R v Hedlefs[2017] QCA 199

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  The applicant, Hedlefs, had known a man named Hunt for about four months when he killed Hunt by hitting him with an object similar to a hammer.  He struck Hunt more than once in the torso region, causing a broken rib and a laceration of the spleen leading to its rupture, which was the fatal wound.  Hunt died of the resultant internal bleeding.
2. Hedlefs was charged with murder, but the Crown accepted his plea of guilty to manslaughter, on the basis that he did not intend to cause death or grievous bodily harm.  On 28 November 2016 he was sentenced to 10 years’ imprisonment, and a serious violent offence declaration was made.  A total of 926 days in pre-sentence custody was declared as time served.
3. Hedlefs seeks leave to appeal against his sentence on the grounds that:

1. the learned sentencing judge failed to take account of relevant circumstances, in particular Hedlefs’ lack of intention to kill or cause grievous bodily harm; and
2. the sentence is manifestly excessive.

Factual background of the offending

4. An agreed schedule of facts^[1] was tendered at the hearing.  Except where indicated, the following comes from that schedule.
5. At the time of the offence Hedlefs was 49 years old, and Hunt was 40 years old.  They had known each other for about four months, during which time they saw each other regularly (fortnightly).  Hunt did mechanical work on Hedlefs’ car, and drove him around when Hedlefs lost his licence.  In return, Hedlefs gave Hunt cigarettes and prepared meals for him when Hunt was at Hedlefs’ house.  Hunt had formed a relationship with Hedlefs’ children, Q (five years old) and Z (one year old), and had begun referring to them as his god-children.
6. Hedlefs and Hunt were both heroin users.  At 6.50 am on 14 May 2014, Hunt phoned Hedlefs to ask if he could come over and borrow some money to “get on”.^[2]  Hunt arrived a short while later.  He asked if they could go somewhere in Hedlefs’ car, but Hedlefs was preparing Q for school and said Hunt would have to wait until after he went to school.  Later Hedlefs rode to school with his children, and Hunt waited back at the house.
7. When Hedlefs got home, Hunt phoned his drug supplier.  They then drove (with Z) to a service station where Hedlefs withdrew $100 and gave it to Hunt to buy heroin.  While Hunt was buying the heroin, Hedlefs went to fill a water container.  Hunt came over and borrowed another $3 for a sharps kit, which he bought at a pharmacy across the road.  They then drove home to Hedlefs’ house.
8. Once home, each injected some heroin which Hunt prepared.  Hedlefs had much more than Hunt.  Hunt sat on the lounge to watch a movie, while Hedlefs began to clean the house.  Hedlefs felt intoxicated for about four to six hours.
9. About midday Hunt left for a doctor’s appointment.  When he came back he borrowed $10 to fill the script.  Having obtained his medicine, Hunt resumed watching movies on the lounge.  About 2.30 pm Hedlefs went to collect Q from school.
10. From this point of the narrative the account of some events came from Q.
11. When they returned, Hunt appeared intoxicated and was still on the lounge, watching movies.  Hedlefs brought his bicycle into the lounge to do some work on it.  Late in the afternoon Hedlefs and Hunt became involved in a verbal argument over the money that had been loaned earlier in the day.  Q recalled Hedlefs becoming “really, really angry”.  Hedlefs was talking to Hunt about how Hunt had said he would pay the money back by the end of the day.
12. Hedlefs picked up a “hammer” or a similar tool.  Q described having seen Hedlefs use that implement previously when putting wheels on his easy-roller.  Hedlefs approached Hunt who was still sitting in the lounge chair.  Hedlefs called him a “cunt”.  He used the hammer/tool to hit Hunt.  He hit Hunt more than once,^[3] to the torso with significant force on one occasion, causing a broken rib, and a laceration to the spleen.  Q’s account was that Hunt had been hit in the “tummy”, and the knee and shoulder.
13. The autopsy revealed a circular ring on Hunt’s thigh, and forensic tests revealed a circular shaped impression on the couch consistent with impact from an object.  At some point Hedlefs hit Hunt’s mobile phone, breaking it.  That phone was not found.  Just how the assault came to an end was not known.
14. Hunt got off the lounge and began walking to the bathroom.  He stumbled and fell to the floor, knocking the bicycle over, and bumping into a bookcase.  Hunt asked Hedlefs to get him some toilet paper, which he did, discovering when he returned that Hunt had already defecated on himself and the floor.  Hedlefs told police that he got Hunt a towel, helped him off the floor, and led him to the bedroom.  There he placed Hunt, still clothed, in the bath, and ran a small amount of water into the bath.  He told Hunt to clean himself up, and left the bathroom.
15. Hedlefs said that he returned to the hallway and began cleaning the floor with cleaning products.  He went back to the bathroom shortly after and told Hunt to take the plug out and drain the water.  Hunt was unable to do that.  Hedlefs then took off Hunt’s tracksuit pants and socks, leaving him wearing a polo shirt and boxer shorts.  He drained the water and attempted to clean Hunt.
16. Hedlefs said he left to get a plastic bag for Hunt’s clothes.  While he was gone, Hunt got out of the bath and laid down on the floor using some sheets as a pillow.  Hedlefs helped Hunt back into the bath and left him there.  He went to give his children their dinner.  They ate on the balcony due to the smell in the house.  Hedlefs then went back into the bathroom to find Hunt with his head resting on his hands on the side of the bath.  He initially thought Hunt was sleeping but then realise that his breathing was too shallow.
17. Alarmed, Hedlefs then drained the bath and looked unsuccessfully for his phone to call 000.  He said that he went to a neighbour for assistance, but there was no answer.  He then went back, found his phone and called 000 at 7.32 pm.  He told the operator that his friend was intoxicated, had had a bath, but he could not find any vital signs.  He performed CPR under the instructions of the operator.  When the ambulance arrived the officers found Hunt in the empty bath, wearing damp clothes, and suds visible in the bath.  There was no pulse, no breathing and no signs of life, and Hunt was declared dead.
18. Hedlefs was seen picking up a number of tools that were lying around in the lounge.  Police found a hammer in his toolbox, and an adjustable wrench on top of a pile of clothing and cleaning products in the laundry sink located in the bathroom where Hunt was found.  Police could not say whether the hammer, wrench or some other item was the item used to hit Hunt.

