Home | Databases | WorldLII | Search | Feedback Australian Indigenous Law Reporter

Editors --- "R v. Leonard - Case Summary" [1996] AUIndigLawRpr 92; (1996) 1(4) Australian Indigenous Law Reporter 626

R v. Leonard

22 April 1996, Sydney

Criminal Law - Conviction - Shoot at with intent to prevent lawful detention - Use of offensive weapon to hinder detention - Requisite intent - Aboriginal woman affected by alcohol - Sentencing principles

Grounds for Appeal

1. L was indicted on 2 counts of shooting at a person with intent to prevent lawful detention: s. 33 Crimes Act 1900 (NSW) (counts 1 & 3), and, in the alternative, 2 counts of using an offensive weapon to hinder detention: s. 33B, Crimes Act 1900 (NSW) (counts 2 & 4). At trial, a jury found L not guilty of count 1, but guilty of counts 2 & 3. On appeal, L argued that the convictions were unsafe and unsatisfactory. In relation to counts 2 & 3, it was submitted that there was a reasonable possibility that L did not intend to prevent lawful detention, and that she had no specific intent, or the intent was to prevent her own detention. In relation to count 3, it was submitted that there was a reasonable possibility that L did not shoot at M, but simply fired an intimidatory shot, without aiming at him.

2. It was also submitted that the firing of the shots by L was consistent with either a panic reaction, or a fear that L would be put in the police van with T, who had a long history of domestic violence against L.

3. L also appealed against the severity of the sentence.

Held:

1. The jury acted reasonably in rejecting the inference that L fired either the first or the second shot for the purpose of protecting herself from arrest and not for the purpose of preventing T from being placed in lawful detention. The appeal against conviction on count 2 (which relates to the first shot) was rejected. However, due to the confusion which followed the firing of the first shot, the jury ought to have had a reasonable doubt that L intended the second bullet to strike M. L did not have the requisite intent for the s. 33 offence, and thus a conviction for the lesser offence contained in s. 33B should be substituted.

2. L's extraction of S's gun was a 'deliberate and skilful procurement of the weapon' which was not consistent with a panic reaction. It was also not likely that L's actions were motivated by her fear of being in the van at the same time as T, as L had actively tried to prevent T from being put in the van, which, under the circumstances, would have been the most effective way to ensure her safety.

3. In view of the substituted conviction, the appeal against sentence was allowed and a new sentence was imposed consisting of a minimum term of 2 years and an additional term of 2 years. In resentencing, the court's task was to look at the total criminality of the two shootings, noting in particular that s. 33B offences are extremely serious: Hamilton (1993) 66 A Crim R 575 applied. The court took into account L's favourable subjective circumstances, but noted that disinhibition because of alcohol, emotional turmoil, or loyalty to one's ethnic group are not excuses for using a weapon in breach of s. 33B. The offences were all of the more serious because the weapon used was taken from a police officer while exercising his duty and because the use of the weapon put the life of another police officer at risk.

Allen J

On 4 December 1995 the appellant was indicted before Moore DCJ in Dubbo District Court on four counts. Counts 1 and 3 alleged that she shot at Constable McKillop with intention of preventing the lawful detention of Peter Turnbull. Counts 2 and 4 alleged that the appellant used a weapon with intent to prevent the lawful detention of Peter Turnbull. These were alternative counts to counts 1 and 3.

On 7 December 1995 the jury found the appellant not guilty of count 1 but guilty of counts 2 and 3. No verdict was required to be entered on count 4.

On 14 December 1995 his Honour imposed an effective sentence of seven years in relation to count 3, consisting of a minimum term of three years and an additional term of four years. The precise sentence passed was a minimum term of two years and 44 days, to reflect what his Honour understood to be 21 days of pre-sentence custody. His Honour directed that the sentence commence on 14 December 1995. A concurrent fixed term of two years was imposed on count 2.

The appellant appeals against conviction and seeks leave to appeal against the severity of the sentences imposed. The sole ground of appeal is that the conviction in each case was unsafe and unsatisfactory. In respect of each of the convictions under the second and third counts it was argued that the jury ought to have entertained reasonable doubt as to the guilt of the accused because it was a reasonable possibility on the evidence adduced that the appellant did not intend to prevent the lawful detention of Turnbull but that either she had no specific intent or the intent was to prevent her own detention.

As to the third count it was argued that the jury ought to have entertained reasonable doubt of the appellant's guilt, because it was a reasonable possibility, on the evidence adduced, that she did not shoot at Constable McKillop but simply fired an intimidatory shot, without aiming it at him.

