R v MDU[2024] QCA 113

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  The applicant pleaded guilty to the attempted murder of his ex-wife.^[1]  They had been married for almost 40 years but separated for about two months.
2. [2]
   In the days leading up to the attempted murder, the applicant carried out internet searches about topics such as: (i) weapons and how to get or make them, (ii) poisons, (iii) methods of killing, and (iv) getting even.  The complainant was aware of those searches as they shared an email account.
3. [3]
   The applicant resolved to kill the complainant.  He went to her house armed with a chainsaw, knives and some line.  He tried to cut his way into the house using the chainsaw, both through the front and rear doors.  Realising that the complainant had escaped through the front door while he was at the rear, he chased her in a car.  He caught her, punched her face several times, then choked her.  She could not breathe or speak.  Both ended up on the ground, the applicant still choking her.
4. [4]
   He briefly relented in his grasp, then redoubled his efforts to the point of choking her while her head was off the ground, pulling her towards him.
5. [5]
   At one point he slapped her face a few times and she regained consciousness.  He then let her go, telling her, “I won’t kill you this time”.  He drove away, eventually going to a police station to say what he had done.
6. [6]
   The complainant’s injuries included swelling and bruising to her jaw, bruising to the face and eyes.
7. [7]
   The applicant was sentenced to nine years’ imprisonment, with 554 days of pre-sentence custody being declared as time served.  Parole eligibility was fixed at 6 March 2026, after serving four years.  The sentencing judge did not make a serious violent offence declaration.
8. [8]
   The applicant seeks leave to appeal against his sentence of three grounds:

   1. Ground 1: the sentence is manifestly excessive in all circumstances;
   2. Ground 2: the learned sentencing judge erred in finding s 538 Criminal Code (Qld) did not apply; and
   3. Ground 3: the learned sentencing judge erred in finding there was no special leniency to be applied to his sentence as a result of his admissions.
9. [9]
   Ground 3 was not the subject of any submissions in the applicant’s outline.  Ground 1 was not advanced except in the context of Ground 2.
10. [10]
    I have had the advantage of reading the joint reasons of Dalton JA and Davis J.  That permits me to express my reasons in shorter form than would otherwise be the case.

Ground 2 – application of s 538 of the Code

11. [11]
    At the sentencing hearing the applicant urged that s 538 of the Criminal Code applied.  The reasons of Dalton JA and Davis J explain the application of that provision.
12. [12]
    The applicant sought to challenge the relevant finding of fact by the sentencing judge concerning whether the applicant desisted from his plan to kill because he believed the complainant was dead, or whether he stopped for some other reason.
13. [13]
    There were two sources of fact before the sentencing judge.  One was an agreed statement of facts.^[2]  In it was this part of the description of the attack:^[3]

“The defendant then put his hands around the complainant’s throat and began to choke her. She couldn’t breathe and couldn’t speak. She was no match for him. Her memory jumps from being choked whilst standing, to waking up to him on top of her, as they are both on the ground, with him still choking her.

His grasp relented briefly, before he redoubled his efforts to the point of choking her whilst her head was up off the ground, him pulling her towards him by the neck.

“You’re a fucking bitch, you’ve ruined my life” called the defendant as his hands were immoveable clamps around her neck.

Thinking he had killed her, he slapped her face a few times, and she regained consciousness. He let go and told her “I won’t kill you this time”, before getting back in his and driving off.”

14. [14]
    The highlighted part of that passage was contested as a fact.
15. [15]
    The central piece of evidence concerning that issue was what the applicant had said to police in an interview.
16. [16]
    After reciting the relevant parts of the transcript of interview, the sentencing judge made this finding:^[4]

“The passages are difficult to read. They are not particularly easily put together. It seems to me when they – the passages, particularly, on 45^[5] and 30^[6] of the transcript are read together, the sequence that occurred or that has been admitted to occurring is that, firstly, after [the applicant] strangling his wife or choking his wife for quite a period of time, he observes her eyes bulging, which scares him. He stops then. At that point when he stops, he thinks he has killed her. He slaps her the first time. She is still unconscious. He then slaps her on the second occasion when she becomes conscious and starts breathing. After she stops breathing, he then grabs her again, and this is the transcript from page 30,^[7] … and then, in his own words, he says, “No, I can’t do this.” He desists at that latter point. So I conclude that on a proper reading of the transcript, that is the factual sequence, and, accordingly, I conclude that the defence has not enlivened section 538 by meeting its requisite elements.”

17. [17]
    The sequence as found by his Honour was thus:

    1. after the applicant choked his wife for quite a period of time, he observed her eyes bulging, which scared him;
    2. he stopped then;
    3. at the point when he stopped, he thought he had killed her;
    4. he slapped her the first time; she was still unconscious;
    5. he then slapped her for the second time, when she became conscious and started breathing;
    6. after she started^[8] breathing, he then grabbed her again, and then he said, “No, I can’t do this”; and
    7. he desisted at that latter point.
18. [18]
    In my view, no error was made by the sentencing judge.
19. [19]
    During the police interview the applicant made a number of statements that are potentially relevant to the issue concerning s 538 of the Code.  All of these statements have to be read in light of the applicant’s professed intention when attacking the complainant, namely that he intended to kill her.  That intention was admitted by his plea of guilty.  More importantly, the intention was to kill by squeezing or choking the life out of the complainant.
20. [20]
    Describing how he chased the complainant in his car, then apprehended her:^[9]

“Jumped in me car, chased ‘er, grabbed [her], … started choking the life out of ‘er to the point where, and then I just, I looked at [her] and thought this isn’t me. What, what’ve you turned me into? What, this isn’t [me]. [I am not] this … monster and I just let [her] go, smacked it in the head, in the face [INDISTINCT] to see it respond and then I think I grabbed ‘er again ...”

21. [21]
    The applicant then described that he had seen how people’s eyes bulge when they are choked:^[10]

“And then I cou-, really? People’s fuckin’ eyes bulge when you choke ‘em? I didn’t reali-, things you see on T-V, [INDISTINCT]”

22. [22]
    Then the applicant was asked, “What did you see with her last night? You’re saying people’s eyes bulge.  What did you see with her last night?” The applicant replied:^[11]

“…when I was holding ‘er, fuckin’ eye, and then I thought no, you, you, and I stopped and she … didn’t move and I tapped ‘er, I slapped ‘er face a couple of time and she breathed and then I think I grabbed ‘er again and then I, no, I can’t do this, and that’s when I just said … I’ll let you leave … and then I got in me car and drove away and she was just standin’ there.”

23. [23]
    The interviewer then asked, “Did you think you’d killed her at any stage?” and the applicant responded:^[12]

“Oh, she was standin’ up when I left. … I’d come fuckin’ close, mate. … But then I stopped and that’s when I fuckin’ hit ‘er and she come responsive again. So I probably had come pretty fuckin’ close.”

24. [24]
    The interviewer then asked, “How close do you think you were to killing ‘er?”.  The applicant responded:^[13]

“Oh, mate, fuckin’ close, [INDISTINCT] close. It was close. She [INDISTINCT], and then I just went like that. I hit ‘er once. … She moved a bit and then I hit ‘er again and she [INDISTINCT] and breathed and then I held ‘er again …”

25. [25]
    Having repeated that when he was choking the complainant his intention was to “choke the life out of ‘er”,^[14] the applicant was asked whether he was trying to kill the complainant.  He answered, “Yeah”, and added:^[15]

“At first and then when I saw she was fuckin’ close to dead, I thought, that’s when I hit ‘er on the face … And stopped chokin’ ‘er.”

