R v Thompson[2024] QCA 233

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  In the early hours of the morning on 14 October 2019, the applicant, who was armed with a loaded sawn off shotgun and with four other men, broke into a home.  A man called M, his 13 year old daughter and a housemate were there, and each was confronted by one of the offenders.  The applicant became involved in a struggle with M, as a result of which the shotgun discharged, causing fatal injuries to M.  The Crown considered it could not contradict that the firearm discharged unintentionally and so accepted the applicant’s plea of guilty to manslaughter in satisfaction of the charge of murder brought against him.  On 31 May 2023, the applicant was sentenced to 10 years’ imprisonment for the unlawful killing of M.  Lesser concurrent terms of imprisonment were imposed on the applicant for other offences, connected with the incident.  The applicant applies for an extension of time within which to make an application for leave to appeal against the sentence, on the grounds of specific and inferred error.  For the following reasons, since there is no merit to the proposed application, I would refuse the application to extend time.
2. [2]
   This was a serious example of an unintentional unlawful killing.  M and the applicant were both drug dealers – M was one of the applicant’s customers, but also used and sold drugs himself.  In the afternoon of Friday, 11 October 2019, the applicant went to M’s home to collect a debt owed to him.  As there were other people present, including M’s daughter and two of her friends, the applicant and M went into a bedroom.  They could be heard yelling.  When the door was opened, M was seen holding a pair of scissors and the applicant was holding a double-barrelled shotgun.  The applicant was apparently known to carry a shortened double-barrelled shotgun which was always loaded.  With some difficulty, the applicant eventually left.
3. [3]
   The next day, Saturday, 12 October 2019, the applicant went to a BCF store with three others (two of whom were later co-offenders) and bought a number of things, including black scarfs and other items of clothing.  He told one of the people he was with that “he was on a mission to get somebody”.  The agreed facts included that “[h]e did not name who but was planning on doing a home invasion style offence to teach them a lesson for treating him like a goose”.  The applicant and his associates then went to another address, where alcohol and drugs were consumed.  The applicant told that same person that he was “so angry and going to someone’s house to teach them a lesson”.
4. [4]
   The next morning, Sunday, 13 October 2019, some of this group of people were still together.  The applicant told one of them “that he ‘had gone to some guy’s house… a few nights ago to go get money and had an altercation.  He said that the guy there held a knife to his throat and refused to pay him.  [He] said that he wanted to go get his money from this guy, but that there would be heaps of people at the address’.  [He] said that he was going to go there and ‘take all his shit’, a reference to money and drugs.”  After that, the applicant and three of his co-offenders went to a shopping centre.  They purchased various things, including cable ties and Halloween-style masks.  The group later changed cars – from the applicant’s silver rental car which they had been driving, to a black Navara which one of the co-accused had effectively stolen.  A bag was put into the black Navara which contained the masks as well as two machetes.  Later that night, two of the co-accused stole registration plates from a car dealership and put them on the black Navara.
5. [5]
   At about 5.30 am on Monday, 14 October 2019, the applicant drove the group to M’s home.  On the way there, the applicant gave the others gloves and the masks, telling them to put them on.  He also gave the group instructions about what to do when they got to M’s house.  When they arrived, the applicant and three of the co-offenders got out of the car.  Each of them was armed, with either a machete, hammer or baseball bat; the applicant with the shotgun.  The fourth man stayed in the car with the engine running.
6. [6]
   The applicant kicked the door of M’s house open, and all four offenders went in.  M’s 13 year old daughter was there – she was accosted in her bedroom by one of them, and had to endure hearing the altercation with her father, including the gunshot and sounds of her father screaming in pain, as well as see him lying in a pool of blood.  M’s flatmate was in the shower when confronted, and assaulted, by another of the offenders.  As already mentioned, the applicant himself became involved in a struggle with M and, ultimately, killed him with a shotgun wound to the thigh.  Various items were stolen from the house.  All four offenders ran from the house and took off in the black Navara.  They returned to the place where the applicant’s silver car was parked.  The applicant told one of the co-offenders to burn the black Navara and gave him a jerry-can filled with fuel.  Having been so directed, the co-offender, T, poured petrol throughout the inside of the car, and used a lighter to ignite it.  The car was engulfed in flames and destroyed.
7. [7]
   As a result of those events, the applicant was charged, with his four co-offenders, with the murder of M (count 1); stealing (count 3); burglary by breaking, with violence, while armed, in company, with property damage (count 4); assault occasioning bodily harm while armed, in company (count 5); and arson (count 7).^[1]
8. [8]
   As already mentioned, the Crown accepted the applicant’s plea of guilty to manslaughter in satisfaction of count 1.  The applicant was sentenced to 10 years’ imprisonment for manslaughter, and lesser concurrent terms on the other offences.  An automatic declaration that the conviction of count 1 was a conviction of a serious violent offence followed, by operation of s 161A(a) of the Penalties and Sentences Act 1992 (Qld).
9. [9]
   If given an extension of time to do so, the applicant would apply for leave to appeal against the sentence of 10 years’ imprisonment, on the grounds that:

   1. Ground 1 – The learned sentencing judge erred in imposing a sentence of 10 years’ imprisonment on the manslaughter charge which reflected all the offending, rather than imposing a lower sentence for manslaughter and a separate cumulative sentence on the charge of arson.
   2. Ground 2 – The sentence imposed was manifestly excessive.

The sentencing judge did not make any error

10. [10]
    It is apparent from the sentencing remarks, and made even clearer having regard to the transcript of the sentencing hearing, that the learned sentencing judge did not impose an inflated penalty on count 1 (manslaughter) taking into account the criminality of all of the offending (what is known as the Nagy approach).  On the contrary, his Honour imposed the penalty that he considered was appropriate for  the manslaughter.  Because that penalty, being 10 years’ imprisonment, carried with it an automatic declaration of conviction of a serious violent offence, and, consequently, the requirement to serve 80% before being eligible for parole,^[2] the sentencing judge took the decidedly generous approach of not imposing any additional (that is, cumulative) penalty for any of the other offences.  His Honour could readily have done so, in relation to the arson in particular.
11. [11]
    The rationale behind the applicant’s argument is that the offence of arson is not listed in schedule 1 to the Penalties and Sentences Act.  Accordingly, if a cumulative penalty had been imposed for that offence, the “80% rule” would not apply to that portion of the sentence.  He seeks to argue that the sentencing judge ought to have imposed nine years and six months’ imprisonment on the manslaughter, plus a cumulative term of up to two years’ imprisonment for the arson.  If that approach had been adopted, there would be no automatic declaration of count 1 as a serious violent offence, and he could have been eligible for parole at the halfway point of the sentence.^[3]
12. [12]
    It is clear from the transcript of the sentencing hearing that the sentencing judge was alive to the practical effect of the provisions just alluded to.  It was because of the operation of the “serious violent offence” provisions, and the fact that some of the offences were not listed in schedule 1, that his Honour considered it preferable to “focus on the manslaughter offence and determine … what is the appropriate sentence for that offence”, rather than impose an increased sentence on the manslaughter charge that reflected the totality of the offending.  It is also clear his Honour did not consider nine and a half years’ imprisonment for the manslaughter to be adequate.
13. [13]
    In the course of the sentencing remarks, the sentencing judge observed that:

“The appropriate sentencing range for the offence of manslaughter will often depend upon the circumstances of the particular offence. Some unlawful killings are the result of accident or inattention; however, I consider the circumstances of this killing to be more serious. [M’s] death was caused by the use of a loaded weapon that was taken into a house in a break and enter in the early hours of the morning.

I have noted that the Crown acknowledges that it cannot be excluded that the shotgun discharged in the course of a struggle between you and [M] rather than having been deliberately and intentionally fired by you. It was submitted on your behalf that the discharge of the shotgun was unintentional and unplanned, and that is the basis upon which I have proceeded in determining the appropriate head sentence for the offence of manslaughter.”

