R v McPherson [2024] QCA 41 (26 March 2024)

Last Updated: 26 March 2024

SUPREME COURT OF QUEENSLAND

CITATION:	R v McPherson [2024] QCA 41
PARTIES:	R v McPHERSON, Ethan Maurice (applicant)
FILE NO/S:	CA No 66 of 2023 SC No 333 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 4 April 2023 (Applegarth J)
DELIVERED ON:	26 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2024
JUDGES:	Mullins P, Fraser AJA and Kelly J
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawful striking causing death and two other offences – where the applicant was sentenced to imprisonment for eight years and six months for the unlawful striking causing death offence – where the applicant was ordered to serve 80 per cent of the term of imprisonment in accordance with s 314A(5) of the Criminal Code (Qld) – where the applicant was on probation and parole at the time of the offending – where the applicant was remanded in custody on the date of the offences and served the sentence of 18 months on which he had been on parole when he offended – where the sentencing judge took into consideration the applicant’s youth, early guilty plea, remorse and that imprisonment was harsher for him as a result of the brain injury he suffered in custody – where the pre-sentence custody declaration commenced on the date of the offences and covered the period in which he served the sentence of 18 months – whether the sentence was manifestly excessive Criminal Code (Qld), s 314A R v Renata; Ex parte Attorney-General (Qld) [2018] QCA 356, considered R v Hearn (unreported, Applegarth J, SC No 1953/2017, 9 July 2019), considered
COUNSEL:	The applicant appeared on his own behalf S L Dennis for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

• [1] THE COURT: Mr McPherson pleaded guilty on 4 April 2023 to unlawful striking causing death (count 1), assault occasioning bodily harm, while armed, in company (count 2) and unlawful possession of a category H weapon, used to commit an indictable offence (count 3). On that date he was sentenced to imprisonment for eight years and six months for count 1 and two years for each of counts 2 and 3. (A minimum penalty of 18 months’ imprisonment applied to count 3.) All sentences were concurrent. A declaration was made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that 1,263 days spent in pre-sentence custody between 19 October 2019 and 3 April 2023 be deemed time already served under the sentences. In accordance with s 314A(5) of the Criminal Code (Qld), it was ordered in relation to count 1, that Mr McPherson not be released from imprisonment until he had served 80 per cent of the term of imprisonment of eight years and six months and that the date that he be eligible for parole be fixed at 29 July 2026.
• [2] Mr McPherson was represented by counsel and solicitors at the sentencing hearing. He appears for himself for this application for leave to appeal. He applies for leave to appeal on the ground that the sentence was manifestly excessive.