26. [26]
    The applicant then explained what he meant when he said she looked close to dead.  He replied:^[16]

“THE APPLICANT: Oh, fuckin’ terrible. It’s like, you, you know when old Schwarzenegger falls out of the thing on bloody that Mars movie and ‘is eyes are buggin’ up and—

SSGT ANDERSEN: Total Recall.

THE APPLICANT: Yeah.

SSGT ANDERSEN: Mm.

THE APPLICANT: Fair dinkum, really, no. I didn’t—

….

THE APPLICANT: That scared the shit out of me.”

27. [27]
    The applicant went on:^[17]

“That scared the shit out of me. … And that’s, I thought no, you’re a mongrel but you’re not … You’re not the good bloke you used to be. You’re a monster but you’re still not that big of a monster.

INTERVIEWER: Was she conscious?

APPLICANT: Not, [INDISTINCT], well, that’s when I thought I had killed ‘er and that’s when I hit ‘er and she took a breath of air and, and started to come good and she was just layin’ there …”

28. [28]
    The applicant then responded to the question, “At any time did she stop breathing?”, and said:^[18]

“ …I think she had fuckin’ near [INDISTINCT], I dunno, mate. … [I don’t know] How, it’s all happenin’. … Mate, she, she must’ve been close. She, when I hit ‘er face the first time she was unresponsive. The second time she … did respond and that’s, and then I think I grabbed ‘er again …”

29. [29]
    It is a mistake, in my view, to parse and analyse what was said in particular sections of the police interview as if one were construing something said in a legal document or a statement prepared with care and legal assistance, or otherwise in a considered, deliberate way.  The transcript does not read that way.  The applicant’s account developed over the course of the interview, but in reality the passages have to be read together.
30. [30]
    Read as a whole, even allowing for a developing description at times triggered by particular questions, several things are, in my view, clear from the applicant’s account:

    1. the applicant choked the complainant with both hands clamped tight around her neck;
    2. he saw the complainant’s eyes bulging in the way he had seen in a Schwarzenegger movie;
    3. he was still holding her when he saw the eyes bulging (“when I was holding ‘er, fuckin’ eye, and then I thought …”);
    4. the sight of her eyes bulging was “fuckin’ terrible” and it “scared the shit out of me”;
    5. that was when he thought he had killed her; and
    6. that was when he stopped and hit her face.
31. [31]
    The findings made by the sentencing judge were in accordance with those conclusions.  Not only were those findings open on the evidence, they are compelled by a fair reading of what the applicant said.
32. [32]
    There is an additional aspect that flows from what the applicant said about the complainant’s eyes.  As explained above, it was the sight of the complainant’s bulging eyes that prompted the applicant to desist in the choking.  As he said, the sight of her eyes bulging was “fuckin’ terrible” and it “scared the shit out of me”.
33. [33]
    In R v Witchard; Ex parte Attorney-General (Qld),^[19] the question of desisting of one’s own motion as opposed to doing so because of something independent of the accused’s will was discussed.  de Jersey CJ adopted what was said in R v Rogers,^[20] a case from the Northern Territory:^[21]

“… in order for the respondent to be entitled to the benefit of this section the respondent must have desisted of his own motion from the further prosecution of his intention before the fulfilment of his intention is prevented by circumstances independent of his will and not afterwards.”

34. [34]
    His Honour then said:^[22]

1. “[11]
   I interpolate to say that the concept of desisting of one’s own motion means, simply, voluntarily desisting because of one’s own determination to do so, unaffected by the intervention of any other circumstance which would prevent the fulfilment of the intention. The Macquarie Dictionary defines “of one’s own motion” by reference to “an inward prompting or impulse; inclination”. For s 538 to apply, that prompting, impulse or inclination must not be a response to the existence of some other external circumstance seen as likely to frustrate the implementation of the intention.”

35. [35]
    Mackenzie J referred to the same issue, that is, desisting of one’s own will and not because of independent circumstances:^[23]

1. “[30]
   The scope of s 538 is therefore dictated by those general principles. Section 538 comprises several components. Firstly, a person must have been convicted of an attempt to convict an offence. Then it must be proved that the person desisted from further prosecution of their intention. The next is that they did so of their own motion. Finally, there must have been a desisting without fulfilment of that intention being prevented by circumstances independent of the person’s will. There is thus an onus of proof on the offender to establish, on the balance of probabilities, that the qualifying requirements have been established.

…

1. [40]
   Giving these examples is, in the end, no more than making a point that each case will depend on its own circumstances. The critical issue is whether, on the facts, there is evidence sufficient to enable the person relying on s 538 to discharge the onus of proving that it is more probable than not that he or she desisted of his or her own motion from further prosecution of the relevant intention without fulfilment of that intention being prevented by circumstances independent of the exercise of the person’s will.”

36. [36]
    In Rogers, the defendant tried to rob a bank.  In the course of the attempt, the teller was extremely frightened and ran from the room, tripping and falling as she went.  The defendant ceased his attempt.  In an interview the defendant said: (i) he saw the female teller fall on the floor, realised he had “scared the hell out of her”, and she had “shit herself”; the sight of the teller so scared made him stop; and (ii) it was pointless when the teller ran out.  The judge found that one reason for ceasing the attempt was the futility of continuing because the teller ran out.  However, the defendant was “genuinely shocked by the teller’s panic and tripping up and falling on the floor”, and then realised that what he was doing was wrong and he should stop.^[24]
37. [37]
    The Court of Criminal Appeal held that:^[25]

“We consider that it was not open to his Honour to have concluded that one of the reasons for cessation of the attempt was desistance of his own motion and therefore the respondent was entitled to the benefit of s 279(1) of the Criminal Code. On the facts presented to his Honour, clearly it was the action of the teller which aborted the plan and this occurred independently of his will and before any change of heart took place.”

38. [38]
    There is no good reason to read what was said by the Court in Rogers in a constrained way.  That Court did not consider that cessation brought about by the defendant’s reaction to the teller’s panicked and shocked situation was sufficient to engage the analogue of s 538.  In Witchard this Court understood Rogers in the same way.^[26]  The reaction of the defendant in Rogers is analogous to the reaction of the applicant here.
39. [39]
    In my view, the fact that the complainant’s eyes bulged out in a way that shocked the applicant, and his reaction to the sight of the bulging eyes, were things independent of the exercise of his will.  They were not voluntary or of his own motion in the way discussed in Witchard.  They prevented fulfillment of his intention.  On that basis s 538 was not engaged.
40. [40]
    In paragraphs [76]-[89], Dalton JA and Davis J make a number of observations as to R v Carrall,^[27] and in particular paragraph [14] of that decision, and as to the difference between an appeal in the strict sense and an appeal by way of rehearing.
41. [41]
    For several reasons I am unable to adopt what their Honours have said.
42. [42]
    First, on the proper findings of fact the question does not arise.
43. [43]
    Secondly, in my respectful view, the discussion proceeds from a misunderstanding as to what was said in Carrall.  To demonstrate the point, one must see paragraph [14] of Carrall in context:^[28]

