counsel submitted that the trial Judge was bound to make a finding whether the factual basis for the jury’s verdict of not guilty was the prosecution’s inability to exclude intention to kill or cause grievous bodily harm on the one hand or the applicant’s proof of provocation for the stabbing by the deceased on the other. No such error was made by the trial Judge, who could not know which of those alternatives was the basis of the jury’s finding. The trial Judge appropriately found that it did not matter whether the jury was not convinced about one point or convinced about the other for the purposes of sentencing.

61. Otherwise, none of the matters relied upon by the applicant’s counsel on appeal were matters not taken into account by the trial Judge.

62. The submission that the trial Judge gave insufficient weight to the lack of a relevant criminal record, the age disparity between the applicant and the deceased and the applicant’s mental and general health status must also be rejected.

63. The applicant did not demonstrate that the sentence is manifestly excessive. The application for leave to appeal against sentence should be dismissed.