14. [14]
    His Honour referred to the significant impact on M’s daughter, as well as his sister, of the loss of M through an act of senseless violence, and said to the applicant:

“While that violence may not have been planned or intended, it was a foreseeable consequence of your home invasion plan and your conduct in taking a loaded shotgun with you when you executed that plan and confronted [M] with that shotgun.”

15. [15]
    His Honour then said:

“I accept the Crown’s submission that the principles of punishment, denunciation and deterrence are paramount in the exercise of the sentencing discretion in the circumstances of this case. I accept that you were the instigator and primary mover in bringing the home invasion plan to fruition. You were the only offender who had a reason to break into [M’s] home and take property. You were aware that there were other people in the home with [M]. That fact did not deter you but instead led you to recruit your co-offenders and to execute the plan in the early hours of the morning when the occupants of the house were likely to be sleeping and therefore vulnerable.

Your group was armed with weapons capable of inflicting serious harm. You were armed with a loaded shotgun. I accept the Crown’s submission relying upon the statement in R v Lacey; ex parte Attorney-General [2009] QCA 74 at paragraph 202, that the unlawful possession and use of firearms is not tolerated by society and that offences committed with such weapons should result in exemplary punishment. That is particularly the case where, as a consequence of the offending, a human life was needlessly lost.”

16. [16]
    Reference was then made to the sentence of eight and a half years which was imposed on one of the applicant’s co-offenders, Cunningham, whose “involvement in the offending was appreciably lower” than the applicant’s.  Cunningham was involved in some of the preparatory steps (being present when the clothing, masks and zip ties were purchased), entered the house with the applicant and two other co-offenders whilst armed, and was personally involved in stealing the number plates.^[4]  The sentencing judge accepted the Crown’s submission that the applicant’s criminal history, including numerous and serious offences of violence and possession of weapons; his role in instigating, planning and directing his co-offenders in the execution of his home invasion plan; his conduct in bringing the loaded shotgun; and his involvement in the act which caused M’s death, meant that the circumstances of the applicant’s offending were “at an order of seriousness beyond that of Mr Cunningham” and that consequently the applicant was “deserving of a punishment appreciably higher than the sentence imposed on Mr Cunningham”.
17. [17]
    The sentencing judge considered the authority of R v Geissler [2019] QCA 63, in which a sentence of 12 years’ imprisonment was imposed for manslaughter, provided the most assistance in determining the appropriate penalty.  It was noted, however, that there were two important distinguishing factors.  First, that Mr Geissler was sentenced after a trial and, second, that Mr Geissler was sentenced on the basis that the act which caused death (thrusting a sword through a door) was a deliberate act, albeit one which was not intended to kill or cause grievous bodily harm.
18. [18]
    His Honour then went on to say:

“On your behalf, it was submitted that I should impose a sentence of nine years and six months on the manslaughter offence, bearing in mind the distorting effect that the serious violent offence regime may have to the imposition of a just sentence. It was submitted that a just sentence would involve the imposition of a further cumulative sentence for the arson offence of two years, in circumstances where arson is not an offence which would engage the SVO regime and that there be no early parole eligibility date.

The factors relied upon in support of those submissions was the effect of your guilty plea, the effect of your difficult upbringing, albeit recognising that you can no longer be considered a youthful offender^[5] and the mitigating effect of those matters reduces over time, the contextual features of the offending, including your prior relationship with [M] and, more importantly, the unplanned and unintentional use of the shotgun.

Notwithstanding the effect of the SVO provisions, I am unable to accept those submissions. In my view, to take that course would overlook the likelihood of such events occurring in the execution of your plan and would diminish your moral culpability for [M’s] death to too great an extent, particularly when compared with the sentence of eight and a-half years imposed on Mr Cunningham.

Notwithstanding the differences I have already mentioned with the facts in Geissler, I consider that there are sufficient similarities between the offending in that case and your offending, that the observation of the sentencing Judge in that case, referred to in paragraph 8 of the appeal decision and endorsed by the Court of Appeal in paragraph 16, also applies to the circumstances of this case. That observation was that:

‘…because of the need for general deterrence, most weight should be given to the fact that the manslaughter was committed in the course of carrying out an armed robbery home invasion using the very weapon [you] had taken to carry out that invasion.’