1. “[10]
   It is important to bear in mind the fundamental proposition that an appeal against sentence under s 668D(1)(c) and s 668E(3) of the Criminal Code is in the nature of an appeal strictu sensu. The Court of Appeal does not sit to rehear the proceeding. An appellate court hearing such an appeal will not interfere with a judge’s findings of fact unless it concludes that the finding was not reasonably open or that it was the product of legal error.^[29]
2. [11]
   The applicant submits that “it was not open” for her Honour to make the findings that she made. He points to instances which, he submits, show that the witnesses were unreliable or lacked credit. He also argues that the packages of drugs that were carried contained quantities of substances other than drugs so that the total weight did not represent the weight of actual drugs.
3. [12]
   The findings made by her Honour were findings of fact that depended upon her assessment of credit. The matters to which the applicant points to undermine the credit of BD, for example, include that BD could not give accurate evidence about the amount of money involved and that the drugs were “cut” with an unquantified amount of coffee and pepper. It is said that RN was uncertain in many particulars of his evidence and that there is a significant risk that his memory was distorted by his use of drugs. In any event, her Honour did not find that the weight of drugs in the packages represented the gross weight of the packages; her Honour appreciated that the packages contained substances other than drugs.
4. [13]
   The contention that the applicant was a mere “middleman” in the transactions is sterile. The term “middleman” is neither a legal nor a commercial term of art. What mattered for sentencing was what the applicant had done and not what catchword fitted his involvement.
5. [14]
   In an appeal in the strict sense it is pointless to argue that factual findings were wrong unless there was no evidence to support the findings or the fact finding process involved a material error of law.”

44. [44]
    The first paragraph does not state that an appeal against sentence is an appeal stricto sensu, but “in the nature of” such an appeal, in the sense that it is not a rehearing, and an appellate court will not interfere with a judge’s findings of fact unless it concludes that the finding was not reasonably open or that it was the product of legal error.  The authority cited for that proposition, Carroll v The Queen,^[30] Willis v The Queen^[31] and R v O'Donoghue,^[32] support that proposition.
45. [45]
    What follows in paragraphs [11]-[13] are criticisms of the nature of the challenge to the facts in that case.  Understanding that, in my respectful view, what was said in paragraph [14] was not a statement of principle at all, but a reflection upon the quality of the challenge in that case.  I do not consider that the Court in Carrall meant paragraph [14] to be understood as anything more.  It is therefore, in my respectful view, a mistake to take a short statement made in one context as though it was intended to be an exhaustive statement of principle.
46. [46]
    Thirdly, the distinctions between appeals stricto sensu and by way of rehearing, and the impact of such differences upon the issues in this case, including the relevance of the distinction between a finding not reasonably open and one the product of an error of law when a finding for which there is no evidence can be classified as an error of law, were not raised with the parties to this appeal, and consequently this Court has not had the benefit of submissions on the topic.  In my view, consideration of such matters should await an appropriate opportunity when full argument has been available.
47. [47]
    Subject to what I have said above, the sentence imposed cannot be demonstrated to be manifestly excessive for the reasons given by Dalton JA and Davis J in paragraphs [114]-[138] below.

Conclusion

48. [48]
    The application for leave to appeal against the sentence should be refused.
49. [49]
    DALTON JA and DAVIS J:  The applicant, MDU, applies for leave to appeal against a sentence imposed on him upon conviction for one count of attempting to murder his estranged wife.
50. [50]
    On 12 September 2023, the applicant pleaded guilty to the following count:

“that on the seventh day of March, 2022 at [a country town] in the State of Queensland, MDU attempted unlawfully to kill LT.

And the offence is a domestic violence offence.”^[33]

51. [51]
    Count 2 on the indictment charged the applicant with choking the complainant in a domestic relationship^[34] but that was charged as an alternative to count 1.  The Crown did not proceed on count 3, a charge of attempting to pervert the course of justice^[35], although an agreed statement of facts tendered at the sentence recited the facts which appear to arguably support that charge.
52. [52]
    The applicant was sentenced to nine years’ imprisonment.  No declaration was made that the offence was a serious violent offence^[36] and parole eligibility was set at 6 March 2026^[37].  As the applicant had been in custody since the date of the commission of the offence, the setting of parole eligibility at 6 March 2026 required the applicant to serve four years of the sentence before being eligible for parole.  The time spent in pre-sentence custody (554 days) was declared as time served on the sentence.
53. [53]
    The grounds of appeal appear in the application as:

1. a)
   the sentence is manifestly excessive in all circumstances (ground 1);
2. b)
   the learned sentencing judge erred in finding s 538 Criminal Code 1899 did not apply (ground 2); and
3. c)
   the learned sentencing judge erred in finding there was no special leniency to be applied to his sentence as a result of his admissions (ground 3).

54. [54]
    Ground 3 was not pressed independently.  The complaint articulated in ground 3 was advanced in support of ground 1.
55. [55]
    The success or otherwise of ground 2 is relevant to the determination of ground 1 so it is convenient to commence with a consideration of ground 2.
56. [56]
    Ground 2 concerns the application of s 538 of the Code.  It provides:

“538 Reduction of punishment

1. When a person is convicted of attempting to commit an offence, if it is proved that the person desisted of the person’s own motion from the further prosecution of the person’s intention, without its fulfilment being prevented by circumstances independent of the person’s will, the person is liable to one-half only of the punishment to which the person would otherwise be liable.
2. If the punishment to which the person would otherwise be liable for the attempt is imprisonment for life, the greatest punishment to which the person is liable is imprisonment for 14 years.”

57. [57]
    The sentencing judge was called upon to resolve a factual issue relevant to s 538.  His Honour identified that question as:

“The essential factual question that is raised is whether the desisting, that is, the stopping, of the choking occurred before or after Mr MDU had formed the view that his wife had perished.”  (The disputed issue.)

58. [58]
    Both parties on appeal accepted that the sentencing judge had identified the correct factual question for determination.  This is because in R v Witchard; Ex parte Attorney-General (Qld^[38] (Witchard), it was held that an offender who desisted after they had believed that their attempt had been successful did not relevantly “desist” for the purposes of s 538.
59. [59]
    His Honour found that at the time the applicant desisted from his plan to kill, he believed the complainant was dead.  Therefore, consistently with Witchard, s 538 was not enlivened.
60. [60]
    Section 4 of the Code defines attempts to commit offences as follows:

“4 Attempts to commit offences

1. When a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.
2. It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on the offender’s part for completing the commission of the offence, or whether the complete fulfilment of the offender’s intention is prevented by circumstances independent of his or her will, or whether the offender desists of his or her own motion from the further prosecution of the offender’s intention.
3. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.
4. The same facts may constitute one offence and an attempt to commit another offence.”

61. [61]
    Section 306 of the Code creates the specific offence of attempt to murder.  It provides as follows:

1. “306
   Attempt to murder

1. Any person who—

1. attempts unlawfully to kill another; or
2. with intent unlawfully to kill another does any act, or omits to do any act which it is the person’s duty to do, such act or omission being of such a nature as to be likely to endanger human life;

is guilty of a crime, and is liable to imprisonment for life.

2. The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for an offence against this section.
3. An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.”

