R v Solomon[2022] QCA 100

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  For the reasons given by Mellifont J, I joined in the order made for the refusal of this application on 10 May 2022.
2. [2]
   BOND JA:  For the reasons given by Mellifont J, I joined in the making of the Court’s order on 10 May 2022.
3. [3]
   MELLIFONT J:

Introduction

4. [4]
   The application for leave to appeal against sentence was heard on 6 May 2022.
5. [5]
   On 10 May 2022, the application was refused, with reasons to follow.
6. [6]
   These are those reasons.

Background

7. [7]
   On 14 October 2021, the applicant pleaded guilty to one count of manslaughter, being a domestic violence offence.
8. [8]
   The applicant was sentenced to 7.5 years imprisonment, with a presentence custody declaration of 737 days from 8 October 2019 and 13 October 2021.  The learned sentencing judge ordered immediate parole eligibility.  In so doing, his Honour had before him material from which it could be readily inferred that there would be a significant delay in the Parole Board considering any application for parole.^[1]

Offence

9. [9]
   The offence was committed on 8 October 2019.  The offence was committed by the applicant in the course of an argument, against a history of significant domestic violence committed against her.  The circumstances of the offence are set out in some detail below.^[2]  The cause of death was a stab wound by a large kitchen knife.

Grounds of appeal if leave were granted

10. [10]
    The sole ground of appeal in the Notice of Appeal is that the sentence was manifestly excessive.  At the hearing of the application for leave to appeal, the applicant sought, and was granted, leave to add the following ground:

    1. (a)
       The learned sentencing judge erred in the application of section 9(10A) and this error infected the sentencing process such that the sentencing discretion miscarried.

Ground one: sentence is manifestly excessive

11. [11]
    The applicant submits that the sentence imposed was manifestly excessive; that it should be set aside, and the applicant sentenced, in lieu, to five years, suspended after time served, for an operational period of five years.^[3]
12. [12]
    At sentence, defence counsel put before the sentencing judge four single instance sentencing precedents for manslaughter.  They were:

13. [13]
    In addition to four single instance decisions, two Court of Appeal decisions were placed before the learned sentencing judge and were relied upon by Counsel for the prosecution: R v Castel^[4] and R v Blockey.^[5]
14. [14]
    In R v Castel, the applicant pleaded guilty to manslaughter, a domestic violence offence, in March 2019.  The deceased was her husband.  She was sentenced to nine years, with a pre-sentence custody declaration of 453 days (from 21 December 2017).  No date for eligibility for parole was fixed.
15. [15]
    The applicant and her husband were married in April 2010 and had one child together who was four years old at the date of the offence.  The applicant and her husband would argue on occasions about various topics and one of those topics often raised by the applicant was him coming home from work after 6 pm.  He arrived home at approximately 8 pm on 20 December 2017 and an argument developed.  The applicant was standing in the kitchen and her husband was seated at the kitchen bench approximately one to two metres away.  The applicant picked up her husband’s laptop and threw it at him and he caught the laptop.  She then picked up a 20.5 centimetre knife from the knife block.  She scratched her inner left arm above the wrist twice with the blade of the knife and told her husband she wanted to kill herself.  Her husband said something to her and, from a distance of approximately two to three metres away, she threw the knife in an overarm throw and it landed in her husband’s left chest.  He said “what the fuck” and either pulled the knife out or the knife fell out of its own accord.
16. [16]
    The cause of death was a wound of at least 4.5 centimetres between the ribs which pierced the heart.  The applicant called the paramedics, however the husband died from the wound that night.
17. [17]
    She was 37 years old, self-employed, with an irrelevant criminal history.  She held Bachelor’s Degrees in psychology and nursing, and a Masters in health science; and writing, editing and publishing; as well as a Certificate IV in graphic design.  The learned sentencing judge acted on the basis that she showed regret and remorse, although also referred to a letter written by the applicant to the deceased’s family as leading to doubt that she understood, in any real way, the consequences of her actions and the hurt and harm to the family of the deceased.^[6]  The early plea was taken in the face of an overwhelming Crown case of manslaughter.
18. [18]
    The applicant there had some mental health issues, a history of trauma, depressive episodes and anxiety.  There does not appear to be a history of domestic violence between her and the deceased, beyond, possibly, some verbal aggression in the course of arguments.^[7]
19. [19]
    Her separation from her son since the incident was devastating: it went from daily contact to little or no contact.  Mr Smith, Psychologist, opined that she fell into the very low range of reoffending.^[8]
20. [20]
    Counsel for the applicant contended that a parole eligibility at least three years (i.e. one third) rather than the statutory half way mark should be substituted.
21. [21]
    Mullins JA (Sofronoff P agreeing; Boddice J dissenting) found that although the sentencing judge did not accept that the applicant was at very low risk of reoffending, there was no finding made, nor could there be on the material before the sentencing judge, that the applicant was a high risk of reoffending.  The Court held that:

“When due regard is given to those factors in favour of the applicant which are emphasised on this application of no prior criminal history, the immediate remorse shown for her conduct and her early plea of guilty, the imposition of a sentence of nine years’ imprisonment without any mitigation meets the test of being ‘unreasonable of plainly unjust’ and is manifestly excessive in the circumstances.”

22. [22]
    The Court of Appeal varied the sentence by fixing a parole eligibility date at 20 December 2020 (at three years).
23. [23]
    As observed above, it was accepted that the case in Castel was such that a lesser sentence was called for in the current case.
24. [24]
    In R v Blockey, the applicant was sentenced to nine years, with parole eligibility after three years, in respect of the manslaughter of a man with whom she had been in a relationship for some months.
25. [25]
    She stabbed him with a hunting knife, using a moderate to severe degree of force, causing a 16 centimetre deep single stab wound below the deceased’s left collar bone.  This was after he had pursued her into her home, and with a degree of aggressive intent, and after he had, at some stage, punched or slapped her causing a bruise and some bleeding.  At one point she had yelled for him to “get out”.  He did not.
26. [26]
    During the course of their relationship, the deceased had committed acts of domestic violence against the applicant.  He was the subject of a domestic violence order in respect of her.
27. [27]
    The relationship was characterised by irrational jealousy on the part of the deceased and complaints by the applicant about the deceased taking property and money.
28. [28]
    There was evidence that in the month before the death the applicant told the acquaintance that if the deceased continued to accuse her of sleeping with others she would “stab him with Kitty and kill him.”  Kitty was the name the applicant gave to the hunting knife she used to kill him.
29. [29]
    It was a timely plea, the deceased had been killed in anger; the applicant had a past history of alcohol abuse and illicit substance abuse, her adult relationships had largely been with partners who abused alcohol and illicit substances, many of whom had subjected her to domestic abuse.
30. [30]
    The sentencing judge accepted that, given her history of having sustained repeated serial domestic violence, there was an increased risk of her reacting aggressively when threatened or assaulted by a domestic partner.
31. [31]
    The sentencing judge proceeded on the basis that section 9(10A) did not apply, given the domestic violence history between the two.
32. [32]
    The learned sentencing judge observed that the offence was serious, involving the taking of life, with the consequence of lasting pain and trauma to that person’s loved ones.
33. [33]
    The learned sentencing judge accepted that she was sincerely remorseful, had made significant progress towards rehabilitation while in custody, that there was a timely plea which was evidence of cooperation with the administration of justice (albeit tempered by the applicant having made false statements, initially seeking to implicate the deceased in having inflicted injury to himself and that she failed to provide any comprehensive, reliable detail concerning the stabbing itself).  After noting the applicant had given six different versions of the circumstances of that stabbing, the sentencing judge found that the applicant’s assertion that the deceased had inflicted harm on himself was false; that there was no basis to find that the deceased had armed himself with a knife; and that the applicant’s assertion that she hurt the deceased to protect herself was false.  His Honour imposed nine years imprisonment, with a parole eligibility date at three years nine months.
34. [34]
    The Court of Appeal found that the applicant’s cooperation was not to be tempered by her failures to provide a comprehensive, detailed account of the sequence of events, resentenced the applicant, and imposed a sentence of nine years, with a parole eligibility after three years.^[9]

Sentencing remarks

35. [35]
    In sentencing the applicant, his Honour took into account the following:

    1. (a)
       This is an example of the well-known circumstance that manslaughter is a difficult crime to predict by way of set ranges for sentences, the circumstances of unlawful killing varying so much from case to case.
    2. (b)
       The seriousness of the offending in this case makes it necessary to impose a sentence which justly punishes and denounces the conduct.
    3. (c)
       General deterrence is relevant because of the seriousness of the offending and the need to remind persons to control their actions and not have recourse to the brandishment of a knife when an argument might be in progress or anticipated.
    4. (d)
       Here there is an element of personal deterrence – the need for the applicant to be constantly reminded that the conduct was totally unaccepted, and had occurred in the context of a relationship where the applicant had, at times, indulged in alcohol and substance abuse.
    5. (e)
       A sentence should be imposed which does not impede or obstruct the object of what might be regarded as achievable rehabilitation.
    6. (f)
       The applicant has a combined Aboriginal and Torres Strait Islander heritage.
    7. (g)
       She had a disadvantaged background, without the benefit of a stable and strong family background.
    8. (h)
       She had an incomplete education, not having finished secondary schooling.
    9. (i)
       At about the age of 14 the applicant started abusing alcohol and cannabis, and had engaged in petrol sniffing in the past.
    10. (j)
        She had not been able to find stable and constant employment.
    11. (k)
        She is the mother of four children.
    12. (l)
        Her life has been spent in a series of domestic relationships with different men, and had been a victim of a considerable degree of domestic violence, with men who had been overcontrolling, and who demonstrated jealousy leading to anger because of perceptions that she had been or might be unfaithful.
    13. (m)
        She was 26 at the time of the offence and 28 at the time of sentencing.
    14. (n)
        She was cooperative with the police, making admissions and answering the questions asked of her in interview on the day of the offence.
    15. (o)
        She pleaded guilty on the day the indictment alleging manslaughter was presented, after a history of her legal advisors agitating with the prosecution that if she were charged with manslaughter, rather than murder as first charged, she would plead guilty.
    16. (p)
        She had demonstrated on the date of the killing, and also in connection with the proceedings before the Court, cooperation with the administration of justice, which is capable of being viewed as evidence of some remorse on her behalf.
    17. (q)
        In addition, there is strong remorse, particularly as shown by the fact that immediately after the event, she was concerned for the wellbeing of the victim and asked others to see that he received care, but also by her attempts at rehabilitation.  In that respect, the applicant had been assiduous over the two years she had spent in presentence custody to make herself busy inside the prison, performing duties, but also undergoing courses with a view to giving herself the mental and psychological equipment to deal with life outside prison.
    18. (r)
        Her criminal history is irrelevant to the exercise of the sentencing discretion in this case.
    19. (s)
        She had been in a relationship with the deceased for some time, and her fourth child was borne out of this relationship.
    20. (t)
        There was before the Court well documented evidence that he was physically violent and abusive towards her, and in that respect, there was one very serious and notable occasion.
    21. (u)
        The evidence, including the report of Dr Hatzipetrou, reveal an ongoing continuous pattern of violence which included sexually controlling conduct which could be interpreted as unlawful violence.
    22. (v)
        The documented history of domestic violence towards the applicant, which is quite seriousness, has the effect that there are exceptional circumstances under section 9(10A) of the Penalties and Sentences Act 1992 (Qld) and “which means that I will not, in the exercise of my discretion, take into account that your offending occurred in the context of a domestic relationship”.  By this, it is clear that his Honour proceeded on the basis that he would not treat the fact that it is a domestic violence offence as an aggravating factor.
    23. (w)
        His Honour took into account the agreed statement of facts and the other documentary evidence.  His Honour observed that the statement of facts contains information about the relationship, including the deceased’s jealousy arising out of his beliefs that she may have been “going with other boys”.  The applicant had been violent towards her.  She had sought assistance from the police.  A Domestic Violence order had been obtained and he was on notice that she had a protection order in her favour.  Notwithstanding that, he was in her company on the morning of 8 October 2019, when she went to the court house to see about the affairs of a friend, and made arrangements to reconnect at lunch.
    24. (x)
        She and the deceased went to the store just after midday, and she selected some items from the shelves and placed them in a shopping basket.  The deceased argued she was purchasing unnecessary items.  The argument became heated.  She put the shopping basket down, walked out, and left the deceased behind.  She walked to the pre-arranged meeting place on her own.  When she arrived, she was seen by others that she was visibly angry, and uttered abusive insults about her partner.  Coincidentally, one of those persons present was standing on the back veranda using some knives to cut up some meat, including a brown boning knife.
    25. (y)
        The deceased walked down the street and approached the dwelling.  He was pushing the stroller with their young infant in it.  She acted angrily and yelled at him from the veranda.  He walked up to the railing surrounding the veranda and spoke to her.  There was a hushed conversation between the two of them but matters were not resolved.  The argument seemed to become even more heated.  She started swearing at the deceased.  At some stage, she took possession of the boning knife.
36. [36]
    His Honour then stated:

“It would seem a reasonable inference from the evidence that you anticipated that this argument would become more heated and matters might go from bad to even worse.  To the extent to which you had any intention, it appears that you were prepared to brandish the knife if matters developed as you feared.  As sometimes happens in such a context, both you and the deceased became more and more angry at each other.  He apparently started swinging punches at you and you brandished the knife and, at some time, swung your right arm and right hand holding the knife in a roundhouse way, presumably, causing a stab wound to the back of the deceased.  The wound itself can be shown in the photograph, which has been placed in evidence.  It was a 26-millimetre stab wound over the right back.  Reading from the statement of facts, injury occurred to the lower chest and it perforated the right kidney and the liver.  The deceased suffered a loss of a lot of blood.  The depth of the wound was in excess of 125 millimetres.  The cause of death was a combination of the wound and the associated loss of blood.

The deceased left, presumably, intending to seek treatment or assistance.  Ultimately, an ambulance took him to the healthcare centre at the settlement.  Treatment was given but he passed away.  The statement of facts contains information relating to your actions and your entreaties to others to see to the deceased and to find out how he was doing.  As I have said, that was evidence of remorse on your part.  You contacted police.  You told them something of what had happened and you participated voluntarily in a record of interview.  The report from Dr Hatzipetrou demonstrates that these events occurred against the background of the relationship that involved domestic violence and sexual abuse.  But also the combined effects of alcohol and drug abuse.

You have suffered from psychiatric illnesses, a range of physical [indistinct] conditions that are quite serious and he has offered tentative opinions of mental health issues to do with depression and other psychiatric illnesses.  His recommendation is that your prospects of rehabilitation will be enhanced in a community setting where you were abstinent from drug and alcohol abuse.  I accept that the two years you have spent in custody will have been difficult for you because of the enforced separation from your children and your family by the circumstance that have been incarcerated here in Townsville when everyone else lives a long way further north.  I am told that today, this has been your first opportunity to see your children for two years.  They are present here in Court today.

Thus, are the backgrounds facts and circumstances and the circumstances of your offending.  Your offending is very serious.  The brandishment and wielding of a dangerous implement such as a knife in the context of a heated exchange is very serious offending.”

37. [37]
    His Honour also stated:

“On behalf of the director, Mr Crane emphasised the seriousness of the offending, but he acknowledged quite fairly in this case that the circumstances of the evidence suggested that section 9(10A) did not apply here or at least was no relevant because of the history of domestic violence.  He pointed to aspects of similarity between the offending here and the offending referred to in the Court of Appeal in both Castel and Blockey, noting the head sentences of nine years.  But again, and quite fairly and I think appropriately in the particular circumstances here, he acknowledged or submitted that the sentencing discretion in the particular circumstances here might result in a sentence less than nine years.  He did not go so far as to put a figure on it.

On your behalf, counsel emphasised your rehabilitation, your background, your cooperation with the administration of justice.  Two alternatives were offered to me, or at least the submission is made that a sentence could be imposed or discretion exercised as at seven years in the particular circumstances.  In order to avoid any inconvenience or injustice occasioned by any delay in considering your parole application, it was submitted that I not declare the 737 days that you have served but instead impose a head sentence of five years imprisonment and wholly suspend the sentence.  That is working on the premise of a notional seven year sentence imposition.

I have already attempted to make the point that in my view, your offending was very serious, but occurred against the background of your disadvantaged life, the dysfunctional, dangerous relationships that you’ve been and relationship you were in with the deceased, and in circumstances where you have suffered from a range of conditions, psychiatric but also physical.  Taking into account the matters relating to the seriousness of your offending, but giving full account, in my view, to the many circumstances or matters that can be said on your behalf, I have taken the view that a sentence should be imposed on the facts at seven and a half years.  A conviction will be recorded.  I find that you served pre-sentence custody from the 8^th of October 2019 to the 13^th of October 2021.  I calculate that as 737 days, and I declare that as time served under the sentence imposed.  As I’ve already observed, the time you have served is a few days longer than two days.

