R v Etheridge[2023] QCA 64

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the orders proposed by Bradley J and with his reasons.
2. [2]
   BODDICE AJA:  I agree with Bradley J.
3. [3]
   BRADLEY J:  On 19 November 2020, after a short trial, a jury found the appellant guilty of attempted murder.  The learned trial judge sentenced him to imprisonment for 15 years for this offence and declared it to be a conviction of a serious violent offence.^[1]  The appellant will not be eligible for parole until he has served 80 per cent of the sentence.^[2]
4. [4]
   The appellant has appealed the conviction and applied for leave to appeal the sentence.

Conviction appeal

5. [5]
   The court gave the appellant leave to amend the notice of appeal to replace a general ground about the directions to the jury with these two grounds of appeal against conviction:

   1. (a)
      The conviction for attempted murder was unsafe and unsatisfactory; and
   2. (b)
      The admission of the evidence of the appellant given at the first trial should not have occurred and occasioned a miscarriage of justice.

Ground 1: Whether the jury’s verdict was unsafe and unsatisfactory

6. [6]
   The appellant submitted that, on the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant intended to kill the complainant.  If this were so, it would follow that his conviction for attempted murder should be set aside.  The appellant conceded that on the evidence the jury could have been satisfied beyond reasonable doubt that the appellant intended to cause the complainant some grievous bodily harm, which would support a conviction on the lesser alternative count of doing grievous bodily harm with that intent.

The evidence at the trial

7. [7]
   The evidence before the jury of the appellant’s attack on the complainant comprised the evidence of the complainant, a police constable’s note of a conversation with the complainant, and some agreed admissions.  This evidence was informed by other evidence of the complainant’s injuries given by the complainant’s daughter and her daughter’s partner, by the two attending ambulance officers, and by the treating neurosurgeon in Brisbane.
8. [8]
   This evidence of the attack and the injuries was not challenged at the trial. It was cogent and consistent.  The jury was able to accept this evidence as proof beyond reasonable doubt of the facts summarised below.
9. [9]
   The appellant attacked the complainant between about 6.00 am and 6.30 am on Wednesday, 9 January 2018.  The appellant was a large, tall young man, then 23 years of age.  The complainant was a slight woman, then 56 years old.  The two did not know each other.  The complainant was alone in her home on a rural property by the Fitzroy River.
10. [10]
    Earlier that morning, the appellant had stolen a steel claw hammer from the garage of the nearby residence of the complainant’s daughter and her partner.  He had handled other implements^[3] but had not taken them from the garage.  The appellant came to the open front door of the complainant’s home with the hammer concealed from sight.  He told the complainant, “I’ve just been fishing and my son has hurt himself.  He needs a drink of water”.
11. [11]
    The complainant went to the kitchen and picked up a water bottle.  When she turned, the appellant had entered the house and was approaching her.  He did not speak.  He struck her repeatedly about the head with the hammer, at least twice with considerable force.  The attack was fast and continual.
12. [12]
    By the blows, the appellant inflicted open bilateral depressed skull fractures penetrating to the brain surface at the temple on each side of the complainant’s head.  There was bruising to her brain, and bleeding within her brain.  The appellant also caused a fracture to her cheekbone, broke four of her teeth and caused significant other bruising and lacerations to her head, including her scalp. These included a central forehead puncture wound and significant bleeding under the surface at the back of her head.  The complainant also had crescent-shaped injuries to her arms and other areas of her body, including one leg and a swollen wound to her left forearm.  It was clear from the large amount of blood on a recliner chair in the house that at some stage the complainant was on the chair.
13. [13]
    The complainant lost consciousness at some point after the attack.  It is likely the complainant would have died of the wounds without medical intervention.
14. [14]
    At the trial, the complainant had no recollection of anything after the attack until sometime later when she was lying in a bed and saw her daughter.  She had no recollection of a conversation with a police officer that day.
15. [15]
    A police constable gave evidence of his conversation with the complainant at the hospital on the day of the attack.  He made a note of it, including that the complainant had stated words to the effect that:

“she was struck several times before she sat on the couch.  While she was on the couch, the male threatened her further with a hammer, demanding her wallet and car keys. The male then decamped in her vehicle and she drove the ATV to her daughter[…]’s residence.”^[4]

16. [16]
    At about 6.40 am on the morning of the attack, the complainant’s daughter’s partner heard the ATV outside the front door of the house he shared with the complainant’s daughter.  He saw the complainant seated in the ATV, hanging on to the steering wheel, and apparently unable to move.  She was seriously injured and bleeding profusely.  He asked the complainant’s daughter to call an ambulance and he went to the ATV to check the complainant was still breathing.
17. [17]
    The complainant’s daughter called the ambulance, and then went to the complainant.  The complainant was sitting in the ATV. She was covered in blood.  Her daughter saw injuries to the complainant’s skull and left forearm.  When the two ambulance officers arrived, the complainant’s daughter took a photograph of the complainant, which was tendered at the trial.
18. [18]
    The complainant was taken to Rockhampton Base Hospital and then flown to the Royal Brisbane and Women’s Hospital where she was treated by a neurosurgeon.

