R v Brown[2024] QCA 20

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 26 May 2022, Mr Brown pleaded guilty to two counts of malicious act with intent, one count of wounding and one count of assault occasioning bodily harm while armed.  He had been charged with two counts of attempted murder but the prosecution accepted the guilty pleas to the alternative counts of malicious act with intent in satisfaction of those charges.  The sentencing was adjourned to enable a psychological or psychiatric report to be obtained for the purpose of the sentencing.
2. [2]
   The sentencing proceeded on 7 October 2022 on an agreed statement of facts.  Mr Brown was sentenced to nine years’ imprisonment for malicious act with intent committed against the male complainant, seven years’ imprisonment for malicious act with intent committed against the female complainant and imprisonment of two years and six months for each of the other two offences. All convictions were concurrent.  The convictions on the malicious act with intent counts were declared to be convictions of serious violent offences.  Mr Brown had spent 1,624 days in pre-sentence custody between 27 April 2018 and 6 October 2022 that was deemed to be time already served under the sentences.
3. [3]
   Mr Brown was represented by the same counsel and solicitors on the arraignment and the sentencing hearing but appears for himself on the hearing of this application.  He applies for leave to appeal against his sentences in one respect only.  He asserts that the sentences imposed for the malicious act with intent counts were manifestly excessive by reason of the declaration that he was convicted of serious violent offences.
4. [4]
   Mr Brown seeks to show the sentence was manifestly excessive by putting forward a version of the facts in his written submissions that differs from the agreed statement of facts that was before the learned sentencing judge.  Whilst in prison, Mr Brown has obtained access to the prosecution brief of evidence.  He makes his submissions, in part, by reference to the statements of witnesses and other documents in the prosecution brief, including the hospital records for Mr Brown for 27 April 2018.  His submissions also include his explanations for some of his conduct which were not before the sentencing judge.  The documents relied on by Mr Brown are identified in his written submissions and were provided to the Registry of the Court.  Mr Brown is not alleging incompetence of counsel.  Although Mr Brown has not filed a formal application for leave to adduce evidence on the application for leave to appeal, his reliance on additional material in his written submissions that was not before the sentencing judge must be treated as such an application.  That application is opposed by the respondent.