Hedlefs’ interviews with police, and the autopsy findings

19. Hedlefs was interviewed by police on more than one occasion.  At the first he did not admit any involvement in the circumstances of Hunt’s death.  He also did not reveal the purchase or consumption of heroin, nor the argument or assault.
20. The first autopsy revealed that, contrary to the view that it might have been caused by a possible drug overdose, there was a full thickness rupture of the spleen.  The next day police interviewed Hedlefs again.  He admitted that he had not been truthful and revealed the heroin use.  He then gave details of the heroin purchase and use, but otherwise made no admissions and denied the assault, merely saying that he was “cross” that Hunt had not repaid the money.
21. Q was interviewed and told police that Hedlefs had lied when he said that he had not done anything to Hunt.  He then told police about the argument, the assault and Hunt defecating on the floor.
22. The second autopsy revealed a bruise on the left trunk, fracture of the left rib, and a severe laceration (rupture) of the spleen.  The laceration was 100mm long and 40mm wide; on the side of the spleen where blood vessels entered the laceration was 310mm long and 220mm wide.  The rupture caused a massive bleed in the abdominal cavity; over 1,950 ml of blood and blood clot.  That injury was the cause of death.  Microscopic examination revealed that there was only a short time between the injury and death.
23. The bruise on the left side of the trunk, overlying the broken rib and spleen, was 30mm x 24mm, and likely due to impact through the shirt rather than the surface of the item with which force was applied.  However, it suggested an impact with an object of small surface area, and consistent with a hammer blow.  The bruising and fracture were unlikely to have been caused by a fall in the bath, falling on the bicycle or merely collapsing; rather they would have been caused by something “really forceful”.
24. In addition, Hunt had sustained the following injuries before death: (i) an oval shaped abrasion on the scalp; (ii) an abrasion to the eyebrow; (iii) a small bruise in front of the right ear; (iv) five bruises to the left upper forearm.  There were others just at or after death; (i) two areas of bruising to the scalp above the eyes; (ii) bruises to the left elbow, left foot and ankle and right thigh.  The scalp bruises were identified as requiring “a more substantial impact”, but the others (except the bruise from the impact which caused the death) were “all relatively minor”.
25. The Crown could not exclude that some of the other injuries were sustained from Hunt falling to the ground after the assault, or some mechanism other than assault by Hedlefs.  Drugs in the blood were unlikely to have played a part in the death.

Antecedents of Hedlefs

26. Hedlefs, an indigenous man, was born on 5 May 1965.  He was 49 at the time of the offence, and 51 at sentence.
27. Hedlefs has criminal histories in both Queensland and Western Australia.  His history commenced in 1984 when he was 19 years of age and, leaving aside entries for fine option orders and breach of sentencing orders, he had appeared before the courts on 18 occasions and accrued some 33 convictions.  They were largely for drug offending and property offending that may have been drug related.  There were no previous offences of violence.
28. He had received the full spectrum of sentencing orders, including community-based orders, intensive drug rehabilitation orders and suspended sentences.  He had been sentenced to actual custody on three occasions: in August 2002, December 2003 and also in September 2004 (a period of only three days’ time served).  He most recently received probation in March 2012 and that order expired approximately a year before the commission of the present offence.  He also had one conviction in Western Australia in 1986.
29. Six personal letters of support were tendered at the sentencing hearing.^[4]  Four were from close relatives, one from a friend and one from a former building manager.  As well, Counsel for Hedlefs tendered 12 certificates from a variety of institutions such as TAFE, RSPCA and the Alcohol and Drug Foundation of Queensland.^[5]  There was also a letter of apology from Hedlefs.
30. Without objection the learned sentencing judge was also given more of Hedlefs’ background.  That included:^[6]