Inferences

19. [19]
    The appellant did not give evidence at the trial.  The complainant’s evidence was that the appellant said nothing to her while he struck her with the hammer.  The appellant’s intention at the time he inflicted the injuries is a matter to be inferred from the circumstantial evidence proved beyond reasonable doubt.
20. [20]
    The trial judge directed the jury about the drawing of inferences, including by a Chamberlain direction in the usual form.^[5]

Consideration of the appellant’s submissions

21. [21]
    The police constable’s note was evidence the appellant desisted from his attack and then made demands of the complainant.  Counsel submitted the jury’s verdict was unsafe and unsatisfactory because on the evidence of the police constable’s note an intention to kill and an intention to cause grievous bodily harm were both equally open.
22. [22]
    I have reviewed the whole of the evidence before the jury, which is summarised above.  The appellant was armed, having stolen the hammer on his way to the house.  He struck the complainant without any prior demand.  His attack was fast and continual.  He used considerable force to inflict the injuries before he stopped the attack.  The most serious wounds were to vulnerable parts of the complainant’s head, with multiple blows fracturing her skull at both temples.  He also struck her in the face, breaking her cheekbone with at least one blow, her teeth with another, and puncturing her forehead in the centre, leaving a circular wound the size of a 20-cent piece.  He put the complainant in a state where, without medical intervention, she was likely to die.  In my assessment of this evidence, the jury could be satisfied beyond reasonable doubt that, at the time he was striking the complainant about her head with the hammer, the appellant intended to kill her.
23. [23]
    The appellant’s choice of a weapon capable of inflicting fatal injury, his use of it to strike the complainant at vulnerable points with considerable force and cause life-threatening injuries, the absence of any demand before or during the attack, and the vicious nature of the attack permitted the jury to conclude that an intention to kill the complainant was the only rational inference open on the evidence.  Put another way, the evidence was sufficient for the jury to exclude the possibility that he had any lesser intention at the time he inflicted those injuries.
24. [24]
    It was after the attack, when the complainant was bleeding profusely on the recliner, that the appellant threatened her with further blows of the hammer and demanded her wallet and her car keys.  At that time, after he had stopped striking her, a reasonable jury could not be satisfied beyond reasonable doubt that the appellant intended to kill her.  The jury did not need to form a view about the appellant’s intention at that time.  There was no evidence that he struck her with any further blow while she was on the recliner.
25. [25]
    I do not consider the jury’s guilty verdict on the count of attempted murder to be unreasonable, unsafe, or unsatisfactory on this ground.

Ground 2: Whether the joint admission occasioned a miscarriage of justice

26. [26]
    At the trial, the jury were given a document containing admissions made jointly by the Crown and the appellant.  This ground of appeal concerns one of the 24 admissions in that document.
27. [27]
    The relevant admission was that, on 14 March 2019, the appellant was asked the following questions about the photograph of the complainant taken by her daughter, described in paragraph [17] above, and gave the following answers on oath:

“Q: Taking the image of [the complainant] out of the ATV for the moment. Somebody striking you like that – as in, sorry, their appearance – you would assume them to be dead, wouldn’t you?

A: I’m not too sure.

Q: Well, you can see the amount of…

A: Yes, it does – it looks…

Q: (cont) blood coverage?

A: It is brutal, yes.

Q: Yes. Well, you can see the amount of blood coverage, can’t you?

A: Yes.

Q: Matting her hair?

A: Yes.

Q: Face, perhaps with the exception of her chin, almost entirely covered in blood?

A: It is.

Q: Her nightgown is blue, ordinarily, isn’t it?

A: Yes.

Q: Making it a dark blue or a black colour?

A: Yes.

Q: So, assuming, for the moment, what I’ve just set out, that [the complainant] is not in an ATV but within her home, either sitting or on the floor, she would appear quite badly injured?

A: Yes.

Q: Critically injured?

A: I’m not too sure, but she does look very injured, yes.

Q: So do you accept that she appears to be critically injured?

A: Yes.

Q: And, if not dead, well on her way?

A: Yes.”

