R v Powell[2022] QCA 164

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons prepared by Flanagan JA and the order his Honour proposes.
2. [2]
   FLANAGAN JA:  On 13 December 2021 in the Supreme Court at Bundaberg the applicant pleaded guilty to one count of manslaughter, namely that on 16 September 2019 at Torquay he unlawfully killed Paul Simon Herdman.  The applicant also pleaded guilty to four summary charges, one of unlawful assault of a person 60 years or more, one of wilful damage and two of possession of a dangerous drug.
3. [3]
   For the count of manslaughter Crow J sentenced the applicant to nine years imprisonment.  A concurrent sentence of four months imprisonment was imposed for the unlawful assault charge.  For the remaining three summary charges the applicant was convicted and not further punished.  The applicant’s parole eligibility date was fixed at 10 September 2023 after serving four years.  824 days of pre-sentence custody was declared as time served under the sentence pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld).
4. [4]
   The applicant seeks leave to appeal against sentence on the ground that the sentence is manifestly excessive.

Circumstances of the offending

5. [5]
   The sentence proceeded on the basis of an agreed statement of facts.
6. [6]
   On the morning of 4 September 2019 the applicant and his partner, Ms Bailey, went to Ms Moore’s house at Torquay where they consumed methylamphetamine.  Mr Herdman arrived.  He spoke with Ms Moore and left.  After he had left, the applicant overheard Ms Bailey tell Ms Moore that Mr Herdman has “put it on her” while the applicant was in jail.  The applicant asked Ms Bailey why she had not informed him of this earlier.  She told him not to worry about it.  The applicant and Ms Bailey left Ms Moore’s house but returned later that afternoon.  Mr Herdman also returned to the house with his partner, Ms Bates, who remained in their vehicle.  Mr Herdman gave Ms Moore some methylamphetamine which they consumed in the house.  He then left the house through the front door and down the stairs.  At this stage Ms Moore and Ms Bates heard noises and shouting coming from the yard.  Ms Moore observed that Mr Herdman was lying on the ground and that there was blood near his mouth.  She attempted to rouse him but was unsuccessful.  The applicant was present and was “freaking out”.  He attempted to wake Mr Herdman by slapping his face.  Ms Moore requested Ms Bailey to call 000.  Ms Bailey and the applicant were however reluctant to call 000 as they were both wanted by police for questioning.  Ms Moore suggested to the applicant and Ms Bailey that they would say they were just sparring.  Ms Moore then collected some pink boxing gloves from under the carport and placed them near Mr Herdman.  Ms Moore told Ms Bates to come quickly as Mr Herdman was “either unconscious, out cold or dead”.  Ms Bates recalled that someone said “they were fun sparring with gloves on”.
7. [7]
   Ms Bates found Mr Herdman unresponsive.  His right eye was swollen and he had blood coming from his nose.  The applicant was at the front of the house and kept saying “he’s my mate” repeatedly.  Ms Bailey observed that the applicant was “panicking” and she told him to leave as he was wanted by police.  Ms Bates commenced to give first aid to Mr Herdman.  The applicant was behind her saying “do something, we were just sparring”.  Ms Bates requested someone call 000 but no one did.  She returned to her vehicle and called 000 herself.  Upon her return she noticed the applicant was no longer present.  Around this time the applicant was observed by three other persons leaving the house, walking out of the gate of Ms Moore’s house with Ms Bailey.
8. [8]
   CPR was commenced on Mr Herdman by others while they waited for paramedics to arrive.
9. [9]
   The prosecution identified the basis of the applicant’s criminal responsibility for manslaughter as follows:

“(a) The defendant struck the deceased to his left jaw with moderate force.

2. (b)
   The blow caused the deceased to become unsteady on his feet and he either then fell to the ground or the defendant further assaulted him by means other than a strike to the head or neck causing the deceased to fall.

3. (c)
   The deceased sustained head injuries that caused his death from the impact with the ground.

4. (d)
   The defendant struck the deceased because he had discovered that the deceased had made a pass at his de facto partner, Jodie Bailey.”