I turn first to the question of whether the jury ought to have entertained reasonable doubt that the appellant's purpose in twice firing the weapon, which she had, was to prevent the lawful detention of Turnbull. It is necessary to refer briefly to the evidence.

The appellant, a young woman of Aboriginal descent had, for some years, been in a de facto relationship with Turnbull. There were three sons, one aged 5 and twins aged 3 issue of that relationship. There had been, however, a long pattern of violent domestic abuse by Turnbull of the appellant. The appellant, indeed, obtained an apprehended violence order against him. She moved to Dubbo to get away from him, but he managed to track down where she was living, with the children, in a house provided for Aboriginal women in need of accommodation in her circumstances. She was afraid of Turnbull for good reason.

On 16 September 1993 she arrived at her temporary home at Dubbo, in the evening, with her children to find that Turnbull, who was heavily intoxicated, had gained entrance to the house in her absence. A heated argument then continued for so long that neighbours complained to the police. Shortly before midnight Constables Stevenson and McKillop arrived at the house in a caged police van. The appellant was outside. She approached them and asked them to take her away. She, too, was markedly affected by liquor. She was in an emotional state and she repeated her request to the police that they take her away.

Police were able to get from her that there were children in the house. Accordingly they entered the house. As they moved towards it, the appellant complained that the police were leaving her. Their response was to invite her to come into the house together with them. She did so. Turnbull was found hiding in the house, in a wardrobe. While the appellant was being spoken to in the lounge room and there was discussion about taking her to a refuge, Turnbull slipped away and he tried to escape by going on to adjoining property. Constable McKillop pursued him, caught him and arrested him for trespass. He handcuffed him and was bringing him back, notwithstanding some resistance, towards the police van when Constable Stevenson went to his assistance.

The appellant, however, had come out of the house and before the Constables were able to get Turnbull into the van, through the cage door at the rear of the vehicle, she interposed herself between them and the door and she then sat in the doorway blocking the way. She asked why Turnbull had been arrested. She was told. Her response was to repeat the question. Constable McKillop asked her to move out of the way. She did not do so. Constable McKillop pulled her out of the way. The Constables, at the time, were having some trouble with Turnbull who was endeavouring to head-butt.

The appellant's reaction, on being pulled out the way, was to stand up, say 'You prick' and throw the contents of a bottle of beer over Constable McKillop. Constable McKillop took her by the shoulders and moved her away from the rear of the cage door of the van. She was struggling and at one stage took a swing at Constable McKillop with something in her left arm. This might have well have been the beer bottle, although the evidence did not establish that. Seeing Constable McKillop in difficulty, Constable Stevenson came to his aid and that prompted Turnbull, who had become free, to wander off again, although he was too drunk to make a quick getaway.

At this point Constable Stevenson took over the holding of the appellant and Constable McKillop started walking after Turnbull. Constable Stevenson told the appellant she was under arrest. Constable McKillop then again took hold of Turnbull. He had taken some three or four steps in order to do this. Constable Stevenson gave evidence putting the distance somewhat greater. He put it at four metres, or perhaps five.

No sooner had Constable McKillop seized Turnbull again than he heard a bang and saw a flash. He turned towards the direction which the flash had taken and took about two steps backwards. No sooner had he done that than he heard another bang and was struck by a bullet which grazed the left side of his head. The second shot was within two seconds of the first shot. There was then a third shot, albeit comparatively at a substantially later time.

All three shots were fired by the appellant who, after Constable Stevenson took over restraining her when Constable McKillop went after Turnbull, had managed, without him knowing it, to extract his police revolver.

The essence of the argument for the appellant was that this evidence was reasonably consistent with the firing of the first and second shots, the subject of the charges in the indictment, being a panic reaction not directed to accomplishing anything; and that it was consistent also with her intention being not to prevent Turnbull being detained in the police vehicle, but she being put in the police vehicle with Turnbull whom she feared might also be put there. In that respect it was urged that it was relevant that the evidence showed that when he took over the restraining of the appellant from Constable McKillop, Constable Stevenson had arrested her for assault.

Each of these suggested inferences is, with great respect to the earnestness with which they have been argued, far-fetched. It required considerable dexterity and control for the appellant to extract Constable Stevenson's pistol from its holster, whilst the two of them were struggling, without him even being aware of it. It was not as if there was some panic snatch of an available weapon. There was a deliberate and skilful procurement of the weapon. It is not a reasonable inference that she procured it without a specific purpose in mind.