62. [62]
    In R v O'Neill^[39], it was held that s 4 applies to the offence of attempt to murder created by s 306.  In other words, the term “attempts” as it appears in s 306(1)(a) has the meaning defined by s 4.
63. [63]
    Putting ss 4 and 306 together, an offender must, to commit an attempt to murder:

    1. manifest an intention to commit an unlawful intentional killing, that being the “offence”;^[40]
    2. begin to put the intention into execution by means adapted to its fulfilment;
    3. manifest the intention by some overt act; and
    4. fail in the attempt to kill.
64. [64]
    It was assumed but not decided in Witchard, that s 538 applied to the particular offence created under s 306, as well as the more general offence created by s 535 which is in these terms:

1. “535
   Attempts to commit indictable offences

1. If a person attempts to commit a crime, the person commits a crime.

2. If a person attempts to commit a misdemeanour, the person commits a misdemeanour.”

65. [65]
    Given the reasoning in R v O'Neill^[41], which applies s 4 to the specific offence created by s 306, we can see no reason why s 538 would not apply to the offence of attempted murder.
66. [66]
    Section 538 does not play any role in the determination of criminal responsibility for an attempt to kill.  It is only activated upon conviction for attempting to commit an offence, here murder.^[42]  The section is only concerned with setting the maximum sentence for the offence.  Section 538 is the antithesis of a circumstance of aggravation.^[43]  It operates to reduce what would otherwise be the maximum sentence.  Section 306 provides that the maximum sentence for attempted murder is life imprisonment.  Had s 306(1) been silent on the point, that would also have been the effect of s 536(1):

1. “536
   Punishment of attempts to commit indictable offences

1. A person who attempts to commit an indictable offence punishable by mandatory life imprisonment is liable, if no other punishment is provided, to life imprisonment.”^[44]

67. [67]
    Section 538 operates where, in the case of attempted murder:

    1. the offender is convicted of attempted murder;
    2. the offender desisted from the further prosecution of the intention to kill;
    3. the offender desisted of their own motion; and
    4. the further execution of the plan to kill was not prevented by circumstances independent of the will of the offender.
68. [68]
    Murder may be committed in a variety of circumstances.^[45]  One is when there is an unlawful killing where there was an intent to kill or do grievous bodily harm; that is, the act is committed with an intention to cause a specific result.
69. [69]
    An attempt to murder is always committed on the way to murder with intent to kill.^[46]  The intention is formed, an overt act is committed and the intention to kill is put into execution.  If the intention is fulfilled, then the offender commits murder.  If, for any reason, the intention to kill is not fulfilled, then the offender is guilty of attempted murder.  The offence of attempt to murder may be complete but the offender still continues to act to fulfil the objective, namely to kill.  That is what occurred here.
70. [70]
    Section 538 identifies circumstances where the intention to kill has been put into execution and an offence under s 306 has been committed but the intention to kill has not been achieved by the death of the victim.  Where the particular circumstances prescribed by s 538 are present, the maximum sentence is reduced.
71. [71]
    Therefore, the focus is upon the offender “desisting” from execution of the purpose to kill.  The decision to desist must be taken after the attempt has been committed but before the murder is completed.
72. [72]
    It follows that to desist from the attempt to kill, the offender must believe that the objective to kill has not been achieved.  An offender who believes that they have killed does not thereafter “desist” from the plan to kill but merely stops, as they believe that the purpose has been achieved.
73. [73]
    Mackenzie J explained the principles in this way in Witchard in the context of a resumption of an initial attack:

1. “[31]
   It is necessary to focus on the facts of the incident to resolve the questions posed by s. 538.  The notion of desisting from further prosecution of the intention which existed at the time when an overt act which manifested the intention was done implies that at some time after that overt act was done, the person who wishes to claim the benefit of s. 538 must be able to point to circumstances in the evidence from which it can be inferred that he or she ceased, of his or her own motion, from further prosecution of the intention, or, to put it simply, deliberately discontinued carrying out the intention without the intervention of circumstances independent of the offender's will.
2. [32]
   It cannot be sufficient, for the purpose of that test, that a person who had simply terminated the series of events he or she intended to perform in prosecution of the intention because of the belief or expectation that the intent had been fulfilled, could take advantage of s. 538.  Once an attempt identifiable by a discrete continuum of conduct has ceased in such circumstances, it is of no relevance, for the purpose of deciding whether s. 538 operates, that the offender did not resume conduct that may have fulfilled the original intention. It is in no way decisive that, once the initial incident has ended, the person may still have available something adapted to the fulfilment of the original intention but does not renew the attack.
3. [33]
   Once there is a clearly identifiable cessation of the original series of actions, the attempt is complete for the purpose of analysing the circumstances in which the offender desisted. Where the series of acts has ended simply because the attacker has done all he or she intended to do in prosecution of the intention, the offender has not desisted of his or her own motion in the relevant sense. An identifiable cessation followed by a fresh attack because the attacker had realised that the initial attempt had been unsuccessful involves the formation of the same intent for a second time.
4. [34]
   Standing alone, cessation of the initial continuum of conduct may mean no more than that the attempt had run its course. Something which indicates that the attempt was desisted from of the attacker's own motion is necessary. To treat cessation alone as relevant would accord little meaning to the words “of their own motion” which imply that a deliberate decision was taken by the person to desist from further prosecution of the intention while that intention still existed. In the case of attempted murder, there must be a deliberate cessation of things done with the intention of causing the death of the intended victim, in circumstances where it can be inferred that the continuum of conduct ceased only because of the deliberate voluntary abandonment of the intent to kill without the intervention of circumstances independent of the exercise of the offender's will.
5. [35]
   The purpose of the section is to reward those who, having put into effect a course of conduct with intention to bring about a particular result, voluntarily bring the incident to an end as a result of the conscious decision to terminate it before what they intended to achieve happens. A case where the evidence suggests that the incident ended only because the attacker believed or expected at that point that the intention had been fulfilled would, in my view, be insufficient to enliven the section. In other words, if the incident has simply run its course without any apparent manifestation of a decision to terminate the attempt prematurely, it is insufficient to entitle an offender to the benefit of s. 538.”

74. [74]
    The possible alternative to his Honour the sentencing judge’s finding on the disputed issue was, on the evidence, that the applicant desisted from his plan to kill at a time when he believed the complainant was still alive but, after desisting he believed that she had not survived his attack.  Such a state of mind would constitute a relevant desisting from completion of the plan to kill.
75. [75]
    The finding of fact made by his Honour, was not made after hearing witnesses.  The finding was made on the basis of two documents: a statement of agreed facts that was tendered and a transcript of the interview between the applicant and police.  While the actual evidence of what the applicant told police was the recording and not the transcript, the parties invited his Honour to accept the transcript as an accurate record of what was said.
76. [76]
    An appeal is a remedy given by statute.  The common law did not create such a proceeding.^[47]  It follows that the nature of an appeal and the extent to which appellate intervention is permissible is ultimately determined upon the construction of the provision granting the avenue of appeal.^[48]
77. [77]
    Here the applicant seeks to reverse a finding of fact made by the sentencing judge.  The Crown submitted that there was no scope to do so relying on a passage in R v Carrall^[49]:

1. “[14]
   In an appeal in the strict sense it is pointless to argue that factual findings were wrong unless there was no evidence to support the findings or the fact finding process involved a material error of law. In this case, there was no submission put that there was no evidence to support the disputed findings or that her Honour applied a wrong principle.”