Circumstances of the offending

5. [5]
   The following summary of the circumstances of the offending is taken from the agreed statement of facts and other material that was before the sentencing judge.
6. [6]
   The male complainant who was 49 years old advertised a secondhand printer for sale on Gumtree which Mr Brown negotiated to purchase for $5,000.  He drove a considerable distance (over 500 kms) the previous day to view the printer and arrived at the male complainant’s home early in the morning of 27 April 2018.  The printer was set up in the shed and the male complainant demonstrated how the printer printed onto wood.  The male complainant left Mr Brown in the shed while he drove his daughter to school.  On his return, the male complainant helped Mr Brown download the software for the printer onto his laptop.  While the software was downloading, Mr Brown went outside the shed and retuned without his shirt on.  The male complainant observed that Mr Brown became agitated.  Mr Brown used a Stanley knife that he had brought with him to scratch some ink off the printer frame.  Mr Brown moved behind the male complainant and to the left and used the Stanley knife to stab the male complainant in the left side of his neck which constituted the first malicious act with intent offence (grievous bodily harm with intent to do grievous bodily harm).  The male complainant was bleeding profusely and left the shed to return to the house to get the attention of his 82 year old mother (who was the female complainant) to call the ambulance.
7. [7]
   Mr Brown then approached the female complainant who pleaded with him to leave her alone.  He attacked her with the Stanley knife.  She raised her hands to defend herself and the knife made contact with the top of her hand which constituted the offence of wounding.  The male complainant then tackled Mr Brown.  Mr Brown approached the female complainant a second time and slashed her neck which constituted the second malicious act with intent offence (unlawful wounding with intent to do grievous bodily harm).  The male complainant endeavoured to run away and Mr Brown picked up a star picket and threw it at him, hitting him and causing a substantial bruise to his abdomen which constituted the assault occasioning bodily harm while armed.  Eventually the male complainant ran away to the road and got help.  While both complainants were getting first aid, Mr Brown left in his vehicle.
8. [8]
   Mr Brown drove his vehicle to a restaurant car park.  His odd behaviour caused the restaurant workers to call the police who arrested Mr Brown.  The Stanley knife was found in the passenger door of his car.  He informed the police that he had “an episode” and had taken “a handful” or “20” of his dexamphetamine tablets afterwards.  He told police he had come to that place for a printer but “had not seen him yet”.  At the police station, Mr Brown started to slur his words and was taken to the hospital from the police station for a suspected overdose of dexamphetamine.  A blood sample was not tested to confirm this.  At the hospital, he was non-communicative, agitated and had an elevated heart rate.  He was treated with diazepam.  He was seen by a psychiatrist at the hospital the next day and discharged.  He stated to the psychiatrist that he had only consumed caffeine, Coca-Cola and dexamphetamine to keep himself awake during the long drive.
9. [9]
   The male complainant was still bleeding when ambulance officers attended him.  He was taken to hospital and an isolated penetrating injury to the left side of his neck showed signs of bubbling caused by the passage of air from a laceration to the trachea.  This was threatening his airway.  An urgent tracheostomy had to be performed when blood began to pool in the trachea during the pre-operative intubation before the surgery to explore the neck injury.  The laceration in the trachea was repaired by suture, the tracheostomy removed and that site also repaired.  The neck injury satisfied the definition of grievous bodily harm, as the sudden obstruction of the male complainant’s airway from a build-up of blood immediately before the exploratory surgery could not have been left untreated.  The laceration to the male complainant’s trachea could also not have been left untreated, as failure to prevent the passage of inspired air exiting the trachea and bubbling through the penetration in the male complainant’s neck would have caused a permanent injury to his health.
10. [10]
    The female complainant’s injuries were an incised wound to the right side of her neck exposing the platysma muscle and a laceration to the top of her left hand involving the middle and ring fingers.  Her neck injury was repaired with dissolvable sutures.  The extensor tendons on her left middle and ring fingers were surgically repaired.

Mr Brown’s antecedents

11. [11]
    Mr Brown was 39 years old when he committed the offences.  His prior criminal history had no like offending and mainly comprised street offences, dishonesty offences and minor possessions of drugs.  There were no entries in his criminal history from 6 November 2006 until he was dealt with in September 2015 for two obstruct police officer offences and a failure to appear in accordance with undertaking at the same time as he dealt with for traffic matters.  His traffic history was significant for numerous disqualified driving, speeding and driving under the influence offences.
12. [12]
    Mr Brown had been assessed by forensic psychiatrist, Dr Elnike Brand, on 12 June 2020 for his fitness for trial and her report was tendered at the sentencing.  At that stage Mr Brown was considering a not guilty plea.  Mr Brown reported that he had been diagnosed with adult attention deficit hyperactivity disorder (ADHD) in 2012 and prescribed dexamphetamine which he took as needed and not necessarily as prescribed.  Mr Brown informed Dr Brand that he could not remember anything directly prior to or during the subject offences.  He expressed his remorse for his actions.  He did report a substantial dispute in the facts.  (Dr Brand had been provided with a copy of the indictment and the summary of the offences prepared by the Queensland Police Service.)  Dr Brand was of the opinion that Mr Brown was fit to stand trial at the time of assessment and could not be assessed for being of unsound mind at the time of the offending given his dispute of the facts.
13. [13]
    Mr Brown was assessed by psychologist, Dr Luke Hatzipetrou, on 18 August and 5 September 2022 for the purpose of the report that was tendered at the sentencing.  Dr Hatzipetrou was given the draft statement of facts and the report of Dr Brand for the purpose of the assessment.
14. [14]
    Dr Hatzipetrou noted that Mr Brown had a prior history of alcohol and psychoactive drug use which included cannabis, amphetamines and MDMA.  The abuse of those substances was reported by Mr Brown to diminish in 2009.  Following mental health assessments and the subsequent diagnosis of ADHD, he was prescribed dexamphetamine.  He still engaged in subsequent binges of alcohol in response to relationship problems or the breakdown of relationships.  Mr Brown described intermittent, yet severe, abuse of dexamphetamine prior to the offending.  It appeared to Dr Hatzipetrou that Mr Brown had replaced illicit substances with dexamphetamine.
15. [15]
    Mr Brown confirmed to Dr Hatzipetrou his involvement in the subject offences but claimed to have incomplete memories of the offending.  Dr Hatzipetrou noted that Mr Brown “did not dispute the facts that are contained within the available materials”.  Mr Brown told Dr Hatzipetrou that he remembered volatile fumes emitted from the printer, there was no ventilation in the shed and he went outside to his vehicle.  He returned and “began sweating” and feeling “really hot” and could not recall subsequent events.  Mr Brown informed Dr Hatzipetrou that prior to his offending he had ingested dexamphetamine tablets but could not recall the quantity.
16. [16]
    Whilst in custody, Mr Brown had completed several courses at TAFE Queensland and the statements of attainment were tendered before the sentencing judge.