Circumstances of the offending

• [3] The sentencing proceeded on an agreed statement of facts. The victim of count 1 will be referred to as the deceased. The deceased’s daughter (the daughter) had been in a relationship with an old school friend (the friend) of Mr McPherson since March 2019. The daughter and the friend had a verbal argument in around August or September 2019 when the friend took property belonging to the daughter and drove away from her home. The daughter called her father who confronted the friend about his behaviour. The friend gave the property back and left. The deceased then confronted the friend whose vehicle was stopped on a nearby road and informed him that he had been told to leave. The deceased had a baseball bat in his car. The sentencing proceeded on the basis that the friend had the impression (that was mistaken) that the deceased was threatening to use the baseball bat unless he left. Shortly after that incident, the daughter received a message from Mr McPherson which said “tell [the friend] to come here now and I will sort your dad out”.
• [4] On 19 October 2019 the deceased was celebrating his 49^th birthday at the family home. The friend and the daughter had argued about several matters that morning including his friendship with Mr McPherson. The daughter informed the friend that their relationship was over. The daughter and her housemate Ms Chau were at the family home for the birthday celebrations, when the daughter was messaged persistently by the friend that he wished to reconcile. At approximately 9.00 pm the daughter and Ms Chau returned home and the friend’s ute was parked in front of their home. The friend was in the house and they asked him to leave which he did and they locked the front door. Ms Chau then saw the friend in their yard and contacted the daughter’s parents. The deceased decided to go to the daughter’s home to help. The friend was outside the daughter’s bedroom window and she told him that her father was coming over and that he should leave. The daughter and Ms Chau heard noises on the roof, they went outside and saw that the friend was on the roof. The daughter called out that her father was coming over. The daughter and Ms Chau returned inside. They heard the ute leave and then return. It was common ground Mr McPherson was with the friend in the ute and had a bag with him that contained a gun.
• [5] The daughter’s ex-boyfriend (who was the complainant for count 2), the daughter’s brother and the deceased drove to the daughter’s home. The friend ran from the driveway and back to his ute which sped off with Mr McPherson in the front passenger seat. The ex-boyfriend who was driving the deceased’s vehicle chased the ute with both vehicles travelling at high speeds. The friend stopped the ute in a street in Springfield Lakes and the ex-boyfriend stopped the sedan in a position to ensure the ute could not be driven away. Mr McPherson got out of the ute when it first stopped. The ex-boyfriend and the deceased got out of the sedan. The ex-boyfriend went to the driver’s seat of the ute and punched the friend several times through the open window. Simultaneously with the confrontation between the ex-boyfriend and the friend, Mr McPherson moved towards the sedan showing that he was armed with a gun and raised the gun at the deceased. The deceased put his arms out and said “go on, shoot me”. Mr McPherson walked up to the deceased and forcefully struck him on the face with the butt of the gun, breaking his front teeth and causing him to drop immediately. The deceased hit the back of his head on the guttering. The deceased’s son went to his aid. The ex-boyfriend turned away from the ute and walked towards the deceased. The friend got out of the ute and struck the ex-boyfriend from behind to the back of his head with a lengthy hard object causing him to fall to the ground. Both the friend and Mr McPherson then hit and kicked the ex-boyfriend whilst he was on the ground. These actions against the ex-boyfriend constituted count 2. The assault on the ground lasted about 15 seconds before the friend and Mr McPherson ran back to the ute and drove off. It was accepted on the sentencing that Mr McPherson did not know at that time how badly injured the deceased was or realise the enormity of his actions. Mr McPherson was heard by several residents to say as he returned to the ute “next time it’ll be a bullet”. The deceased died at the scene.
• [6] Mr McPherson was arrested when he returned to his home. A sports bag was located that contained the shortened repeating bolt action rimfire rifle that was the subject of count 3.
• [7] The deceased had suffered blunt force trauma to the back of the head which caused occipital laceration, basal skull fractures, subarachnoid haemorrhages and contusions of the brain. The damage to the brain and skull was so severe that it was not survivable. He also suffered blunt force trauma to the face which caused facial fractures and chipping of multiple teeth.
• [8] As a result of the joint assault, the ex-boyfriend suffered significant pain to his right leg, head and stomach, grazes over his arms and a broken middle finger on his left hand. His general pain and other injuries were treated conservatively with analgesics.