78. [78]
    We reject that submission for three reasons.  Firstly, an appeal against sentence is not a strict appeal in the full sense.  Because s 668E(3) of the Criminal Code gives this Court jurisdiction to substitute the sentence which “should have been passed” if it finds error, it has been held that the powers of the Court are limited to passing a sentence which could have been passed at law at the time of the original sentence.^[50]  However, the Court’s jurisdiction as to fresh or new evidence is not affected.^[51]  It is therefore not correct to characterise an appeal against sentence as an appeal in the strict sense; it has more latitude than that.
79. [79]
    Secondly, in Carrall, two bases justifying appellate intervention as to a finding of fact are identified:

    1. no evidence to support the finding of fact; and
    2. error of law.
80. [80]
    Any finding which is not supported by any evidence is a finding made in error of law.^[52]
81. [81]
    Thirdly, in Carrall it was said that an appellant in an appeal in the strict sense cannot argue that a factual finding is wrong unless there is no evidence to support the finding under attack.  The authorities cited in Carrall in support of that contention do not support it.  They say that the test is that the finding “was not reasonably open on the evidence”.^[53]
82. [82]
    In fact, the distinction between an appeal in the strict sense and an appeal by way of rehearing is not so much as to the extent of appellate review of factual findings but as to the evidence and the law that is relevant on appeal.  Both appeals in stricto sensu and appeals by way of rehearing are dependent on the identification of error.^[54]  In looking to see if there is error below, the appellate court hearing an appeal in the strict sense must make its own consideration and conclusions of fact and law, but may only consider the evidence given below and the law at the time of the hearing below.^[55]
83. [83]
    The distinction between an appeal in the strict sense and an appeal by way of rehearing became critical in Australia from federation.  Section 73 of the Constitution vests jurisdiction in the High Court “to hear and determine appeals” from judgments of all Australian courts.  It has been consistently held that an appeal under s 73 of the Constitution is an appeal in the strict sense.^[56]
84. [84]
    In Turnbull v New South Wales Medical Board^[57], Glass JA attempted to categorise various different species of appeals.  Of appeals in the strict sense, his Honour observed:

1. “(d)
   Appeals from a judge in the strict sense, e.g. appeals to the High Court.  If the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment.  Only such judgment can be given as ought to have been given at the original hearing.  Later changes in the law are disregarded and additions to the evidence are not allowed.”^[58] (emphasis added)

85. [85]
    That passage was expressly adopted by Callinan J in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission.^[59]
86. [86]
    The idea that a factual finding must be “clearly wrong” is consistent with the statements by the High Court concerning interference with factual findings where the appeal is by way of rehearing.^[60]
87. [87]
    In 1928 Isaacs J, in dissent on other points, in Werribee Shire Council v Kerr^[61], identified the limitation of an appeal in the strict sense, namely that the appellate court was bound to decide the appeal on the evidence below and the state of the law at the time of the decision at first instance.  His Honour observed:

“The Constitution (sec. 73) gives to the appellant the right of appeal both as to law and fact.  The statute does not diminish that right.  The right is to have the opinion of this Court on the facts as presented, and as it is a matter of justice between the litigants and not a controversary with the primary Judge, his decision is nothing to the point, either as to law or to fact, where this Court is in an equally good position to determine the issues.  But where the primary tribunal possesses advantages not available to this Court, where, for instance, the decision involves credibility of witnesses or examination of some object, the material before the appellate Court is not as complete as before the primary Court.  To that extent only, the first presumption that he is right to that extent, and must be clearly shown to be wrong before another view is taken.”^[62] (emphasis added)

88. [88]
    The distinction between an appeal in stricto sensu and an appeal by way of rehearing was considered by Mason J (as his Honour then was), in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd.^[63]  His Honour observed:

“Upon an appeal stricto sensu the question considered is whether the judgment complained of was right when given (Ponnamma v. Arumogam^[64]), that is whether the order appealed from was right on the material which the lower court had before it.

An appeal stricto sensu is to be distinguished from an appeal by way of rehearing of which the most notable example has been the appeal to the English Court of Appeal provided for by the Supreme Court of Judicature Act 1873, ss. 18-19 and the Rules of Procedure contained in the Schedule to the Act of 1875. ... This appeal by way of rehearing involves rehearing of the cause at the date of the appeal, that is "by trial over again. on the evidence used in the Court below; but there is special power to receive further evidence" (In re Chennell; Jones v. Chennell^[65]). On such an appeal the rights of the parties must be determined by reference to the circumstances as they then exist and by reference to the law as it then exists; the appellate court may give such judgment as ought to be given if the case at that time came before the court of first instance.”^[66]

89. [89]
    Similar observations were made in Allesch v Maunz^[67], Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission^[68] and two cases which confirmed that fresh evidence was not admissible on an appeal to the High Court in criminal cases: Mickelberg v The Queen^[69] and Eastman v The Queen.^[70]
90. [90]
    In various cases the High Court has observed that on review of a factual finding, a court on appeal must recognise the advantages enjoyed by the trial judge in seeing and hearing the witnesses in the context of the entire trial.^[71]  This applies whether the appeal is by rehearing, or an appeal in the strict sense.  This means that an appellate court will be slow to interfere with factual findings where the primary judge has an advantage.  As said in Robinson Helicopter Co Inc v McDermott^[72], on an appeal by way of rehearing:

“… a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”,^[73] or they are “glaringly improbable” or “contrary to compelling inferences”.^[74]”

91. [91]
    However, where as here, no oral evidence was heard, this Court is in as good a position as the sentencing judge to draw factual conclusions.^[75]
92. [92]
    In practical terms, if this Court reads the same two documents that were before the sentencing judge and determines that the conclusion reached by the judge was wrong, then it could not be said that the conclusion drawn by the sentencing judge was “reasonably open”.  It could only be concluded that there was error.
93. [93]
    The applicant and his wife were married for about 40 years but separated in January 2022.  The complainant remained at the matrimonial home (the complainant’s house), while the applicant moved to another residence.
94. [94]
    By his plea, the applicant accepted that he went to the complainant’s house and attempted to kill her by choking.
95. [95]
    Before his attack upon the complainant, various searches were made by the applicant using the search engine Google.  These searches were made between 3 and 4 March 2022.  These Google searches strongly indicated that the applicant was planning to kill the complainant.
96. [96]
    The agreed statement of facts relevantly provides as follows:

“Over the early hours of 7 March 2022, the defendant sent the complainant several text messages and phoned her twice.  She responded to one text message but slept through the rest.

Around 4.30am on 7 March, the complainant woke to a sound at the door.  It was the defendant.  He was trying to get in the locked front security door.  He didn’t answer the complainant when she asked him what he was doing.  Instead, he started up a chainsaw.

He tried to cut through the front security door, then went around to the rear door and tried to cut through that.

The complainant took this opportunity to escape through the front door and head towards the adjacent caravan park on foot.

The defendant realised the complainant was no longer in the house and got into his Ute to pursue her.

The complainant cried out for help as she fled the defendant.  It was no use.

The defendant parked, got out and as he reached the complainant, punched her in the face several times.  She screamed out in pain.

The defendant then put his hands around the complainant’s throat and began to choke her.  She couldn’t breathe and couldn’t speak.  She was no match for him.  Her memory jumps from being choked whilst standing, to waking up to him on top of her, as they are both on the ground, with him still choking her.

His grasp relented briefly, before he redoubled his efforts to the point of choking her whilst her head was up off the ground, him pulling her towards him by the neck.

“You’re a fucking bitch, you’ve ruined my life” called the defendant as his hands were immoveable clamps around her neck.