1. he was the youngest of eight siblings; his father died when he was eight and his mother when he was 14; he then started using drugs; there were difficulties in his early childhood, but he joined the army whilst a teenager and served for a number of years; over the next 30 years (between joining the army and the offence) he worked hard and was consistently employed;
2. however he could not escape his drug addiction;
3. at the time of the offence he was the single father of two children; he appeared to work hard and cope, but in truth was not coping at all, and that led to his use of drugs;
4. since being in custody, Hedlefs had done every course he could, and was a model prisoner; he had spent 18 months in a particular unit at the jail where drug use was forbidden and regular drug testing was done; and
5. Hedlefs said that what happened in his childhood was not relevant to his behaviour today; he did not rely on a difficult upbringing as an excuse for his conduct.

Approach of the sentencing judge

31. The learned sentencing judge was referred to a number of comparable cases, including: R v Mooka,^[7] R v Dwyer,^[8] R v Sebo; ex parte Attorney-General (Qld),^[9] R v Duncombe,^[10] R v Murray,^[11] R v Matthews,^[12] R v Frame,^[13] and R v DeSalvo.^[14]
32. The prosecutor contended, relying on R v McDougall & Collas,^[15] that a serious violent offence declaration was called for by the objective seriousness of the offending conduct, even if the sentence was below 10 years’ imprisonment.
33. In the sentencing remarks^[16] the learned sentencing judge noted immediately that the plea of guilty was to manslaughter, and that the Crown had accepted that plea in satisfaction of an indictment for murder.^[17]
34. His Honour considered a number of factors in the course of the sentencing remarks:

1. the plea was timely, and indicated remorse and cooperation with the administration of justice; his Honour did not doubt that he was remorseful;
2. the offence was serious and occurred in the context of the victim being a friend and fellow drug user;
3. his Honour expressly rejected a submission that the assault did not involve significant violence; his Honour found that Hunt died as a result of “an unprovoked assault with a weapon which [Hedlefs] introduced into the argument”; there was no evidence of Hedlefs feeling threatened or provoked;
4. the use of a weapon, described as a hammer or tool, was particularly dangerous; it was used with significant force, breaking a rib and rupturing the spleen, leading to death from internal bleeding; however there was only one forceful blow inflicted with the hammer/tool;
5. Hedlefs’ personal circumstances, drug addiction, history as a caring father, history of good employment, and the criminal history which was consistent with a person with a drug addiction;
6. that he had been a model prisoner, and showed good prospects of rehabilitation;
7. the steps Hedlefs took after the fatal blow had been inflicted; his Honour was not satisfied that Hedlefs showed much concern initially, perhaps because he did not recognise the seriousness of the situation;  however, “the fact is that your friend was lying on the lounge room floor having defecated and your response was to put him in the bath and essentially tell him to clean himself up”; that was not a terribly appropriate response; whether he was intoxicated at that point or not, Hedlefs should have realised there was something wrong;
8. the purpose of the sentence included punishment, assistance with rehabilitation, general deterrence, and denunciation;
9. that a sentence of 10 years would automatically attract a serious violent offence declaration requiring that 80 per cent of the sentence be served; and
10. the cases fell into two broad categories: (i) those involving provocation or provocative conduct, or a not particularly forceful blow, invite consideration of sentences less than 10 years; (ii) those which involve a weapon, do not have provocation and which involve a forceful blow, justify sentences over 10 years, though they can include sentences below 10 years.

35. The learned sentencing judge sentenced on the basis that it was for manslaughter.  Not only did he recognise that at the start of the remarks (see paragraph [32] above), but his Honour said:^[18]

“I have had regard to the authorities.  What the authorities indicate is that there is a range of sentencing relevant to manslaughter, with the factors determining what is the appropriate sentence being not only the personal circumstances of the particular defendant, but also the circumstances of the manslaughter.”

36. The learned sentencing judge concluded his remarks by summarising the offending conduct:^[19]

“Having considered all of the circumstances, I am satisfied the offence is a serious offence involving an unprovoked attack using a weapon on a victim in circumstances where the fatal blow was of significant force, so forceful that it caused a breaking of the rib and a consequent laceration of the spleen.”