Mr McPherson’s antecedents

• [9] Mr McPherson was 19 years old at the time of the offending. He had a very prejudicial upbringing. He was diagnosed with ADHD and ODD. He had behavioural problems at school. He developed friendships with people who broke the law that led him into drugs, alcohol abuse and petty crime. Mr McPherson had been convicted of two offences of robbery on 23 July 2019. The first offence (which was robbery in company) was committed a few days before his 18^th birthday and he was dealt with as an adult in the Childrens Court of Queensland when no conviction was recorded and he was placed on probation for two years. The second offence of robbery whilst pretending to be armed was committed on 27 October 2018 together with a related unlawful use of a motor vehicle. Mr McPherson was sentenced to imprisonment of 18 months and released on parole on the date of the sentence. That sentence took into account that he had six and one-half months of pre-sentence custody that was unable to be declared. The subject offending was committed whilst Mr McPherson was on parole and probation. His parole was suspended on his return to custody on his arrest for the subject offending and he served the balance of the sentence of 18 months in full.
• [10] Whilst held on remand, he was assaulted by three men on 23 August 2022 when he was stabbed several times and stomped on the head by his assailants. That attack was unrelated to Mr McPherson’s offence against the deceased. He suffered a traumatic brain injury. He underwent a craniotomy to save his life. He was in a coma for eight days and had post traumatic amnesia for about 21 days. He suffered a stroke during post-recovery. He suffered from blurry vision, head tics and a stutter and was unable to move around fully without assistance particularly on stairs.
• [11] Mr McPherson’s capacity in respect of the subject charges was assessed by clinical neuropsychologist Dr Heidi Zeeman over a period of four hours on 24 November 2022. At the same time, he underwent a cognitive examination inclusive of intellectual function, memory and learning and psychosocial and personality function. Dr Zeeman estimated that Mr McPherson’s function prior to his brain injury was within the average range. On testing, his verbal reasoning abilities were much better developed than his non-verbal reasoning abilities. His ability to sustain attention, concentrate and exert mental control was in the low average range, as was his ability in processing simple or routine visual material without making errors. Dr Zeeman concluded that the impairment in perceptual reasoning may represent a possible decline in ability compared to premorbid estimates. Dr Zeeman was of the opinion that Mr McPherson met the minimum standards for fitness for trial. Dr Zeeman concluded that Mr McPherson relevantly met the criteria for neurocognitive disorder due to traumatic brain injury (mild) and post-traumatic stress disorder (complex). Dr Zeeman concluded that causation of Mr McPherson’s specific pattern of cognitive deficits was speculative “but is likely reflective of his significant brain injury resulting in [right] fronto-temporal pathology and probable contribution of neurodevelopmental disorder pre-morbidly not inclusive of substance use”. At the date of assessment, Dr Zeeman considered that Mr McPherson remained in an acute rehabilitation phase of his recovery from a very severe traumatic brain injury and that he would continue to improve in his cognitive status over the following two years without any further neurological insult, event or illness.

Sentencing remarks

• [12] Apart from outlining the circumstances of the offending and Mr McPherson’s antecedents and summarising Dr Zeeman’s report, the sentencing remarks of the learned sentencing judge included the following.
• [13] It was accepted by the prosecution that Mr McPherson did not intend lethal harm. The deceased did what he did on the evening of the offending, because of an understandable desire to protect the daughter from the harassment engaged in by the friend. It was accepted that Mr McPherson did not know all that the friend said or did when he was out of Mr McPherson’s company but Mr McPherson’s presence that night provided some degree of implicit support for the friend.
• [14] The context of the unlawful striking was that Mr McPherson came to be in the situation at Springfield Lakes as a result of the pursuit and confrontation of the friend and Mr McPherson by the group that included the deceased which distinguished Mr McPherson’s case from one like R v Renata; Ex parte Attorney-General (Qld) [2018] QCA 356. Mr McPherson’s reaction was “completely disproportionate” when he and the deceased confronted each other on the footpath. Mr McPherson may have armed himself with the gun to frighten the deceased, but Mr McPherson did not hit the deceased in the face with the gun because the deceased was running at him or punching him. The deceased’s arms were outstretched. Mr McPherson’s actions were cowardly. The fact that Mr McPherson did not stay to render assistance might be explained in part by wanting to get away from the scene of the confrontation. Nevertheless, Mr McPherson must have known that the deceased was injured and he did not call for help.
• [15] The purpose of sentencing Mr McPherson was so that the court acting on behalf of the community denounced the violence he engaged in, deterred Mr McPherson and others from committing the same or a similar offence and to provide conditions that would aid Mr McPherson’s rehabilitation. It was necessary to take into account the objective seriousness of Mr McPherson’s offending and the devastating consequences for the victims, in addition to taking into account Mr McPherson’s personal circumstances and mitigating matters.
• [16] The assault Mr McPherson sustained in custody has resulted in Mr McPherson’s imprisonment being harsher because of the effects of the traumatic brain injury and that was a relevant matter in mitigation.
• [17] The victim impact statements given by the deceased’s widow and the daughter and that the deceased’s death had lifelong consequences for his family were noted. The letter of apology written by Mr McPherson and the remorse that was implicit and expressed in it were taken into account. The fact that Mr McPherson was nearly killed in custody had given him a realisation about the fragility of life and Mr McPherson’s family had noted that it had given Mr McPherson a greater insight into his own wrongdoing. The change of attitude in Mr McPherson that had resulted in his disassociating himself from criminal connections and studying hard towards a degree were noted. Mr McPherson’s early indication of a guilty plea was taken into account. Given the requirement fixed by s 314A of the Code for 80 per cent of the term of imprisonment for the offence of unlawful striking causing death to be served in custody, the only meaningful way to take into account the early guilty plea was in reduction of the head sentence.
• [18] Even though the sentencing judge accepted that Mr McPherson did not intend lethal harm, violence was not unexpected in the evolving circumstances in which Mr McPherson participated that evening.
• [19] After referring to the respective submissions made by the prosecution and on behalf of Mr McPherson, the sentencing judge analysed Renata where, on appeal, the sentence was increased to imprisonment of nine and one-half years. The sentencing judge considered that, even though the offender in Renata was older than Mr McPherson, the offender had a less serious history and overall there was a similar, though not identical, level of culpability. The sentencing judge referred to a sentence that his Honour had imposed in R v Hearn (unreported, Applegarth J, SC No 1953/2017, 9 July 2019) where a sentence of imprisonment of eight and one-half years was imposed on an offender who had a serious history and committed a serious single punch attack.
• [20] The sentencing judge selected a starting point of between 11 and one-half and 12 and one-half years and stated the guilty pleas would bring the sentence down to nine and one-half or 10 years. The fact that Mr McPherson’s imprisonment would be harsher than it would have been had he not sustained those life-threatening injuries in custody further reduced the head sentence for count 1 to imprisonment for eight and one-half years. Despite the fact that Mr McPherson’s pre-sentence custody overlapped with his serving out the sentence of 18 months that had been imposed on him in July 2019, the sentencing judge made a pre-sentence custody declaration in respect of the entire period that Mr McPherson had spent in pre-sentence custody from the date of the offence. The sentencing judge also noted that, even though the sentence imposed on count 1 had been increased to take account of the other offences (particularly count 2), that account also had regard to the fact that any sentence for counts 2 and 3 standing on its own would not attract a non-parole minimum of 80 per cent.