That makes this an especially serious example of the offence of manslaughter, which requires a deterrent sentence. I have moderated the head sentence I will impose on the manslaughter charge to take account of the differences with Geissler, but those differences should not, in my view, result in moderation of the sentence for manslaughter to the extent sought in your counsel’s submissions.”

19. [19]
    It is clear, from the sentencing remarks, that the sentencing judge deliberately imposed the penalty he considered was appropriate for the manslaughter offence.  His Honour was cognisant of the effect of the “serious violent offence” provisions, did not adopt the approach of increasing the penalty for the manslaughter to take account of all the offending and expressly rejected the applicant’s submission on penalty – which he would repeat in this Court, if given leave to appeal his sentence.  No error of the kind contended by proposed ground 1 was made.

The sentence was not manifestly excessive

20. [20]
    The sentence of 10 years’ imprisonment imposed on the applicant for the manslaughter charge cannot be described as unjust or unfair.  The sentencing judge appropriately described this case as an “especially serious example of the offence of manslaughter”.
21. [21]
    The comparison with Geissler was apt.  That case involved Geissler and two others going to the home of the victim who was believed to be a drug dealer who would have money.  They were armed; Geissler with a samurai sword.  An altercation ensued with the occupants of the home trying to prevent the offenders getting in.  Geissler thrust the sword through the closed door at chest height, killing the victim who was on the other side of the door, leaning against it to hold it closed.  It was noted in Geissler that, in contrast to earlier cases, he did not use a firearm and he was not face to face with his victim.  But the offence was regarded as equally serious because of the combination of factors: “in company with two armed co-offenders, all three offenders being disguised, the applicant took a sword to an innocent man’s home and deliberately used it in an extremely dangerous way in the course of carrying out a violent home invasion for the purposes of a robbery” (at [15]).  It was noted by the sentencing judge in Geissler, whose observations were approved by the Court of Appeal (at [15]-[16]), that there was “a very obvious possibility” that there was someone behind the door, and there was an “inevitable risk” arising from the act of going to rob the home armed with such a weapon (at [6]-[7]).
22. [22]
    In the present case, it was accepted that the discharge of the shotgun was unintentional and unplanned.  But the applicant was face to face with his victim, engaged in a physical altercation, whilst holding a loaded shotgun – which the applicant took with him, to break into M’s home, in company with three armed co-offenders, wearing disguises, in the early hours of the morning, to rob him.  That the loaded shotgun could discharge and seriously injure, or kill, someone was “a very obvious possibility” and an “inevitable risk”.  That the weapon in this case was not deliberately discharged, whereas the sword in Geissler was deliberately thrust into the closed door, is, in the circumstances, a fairly slight distinguishing factor:  if it had been, whilst the applicant was face to face with M, one might expect his offer to plead guilty to manslaughter would not have been accepted by the Crown.  The applicant’s apparently greater role – in contrast with Geissler – in instigating, planning and directing the offending, and the aftermath, is also relevant to this comparison.
23. [23]
    However, the fact that Geissler was convicted after a trial, whereas the applicant pleaded guilty – albeit at a fairly late stage – did warrant the imposition of a lower penalty in this case.  There was no other way to reflect that plea.
24. [24]
    The distinguishing features between the present case, and Geissler, were appropriately recognised by the imposition of a sentence of 10 years’ imprisonment.  His Honour was correct to conclude that a sentence of less than 10 years’ imprisonment for the manslaughter offence in this case would not have been adequate.  Far from being excessive, the structure of the sentences imposed on all counts – being concurrent, rather than involving any cumulative term – was generous to the applicant.
25. [25]
    As there is no merit in either ground, the application for an extension of time within which to apply for leave to appeal against the sentence should be refused.

26. [26]
    BODDICE JA:  I agree with Bowskill CJ.
27. [27]
    DOYLE AJA:  I agree with Bowskill CJ.