Submissions for Hedlefs

37. Counsel for Hedlefs contended that because he pleaded guilty to manslaughter he fell to be sentenced on the basis that he did not intend to cause grievous bodily harm, or kill.  However, the learned sentencing judge “failed to expressly identify this as a relevant consideration” and there was “nothing to indicate it was implicitly regarded as relevant”.^[20]  The contention accepted that the learned sentencing judge “must have understood that there was an absence of intent”, but the complaint was “that did not feature at all in the exercise of the sentencing discretion”.^[21]  In this respect reliance was placed on what Wilson AJA said in Murray:^[22]

“It is difficult to identify what is “the norm” for the offence of manslaughter.  Unlawful killing may amount to manslaughter because of the absence of an intent to kill or do grievous bodily harm - for example, where the homicide was accidental or the result of criminal negligence or where the offender was so intoxicated that he or she did not form the requisite intent.  It may amount to manslaughter where the offender formed the requisite intent, but his mental state was such that he was of diminished responsibility.  It may amount to manslaughter where he or she had the requisite intent but was nevertheless acted in response to provocation by the victim.  Within each of these categories of manslaughter the extent of the offender’s criminality will vary from case to case.”

38. It was submitted that the learned sentencing judge’s “fixation on the absence or presence of provocation distracted him from a proper consideration of the context and nature of the attack itself”.  The attack was a spontaneous reaction during a verbal argument between two men known to each other, where Hedlefs perceived that Hunt had wronged him by failing to repay money lent.  It was not entirely unprovoked and Hedlefs did not intend to cause serious harm.^[23]
39. On the ground contending that the sentence was manifestly excessive, the submission was developed by reference to Dwyer, Mooka, Sebo, Duncombe, DeSalvo and Matthews.
40. The sentence sought was one of eight years, with no serious violent offence declaration.

Crown submissions

41. The Crown contended that its acceptance of the plea was predicated expressly upon the basis that it could not be inferred that Hedlefs intended to kill or otherwise cause grievous bodily harm.  Reference was made to the following submission made at the sentencing hearing:^[24]

“Your Honour, clearly the death of a human at the hands of another caused unlawfully will always be viewed seriously by the community and by the courts.  Whilst the Crown accepts that on the evidence it would not be inferred that the defendant intended to kill or otherwise cause grievous bodily harm to the deceased consistent with the acceptance of the plea to manslaughter, there remain other significant aspects of the offending.  They include the use of a weapon and that the medical evidence suggests some significant force was used in assaulting the deceased with that weapon.”

42. In the circumstances, the learned sentencing judge was not required to expressly restate the position, especially as that would mean the offence was murder, not manslaughter.
43. The finding that there was no evidence of provocation, or that Hedlefs was threatened, was open.  Of the cases referred to the learned sentencing judge, Sebo and Murray were ones where the basis for the offence was that there was an intention to kill or do grievous bodily harm, but the review of cases in Sebo was not confined to those where provocation existed.  References by the learned sentencing judge to cases where provocation existed was not to the legal concept of provocation but to the factual basis for the offending conduct.
44. There was no basis to infer that the learned sentencing judge gave inappropriate weight to any factors.  It is not enough to succeed on a ground of manifest excess, to show that the sentence is different, even markedly different, from other sentences.^[25]  Mooka, Dwyer and Duncombe showed that the sentence here was within the bounds of an appropriate exercise of the sentencing discretion.

Discussion

45. There are a number of features about the sequence of events that enable a conclusion to be drawn as to the seriousness of the offending conduct:

1. Hunt was seated on the lounge or a lounge chair;
2. the two men argued about a loan not repaid;
3. Hunt was not armed;
4. Hedlefs obtained a weapon, either a hammer or a similar implement;^[26]
5. Hedlefs struck a severe blow to the torso area, with sufficient force to break a rib and cause significant lacerations to the spleen; the spleen ruptured, causing nearly two litres of blood loss;
6. the assault was carried out in front of Q (then five years old); and
7. having injured Hunt, Hedlefs ignored him for substantial periods of time; Hunt was largely left to his own devices.