The applicant’s submissions

• [21] Mr McPherson’s primary submission on this application is that his case was more aligned with Hearn than Renata.
• [22] Mr McPherson’s written submissions raise some factual matters that were not included in the agreed statement of facts that was before the sentencing judge. There is no application to adduce further evidence. It was apparent from the hearing before the sentencing judge that the statement of facts truly was an agreed position between the prosecution and those representing Mr McPherson. This is not a case where Mr McPherson is asserting incompetence on the part of his lawyers. The additional factual matters asserted in Mr McPherson’s written submissions that were not before the sentencing judge will therefore not be considered.
• [23] Mr McPherson’s written submissions emphasise an aspect of the facts that was before the sentencing judge which was that Mr McPherson found himself in the wrong place at the wrong time as a result of being pursued in an aggressive chase by the deceased, his son and the ex-boyfriend and being cornered without having any way, or only a very restricted way, of fleeing without physical confrontation. This was, in fact, a matter emphasised by Mr McPherson’s counsel in the submissions at the sentencing hearing. It was a matter for the sentencing judge as to the weight to which he attached to this consideration. While the sentencing judge accepted that circumstance distinguished Mr McPherson’s position from a case like Renata, the sentencing judge found that circumstance was displaced by the evolving confrontation that then ensued, when the deceased left his vehicle and had his arms outstretched when he faced Mr McPherson immediately before Mr McPherson struck him in the face with the gun butt.
• [24] Mr McPherson submits that the sentence that should have been imposed was imprisonment of seven years and three months which would make allowance for his youth, relatively early plea of guilty and that he suffered a severe traumatic brain injury whilst imprisoned that makes his imprisonment more onerous than for others.

Was the sentence manifestly excessive?

