PARTIES:	THE QUEEN
V

JOHN WILLIAM LONGSHAW

TITLE OF COURT:		COURT OF CRIMINAL APPEAL (N.T.)

JURISDICTION:	APPEAL FROM SUPREME COURT

FILE NOS:	No. CA7 of 1992

DELIVERED:	Darwin, 24 September 1993

HEARING DATES:	13 September 1993

JUDGMENT OF:		Kearney, Thomas and Priestley JJ

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - particular offences - offences against the person - attempted murder - reduction of maximum punishment in certain circumstances - need to desist from subsisting intention to kill - purpose of provision
Criminal Code (NT), s279
The Republic v Camilleri (1982) 8 Commonwealth Law Bulletin 970, referred to
R v Thompson (unreported, Court of Criminal Appeal (Q'land), 30 May 1989), considered

CRIMINAL LAW AND PROCEDURE - particular offences - offences against the person - attempted murder - mental element required
Criminal. Code (NT), s165(a)
Knight v The Queen (1992) 109 ALR 225, referred to
R v Ancio (1984) 6 DLR (4th) 577, referred to
CRIMINAL LAW AND PROCEDURE - judgment and punishment - fixing of nonparole period - principles applicable
Power v The Queen (1974) 131 CLR 623, applied
R v Raggett (1990) 101 FLR 323, applied
Attorney-General v Morgan (1980) 7 A Crim R 146, applied
Bugmy v The Queen (1990) 169 CLR 525, applied

CRIMINAL LAW AND PROCEDURE - Crown appeal against sentence - principles applicable - order of approach to consideration of sentence
R v Anzac (1987) 50 NTR 6, applied
R v Mulholland (1991) 1 NTLR 1, distinguished
R v Williscroft [1975] VR 292, applied
R v Shrestha (1990-91) 173 CLR 48, applied

CRIMINAL LAW AND PROCEDURE - particular offences - offences against the person - grievous harm committed prior to desisting from attempted murder - law reform

Criminal Code (NT), s279 Crimes Act 1900 (NSW), s27

REPRESENTATION:
Counsel:
Appellant: Respondent:

Solicitors:
Appellant: Respondent:

Wild Q.C. and R.J. Wallace
R.J. Coates

Director of Public Prosecutions (NT) Legal Aid Commission (NT)

Judgment category classification:	CAT A Court Computer Code:

Judgment ID Number Number of pages:

kea93024.J 28

kea93024.J
IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

No. CA7 of 1992

BETWEEN: THE QUEEN
Appellant

AND:
JOHN WILLIAM LONGSHAW
Respondent

CORAM:	KEARNEY, THOMAS AND PRIESTLEY JJ
ORDERS OF THE COURT

The respondent's application for leave to appeal against sentence is dismissed.
The Crown's appeal against sentence is dismissed.

REASONS FOR JUDGMENT
(Delivered 24 September 1993)

KEARNEY J:
The facts of the case, the relevant statutory provisions and the issues raised on appeal are set out in the opinion of Priestley J.	I agree with his Honour's conclusions, but I should set out my reasons in my own words.	I turn first to the respondent's application for leave to appeal.

The policy of Code s279 is clearly to encourage an offender to abandon his criminal activity, by reducing his punishment if he voluntarily desists and thereby reduces the risk that the substantive crime will be committed.	Section
279 closely follows s538 of the Queensland Criminal Code, hitherto unique in the criminal law of Australia.	Similar provisions exist elsewhere; see, for example, s42(1)(b) of the Criminal Code of Malta, discussed in The Republic v Camilleri and Mizzi, Court of Criminal Appeal, Malta, briefly reported in (1982) 8 Commonwealth Law Bulletin 970-
1.