Sentencing remarks

17. [17]
    Apart from summarising the facts of the offending and Mr Brown’s prior criminal history, the sentencing remarks included the following.  The pleas of guilty were timely.  There was evidence of rehabilitation.  Mr Brown had obtained various certificates and qualifications in custody and completed various steps towards drug and alcohol rehabilitation.  It was a senseless and unprovoked attack with a weapon.  The victims were completely innocent and there was no resistance.  Deterrence and denunciation as well as retributive punishment were relevant factors.  The mitigating circumstances were Mr Brown’s plea, his efforts at rehabilitation, his remorse and that he had no criminal history which was particularly relevant.  Intoxication was taken into account in explaining Mr Brown’s behaviour and showing that it was out of character and when assessing his rehabilitation prospects.
18. [18]
    The sentencing judge explained how the sentences were arrived at in these terms:

“The Crown submits that a term of imprisonment of 12 to 13 years is appropriate. That would automatically attract a serious violent offence declaration. Various authorities have been cited to me by way of comparatives, which I have generally taken into account as a yardstick against which to measure the sentences I am about to impose. Like all comparatives, they are used just generally as a measure of comparison. It is not my function to reconcile the comparatives or reconcile the comparatives with your case.

It is difficult and neither of the barristers have been able to find a case which is really anywhere near close to the present case. Your experienced barrister … submits that a sentence of nine years ought to be the effective head sentence and he concedes that a serious violent offence declaration is inevitable. That is a significant concession because once that concession is made, and it becomes obvious that a serious violent offence declaration ought to be made, it means consistently with the authorities that all mitigating circumstances must be taken into account when setting the head sentence.”

Application for leave to adduce evidence

19. [19]
    Mr Brown did not swear an affidavit to support his application to adduce evidence that was outside the materials that were before the sentencing judge.  The prosecution brief of evidence was the source of the agreed statement of facts.  The prosecution brief of evidence includes a range of material gathered as part of the investigation not all of which was relied on by the prosecution for the purpose of the sentencing.  It is common for the statement of facts prepared for a sentencing hearing to be based primarily on a complainant’s evidence and not the assertions of the accused person.  The agreed statement of facts in this matter reflects the prosecution’s distillation of the material that was in the prosecution brief in respect of which Mr Brown’s legal representatives agreed on his behalf before the arraignment that it would form the factual basis for the sentencing before the sentencing judge.  This allowed the matter to proceed to sentencing on the counts to which Mr Brown pleaded guilty, rather than proceeding to trial on the counts on the indictment.  The agreed statement of facts does record some specific statements made by Mr Brown to the psychiatrist on 28 April 2018 and in telephone calls with his mother whilst in custody that accord with the explanation for his conduct that he sets out in his submissions on this application but those statements are expressly noted in the statement of facts as not forming part of the basis of the sentence.  It was apparent from Mr Brown’s oral submissions that he had signed the agreed statement of facts for his legal representatives.
20. [20]
    There is a statement in the agreed statement of facts that a blood sample from Mr Brown was not tested to confirm the suspected overdose of dexamphetamine.  The sentencing proceeded on the basis that he was intoxicated after taking dexamphetamine prior to the offending (which is what he had informed the psychiatrist on 28 April 2018 and what Dr Hatzipetrou recorded in his report).  Mr Brown referred to his medical records from the hospital to which he was admitted on 27 April 2018 that shows that blood samples were taken.  Mr Brown was unable to interpret those records in his submissions and the analyses referred to in the records were not fully comprehensible without any assistance in the interpretation of them.  In any case, as Mr Brown also ingested dexamphetamine tablets after the offending, there was no point in testing his blood for the presence of dexamphetamine.  The medical records that Mr Brown seeks to adduce therefore do not controvert the agreed statement of facts.
21. [21]
    All the evidence on which Mr Brown is seeking to rely as additional material was known to him or available to him or his legal representatives at the time of his sentencing.  It is therefore categorised as “new” evidence rather than “fresh” evidence and the Court will only admit further evidence on a sentence leave application, if it is necessary to avoid a miscarriage of justice: R v Maniadis [1997] 1 Qd R 593 at 596‑597 (per Davies JA and Helman J with whom Fitzgerald P agreed) which was discussed in R v Hughes [2004] 1 Qd R 541 at [14]-[15] (per McMurdo J with whom McPherson JA and Holmes J agreed).  As McMurdo J noted in Hughes at [15], finality of litigation is an important reason for limiting the cases in which further evidence is adduced on a sentence leave application and a sentencing hearing is not a rehearsal for another sentence hearing in this Court.
22. [22]
    Mr Brown has failed to show that a miscarriage of justice arises in this matter from the agreed statement of facts as to the circumstances of the offending being based primarily on the complainants’ evidence.
23. [23]
    The application to adduce additional evidence must be refused.