10. [10]
    Mr Herdman was taken to the Hervey Bay hospital and subsequently transferred to the intensive care unit at the Royal Brisbane and Women’s Hospital due to a severe traumatic brain injury.  His condition continued to deteriorate and on 16 September 2019 he died.
11. [11]
    Dr Milne who performed an autopsy opined that the cause of death was head injuries.  Mr Herdman had sustained an impact of moderate force to the face which caused a non-displaced fracture to his left jaw which caused him to fall to the ground or at least become unsteady on his feet.  The back of Mr Herdman’s head made impact with the ground causing injuries to that region and the base of the skull.  The impact also led to secondary brain changes, including swelling herniation and brain stem death due to an artery being entrapped by a skull fracture or fractures.
12. [12]
    After the applicant had left Ms Moore’s house he was observed by witnesses to be affected by drugs as well as being “scattered” and “freaking out”.  He told one person that he had been sparring with Mr Herdman who had fallen back and his head bounced off the floor.  The applicant made statements to the effect that he needed to leave town and that he was “not taking the rap over this shit”.  He was seeking to make his vehicle drivable and was aware that he could not speak on his mobile phone or catch any taxis.  On 5 September 2019 police attended an address at Urraween in order to locate the applicant.  He was observed in the backyard running towards the back fence.  He climbed the fence into the property of Mr Keen.  Mr Keen confronted the applicant who pushed him and ran past him.  Mr Keen suffered a 20mm cut along his left arm which was bleeding.  This constitutes the charge of unlawful assault.  The applicant then ran through the front fence of Mr Keen’s property which is the charge of unlawful damage.  He was successful in evading police.  The applicant was finally apprehended on 11 September 2019.  He was found to be in possession of a small amount of cannabis which is one of the possession of dangerous drug charges.  The other drug charge concerns the applicant being in possession of 5.379 grams of a substance containing testosterone on 15 September 2018.

The applicant’s antecedents

13. [13]
    The applicant was 32 years of age at the time of the offending and 34 years old when he was sentenced.
14. [14]
    He has a 15 page Queensland criminal history that commences when he was 17 years of age.  The history reveals convictions for property offences, drug offences, offences of violence, weapons offences, bail offences and street type offences.  The applicant had previously been subject to community-based orders, suspended terms of imprisonment and actual imprisonment.  The Crown in its written submissions before Crow J summarised the most significant previous convictions as follows:

“(a) 30 April 2007 at Hervey Bay Magistrates Court the defendant was convicted of two charges of assault occasioning bodily harm while armed/in company and sentenced to five months imprisonment suspended for two years.  The defendant approached two persons unknown to him and assaulted them with a bar and tree bench.  One of the men was rendered unconscious when the defendant also forced his head into a wall.  The defendant breached that suspended sentence imposed.

2. (b)
   18 February 2008 at Hervey Magistrates Court the defendant was convicted of breaching a domestic violence and protection order and was placed on 18 months’ probation.  The defendant attended the place of residence of his former partner (Jodie Bailey) in breach of the conditions of the order.  The defendant verbally abused her and refused to leave.  The defendant breached that probation order imposed.

3. (c)
   14 January 2009 at Hervey Bay District Court the defendant was convicted of two charges of common assault and sentenced to nine months imprisonment.  The defendant tried to stab the unknown complainant with a knife twice in a public place.

4. (d)
   8 October 2009 at Hervey Bay Magistrates Court the defendant was convicted of breaching a domestic violence and protection order and was fined.  The defendant attended the place of residence of his former partner (Ms Bailey) in breach of the conditions of the order.  The defendant damaged property and verbally abused Ms Bailey.  The abuse included threats to kill her and accusations that she had been sleeping with other people.

5. (e)
   On 6 October 2011 at Hervey Bay District Court the defendant was convicted of assault occasioning bodily harm and sentenced to 12 months imprisonment with immediate parole.  The defendant confronted his former partner (Ms Bailey) at a restaurant and chased her down the street.  The defendant punched her in the head and threatened to kill her if she was with someone else.

6. (f)
   On 15 February 2012 at Hervey Bay Magistrates Court the defendant was convicted of breaching a domestic violence and protection order and was fined.  The defendant attended his former partner's house and had contact with her in breach of the conditions of the order.  The former partner had been the victim of the previous offence.

7. (g)
   On 12 October 2012 at Hervey Bay Magistrates Court the defendant was convicted of breaching a domestic violence and protection order and was sentenced to six months imprisonment with parole after 52 days.  The defendant again attended the same former partner's house and had contact with her in breach of the conditions of the order.