Thinking he had killed her^[76], he slapped her face a few times, and she regained consciousness.  He let go and told her “I won’t kill you this time”, before getting back in his and driving off.

Bruised and battered, the complainant raised the alarm and awaited the ambulance.

The defendant got himself to the back of the Gladstone Police Station where he was met by an officer called Barton.  To him, the defendant confessed that “I’ve just done something stupid, I’ve just tried to kill my wife.  I tried to choke her, but I couldn’t finish it and then I tried to kill myself and I couldn’t even do that.  I wish you’d just put a bullet in me.”  (emphasis added)

97. [97]
    The passages underlined were extracted from a written statement made by the complainant.  The statement itself was not put into evidence either before the sentencing judge, or this Court.
98. [98]
    The other evidence as to what occurred during the attempt to kill, and the applicant’s intentions, come from the applicant’s interview with police.  The applicant’s first attempt in the interview to explain his actions were as follows:

“THE APPLICANT:  I got up at 2:30, couldn’t sleep.  I, I got a drill and a chainsaw and, and me dog.  Oh, I had some knives but that wasn’t for her.  I was hoping that I’d pull them and youse’d shoot me but it all went astray.  Um, I had a thing of tablets in there to take too and I left all that there and I think I had a garotte and a hang wire in a bag and I fuckin’ left all that there in the heat of passion.  Um, drove in there, fuckin’ tried to screw the front door shut, started me chainsaw up.  She come to the door and said what are you doin’?  I never [INDISTINCT] say anything.  I just started me chainsaw and I’ve tried to cut the front screen off.  Wouldn’t work.  Went round the back, tried to cut the back screen off.  By the time I got in she was fuckin’ off down the road.  Jumped in me car, chased ‘er, grabbed the bitch, fuckin’ started choking the life out of ‘er to the point where, and then I just, I looked at the fuckin’ cunt of a thing and thought this isn’t me.  What, what’ve you turned me into?  What, this isn’t MDU.  MDU isn’t this fucking monster and I just let the cunt of a thing go, smacked it in the head, in the face [INDISTINCT] to see it respond and then I think I grabbed ‘er again and she grabbed, tried to grab me balls and I said that’s pretty fuckin’ pointless.  You took them years ago.  Um, I let ‘er up.  I got up, got in me car, turn to the fucking thing and said you’re a fucking uni slut through and through now.  You’re probably fuckin’ some cunt there too, and drove off and that’s pretty much all I recollect, mate.  I, may be some other [INDISTINCT] things I did but that’s pretty much it and now ---"  (emphasis added; “the first passage”)

99. [99]
    On this description there were two episodes and the applicant desisted on both occasions.  On the first, he reflected that he wasn’t “this fuckin’ monster” and then “I just let the cunt of a thing go, smacked it in the head, in the face … to see it respond”.  On the second occasion, he “let ‘er up” and then left in his car.
100. [100]
     It was obvious during the interview that the applicant was very emotional.  Despite the interviewing police attempting to obtain the applicant’s version of what occurred at the house, the applicant spent most of the interview volunteering his views about his relationship with his estranged wife and various other topics and complaints.
101. [101]
     After explaining that he had attempted to screw the door of the complainant’s house shut and was trying to cut his way into the house with the chainsaw, this exchange occurred:

“THE APPLICANT:  Screw the door ---

SCON KALE:  H-, how were you intending on killing ---

THE APPLICANT:  And then go round the fuckin’, cut the ---

SCON KALE:  Yep.

THE APPLICANT:  Back door open –

SCON KALE:  Yep, yep.

THE APPLICANT:  With the chainsaw, go in and get ‘er but she –

SCON KALE:  Yep.  What were you planning on doing to her?

THE APPLICANT:  Oh, [INDISTINCT], I wasn’t gonna touch ‘er with the chainsaw or stab ‘er, mate.  Just squeeze the life out of ---

SCON KALE:  Okay.

THE APPLICANT:  Make her feel as bad as I felt –

SCON KALE:  Okay.

THE APPLICANT:  You know?

SCON KALE:  Alright.

THE APPLICANT:  And then I cou-, really?  People’s fuckin’ eyes bulge when you choke ‘em?  I didn’t reali-, things you see on T-V, [INDISTINCT] –

SSGT ANDERSEN:  What did you see last night?

THE APPLICANT:  [INDISTINCT]?

SSGT ANDERSEN:  [INDISTINCT], what did you see with her last night?  You’re saying people’s eye bulge.  What did you see with her last night?

THE APPLICANT:  LT, when I was holding ‘er, fuckin’ eye, and then I thought no, you, you, and I stopped and she w-, didn’t move and I tapped ‘er, I slapped ‘er face a couple of time and she breathed and then I think I grabbed ‘er again and then I, no, I can’t do this, and that’s when I just said, I think I just [INDISTINCT] held ‘er.  She, ‘cause she was tryna hit me and I just held ‘er and said I’ll let you leave, you fuckin’ cunt of a thing or somethin’ but tell the cop, make sure the cops fuckin’ shoot me when they come to get me and then I got in my car and drove away and she was just standin’ there.

SSGT ANDERSEN:  Did you think you’d killed her at any stage?

THE APPLICANT:  Oh, she was standin’ up when I left.  I, I’d come fuckin’ close, mate.

SSGT ANDERSEN:  Yeah.

THE APPLICANT:  But then I stopped and that’s when I fuckin’ hit ‘er and she come responsive again.  So I probably had come pretty fuckin’ close.

SSGT ANDERSEN:  So when you’d slapped her –

THE APPLICANT:  Just –

SSGT ANDERSEN:  You’re saying you’d strangled ‘er.  Then you’d slapped her.  Do you think that sort of woke ‘er up or, or [INDISTINCT]?

THE APPLICANT:  Yeah, it did, made.  It did.

SSGT ANDERSEN:  How close do you think you were to killing ‘er?

THE APPLICANT:  Oh, mate, fuckin’ close, [INDISTINCT] close.  It was close.  She [INDISTINCT], and then I just went like that.  I hit ‘er once.

SCON KALE:  Yeah.

THE APPLICANT:  She moved a bit and then I hit ‘er again and she [INDISTINCT] and breathed and then I held ‘er again and just, she was swingin’ at me or tryin’ to grab me by the balls or somethin’.  I said to ‘er watch Tom Cruise.  Thumbs in the eyes.  If someone ever grabs you that’s the first thing you do, thumbs in the eyes, and she’s a stupid bi-, anyway, um, um, and then I, I got in me car.  She stood up.  Started me car up.  I backed around.  I just, I think that’s when I said somethin’ about you fucking uni slut or somethin’ and then I just calmly drove off thinkin’ well, fuck, mate.  You’ve really done it this time.  You’re a fucking stupid S-O-B.  What do I do now?  I drove down to that big bridge where you come into town from [a regional town].”  (emphasis added; “the second passage”)

102. [102]
     In that passage the applicant does not say that he thought he had killed the complainant and then desisted.  It seems that he desisted and was holding the complainant’s eye.  He stopped, she did not move and he slapped her.
103. [103]
     The next exchange was:

“SCON KALE:  Yeah.  So I’ve got a statement um from LT, okay?  Um, so in paragraph fifty of that statement um she says MDU got out of the car and ran towards me and hit me across the left side of my face with a closed fist about three times, and once across the --

THE APPLICANT:  Oh --

SCON KALE:  Right side of my face.