Ground 1 – lack of intent and provoking conduct

46. The contentions for Hedlefs were that the learned sentencing judge did not give sufficient weight to the circumstances of the assault, which was said to encompass three things: (i) a momentary loss of temper, being a spontaneous reaction during a verbal argument between two men known to each other; (ii) the attack was in response to a perceived wrong by the failure to repay money lent, and was therefore not entirely unprovoked; and (iii) there was no intention to cause grievous bodily harm.^[27]  It was in that context that it was said that the learned sentencing judge’s “fixation on the absence or presence of provocation distracted him from a proper consideration of the context and nature of the attack itself”.
47. As for the first point, there can be no doubt that the learned sentencing judge was fully aware that Hedlefs’ actions were a reaction to the argument between the two friends.  His Honour described the events as involving an argument between two friends over the loan of money,^[28] an assault using a weapon which Hedlefs introduced into the argument,^[29] where nothing done by Hunt caused Hedlefs to feel threatened or provoked.^[30]  That characterisation was amply supported by the agreed facts.  They record Hedlefs becoming “really, really angry” during the argument, but not Hunt.  Hedlefs picked up the weapon and approached Hunt, who was still seated.  Hedlefs called Hunt a “cunt”, then hit him while he was still seated.  Hunt was hit more than once, even though only one blow was sufficient to cause the fatal injury.  Nothing in that account suggested any conduct by Hunt beyond arguing about the money.
48. In my view, it overstates things to say that the assault was a “momentary loss of temper”, “unpremeditated” and a “spontaneous reaction”.^[31]  The facts reveal a sequence of argument, becoming “really, really, angry”, picking up a weapon, approaching Hunt, accusation and then assault.  There was no suggestion that Hedlefs held the weapon at the start of the argument; the agreed facts were that he picked it up at some point during the argument.  He therefore armed himself but did not spontaneously hit out.  First, he approached Hunt, then called him a “cunt”, and then hit him more than once.
49. As for the second point, the learned sentencing judge proceeded expressly on the basis that Hunt died after being assaulted in the course of an argument over an unrepaid loan, but there was no evidence that Hedlefs felt threatened or was provoked.  Therefore the sentence was on the basis that Hunt died “as the consequence of an unprovoked assault”.^[32]
50. In my respectful view, his Honour was right to approach the sentence as he did.  Nothing in the agreed facts suggested that Hunt did more than argue about the unpaid loan of money.  Q’s description did not suggest that Hunt got “really, really angry” in the way Hedlefs did.  Hunt did not, at any time until the assault was over, rise from where he was seated.^[33]
51. Hedlefs’ own account to police did not suggest that there was any provocative conduct by Hunt, beyond arguing over the money.  He told police that he was “cross” that he had not been repaid, but denied being angry or aggressive.^[34]
52. Counsel for Hedlefs told the learned sentencing judge that the argument went beyond the unrepaid money, to the fact that Hunt wanted to use Hedlefs’ car to buy more drugs,^[35] and submitted that, on the evidence, Hunt was “grossly intoxicated at the time of this incident and also in the hours prior to it”.^[36]  However, that was not part of the agreed facts and the learned sentencing judge did not sentence on that basis.
53. As for the third point, the submission was that inadequate weight was given to the lack of intent to cause grievous bodily harm.  As developed in the course of address to this Court, the focus was on what the learned sentencing judge said as to the range of sentences for manslaughter, and one of the relevant factors, namely the circumstances of the offence:^[37]

“Cases involving provocation or provocative conduct, or involving no use of a weapon, or involving a not particularly forceful blow, are cases which do invite consideration of sentences of less than 10 years’ imprisonment.

Cases which do involve the use of a weapon, which did not have provocation and which involved a forceful blow, whilst also being able to include a sentence below 10 years have also factors which justify sentences of 10 years or more.”

54. It was said that when the learned sentencing judge contrasted those two sets of cases, no distinction had been drawn between cases with what would be considered to be an aggravating feature, and cases involving legal provocation which involve the specific intent to kill.  It was said the difference was highlighted by Justice Chesterman in R v MP^[38] where his Honour considered DeSalvo, R v Stafford^[39] and R v Arnoutovic,^[40] and said:^[41]

“If anything, this case seems to be more serious than those.  In none of those cases did the killer intend to cause serious harm to the victim.  In each case, what started out as an endeavour to frighten or inflict inconsequential injuries, led to death.  Here the applicant’s intention was to cause grievous bodily harm, or perhaps death, to the victim.  On the findings made the basis for a conviction of manslaughter was provocation of a minimal kind.”

55. I am unable to accept the contention advanced.  In my view, the learned sentencing judge was not distracted from making a proper assessment of the circumstances of the offending by overly concentrating on the issue of whether there might be said to be conduct that provoked the action that followed.  The learned sentencing judge was clearly assessing the question of provocation in fact, rather than legal provocation.
56. Properly analysed his Honour’s remarks were as follows:

1. the assault was by one friend on another, each of whom had indulged in drug-taking that day;
2. the assault was in the course of an argument;
3. there was no evidence to find that Hunt had acted in a way that might be described as threatening, or as provoking what occurred; in that sense it was an unprovoked assault;
4. the assault was by a weapon, which was used to strike more than one blow, but one with significant force, sufficient to break a rib, and rupture the spleen; that one blow caused the fatal injury;
5. those circumstances were relevant to penalty, particularly when assessing comparable cases;
6. the authorities indicate is that there is a range of sentencing relevant to manslaughter, with the factors determining what is the appropriate sentence being not only the personal circumstances of the particular defendant, but also the circumstances of the manslaughter;
7. cases involving provocation or provocative conduct, or involving no use of a weapon, or involving a not particularly forceful blow, are cases which do invite consideration of sentences of less than 10 years’ imprisonment;
8. whilst also being able to include a sentence below 10 years, cases which involve the use of a weapon, but not provocation (in the sense that it was an unprovoked attack) and which involve a forceful blow, also have factors which justify sentences of 10 years or more;
9. having considered all of the circumstances, the offence was a serious offence involving an unprovoked attack using a weapon on a victim in circumstances where the fatal blow was of significant force, so forceful that it caused a breaking of the rib and a consequent laceration of the spleen; and
10. therefore, notwithstanding the mitigating circumstances the appropriate sentence was 10 years’ imprisonment.