28. [28]
    These questions and answers were part of the cross-examination of the appellant at an earlier trial for the same offence.

Whether the absence of context evidence occasioned a miscarriage of justice

29. [29]
    In the written outline, the appellant contended that providing the jury with these questions and answers occasioned a miscarriage of justice because the appellant’s additional testimony at the earlier trial, which was said to have provided context for the admitted answers, was not included in the admissions document and not tendered by the Crown.  This additional testimony identified dangerous drugs and prescription medications the appellant had taken in the hours before the attack on the complainant.
30. [30]
    At the appeal hearing, counsel for the appellant accepted that this additional testimony should not have been included in the evidence put to the jury.  The concession was appropriate.  The likely prejudice to the appellant from the additional testimony means its admission would not have been conformable with the dictates of fairness to the appellant.^[6]

Whether the tender of the appellant’s answers occasioned a miscarriage of justice

31. [31]
    The appellant’s counsel submitted that the questions and answers should have been excluded at the trial because they were not relevant, or of such limited relevance as to be outweighed by the prejudice their admission caused to the appellant.
32. [32]
    Whether the appellant thought the state of the complainant depicted in the photograph was such that she was likely to die was relevant in the following way.
33. [33]
    At the trial, the appellant’s case was that the jury could not be satisfied beyond reasonable doubt that he had intended to kill the complainant because, if he had had that intention, then the complainant would in fact be dead.  The questions and answers were evidence the appellant had accepted that the state of the complainant in the photograph was such that she looked like she was likely to die.  This admission could help explain why, if he had intended to kill her, he did not inflict a further fatal injury.
34. [34]
    The jury was also charged with deciding whether the appellant inflicted the wounds with the intention of causing some grievous bodily harm to the complainant.  The appellant had pleaded not guilty to that alternative count.  The questions and answers were also relevant to this issue at the trial because they were evidence the appellant had accepted the complainant was in a state where she had suffered grievous bodily harm.
35. [35]
    As counsel for the appellant submitted at trial, the photograph was of limited relevance because the state of the complainant in the photograph was not the state she would have been in when the appellant left her.  The photograph was taken after the attack, and the neurosurgeon gave evidence that the complainant would have bled profusely between the attack and when the photograph was taken.
36. [36]
    In the summing up, his Honour reminded the jury of the time that had elapsed between the attack and the photograph, and the profuse bleeding of the complainant’s head wounds in the interim.  His Honour repeated the defence submission that the photograph was a not a record of the precise way the complainant looked in her house at the end of the attack, “but rather how she looked, perhaps three-quarters of an hour later.”
37. [37]
    This appropriate qualification of the use that could be made of the photograph must have had a corresponding effect on the use of the appellant’s answers to the questions about the photograph, which were the subject of the admission.
38. [38]
    In the context of the trial, any possible prejudice caused by the admission of the appellant’s answers about the photograph would have been ameliorated by the trial judge’s summing up.
39. [39]
    When viewed against the conduct of the trial taken as a whole, the inclusion of the questions and answers in the joint admissions did not give rise to a miscarriage of justice.