THE APPLICANT:  I did hit ‘er, yeah.  I, I probably, I did hit ‘er, yeah.

SCON KALE:  Yep.

THE APPLICANT:  Three, oh, was it three times?  I don’t know.  Yeah, mate.  I did hit ‘er.  I forgot that.  I hit ‘er first.  Yes, mate.  That’s correct.

SCON KALE:  Yep, okay, so you’ve hit ‘er first.  Do you recall how many times you’ve hit ‘er?

THE APPLICANT:  It probably was three.  I, I, if she says three she’d be right.

SCON KALE:  Okay, and then you said that you’ve grabbed her.

THE APPLICANT:  [INDISTINCT], think I just hit ‘er and she pushed backwards and just grabbed ‘er by the throat and started squeezin’ --

SCON KALE:  Yep.

THE APPLICANT:  Life out of ‘er, mate, and she tried to fight back but --

SCON KALE:  What was your intention when you were squeezing ‘er round the neck?

THE APPLICANT:  Initially, yes, mate, it was to fuckin’ choke the life out of ‘er and make her fuckin’ feel as bad as I felt --

SCON KALE:  Yeah.  Were you tryna kill ‘er?

SCON KALE:  Show ‘er how it felt to be fuckin’ treated like sh-, well, hey?

SCON KALE:  Were you tryna kill her?

THE APPLICANT:  Yeah, mate.

SCON KALE:  [INDISTINCT].

THE APPLICANT:  At first and then when I saw she was fuckin’ close to dead, I thought, that’s when I hit ‘er on the face --

SCON KALE:  Mm.

THE APPLICANT:  And stopped chokin’ ‘er.

SCON KALE:  So how long were you chokin’ ‘er before --

THE APPLICANT:  Oh --

SCON KALE:  She looked close to death?

THE APPLICANT:  Oh fuck.  I don’t know how, half a minute.  I, a minute.  I don’t know, mate.  [INDISTINCT] --

SCON KALE:  And when you say she looked close to death, tell me what she looked like.

THE APPLICANT:  Oh, fuckin’ terrible.  It’s like, you, you know when old Schwarzenegger falls out of the thing on bloody that Mars movie and ‘is eyes are buggin’ up and --

SSGT ANDERSEN:  Total Recall.

THE APPLICANT:  Yeah.

SSGT ANDERSEN:  Mm.

THE APPLICANT:  Fair dinkum, really, no.  I didn’t ---

SCON KALE:  I should probably go and [INDISTINCT].

THE APPLICANT:  That scared the shit out of me.

SCON KALE:  Yeah, okay.

THE APPLICANT:  And that’s, I thought no, you’re a mongrel but you’re not --

SCON KALE:  Yeah.

THE APPLICANT:  You’re not the good bloke you used to be.  You’re a monster but you’re still not that big of a monster.

SCON KALE:  Was she conscious?

THE APPLICANT:  Not, [INDISTINCT], well, that’s when I thought I had killed ‘er and that’s when I hit ‘er and she took a breath of air and, and started to come good and she was just layin’ there and I was just sittin’ there thinkin’ oh, I think I said you’re a, [INDISTINCT] the fucking hell did you have to do this to me [INDISTINCT] or somethin’.  I can’t remember.

SCON KALE:  At any time did she stop breathing?

THE APPLICANT:  I think she had fuckin’ near [INDISTINCT], I dunno, mate.

SCON KALE:  You don’t know.

THE APPLICANT:  How, it’s all happenin’.

SCON KALE:  Yeah.

THE APPLICANT:  You’re not takin’ notes.  It, I don’t know.  I don’t know.

SCON KALE:  Yeah.

THE APPLICANT:  Mate, she, she must’ve been close.  She, when I hit ‘er face the first time she was unresponsive.  The second time she w-, did respond and that’s, and then I think I grabbed ‘er again and I said somethin’ about, I’ll let you live, you fuckin’ cunt of a thing but make sure the cops put a bullet, put a bullet in me when they come for me or something and then that’s when I just got up and --

SCON KALE:  Yeah.”  (emphasis added; “the third passage”)

104. [104]
     In the third passage the applicant says “that’s when I thought I had killed ‘er”.  That was, he explained, when he hit her.  However, that statement does not specifically identify whether he had desisted before believing that he had killed her.  However, in the third passage, the applicant says that he saw that she was “close to death” and that is when he “stopped chokin’ ‘er” and that is when he “hit ‘er on the face”.
105. [105]
     There is nothing in any of the statements made by the applicant in the interview where he says that he believed the complainant was dead before he desisted.  In the first passage he is silent on this point.  In the second passage he speaks about letting the complainant go.  That suggests he believed she was still alive.  In the third passage he speaks of her being close to death and then he stopped.
106. [106]
     The sentencing judge’s reasons for his finding were:

“The passages are difficult to read.  They are not particularly easily put together.  It seems to me when they – the passages, particularly, on 45 and 30 of the transcript are read together, the sequence that occurred or that has been admitted to occurring is that, firstly, after Mr MDU strangling his wife or choking his wife for quite a period of time, he observes her eyes bulging, which scares him.  He stops then.  At that point when he stops, he thinks he has killed her.  He slaps her the first time.  She is still unconscious.  He then slaps her on the second occasion ---

DEFENDANT:  She was playing possum, mate.

HIS HONOUR:  --- when she becomes conscious and starts breathing.  After she stops breathing, he then grabs her again, and this is the transcript from page 30, and then he – and then, in his own words, he says, “No, I can’t do this.”  He desists at that latter point.  So I conclude that on a proper reading of the transcript, that is the factual sequence, and, accordingly, I conclude that the defence has not enlivened section 538 by meeting its requisite elements.”

107. [107]
     The passages referred to by his Honour being at pages “45” and “30” in the transcript are the passages that we have called “the third passage” and “the second passage” respectively.  His Honour says that the order of events is explained in those passages as:

     1. the applicant choked the complainant for quite a time;
     2. he observed her eyes bulging;
     3. he stopped;
     4. at the point when he stops he thinks he has killed her;
     5. he slaps her and she becomes conscious;
     6. he then says “No I can’t do this”; and
     7. at that point he desists.
108. [108]
     The first time the applicant mentions the complainant’s eyes bulging is in the second passage.  It is not said in that passage that the applicant believed that he had killed the complainant at any time, let alone before he desisted.  In the third passage the applicant explains that when the complainant’s eyes were bulging he thought she was “close to death”.  He then said at that point, her appearance “scared the shit out of me”.  It seems that it was at that point he desisted.  The part of the third passage, where the applicant said “Not … well, that’s when I thought I had killed ‘er and that’s when I hit ‘er and she took a breath of air” has to be looked at in the light of his earlier statement, namely that he hit her when he saw “she was fuckin’ close to death”.  We find that there was no statement by the applicant to the effect that he thought the complainant was dead before he desisted.  Further, there is no reasonable basis upon which the judge could have drawn that conclusion.
109. [109]
     It follows that on appeal the appellant would succeed on proposed ground 2 to the extent that we would hold that the applicant should have had the benefit of s 538 on sentencing.
110. [110]
     Generally that conclusion would be a compelling reason to allow the appeal and resentence the applicant.  However, for the reasons we now give, we would not grant leave to appeal for we would not impose any lesser sentence than that which was imposed below.  In giving our reasons for this conclusion, we are also dealing with ground 1 of the proposed appeal (manifest excess).
111. [111]
     Once s 538 is enlivened, the maximum sentence falls from life imprisonment to 14 years.  The parameters within which the sentence must be imposed thereby change.
112. [112]
     The maximum sentence set by the legislature for a particular offence serves various purposes within the sentencing process.  As Gleeson CJ, Gummow, Hayne and Callinan JJ observed in Markarian v The Queen^[77]:

1. “31
   It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty^[78], and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour’s particular deference to it in this passage^[79]:

“Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity.”