57. In none of that can it be said that somehow the learned sentencing judge was distracted from giving a proper consideration to the context and nature of the attack.  The contrary is the case, with his Honour having gone to some lengths to properly weigh each of the aspects of the conduct.
58. In my respectful view, the learned sentencing judge was not using the phrases relating to provocation in the sense of legal provocation, but rather as part of determining where the objective seriousness of the conduct lay in terms of: (i) whether the assault was one where it could be said that little or no harm was intended, as opposed to greater harm; and (ii) whether the assault was a response to being threated or provoked in some way.  In my view, that is all that Chesterman J was doing in the passage above from R v MP.  Consideration of that case with those that Chesterman J referred to supports that conclusion.
59. R v MP was a trial for murder, which resulted in a conviction for manslaughter.  The acquittal on the murder charge was because provocation could not be excluded.  The applicant and his father argued.  The applicant was very drunk and his father sober.  The applicant accused his father of sexually molesting his daughter.  The father remained silent in the face of those accusations, including when the applicant brought the daughter into the room, where he interrogated her and interpreted her responses as confirming the molestation.  The applicant then picked up a knife and stabbed his father in the heart.  The applicant intended to cause at least grievous bodily harm.
60. DeSalvo was a trial for murder, but he was found guilty of manslaughter.  He was seated in a car when the victim came up to him and spoke to him in an aggressive manner.  Feeling threatened or provoked, DeSalvo alighted from the car and lunged at the victim with a knife, delivering a single stab wound to his body, from which the victim died.  He was sentenced on the basis that he intended to cause some harm though not serious harm.
61. Stafford involved a young man stabbing another at a party.  Having become annoyed when he and the victim spoke, Stafford armed himself with a knife and stabbed him in the chest.  The stabbing was a response to a minor altercation.
62. Arnoutovic involved a trial for murder, and a conviction for manslaughter.  The victim, intoxicated by alcohol and drugs, burst into the applicant’s flat, behaved aggressively, and inflicted some violence on those in the flat.  He then left.  The applicant armed himself with a knife and pursued him with the intention of deterring him from returning and carrying out threats of violence.  In the ensuing confrontation a fight developed and the victim was fatally stabbed.  The sentence was on the basis that the confrontation was initiated by the victim, and the applicant picked up the knife intending only to scare.
63. Counsel for Hedlefs submitted that what he did was “a reaction … to what he perceived to be a wrong against him”, and the relevance of that was whether or not it was something that was considered, whether provoked or unprovoked; or, in other words, it was not entirely gratuitous.  I do not accept that submission.  The basis of the sentencing, and the agreed facts, point to one conclusion, namely that the argument was not enough to provoke the response.  It was a considered assault in that Hedlefs got very angry, picked up a weapon, advanced to the point he could use it, and then used it more than once.
64. The submission that the learned sentencing judge failed to adequately take into account Hedlefs’ lack of intent must be rejected.  The plea was to manslaughter, which, of itself, means that the offence lacks the intent to cause (at least) grievous bodily harm.  It was made expressly clear by the Crown that “on the evidence it would not be inferred that [Hedlefs] intended to kill or otherwise cause grievous bodily harm to the deceased consistent with the acceptance of the plea to manslaughter”.  In so far as the submission relates to the level of intent that might form part of determining the objective seriousness of the conduct, his Honour’s remarks make clear that he considered that there was at least the intent to inflict the harm that would flow from a significant blow to the torso, with a hammer like weapon.
65. Ground 1 fails.

Ground 2 – manifest excess

66. When considering this question one must bear in mind what was said in R v Tout:^[42]

“[A] contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is ‘unreasonable or plainly unjust’: Hili v The Queen (2010) 242 CLR 520 at [58], [59].”

67. Further, there is no one single correct sentence.  Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.^[43]
68. Counsel for Hedlefs relied upon Dwyer, Mooka, Sebo, Duncombe, DeSalvo and Matthews.  It was submitted that the learned sentencing judge had not given sufficient weight to: (i) the good prospects of rehabilitation; (ii) the lack of criminal history for violence; (iii) the guilty plea; and (iv) the circumstances of the assault, involving momentary loss of temper in the context of an argument, and the lack of intention to cause grievous bodily harm.
69. As is evident from the matters referred to in paragraph [34] above, his Honour did take those matters into account.  Insofar as the last point is concerned, for the reasons given above his Honour was right to treat this case as he did.  Therefore it falls to a consideration of the cases relied upon to see whether they demonstrate that the difference between those sentences and this one is such that there must have been a misapplication of principle, or that the sentence is unreasonable or plainly unjust.
70. Dwyer involved a plea of guilty by a young man (22 at the offence and 24 at sentence) with a significant criminal history, including for violence.  He was sentenced to 10 years.  He became intoxicated and returned to the deceased’s home, where he had been living for some time.  The deceased was his employer at a local darts club.  Dwyer became involved in an argument with the deceased, yelling and screaming at him.  The deceased threw some objects at him, which missed.  Dwyer was very angry and felled the deceased with a punch, and kicked him several times.  The blows caused multiple facial fractures and cardiac arrest.  He declined to call the ambulance for over an hour even though he saw the deceased not breathing.
71. The Court reviewed vases such as Mooka and Sebo in the course of finding that 10 years was not manifestly excessive.  Keane JA said, when referring to the breadth of sentences for manslaughter:^[44]