As to the surmised possibility that her intention was to prevent herself being arrested lest she be placed in the police van with Turnbull, such an intention is at odds with the undisputed evidence that the appellant tried to prevent Turnbull being put into the van by police at the stage before she was arrested. There would have been, before she was arrested, no better way of ensuring that she was not in the presence of Turnbull, whom she wished to avoid, than have the police convey him off under arrest in the police van, leaving her alone with her children. Yet before her arrest she sought to resist them. It is fanciful to suppose that at that stage she was motivated by a desire not to be in the van with Turnbull.

It was not necessary for the Crown to establish why, before her arrest, she sought to prevent the police arresting Turnbull and putting him into the van - although it is readily understandable that, despite the history of violence of Turnbull towards her, she instinctively tried to protect a fellow Aborigine, one who had been her de facto husband for years, being taken away by police.

Further, the firearm was not discharged on either the first or second occasions in the direction of Constable Stevenson - even though it was Constable Stevenson who was detaining the appellant, not Constable McKillop. On each occasion the firearm was discharged in the direction, at least broadly, of Constable McKillop. That was firing it away from Constable Stevenson. At the time of the first shot, Constable McKillop had just seized Turnbull again.

The jury, in my view, acted wholly reasonably in rejecting the inference that the appellant fired the first or second shot for the purpose of the appellant protecting herself from arrest and not for the purpose of preventing Turnbull being placed into lawful detention.

It was argued for the appellant that what occurred was that, albeit initially the appellant was trying to prevent Turnbull being detained, her intention changed after she was arrested and that what then occurred was that she realised that Turnbull would be placed in the caged van and, knowing that she was arrested, she feared that she also would be placed in the caged van - and that she dearly wished to avoid.

The argument does not lack ingenuity but it is unreal. The revolver, I repeat, was not fired at Constable Stevenson, it was fired, broadly at least, in the direction of Constable McKillop; and he had hold of Turnbull, not Constable Stevenson. It makes sense that despite being arrested she would attempt to avoid Turnbull being lawfully detained and placed in the caged van. If he was able to escape then he would not be in the van with her despite the fact that she was under arrest.

I would dismiss the appeal against conviction on the second count.

I turn now to whether in respect of the third count the jury ought to have entertained reasonable doubt that when the appellant fired the second shot she intended that the bullet strike Constable McKillop. Whilst I am satisfied that it was entirely reasonable for the jury to have been satisfied beyond reasonable doubt that the appellant discharged the revolver on the second occasion with the intention of preventing the lawful detention of Turnbull, the jury ought to have entertained a reasonable doubt that she intended the bullet to strike Constable McKillop. Unless she had that intention, she did not shoot at him within the meaning of the offence charged in the third count and was guilty only of the lesser offence under s. 33B charged in the fourth count.

The firing of the second shot cannot be considered in isolation. It immediately followed the first shot. Both Constables agreed that the interval would have been no more than two seconds, possibly less. When the first shot was fired Constable McKillop had just seized hold of, again, Turnbull. The appellant's children were also somewhere close by, although precisely where the evidence does not show. If the first shot had been aimed at Constable McKillop, it obviously would have put at risk, in the circumstances, not only Constable McKillop but Turnbull and the appellant's own children, whom obviously she loved. That raises a doubt that she was firing at Constable McKillop. Further, the shot was fired in circumstances in which it would have been extremely difficult to aim with any accuracy. The undisputed evidence was that at the time Constable Stevenson had his hands under both the appellant's armpits and was dragging her in a semi-recumbent position towards the rear open door of the cage. She was resisting.

In that combination of circumstances the jury clearly acted correctly in not being satisfied that although the first shot was discharged deliberately to give Turnbull a chance to get away in the confused shock which followed, the shot was not aimed to hit him. It was entirely appropriate the jury acquitted the appellant on the first count but convicted her on the second.

It was argued by the Crown that nonetheless the jury acted reasonably in being satisfied beyond reasonable doubt that the second shot was deliberately aimed to hit Constable McKillop. Two distinguishing features were relied upon. The first was that the second shot did hit Constable McKillop, grazing his head. The second was that Constable Stevenson's evidence was that on the occasion of the second shot he saw that the revolver was pointed in the direction of Constable McKillop immediately before the shot was fired; whereas in respect of the first shot he did no more than infer that it had been pointed in Constable McKillop's direction because after the shot the resulting flash remained visible long enough for him to see that such was the direction.