8. (h)
   On 20 April 2016 at Hervey Bay Magistrates Court the defendant was convicted of carry exposed weapon in a public place and was sentenced to six months imprisonment.  Other periods of imprisonment were imposed for other offences that the defendant was convicted of on that day.  A parole release date was set after the defendant served four months.”

15. [15]
    The applicant grew up in Hervey Bay where he was raised primarily by his grandmother who was a Butchulla elder.  At the age of 12 the applicant lost his father.  He had little contact with his mother for most of his childhood because she was in prison for much of that time.
16. [16]
    At the age of 14 he commenced drinking alcohol and smoking cannabis and in his early twenties commenced using methylamphetamine.  As is revealed in his criminal history, he has abused drugs for many years.
17. [17]
    He completed year 12 at school but did not do well.  He has intermittently been employed in a variety of jobs, but mainly labouring.  He is the father of three children.

The sentencing proceedings

18. [18]
    In their written submissions, both the Crown and the applicant’s counsel referred Crow J to two comparatives, R v Skondin [2015] QCA 138 and R v Callow [2017] QCA 304.  By reference to those comparatives, the Crown submitted that a head sentence for the manslaughter count in the range of eight to nine years was appropriate.  The Crown did not seek the imposition of a serious violent offence declaration.  It did however submit that a parole eligibility date should be set at the halfway mark of the head sentence in view of the applicant’s mature age, his criminal history, which included offences of actual violence, the aggravating post-offence conduct and his plea of guilty.  The applicant’s counsel submitted before Crow J that the applicant’s age, criminal history and attempts to avoid police did not require that the parole eligibility date not be set at the one third mark.  If parole eligibility was set at the statutory half way point, it was submitted that no consideration would have been given to the applicant’s early or timely plea of guilty or his antecedents.  The applicant's counsel submitted that an eight year sentence was appropriate.

The sentencing remarks

19. [19]
    In considering the circumstances of the manslaughter, Crow J noted that the applicant did not call 000 but rather left the scene.  His Honour referred to the applicant’s post-offence conduct as the applicant “fleeing from responsibility”.  His Honour described the applicant’s criminal history as both lengthy and evidencing a record of serious violence, albeit somewhat dated.
20. [20]
    His Honour took into consideration the victim impact statements of Mr Herdman’s three children.  In outlining the antecedents of the applicant, his Honour noted that the applicant had a prejudicial upbringing.
21. [21]
    While his Honour accepted that the applicant was remorseful at the time of being sentenced, he considered that his actions at the time he struck Mr Herdman indicated only some degree of remorse and it remained the fact that the applicant fled the scene.  His Honour also noted that while the applicant did not invent the lie that he had been sparring with the deceased, he did adopt a version of that lie later in conversation with a friend.
22. [22]
    His Honour took into account the applicant’s timely plea of guilty, noting that he would be given the benefit of his guilty plea in sentencing.
23. [23]
    His Honour considered that an aggravating feature was that the violence was motivated by the applicant’s jealousy and at the time he was affected by methylamphetamine.
24. [24]
    Having referred to the two comparatives, his Honour observed that the circumstances of each case of manslaughter are quite different.
25. [25]
    In arriving at the head sentence of nine years, his Honoured reasoned as follows:

“The sentencing of you is a balancing of your personal history, the facts of this case, and the features of this case which are relevant.  The features that I’ve already mentioned are the seriousness of the offending; the mixed response to the – your remorse; your terrible criminal history, including a serious history of violence; the fact that you’re mature; the fact that you have had serious problems with drugs at least since age 20; and seem to be unable to control yourself.  It is relevant, in my view, that a number of the early offences of violence were again, related to the issue of jealously.  So you have grave difficulty controlling yourself, at least, when you’re on methylamphetamine.  A family has lost a father.”

26. [26]
    His Honour did not accept the Crown’s submission that the parole eligibility date should be fixed at the halfway mark.  His Honour noted that there needed to be some recognition of the plea of guilty.  His Honour, however, considered that there were factors which required the parole eligibility date to be fixed at more than the one third mark.  These factors included the applicant’s criminal history, which included drugs and violence.  His Honour expressed concern as to the relationship between drugs and violence:

“…as is the fact that if you take the drugs, you’re likely to turn into, on occasion, an extremely violent man.  Something as little as the suggestion of a pass at your partner some time previously was enough to excite you to strike a man with sufficient force to knock him to the ground and kill him.”

27. [27]
    In fixing the parole eligibility date at the four year mark, his Honour had regard to these considerations as well as the applicant’s antecedents.