“[34] In R v Sebo; ex parte A-G (Qld), Holmes JA, in a decision in which the other members of the Court agreed, reviewed again this Court’s recent decisions relating to sentences for a brutal killing with limited provocation by a relatively young man without previous criminal history who has co-operated with the administration of justice.  Holmes JA concluded that in such cases the sentence “might properly have fallen between 9 and 12 years.”

…

[36] In the light of the recent review of the authorities by Holmes JA in R v Sebo, there is little purpose in yet another review of the authorities in this area.  Bearing in mind the range identified in R v Sebo, and the wide discretion which must be allowed a sentencing judge in such cases, it cannot be said that the sentence imposed in this case was outside the appropriate range.”

72. Keane JA characterised the offending and the appropriateness of the sentence imposed in this way:^[45]

“The applicant killed a man much older than himself.  The victim was a person who had shown the applicant kindness by providing him with accommodation and a job.  The applicant’s savage mistreatment of someone who had treated him kindly is a matter of concern.  The applicant’s reaction to having rendered his victim comatose revealed a degree of callous indifference towards others which the learned sentencing judge was entitled to regard as a matter of serious concern so far as the need to protect the community from the applicant’s aggression was concerned.  That callousness is very much of a piece with other offences he has committed.  Her Honour was justified in not treating it as “out of character” for the applicant or as a consequence of poor judgment or momentary panic.  The need to protect the community from the applicant was no less compelling in this case than it was, for example, in R v Mooka.  It certainly cannot be said that her Honour was unreasonable in imposing a sentence which reflected that view.”

73. Mooka also involved a 10 year sentence imposed on a guilty plea by a young man (25 at the offence and 27 at sentence).  He had a criminal history which included violent offences.  Mooka had been drinking heavily at a club, and he and the deceased played a game of pool together.  During another game the deceased said something that made Mooka become angry.  He aggressively confronted the deceased and then, with deliberation, moved some distance to pick up a pool cue, moved back and hit the deceased to the side of the head.  The cue was swung in a “full swing” that delivered a “mighty blow”.  Mooka was entirely the aggressor, and the deceased “did nothing and said nothing provocative”, warranting the description that Mooka’s violence was gratuitous.
74. The Court reviewed, amongst other cases, DeSalvo and R v MP, observing that in each the nine year sentence reflected conduct reacting to provocative conduct or a perceived threat by the deceased.^[46]  The Court found support in Duncombe, where a 10 year sentence was imposed:^[47]

“R v Duncombe [2005] QCA 142 was sentenced to 10 years for a gratuitous attack without a weapon on a sleeping stranger.  The criminal history of this applicant was more significantly adverse than Duncombe’s.  That outcome provides substantial support for the present penalty, especially acknowledging that a weapon was used here.”

75. Having reviewed the cases this characterisation of the offending conduct and sentence was given by de Jersey CJ:^[48]

“That brief review supports the view the sentence imposed here was justified and could not be criticised as manifestly excessive or, indeed, as excessive in any degree.  In cases like this, the sentencing Judge’s discretion is comparatively wide. It must be because, as often noted, the circumstances of manslaughters are infinitely various.  This sentence appropriately marked these important aspects: the vicious character of an unprovoked, gratuitous attack with a weapon which led to death, the essential gravity of causing the death of another human being, and this applicant’s bad prior criminal history.”

76. Holmes JA added:^[49]

“This was not a case of manslaughter by some unlucky punch.  This was a heavy, aimed blow to the head with a pool cue.  Whatever the applicant’s actual intention, that blow was bound to cause serious head injury.  The finding that it was a gratuitous attack was plainly open.  There were a number of other aggravating circumstances, but few mitigating.  Ten years’ imprisonment, with its serious violent offence implications, was by no means a lenient sentence, but it was certainly within a proper range.”