In respect of the second shot the evidence raised considerations strongly suggesting that the fact that the bullet grazed Constable McKillop's head was an accidental occurrence in the confused melee and not the result of a deliberate shooting at him. In the two seconds or less which elapsed between the first and second shots, the ongoing struggle between Constable Stevenson and the appellant had become even more confused. Immediately upon realising the appellant had somehow got hold of his revolver and had discharged it, Constable Stevenson let go his grip under the appellant's shoulders and, in accordance with his police training, grabbed for the revolver with both hands, the left hand clamping over the cylinder of the revolver to prevent it revolving and the right hand coming up underneath to cover the trigger guard area. Constable Stevenson stated in his evidence that he believed that his clamping of the cylinder and the firing of the revolver occurred at the same time. Clearly it was all happening too quickly for there to be any precision as to the timing or sequence of events.

Constable Stevenson quite frankly said that it all happened so quickly that he was unable to be sure of the precise detail of what happened in the few seconds following the first shot.

In these circumstances the jury ought not to have been satisfied that the fact that the bullet struck Constable McKillop, as distinct from passing harmlessly, was an intended result, as distinct from an accidental result caused by Constable Stevenson's actions, which altered the direction in which the revolver otherwise would have been pointing when the second round fired.

Further, so brief was the time interval between the first and second shots that the circumstances which made it unlikely that the first shot would have been deliberately aimed at Constable McKillop remained almost as compelling. The firing of the first shot was a shocking event to all other than, no doubt, the appellant. It was wholly unexpected. The reaction of Constable McKillop was, on the evidence, the sort of reaction one would expect. He turned to face the direction from which the flash had come and in his own words 'started to walk, I suppose, a couple of steps backwards, wondering what was happening'. He had scarcely moved when the second shot was fired, from the position where he had been when the first shot was fired. The overwhelming likelihood is that Turnbull would not have moved much either. Neither would the children.

I propose that the appeal against conviction on the second count in the indictment be dismissed. In respect of the conviction on the third count in the indictment I propose that pursuant to s. 7(2) of the Criminal Appeal Act 1912 the conviction on that count be quashed and that there be substituted for the verdict found by the jury in respect of that count, a verdict of guilty of the offence charged in the fourth count of the indictment.

It would follow that the appellant would have to be re-sentenced pursuant to the substituted verdict.

I am of the opinion that leave to appeal against sentence should be allowed also in respect of the sentence imposed consequent upon the appellant's conviction on the second count charged in the indictment. What has to be considered is the total criminality of the two shootings, which were so closely linked both in time and in circumstances.

What are the appropriate sentences now to be imposed? I respectfully agree with what the Chief Justice said in Hamilton (1993) 66 A Crim R 575 at 581. The Chief Justice said:

'I should make it clear that offences against s. 33B, which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension, are regarded by the Court extremely seriously. It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task.'

The two offences under s. 33B committed by the appellant in the present case are extremely grave. The sentences to be passed must reflect the gravity of them; and give no cause for belief that disinhibition because of alcohol, emotional turmoil or loyalty to one's ethnic group are any excuse for using a weapon in breach of s. 33B - the more so where the weapon used is a potentially lethal weapon such as a police service revolver.

I note with concern that a psychiatric report tendered before the learned sentencing Judge and a further psychiatric report by the same psychiatrist put before this Court on the appeal, states, among other things, 'She was stunned when she was later charged by the police.' It is precisely that sort of reaction, that emotional turmoil and the like can excuse conduct such as this that the sentences imposed must firmly discourage. There is no section of the community with a licence to behave in that way.

In the present case the gravity is the more extreme because not only was a loaded weapon fired twice, but the weapon itself was taken from police lawfully carrying the weapon for the execution of their duty. The life of Constable McKillop clearly was put at risk and it was a great good fortune that he was not killed. All that the Constable was doing, was carrying out his duty to uphold the Queen's peace.

I come now to the application of the sentencing principles. The fundamental purpose of sentencing is the protection of the community. That is too often overlooked. An appropriate sentence must be passed notwithstanding favourable personal circumstances for the appellant. That does not mean that the favourable personal circumstances will not be taken into account and will not be sympathetically understood. But they do not give any licence to commit crime, let alone crime as serious as the crime in this case.