Application for leave to appeal against sentence

40. [40]
    The appellant seeks leave to appeal against the sentence of 15 years’ imprisonment on the ground it was manifestly excessive “having regard to the maximum penalty, the circumstance of the offence, the comparable cases and the personal circumstances of the appellant.”
41. [41]
    The maximum penalty for attempted murder is life imprisonment.
42. [42]
    The circumstances of the attempted murder are set out above.  This evidence had been led at the trial.
43. [43]
    His Honour had reference to a detailed psychiatrist’s report, including the appellant’s family and personal history, drug and alcohol use, past psychiatric and medical history, psychosexual history, past forensic history, premorbid personality, the accounts of the index offences, collateral information from his mother and sisters, assessments at Blackwater hospital and the Rockhampton Watchhouse, his progress on remand, a mental state examination and an opinion and recommendations.
44. [44]
    The appellant’s criminal history was tendered.  At the time he committed this offence, the appellant was serving a five-year sentence for the dangerous operation of a motor vehicle causing death.  He had pleaded guilty to that offence and been sentenced on 15 October 2015. On 16 June 2017, he was released on parole.  On 21 December 2017, his parole was suspended and a return to prison warrant was issued.  On 22 December 2017, his parole was cancelled.  On 9 January 2018, he was to be returned to prison when arrested for the attempted murder and the other offences committed on the same day.
45. [45]
    The appellant served the balance of the five-year sentence in custody, completing it on 6 November 2020, shortly before the trial.  He then spent 12 days in pre-sentence custody between that date and 19 November 2020, when he was convicted and sentenced for the attempted murder.  The trial judge declared this period to be imprisonment already served under the sentence for attempted murder.^[7]
46. [46]
    The appellant does not contend there was any specific error by the trial judge in the identification of the relevant considerations for sentencing.
47. [47]
    At the sentencing hearing, the Crown prosecutor took the trial judge to the decisions of R v Williams^[8] and R v John.^[9]
48. [48]
    In Williams, the defendant broke into his estranged wife’s home and stabbed her with a knife while she was asleep in bed with their two-year-old daughter.  He inflicted a single deep wound to her chest.  With medical attention, the victim recovered physically.  She suffered more significant emotional impact from the attack.  On appeal, the sentence of 15 years’ imprisonment was found not to be manifestly excessive.
49. [49]
    In John, the defendant poured petrol on his former partner and used a lighter to set her on fire.  She suffered serious burns and was in a coma for ten days.  She was left with permanent injuries to her airways, needing a steroidal puffer to assist with breathing.  She suffered a post-traumatic stress disorder.  On appeal, the 16-year sentence was described as “heavy”, but not manifestly excessive.
50. [50]
    The trial judge was also taken to R v Francis where an appeal against a 15-year sentence was abandoned, but the circumstances of the offending were set out in reasons dismissing an appeal against conviction.^[10]  After an argument, the defendant viciously attacked a man he had accused of defaming him.  The defendant asked another person to give him a hammer, stating he was going to kill the victim.  He repeated this intention during the attack, manoeuvring to strike the victim’s head.  The victim was left with severe and permanent physical injuries, including a depressed skull fracture.
51. [51]
    At the sentencing hearing, the Crown prosecutor proposed a sentence of 18 years’ imprisonment.
52. [52]
    The appellant’s then counsel submitted that the authorities indicated an appropriate sentence would be between 13 and 15 years’ imprisonment.  Counsel identified for his Honour that the appellant had completed the whole of the balance of his five-year sentence for dangerous driving causing death.  Counsel also submitted that, at the second trial, the appellant had conducted his defence differently so that the trial was much shorter and the issues for the jury were narrower.
53. [53]
    In the sentencing remarks, the trial judge explained some of his approach in these terms:

“You are only 26 years of age. You are still young. I think you are well aware of the effect of the sentence that I must impose upon you means that with the declaration of a serious violent offence, you cannot be released until you have served 80 per cent of your sentence, and I am very conscious of that; that you are 26 now, and that a sentence in the vicinity of 15 to 16 years puts you in prison for a minimum of a further 12 years.

The cases that I have referred to previously do … support a high-end sentence. Previously, you have been sentenced to 16 years’ imprisonment, by me, in respect of this offending. The issue is whether there is any change in circumstance which would suggest that the sentence ought to be increased or decreased, and there is certainly no suggesting that the sentence ought to be increased, on the facts.”

54. [54]
    His Honour was referring to the earlier sentencing hearing, following the first trial.  On that occasion, his Honour had noted that a sentence for attempted murder is generally between 10 and 17 years’ imprisonment, that defence counsel had “quite properly” not suggested the sentence should be as low as 10 years, and that the Crown prosecutor had submitted the sentence could be outside that range at 18 years.  His Honour had noted that the appellant was to serve the sentence for attempted murder cumulatively with the then unexpired sentence for dangerous driving causing death and that his Honour was conscious that the sentence must not be crushing.
55. [55]
    At the sentencing hearing the subject of this application, the trial judge noted the change in circumstances that had been identified by the appellant’s counsel.  His Honour also noted that the appellant’s time in prison had been more difficult while serving the sentence for causing the death of a well-known member of the Aboriginal community.
56. [56]
    His Honour imposed the sentence of 15 years’ imprisonment, noting, “I think there is a sufficient change in circumstances to decrease the sentence, minimally.”
57. [57]
    In written submissions, the appellant proposed that an appropriate sentence to impose on the appellant for the attempted murder would be between 13 and 15 years’ imprisonment.  At the appeal hearing, counsel for the appellant accepted that an appropriate sentence would not be less than 13 years, based on an analysis of other cases, including Williams, John and Francis.
58. [58]
    The respondent submitted that an appropriate sentence would be between 14 and 18 years and therefore the sentence of 15 years was not manifestly excessive.  However, the respondent accepted that, if the court determined the sentence was manifestly excessive, then a sentence of not less than 13 years would be appropriate.