Mr Coates' submission that s279 applies so as to

destroy the whole basis of the sentence, turns upon whether on the admitted facts it was open to the learned sentencing Judge to have been affirmatively satisfied that the respondent "desisted of his own motion from the further prosecution of his intention."	It is clear that for s279 to apply there must be a subsisting "intention", from which the offender may desist.
What is the intention in the case of the crime constituted by s165(a)?	As the learned editor of Russell on Crime (12th ed., 1964) points out at pl75, in attempts "the criminality lies much more in the intention than in the acts done."	The Code requirement is an intent to kill; this accords with the common law - see Knight v The Queen (1992)
109 ALR 225.	It also accords with the requirement under the
corresponding provision of the Canadian Criminal Code; see R
v Ancio (1984) 6 DLR (4th) 577 at 594.

In this case the respondent struck a blow, intending to kill - "I was hoping it would kill him".	We do not in this case have to be concerned with the actus reus of attempted murder; what the respondent did fell within s4(1). When his victim fell, the respondent believed he was dead; that is to say, he believed that he had accomplished his
purpose - "I thought he was dead there and then."	In other
words he had done all that he believed was necessary to kill
- he believed he had "crossed the Rubicon and burned his boats", as Lord Diplock put it in DPP v Stonehouse [1978] AC
55 at 68.	To hold such a belief is inconsistent with any continuing intention to kill.	Accordingly, at that time, he had no subsisting intention to kill from which he might desist in terms of s279; or, at least, it would not be open to find that he had such a subsisting intention.	Then, as he said, "Jack came running over - - he's taken the bar off me."	The fact that when he realised that his victim·was not dead he did not then form a fresh intention to kill him, and make a fresh attempt to do so, does not attract the provisions of s279 to his already-completed attempt.	Had he not believed he had killed his victim, and had he voluntarily desisted from striking him again before he was disarmed by Jack, I consider - contrary to the Crown's submission - that s279 could have been relied on.		However, here he had no continuing intent to kill.	I would dismiss the respondent's application for leave to appeal.
I note in passing that s279, if applicable as outlined above, would have provided a maximum sentence

entirely inadequate in the circumstances to the respondent's criminality; to provide for situations such as that, where grievous harm is caused in the course of attempted murder by an offender who later voluntarily desists from his intention to kill, it may be desirable to introduce into the Code a provision akin to s27 of the Crimes Act 1900 (NSW).
I turn next to the Crown appeal against inadequacy of sentence.	Mr Wild's major submission was that the 5 year nonparole period was manifestly inadequate, when measured against what "justice requires that [the respondent] must serve having regard to all the circumstances of the offence", as the High Court put it in Power v The Queen (1974) 131 CLR 623 at 629.	However, he also attacked the head sentence on the same basis.	He also contended  that his Honour had made specific errors which vitiated his sentencing discretion in that he had failed to take properly into account the appalling consequences for the victim, his innocence and vulnerability, and the need for the sentence to be such as to protect society, to accord with the general moral sense of the community and to ensure that public confidence in the sentences of the Court is retained.
The approach by an appellate court to a crown appeal against inadequacy of sentence is spelled out in R v Anzac (1987) 50 NTR 6 at 11-12.	The sentence should stand
unless this Court is satisfied that it was clearly and obviously inadequate, amounting to a gross departure from the permissible sentencing range.

The learned sentencing Judge took all proper matters into account in structuring the sentence.	That difficult exercise involves an "instinctive synthesis" of relevant matters; see R v Williscroft [1975] VR 292 at 300.
on an appeal such as this, the question which must
first be addressed is the adequacy of the head sentence, independent of the nonparole period.	As Brennan and McHugh JJ pointed out in R v Shrestha (1990-91) 173 CLR 48
at 60, the nonparole period is simply part of the sentence; see also Hoare v The Queen (1989) 167 CLR 348 at 356.	If the head sentence is not inadequate then, and only then, can the nonparole period be examined to see if it is so inadequate as to require adjustment.
Mr Wild did not appear to approach the matter in
quite that wa.y; he stressed that the "major complaint" lay in the nonparole period, and that that should be the "starting point" for a resentencing, with the result that the head sentence would "have to go up as well", so as to ensure a "proper balance".	Some support for this approach is to be found in the opinion of Gallop J, with which
Asche CJ and Angel J agreed, in R v Mulholland (1991) 1 NTLR
1 at 9, viz:-
"In the circumstances, this Court is required to consider what sentence would represent an appropriate duly proportioned  and properly balanced sentence.	The starting point must be the minimum period which the prisoner must serve before being eligible for parole, which will be arrived at by taking into account the nature of thE! crime and its gravity in the scale of crimes of its type, the need to give close attention to the danger which the offender presents to the community, the prospects of the future progress of the offender and the danger he would present to