77. Duncombe involved a 10 year sentence imposed on a young man (22 at the offence and 23 at sentence) with a criminal history that included violent offences.  He killed a 47 year old man, incapacitated by alcohol and sitting, asleep on a bench in a public place.  Duncombe confronted the deceased, who held his hands up in an act of submission.  He put the deceased in a headlock before punching him in the face three times, one with significant force.  The deceased offered no provocation in law or fact.
78. McMurdo P and Cullinane J found that the sentence was not manifestly excessive.
79. There is a commonality of factors in Dwyer, Mooka and Duncombe that supports the sentence on Hedlefs:

1. each pleaded guilty to manslaughter in circumstances where it was not said that there was an intention to cause grievous bodily harm;
2. unlike Hedlefs, each had been drinking and was intoxicated at the time,;
3. each was sentenced to 10 years with a serious violent declaration, and that sentence was not disturbed;
4. Mooka involved the use of a weapon; neither Dwyer nor Duncombe did;
5. each inflicted the injuries in ager and with significant force;
6. each assault in Mooka and Duncombe was carried out without provoking conduct; in Dwyer it persisted after any provoking conduct;
7. apart from the plea neither Mooka nor Dwyer cooperated with authorities; and
8. each was sentenced for other offences, unlike Hedlefs.

80. That review is sufficient to show that it cannot be demonstrated that the sentence imposed is manifestly excessive.  Ground 2 fails.

Disposition

81. For the reasons above I would refuse leave to appeal against the sentence.  I also agree with the observations of McMurdo JA.
82. PHILIPPIDES JA:  I agree for the reasons given by Morrison JA that the application to appeal against sentence should be refused.
83. McMURDO JA:  I agree with the reasons of Morrison JA for refusing leave to appeal against this sentence.  I wish to add something about the applicant’s argument about the relevance of an intent, or the lack of an intent.
84. In the proposed notice of appeal, the first ground would complain of a failure by the sentencing judge “to take into account the applicant’s lack of intent to kill or cause grievous bodily harm.”  The argument in support of that ground is apparently inspired by what was said by Chesterman J (as he then was) in R v MP.^[50]  In that case, after a trial, the applicant was acquitted of murder but convicted of manslaughter on the basis of provocation under s 304 of the Criminal Code (Qld).  Referring to R v DeSalvo,^[51] R v Stafford^[52] and R v Arnoutovic,^[53] Chesterman J said:

“If anything, this case seems to be more serious than those.  In none of those cases did the killer intend to cause serious harm to the victim.  In each case, what started out as an endeavour to frighten or inflict inconsequential injuries, led to death.  Here the applicant’s intention was to cause grievous bodily harm, or perhaps death, to the victim.”

That judgment has been cited many times in judgments of this Court, not for any proposition which might be drawn from that passage, but for what was said about a different issue, namely the relevance of the impact of a sentence upon the prisoner’s family.^[54]

85. Upon the basis of that passage, it is argued that cases of manslaughter such as the present one, where there was no intent to kill or do grievous bodily harm, involve a lower degree of criminality than cases where the intent exists, but provocation reduces the offence to one of manslaughter.  As a general proposition, that cannot be accepted.
86. The unlawful killing by one person of another is a crime called murder or manslaughter “according to the circumstances of the case”.^[55]  The circumstances by which an unlawful killing may constitute the crime of manslaughter may be categorised, as Wilson AJA did in R v Murray, as follows:^[56]

“Unlawful killing may amount to manslaughter because of the absence of an intent to kill or do grievous bodily harm – for example, where the homicide was accidental or the result of criminal negligence or where the offender was so intoxicated that he or she did not form the requisite intent.  It may amount to manslaughter where the offender formed the requisite intent, but his mental state was such that he was of diminished responsibility.  It may amount to manslaughter where he or she had the requisite intent, but … nevertheless acted in response to provocation by the victim.  Within each of these categories of manslaughter the extent of the offender’s criminality will vary from case to case.”

Wilson AJA was there explaining, as have many other judgments, the wide range of circumstances in which a crime of manslaughter may be committed.  For example, in R v Mooka,^[57] de Jersey CJ said that “the circumstances of manslaughters are infinitely various.”  But importantly, Wilson AJA was not saying that one of those categories of manslaughter was more serious than another.  Rather, her Honour said that “within each of these categories of manslaughter the extent of the offender’s criminality will vary from case to case.”

87. Section 304 operates only where there has been an unlawful killing which, but for that section, would constitute a murder.  Where provocation is proved, s 304 negates the legal consequences of the offender’s intent, and the crime is one of manslaughter, rather than murder, or something falling between the two.  Once the legal effect of the offender’s intention is negated for the purpose of defining the offender’s criminal responsibility, there is no basis for saying that, nevertheless, that intention had a legal effect for the offender’s punishment.
88. Just as an intention to kill or do grievous bodily harm, of itself, need not be an aggravating factor, the absence of that intention, of itself, will not be a mitigating factor.  Rather, the existence or absence of that intent will be relevant as an ingredient of the mix of facts and circumstances by which the offence is to be considered in the assessment of the appropriate sentence.  There is no reason to suppose that the sentencing judge here did not consider it in that way.