Did the serious violent offence declarations make the sentences manifestly excessive?

24. [24]
    Mr Brown’s submissions that the serious violent offence declarations made the sentences for the two counts of malicious act with intent excessive depended on his succeeding in adducing the additional evidence.  On the material that was before the sentencing judge, it cannot otherwise be shown that the exercise of the discretion to declare the convictions on the malicious act with intent counts to be convictions for serious violent offences was unreasonable or plainly unjust.
25. [25]
    The principles that apply to the exercise of the discretion to make a serious violent offence declaration are set out in R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80 at [45]-[48].  The Court then stated at [53] (with the reference to sentencing for sexual offending in relation to children which was relevant in Free omitted):

“Where a case calls for consideration of whether to exercise the discretion to make a serious violent offence declaration, as part of the integrated process, what the sentencing court is required to do is consider all relevant circumstances … to determine whether there are circumstances which aggravate the offence in a way which suggests that the protection of the public, or adequate punishment, requires the offender to serve 80 per cent of the head sentence before being able to apply for parole.”

28. [26]
    All the mitigating features in Mr Brown’s favour were factored into the reduction of the effective head sentence for the malicious act with intent offence committed against the male complainant to imprisonment for nine years.  It was for the sentencing judge as part of the integrated sentencing process to decide whether or not all the circumstances in which the malicious act with intent offences were committed by Mr Brown required him to serve 80 per cent of the sentence before becoming eligible for parole.
29. [27]
    The sentencing judge had identified in the sentencing remarks the aggravating features of the malicious act with intent offences that were also relevant to the exercise of the discretion to make serious violent offence declarations.  These were that the “completely innocent” complainants were injured in a “senseless and unprovoked attack with a weapon”.  Mr Brown was a mature man who used a Stanley knife to attack the male complainant with whom he was negotiating to purchase a printer for no apparent reason and with whom he otherwise had no pre-existing relationship or acrimony.  Even though the attack was not premeditated, the randomness of the use of violence by Mr Brown that resulted in the life-threatening injury to the male complainant was most relevant in considering whether the serious violent offence declaration should be made as part of the sentence to ensure that Mr Brown was adequately punished for his offending.  In the case of the female complainant, not only was there the randomness of the attack on someone who was a bystander, her age aggravated the offending.  It cannot be said that it was not open to the sentencing judge to make the serious violent offence declarations when two malicious acts with intent offences were committed in the one episode of offending.
30. [28]
    Mr Brown does not succeed on his sentence leave application.

Orders

29. [29]
    It follows that the orders which should be made are:

1. Application to adduce additional evidence refused.
2. Application for leave to appeal against sentence refused.