• [25] The offender in Renata was 21 years old when he struck the 18 year old victim’s jaw once with a clenched fist and was positioned so that the victim would not have been able to see him. The offender was one of a group of four men who had been out drinking. The group included M who was acting aggressively and trying to engage in physical fights with random members of the public, including the victim and his friend. M punched the friend in the upper body. The victim and the friend tried to ignore M who punched the friend again. M walked towards the victim who began walking backwards to get away from M. That was when the offender struck the victim. The victim suffered a fatal brain injury that was most likely caused directly by the offender’s blow to his head and the victim fell unconscious to the ground. The offender and M left the victim on the ground and walked away. The offender admitted that the victim’s hands were by his sides when the offender struck him and that the victim had not provoked the offender in any way.
• [26] The offender in Renata had a prior history of minor criminal offending which indicated a tendency to engage in socially and legally unacceptable behaviour. The offender’s very early plea was regarded as indicative of remorse. In Renata, Gotterson JA (with whom Philippides JA and Henry J agreed) noted (at [41]-[42]) that the enactment of the new offence in s 314A of the Code to address the “coward-punch” homicide cases where there may have been difficulty in securing a conviction because of a lack of intent or the operation of defences such as accident. The increasing public consciousness of, and concern about, deaths caused by blows to the head or neck that resulted in the enactment of s 314A was referred to by Gotterson JA at [49] who also observed that consciousness and concern should be reflected in sentencing for s 314A sentences.
• [27] Gotterson JA considered (at [53]) that the circumstances in which the fatal blow was delivered in Renata were more egregious than those in the manslaughter cases of R v George; Ex parte Attorney-General (Qld) [2004] QCA 450 and R v Skondin [2015] QCA 138. Gotterson JA also observed (at [56]) that the offender’s powerful covert punch was considerably worse than the punch in R v Katia; Ex Parte Attorney-General (Qld) [2006] QCA 300. Gotterson JA therefore concluded (at [57]) that a sentence of the order of 11 to 12 years’ imprisonment was an appropriate starting point and, after making allowance for the offender’s youth, his plea of guilty and the fact that he had spent time in maximum security for assaults of corrective service officers for which he was wrongly charged, the sentence imposed on the offender was varied to imprisonment for nine years and six months.
• [28] In Hearn, the offender who was aged 38 years old threw a single punch which connected with the victim’s jaw. The victim was knocked unconscious, fell backwards and hit his head on the concrete pavement. He died from a traumatic brain injury. Some hostility existed between the offender and the victim over the offender’s former partner. Immediately before the punch, the victim said something to the offender which the offender thought included reference to a gun which caused the offender to react instantly and throw the fatal punch. The offender then berated the victim on the ground before departing. The offender had a prior criminal history that included offences of violence and was on parole when the offence was committed. There was a timely plea of guilty. The sentencing judge in Hearn considered that the offending in Renata was objectively more serious than in Hearn but the offender’s antecedents in Renata were less serious than those of the offender in Hearn. The offender in Hearn served the balance of 22 months of the sentence on which he was on parole when he committed the offence of unlawful striking. That period of 22 months could not be declared as pre-sentence custody but was taken into account in fixing the sentence, but recognising that it was served for two reasons, namely the original offending and as a result of the offender being returned to custody and held on remand for the unlawful striking. The sentence in Hearn would therefore have been higher but for giving some credit for the non-declarable pre-sentence custody.
• [29] The gravamen of the offence of unlawful striking causing death is a person died as a result of the offender unlawfully striking that victim to the head or neck. General and specific deterrence of the type of conduct that constitutes the offence is an important aspect of the sentencing for the offence. The sentencing remarks show that the sentencing judge carefully balanced this relevant consideration with all the other considerations relevant to the sentencing of Mr McPherson, including those that were in mitigation, namely his youth, early guilty plea, remorse and that imprisonment was harsher for him as a result of the brain injury he suffered in custody. It was an aggravating circumstance that Mr McPherson offended so soon after he had been dealt with for the robbery offences and was on both probation and parole when he committed the subject offences. The sentence imposed for count 1 also reflects the additional criminality for counts 2 and 3. The sentence imposed on Mr McPherson for count 1 is consistent with both Renata and Hearn.
• [30] Mr McPherson has failed to show that, in all the circumstances applying to him and his offending, the sentence imposed for the unlawful striking was “unreasonable or plainly unjust”.

Order

• [31] The order which should be made is: Application for leave to appeal refused.