R v MDU

The applicant was convicted of attempted murder. He was sentenced to imprisonment for nine years. Parole eligibility was fixed at 6 March 2026. After pre-sentence custody was declared, this required him to serve a further four years prior to being eligible for parole. All members of the Court of Appeal agreed that the sentence imposed was not manifestly excessive and that leave to appeal against sentence should be refused. However, there was disagreement about whether the sentencing judge had erred when resolving a factual controversy, the resolution of which determined whether the applicant should have had the benefit of a reduction in the greatest punishment to which he was otherwise liable upon conviction pursuant to s 538 Criminal Code. Justices Dalton and Davis concluded there was an error, but considered that it was inappropriate to resentence the applicant where their Honours would not impose any lesser sentence. Justice Morrison considered there was no error.

Morrison, Dalton JJA and Davis J

14 June 2024

Background

The applicant applied for leave to appeal against his sentence upon being convicted on his own plea of guilty of one count of attempted murder. [49]–[51]. The applicant was sentenced to imprisonment for nine years. [52]. No serious violent offence declaration was made. [52]. The date the applicant was eligible for parole was fixed as 6 March 2026. [52]. After pre-sentence custody had been declared the parole eligibility date fixed required the applicant to serve a further four years prior to being eligible for parole. [52]. There were three grounds of appeal relied on in support of his application, however, only two were pressed: first, the sentencing judge erroneously sentenced the applicant on the basis that s 538 Criminal Code did not reduce the greatest punishment to which the defendant was otherwise liable upon conviction; and second, that the sentence was in all the circumstances manifestly excessive. [53]–[54]. Section 538 Criminal Code relevantly 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”. [56].

Whether s 538 Criminal Code applied in the circumstances of this case

The sentencing judge had been asked to resolve a factual controversy, the resolution of which, determined whether s 538 Criminal Code applied in the circumstances of this case. [57]. The factual controversy was identified as being “whether the desisting, that is, the stopping, of the choking occurred before or after [the applicant] had formed the view that [the complainant] had perished”. [57]. It was common ground that the sentencing judge had correctly identified the factual controversy arising from s 538 Criminal Code consistent with R v Witchard, Oakes and Barnett; ex parte Attorney-General (Qld) [2005] 1 Qd R 428 where it was held that a defendant who desisted after they had formed a belief that an attempt had been successful did not “desist” for the purpose of s 538 Criminal Code: see [33]–[35], [58], [73]. The sentencing judge found that, at the time the applicant desisted from the relevant course of conduct which was accepted to manifest an intention to kill the complainant, he had formed a belief that the complainant was dead (the “impugned finding”). [59].

The applicant sought to challenge the impugned finding, which premised the sentencing judge’s conclusion that s 538 Criminal Code had no application in the circumstances of this case. [77]. The respondent had submitted that there was no scope for the applicant to challenge the impugned finding on appeal and placed reliance on what had been said in R v Carrall [2018] QCA 355: see [14]. [77]. Justices Dalton and Davis rejected this submission and made a number of observations about R v Carrall [2018] QCA 355 and the nature of an appeal against sentence: see [79]–[91]. Their Honours concluded that the relevant threshold for appellate intervention in relation to a finding of fact in an appeal against sentence was that it “was not reasonably open on the evidence”. [79]–[81]. Justice Morrison disagreed with the observations made by Dalton JA and Davis J about what had been said in R v Carrall [2018] QCA 355 and considered that it was unnecessary to decide the matters relating to the nature of an appeal against sentence: see [41]–[46].

The impugned finding relied on two sources of evidence: the statement of agreed facts and an interview which occurred between the applicant and police. [75]. Justices Dalton and Davis considered there was no reasonable basis upon which the sentencing judge could have concluded that, at the time the applicant desisted the relevant course of conduct, he had formed a belief that the complainant was deceased: see [92]–[108]. The evidence supported a finding that, at the time the applicant desisted the relevant course of conduct, he had at the very most, formed a belief that the complainant was “close to death”. [108]. A later statement that the applicant thought he had killed her was to be understood in context with his earlier statement about the complainant being “close to death”. [108]. It followed that the sentencing judge was wrong to conclude that s 538 Criminal Code did not apply. [109]. Justice Morrison disagreed. In his Honour’s view, there was no error and the impugned finding reflected a fair reading of what the applicant had said in his interview with police. [18], [31].

Whether the sentence was in all the circumstances manifestly excessive

Justices Dalton and Davis observed that whilst the conclusion their Honours had reached in relation to the impugned finding and the application of s 538 Criminal Code would ordinarily provide a compelling reason to allow the appeal and resentence the applicant, in circumstances where their Honours would not interfere with the sentence imposed by the sentencing judge, the appropriate disposition was that the application for leave to appeal against sentence be refused. [110]. This was in circumstances where even if the applicant was resentenced with the benefit of a reduction in the greatest punishment to which he was otherwise liable upon conviction as a consequence of the application of s 538 Criminal Code, their Honours would not have imposed any lesser sentence than that which was imposed by the sentencing judge. [110]. When reasoning to this conclusion, their Honours considered that the sentence imposed by the sentencing judge was not in all the circumstances manifestly excessive. [114]–[135]. Justice Morrison agreed with the conclusion that the sentence was not manifestly excessive. [47].

Disposition

Leave to appeal against sentence was refused. [48], [136].

D Kerr