Consideration of the sentence imposed

59. [59]
    On the evidence and with the benefit of the submissions put to this court, I would not conclude that 15 years’ imprisonment was beyond an appropriate sentence merited by the individual offence of attempted murder.
60. [60]
    The appellant committed this offence while on parole for his earlier offending.  He completed the earlier sentence 12 days before he was sentenced for this offence.  During that time, he was held in custody in relation to the pending trial for attempted murder.  The trial judge declared the 12 days to be imprisonment already served under the sentence imposed for this offence.
61. [61]
    The appellant served all but about six months of the earlier sentence in custody.  He was in custody from 15 October 2015 until 16 June 2017 and again from 9 January 2018 until 6 November 2020.  He was on parole between 16 June 2017 and 21 December 2017.
62. [62]
    The sentence of 15 years meant the appellant was to serve a total of 20 years for the two offences, with about 16 years and six months of that total to be served in custody, if he were to be granted parole immediately upon becoming eligible.
63. [63]
    On 19 November 2020, the trial judge did not make any adjustment to the sentence to address any crushing effect of the sentence to be served immediately following the previous five-year sentence.  At the earlier sentence hearing, his Honour may have reduced the sentence from 18 years (the maximum sought by the Crown) to 16 years for that reason.  If so, the adjustment on that account was at most two years.  On 19 November 2020, his Honour attributed the further one-year reduction to the efficient way the defence was conducted at the second trial and the more difficult time the appellant had experienced in custody.  It seems to have been assumed that the crushing effect of the consecutive sentences had been dealt with sufficiently in formulating the earlier 16-year sentence.
64. [64]
    On neither occasion did his Honour expressly consider the total criminality of the appellant’s offending in the dangerous driving causing death, the attempted murder, and other lesser proximate offences, for which he was sentenced to a total of 20 years and would serve at least 16 years and six months in custody.
65. [65]
    Having reached an unexpressed view of the correct penalty for the attempted murder, it does not seem his Honour adjusted the attempted murder sentence to ensure there was an appropriate relativity between the totality of the criminality and the total of the sentences imposed.
66. [66]
    In my view, had the trial judge done so, his Honour could not have imposed a sentence as high as 15 years, of which 12 years would be served in custody, cumulatively on the earlier five-year sentence for dangerous driving causing death.
67. [67]
    In the appellant’s particular circumstances, I consider the sentence imposed for attempted murder was manifestly excessive having regard to the totality principle.  The appellant should have leave to appeal the sentence imposed and this court should allow the appeal and resentence him for this offence.

Resentencing the appellant

68. [68]
    The court should mitigate the strictly just sentence for this offence so that the total effect of it and the earlier sentence, in each instance merited by the individual offences, better reflects the criminality of the appellant’s offending across all the offences which have kept and will keep him in custody and under supervision.^[11]
69. [69]
    Well before he was sentenced for attempted murder, the appellant entered timely guilty pleas to two counts of attempted entry to premises (cars) with intent to steal, one count of each of the following: stealing the hammer; entering the complainant’s house with intent to commit an indictable offence; unlawful use of the complainant’s motor vehicle; wilful damage to two steel gates on the complainant’s property; and stealing cigarettes, a lighter, and an iced coffee from a service station.
70. [70]
    On 28 March 2019, he was convicted and sentenced to six months’ imprisonment for each of these offences, except the wilful damage and stealing counts.  For those he was sentenced to three months’ and one month’s imprisonment, respectively.  The appellant committed all these offences on 9 January 2018, leading up to and following the attempted murder of the complainant.  All the sentences were to be served concurrently with each other and with the sentence imposed for attempted murder.  However, they were to be served cumulatively on a sentence of five years’ imprisonment for dangerous driving causing death, which the appellant was then still serving.
71. [71]
    The sentence for attempted murder should also reflect the total criminality of the appellant in respect of all eight offences he committed that day.
72. [72]
    It is common ground between the parties to the application for leave to appeal that, in the circumstances, after adjusting to reflect the totality of the offending, the sentence for attempted murder can be no less than 13 years’ imprisonment.  A sentence of that measure, to be served in addition to the five-year sentence for dangerous driving causing death and concurrently with the other offences, would appropriately reflect the total criminality of the appellant’s convictions for offences committed since 15 October 2015.  The conviction of attempted murder should be declared a conviction of a serious violent offence.  The 12 days in pre-sentence custody should be declared as time served.

Orders

73. [73]
    For these reasons, I propose the following orders:

1. The appellant’s appeal against conviction is dismissed.
2. The appellant has leave to appeal against sentence.
3. The appeal against sentence is allowed.
4. A sentence of 13 years’ imprisonment is substituted for the sentence of 15 years’ imprisonment for the offence of attempted murder.
5. The other orders made on 19 November 2020 stand.