The appellant was born on 7 November 1968. She was aged 24 at the time she committed these crimes. She has a short record of convictions. Her record is not such as to be a material consideration in this case. There were powerful subjective considerations. These were carefully analysed by the learned sentencing judge and it suffices to repeat the substance of what he said. It was:

'She is an Aboriginal woman who was born into a family of six siblings with three brothers and two sisters. Her early years were spent on a mission near Bourke where there was the gravest of deprivation. They lived in a humpy with a dirt floor, there was no running water and their cooking was done over an open fire. After some years, when she was about seven, they moved into a house in Bourke where their facilities for simple living were vastly improved. Even with all the deprivations which she had throughout her early life she came -her family was a well adjusted one and she described her early years as being very happy. She had little schooling. She was fortunate enough, so the authorities thought, to select her to go to a boarding school in Sydney in order to improve Aboriginal education. She did not cope with this and the result of that was that she did not go back to any sort of school past Year 9 from the age of thirteen or so. She says that she reads and writes a bit. The only jobs which she has ever held have been as a kind of assistant teacher in a child minding centre ultimately assisting in the care of her own children.

It should be noted that despite all the deprivations of her formative years she remained free from drink, which has become a curse of so many of those in similar situations to hers. She met Peter Turnbull, who is also Aboriginal, in Bourke when he was twenty-one and she was sixteen. From its very earliest times their relationship had been constantly violent. She has always hoped that he might change and their frequent partings were constantly re-united on the stimulus of his promising to change but he never did. It was after the stress involved in the constant beatings which she received from him that she commenced to drink. She explained to Dr Wilcox when asked why she had remained in such an abusive relationship, that when she ran away on many occasions Turnbull would always come and find her and would apologise and say that he would not do it again. She loved him and believed that he would reciprocate but eventually she lost her love for him when he began hitting their older boy at the stage when that son Peter was five years old and the twin boys were younger. ... Over the years her sons frequently witnessed their father's violence towards her. She became concerned for her sons' safety and they having moved to Bathurst in the meantime she fled from Bathurst to Dubbo and obtained an apprehended violence order which had a three year currency. That order had expired just before the events of 17 September 1993. Not only was she concerned about the physical and emotional violence to which she had been subjected for so many years, but she was concerned about there being sexual assaults on her eldest son.

... The references which have been tendered before me indicate, despite the conviction I have mentioned -the adult convictions I have mentioned, that she is a person of good character, she is caring and honest, she is a devoted mother and her prime concern is the well-being of her children. She is also described as having a placid nature and in the seven months that she was closely observed by the support workers of the Dubbo Women's Housing Programme she never showed any signs of aggression or violence. Her love for her children was evident to those who know her and her children respond to her in an affectionate manner. The Dubbo Women's Housing Programme workers who have come to know her have expressed the view that she has been through a great deal of stress leading up to these events and that they believe that that contributed to her actions.'

The Court also had before it on this appeal material suggesting that she is progressing well towards rehabilitation and is being co-operative.

I take into account that any custodial sentence imposed upon her will bear the more heavily because she will be substantially separated from the children, whom she loves. It is a most powerful consideration. I accept it without reservation.

In my opinion the sentences which are appropriate but have the practical effect the appellant would serve a minimum term of two years' penal servitude commencing on 14 December 1995, when she was sentenced by Moore DCJ, together with an additional term of two years. In so determining I take into account that she had some 28 days of pre-sentence custody, as distinct from 21 days as Moore DCJ understood.

The orders which I propose are:

1. Appeal against conviction on the second count of the indictment be dismissed and the conviction affirmed.

2. On the third count of the indictment the verdict of guilty be quashed and in substitution therefore the appellant be adjudged guilty of the offence charged in the fourth count of the indictment and convicted accordingly and sentenced to penal servitude for two years commencing 14 December 1995 and expiring on 13 December 1997, the reason for varying the usual ratio between the minimum term and the additional term being for the purpose of the facilitation of the appellant's rehabilitation.

3. Leave be granted to the appellant to appeal against the sentence passed on the second count of the indictment, the sentence quashed and in lieu thereof the appellant be sentenced to a fixed term of penal servitude for two years to commence on 14 December 1995 and to expire on 13 December 1997 and to be served concurrently with the sentences imposed in respect of the fourth count.

4. Order that in respect of each sentence the time already served count.

5. The appellant will be eligible to be released on parole on 13 December 1997.

Gleeson CJ:

I agree.

James J:

I also agree.

Gleeson CJ:

The orders of the Court will be as proposed by Allen J.

See 3(85) Aboriginal Law Bulletin 27.