Submissions were made about parole.  Evidence in the form of a letter and dated in August relating to figures available to the parole board in July was placed before me as exhibit 15 in the context of submissions about the structure of the sentence and parole recommendation.  I was it was pointed out to me that there are lengthy delays in the parole board in considering parole applications.  That’s notorious, and it is apt to cause considerable injustice in particular cases from time to time if not more generally than that.

One third of seven and a half years is two and a half years.  In order to attempt to ameliorate the injustice of the situation with the parole board, and on the same hand acknowledging that it appears there will be some lengthy delay, I have determined to fix your parole eligibility date as at today, the 14^th of October 2021.  You of course will have to make an application to the board, and there may be some delay.  That has influenced me in setting the parole eligibility date at significantly less than the one third mark.”

Conclusion as to whether sentence manifestly excessive

38. [38]
    When one has regard to all of the circumstances of the case, and the decisions of Blockey and Castel, it cannot be said that a sentence of 7.5 years imprisonment with immediate parole eligibility is unreasonable or plainly unjust.  Although it would have been open for his Honour to impose a shorter sentence, it cannot be said that the sentence imposed is manifestly excessive.
39. [39]
    It should also be observed that it was submitted before the learned sentencing judge, and here, that the sentence imposed should be a suspended sentence rather than a sentence with a parole recommendation.  It can be accepted that given the applicant’s significant attempts at rehabilitation while in custody, including education with respect to domestic violence, her work within the prison in positions of trust, her irrelevant criminal history, that it cannot be assumed she would not be without family support in the community, that she is not a very young person, that she is not a drug addict, and that she has spent two years in custody, this is not a case where parole rather than a suspended sentence was the only option.
40. [40]
    However, that does not invalidate the choice made by the learned sentencing judge to make an order for parole eligibility, particularly taking into account the recommendations by Dr Hatzipetrou, Psychologist, that she will require more support in the community.^[10]

Ground two: “The learned sentencing judge erred in the application of section 9(10A) and this error infected the sentencing process such that the sentencing discretion miscarried.”

41. [41]
    In this matter, in imposing sentence, the learned sentencing judge stated:

“…One has to be a little cautious in having resort to single instance reasons for sentencing and in this case, for at least two reasons.

First, and fundamentally, single instance sentencing reasons that are apt to be fact-finding sense of an intensive and, therefore, not necessarily of great help in discerning if there is a range, or more correctly, how, in a different fact situation, the sentencing discretion should be exercised.  More relevantly in the particular case here, a number of those decisions – not all four – occurred before the introduction into the legislation of section 9(10A) of the Penalties and Sentences Act, and as has been acknowledged in the decisions in the Court of Appeal to which I’ve referred therefore all the decisions on sentencing have to be taken into account with some caution.”^[11]

42. [42]
    Section 9(10A) was introduced into the Penalties and Sentences Act in 2016 by the Criminal Law (Domestic Violence) Amendment Act 2016 (Qld).
43. [43]
    It provides:

“In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.

Examples of exceptional circumstances –

1 the victim of the offence has previously committed an act of serious domestic violence, or several acts of domestic violence, against the offender

2 the offence is manslaughter under the Criminal Code, section 304B”.

44. [44]
    Counsel for the prosecution submitted that the circumstances suggested that section 9(10A) did not apply, and it is clear that the sentencing judge proceeded on the basis that section 9(10A) did not operate so as to treat the fact that the offence was a domestic violence offence as an aggravating factor.^[12]
45. [45]
    The complaint by the applicant here is that it was not proper to treat Saltner, Corbett and Sweeney^[13] with caution on the basis that they predate the section 9(10A) amendments, given that it did not apply in the circumstances of the case.
46. [46]
    That proposition can be accepted, in so far as it goes.  The difficulty for the applicant, though, is that his Honour advanced two justifications for treating the single judge decisions with caution, and the first was undoubtedly valid.  That being the case, appellable error does not flow from there being a second, albeit invalid, reason for treating those decisions with caution.
47. [47]
    It is clear that his Honour approached sentence on the basis that the applicant’s matter warranted a lesser sentence than that imposed in the Court of Appeal decisions of Blockey and Castel, and, after taking into account relevant considerations, arrived at a head sentence of 7.5 years imprisonment, with immediate eligibility for parole.  It was, of course, in order for his Honour to do so.
48. [48]
    The second stated reason for treating single judge decisions with caution has not been shown to have caused error in the sentence ultimately imposed.