The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence.”

113. [113]
     Of that passage, Gageler CJ and Jagot J in Hurt v The King^[80] observed:

“In other words, the maximum sentence reflects the Commonwealth Parliament’s view of the appropriate sentence for the worst possible case constituting the offence.”^[81]

114. [114]
     In Hurt v The King, the High Court was considering a charge under the Criminal Code (Cth).  Under both Commonwealth and State sentencing regimes, the maximum sentence sets the spectrum into which the offence under sentence must be positioned.  The most serious offences attract the maximum and all other offending fits within the spectrum which exists below that maximum.
115. [115]
     In R v Kilic^[82], this was observed:

1. “19
   Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty – as the offending was agreed to be here – a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called^[83]. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being “within the worst category”. It is a practice which should be avoided.”

116. [116]
     These principles explain why, when by legislative amendment a maximum penalty for an offence increases, sentencing patterns after the increase should show a general increase in sentences for that offence.^[84]  Conversely, the operation of s 538 should result in a sentencing pattern where sentences for offenders who do not have the benefit of s 538 will generally be higher than for offenders who have committed similar conduct and have the benefit of the section.
117. [117]
     However, while s 538 might set the maximum sentence, the fixing of a particular sentence otherwise involves the application of any applicable sentencing considerations.  That includes s 9(10A) of the Penalties and Sentences Act 1992 which provides:

1. “9
   Reduction of punishment

…

1. (10A)
   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.”^[85]

118. [118]
     This is a serious case of attempted murder and a serious example of a domestic violence offence.
119. [119]
     In his favour, the applicant has the following mitigating circumstances:

     1. his plea of guilty;
     2. his cooperation with the police, including making significant admissions;
     3. no prior convictions;
     4. the complainant’s assurance that the applicant had been a good father, a hard worker and, before the present offending, had never been violent towards her or their son^[86]; and
     5. the applicant desisted in his attempts to kill the complainant.
120. [120]
     However, the acts committed by the applicant and the circumstances in which he committed them are extremely serious.
121. [121]
     The plan to kill the complainant was formed at the latest on 3 March 2022, four days before the attack.  March 3 was the first of two days over which the applicant made internet searches, exploring various ways to kill the complainant.  This included investigating the purchase of handguns and hunting bows, the prospect of making a single shot handgun, garrotting and various methods of poisoning, including the use of a venomous snake.
122. [122]
     In the early hours of the morning of 7 March 2022^[87], while intoxicated, the applicant appeared at the complainant’s house armed with knives, a green cord and a chainsaw.  Under cover of darkness, he attempted to break and enter the complainant’s house but when that proved difficult, he started the chainsaw and attempted to cut his way through the locked front security door.  When that too failed, he used the chainsaw to try to cut his way into the house through the rear door.
123. [123]
     Undeterred by the fact that the complainant had escaped the house, the applicant entered his utility vehicle and pursued her, leaving the chainsaw still running.  He then caught and severely assaulted the complainant before then attempting to choke and kill her.  He told police during the interview that his specific intention was to attend the complainant’s house and strangle her to death.
124. [124]
     The applicant may have desisted before carrying out his intention to murder the complainant, but on any interpretation of the interview it is obvious that the complainant was lucky to survive.  The applicant described the complainant’s bulging eyes.  He described how she was very close to death, and that at some point he thought he had actually killed her.
125. [125]
     It can be accepted that the offending was out of character.  However, as the applicant told the police, the motivation was revenge for what the applicant perceived the complainant had done to him.
126. [126]
     It is also difficult to accept that the cooperation with police and the plea of guilty were actions taken as a reflection of true remorse.  As observed, the indictment charged as count 3 an offence of attempting to pervert the course of justice.  The Crown did not proceed with that count and the applicant does not fall to be sentenced for it.  However, the applicant made a number of statements from prison to various people to try to have the complainant persuaded to withdraw the complaint.  Those actions show that any remorse is limited.  The same can be said of the way the applicant speaks of the complainant to police, and to the sentencing judge on the sentence hearing.
127. [127]
     The applicant relies on two comparative sentences, R v LAN^[88] and R v Kerwin.^[89]
128. [128]
     Kerwin, at nighttime, broke into the home of his estranged wife by smashing a window near the front door.  He punched her several times and then strangled her until she lost consciousness.  Police were called and he had to be dragged away from the complainant.  The attack occurred in the presence of Kerwin’s and the complainant’s eight-year-old daughter.  The offending occurred in breach of a domestic violence order.  There had been a number of convictions for prior assaults by Kerwin upon the complainant.
129. [129]
     Kerwin was convicted after a trial.  He did not have the benefit of s 538 of the Code.  However, there were no weapons involved and, importantly, the offending predated the introduction of s 9(10A) of the Penalties and Sentences Act.  His sentence of 12 years’ imprisonment was not disturbed on appeal.
130. [130]
     In R v LAN, the offender did not have the benefit of s 538.  It was an offence that attracted s 9(10A) of the Penalties and Sentences Act.  The appellant there punched the complainant to the right side of her head a number of times before strangling her to unconsciousness.  When she awoke, the offender again attacked her and again tried to strangle her.  Police arrived and he was forcibly restrained.
131. [131]
     Although the offender had a criminal history in both Queensland and Victoria, he had not previously been convicted of an offence of violence.  He had an extraordinarily compromised upbringing, including being kidnapped and forced to serve as a child soldier.  He suffered post-traumatic stress disorder, persistent depressive disorder and alcohol use disorder.  It was accepted that the offender’s mental health conditions made service of his sentence harder.  It was also accepted that there was a real likelihood that he would be deported upon his release from custody and that he may be in danger if returned to his country of origin as his father had apparently been murdered there.  A sentence of nine years’ imprisonment with no date set for earlier than usual eligibility for parole was not disturbed on appeal.
132. [132]
     It is not necessary to attempt to reconcile the comparatives either with each other or with other comparatives or with this case.  The comparatives are only a benchmark.  They do not, however, support a submission by the applicant, even with the benefit of s 538, that the appropriate sentence is six years’ imprisonment with parole eligibility after two years.
133. [133]
     Questions of general deterrence and community denunciation are important considerations in domestic violence offences.  The legislature has, as earlier observed, specifically identified the domestic circumstances of an offence as aggravating factors.
134. [134]
     This was a planned, frightening, violent and prolonged attack in the nighttime by a man who arrived intoxicated at the victim’s house armed with a chainsaw, seeking vengeance by killing the victim.  Without the benefit of s 538 and where the spectrum for the sentence is from no period in custody to life, the sentence which was imposed by the sentencing judge was in our view very generous to the applicant.
135. [135]
     Even with the benefit of s 538, a sentence of nine years’ imprisonment with no serious violent offence declaration and an order for eligibility for parole six months before the statutorily prescribed period can draw no proper complaint from the applicant.
136. [136]
     We would dismiss the application for leave to appeal against sentence.