Consideration

28. [28]
    The applicant submits by reference to R v Skondin, R v Callow and R v Matthews [2007] QCA 144 that the head sentence of nine years with a parole eligibility date fixed at the four year mark was manifestly excessive.
29. [29]
    The difficulty with the applicant suggesting appealable error by reference to these comparatives was identified by Morrison JA in Callow at [35]–[36]:

“When considering the question of whether a sentence is manifestly excessive, one must bear in mind what was said in R v Tout [[2012] QCA 296 at [8]]:

“[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].”

Furthermore, 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.  In respect of sentences for manslaughter, because the circumstances are infinitely wide, the sentencing judge’s discretion is comparatively wide.”

30. [30]
    To similar effect are the observations by Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at [58]:

“[A]ppellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.  Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

31. [31]
    This flaw in the applicant’s submissions is magnified by the fact that the applicant relies on comparison with only two or three cases.  Sentences imposed in a few cases do not define the bounds of appropriate sentences and are not sufficient in number to sustain conclusions as to the patterns of sentences customarily imposed.  Bearing in mind the various similarities and differences between the present case and the offending and offenders in reasonably comparable cases, the sentence imposed in the present case is broadly consistent with customary sentencing standards for manslaughter offences.
32. [32]
    Crow J received extensive written submissions which addressed both R v Skondin and R v Callow.  The sentencing remarks reveal that his Honour had read both cases and noted points of distinction.  Callow, for example, was 23 years of age at the time of the offences and had no criminal history.  His Honour also noted that Skondin and Callow referred to other comparatives including R v Simeon [2000] QCA 470, R v Tientjes; ex parte Attorney-General [1999] QCA 480 and R v Bojovic [1999] QCA 206.
33. [33]
    Apart from the comparatives to which Crow J was referred, the applicant relies on R v Matthews.  This case is of no assistance in establishing that the sentence imposed was manifestly excessive.  Matthews pleaded guilty on an ex-officio indictment to one count of manslaughter, one count of unlawful possessing a motor vehicle with circumstances of aggravation, two counts of fraud and two counts of stealing.  The charge of unlawful killing arose while Matthews was in a state of amphetamine-induced rage.  He strangled a person whom he wrongly believed had been involved in a burglary at his home which had led to his wife suffering a miscarriage.  He was 31 years of age at the time of the offending with a lengthy criminal history.  He was sentenced to 10 years imprisonment for the manslaughter conviction.  The sentencing judge in arriving at the sentence of 10 years employed a notional head sentence of 12 to 13 years.  The appeal was allowed and the sentence reduced to nine years imprisonment on the basis that the starting point employed by the sentencing judge was not justified by an analysis of the relevant comparatives which included R v Bojovic.  Further, in Matthews’ Case, unlike the present case, there were a number of additional mitigating factors including his full confession to police and his plea of guilty on an ex-officio indictment.  The Court of Appeal considered that a sentence of nine years appropriately reflected the seriousness of the offence and the factors in mitigation.  Similar to the present case, no weapon was used in Matthews.  The absence or otherwise of a weapon in the unlawful killing of another is only one of many circumstances to be considered in imposing an appropriate sentence.
34. [34]
    A head sentence of nine years imprisonment for manslaughter in the circumstances of this case is not manifestly excessive.  Crow J correctly considered the applicant’s lengthy criminal history, his history of violence, how his violence was linked to drug use and his age.  Those antecedents were considered with the circumstances of the unlawful killing – including that the applicant’s actions were fuelled by jealousy, that he fled the scene and evaded police – as well as the fact that the applicant demonstrated some, but not total, remorse and entered a timely plea of guilty.  Given these circumstances, the sentencing outcome does not indicate that there has been any misapplication of principle.  Nor can it be said that the sentence is ‘unreasonable or plainly unjust’: Hili v The Queen at [58].
35. [35]
    As to delaying the applicant’s parole date, Crow J expressly considered the competing submissions of counsel.  His Honour stated the reasons for delaying the applicant’s parole date, setting it at less than the halfway mark in recognition of those considerations which included the applicant’s criminal history, his antecedents and his timely plea of guilty.  Again, the outcome does not bespeak error.

Disposition

36. [36]
    The application for leave to appeal against sentence should be refused.
37. [37]
    BEECH AJA:  I agree with Flanagan JA.