the community, and all the subjective factors, including his prospects of rehabilitation.	Having done that, it is then necessary to structure a proportioned and properly balanced sentence." (emphasis mine)
However, I think that approach was adopted in Mulholland because of the particular problems involved in the resentencing exercise necessary in that appeal, and was not intended to provide a rule of general application.	I turn first to the head sentence.
Unquestionably, this offence required the imposition of a heavy sentence; it is a serious example of a crime which carries a maximum punishment of life imprisonment.	In determining whether a head sentence was manifestly inadequate I accept that an appellate court is to some extent making "what is essentially a subjective judgment largely intuitively reached - - as to what punishment is appropriate"; see R v Williscroft (supra) at
300.	In doing so the Court is assisted by its knowledge of
sentences foz similar offences, but as Young CJ said in R v Taylor (1985) 18 A Crim R 14 at 47, whether or not a sentence is manifestly inadequate "is something that is not capable of sustained argument".	In my opinion the head sentence of 12 years imprisonment is at the lower end of the proper sentencing range proportionate to this particular offence and this offender, but lies within the proper exercise of his Honour's sentencing discretion.	The errors alleged of failing to take certain matters properly into account, are not made out.	I turn to the nonparole period.

6

The principles applicable when fixing a nonparole period are discussed in R v Raggett (1990) 101 FLR 323 at 331-2.	A sentencing judge should aim at a duly proportioned and properly balanced sentence, bearing in mind the purpose of the nonparole period as stated by the High Court in Power v The Queen (supra) at 629:-
"- - - to provide for the mitigation of the
punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the mir.imum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."
As Jenkinson J put it in Attorney-General v Morgan and Morgan (1980) 7 A Crim. R 146 at 154, the nonparole period -
1-1	-	is the period before the expiration of which
release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify."
The observations of Mason CJ and McHugh Jin	Bugmy v The Queen (1990) 169 CLR 525 at 531-3 need also to be borne in mind:-
"- - -	although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v Morgan and Morgan (1980) 7 A. Crim. R. 146.	In that case
Jenkinson J., with whom Kaye J. agreed, pointed out that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community "will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice".

Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence.	Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members.	Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak.
Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others.		But the nature of the offence does not assume the importance which it has when the head sentence is determined.	There, the sentence must be proportionate to the gravity of the offence Veen v The Queen [No.2} (1988) 164 CLR 465 at 477, whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole.	In one sense, that portion must itself bear a proportionate relation to the crime.	Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community.	Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.

In fixing a minimum term, a sentencing judge is bound to give close attention to the danger which the offender presents to the community.
Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community.	But that difficulty does not relieve the judge of his or her responsibility to take account of the need to protect the community.	Necessarily the judge will be influenced by an assessment of the material before the court as to the prisoner's prospects of rehabilitation.	If the judge's assessment of those prospects is that they are minimal or bleak, a minimum term should be fixed in the light of

that assessment, along with the other factors relevant to the fixing of the minimum term.

It is simply wrong to suggest that the propensity of the offender to commit violent-crimes, the likelihood of his re-offending and the need to protect the community are of marginal relevance in the fixing of the minimum term; in truth they are
-factors which are necessarily central to a proper discharge of the judicial task.	Equally, it is wrong to suggest that these factors are of distinctly less significance in the case of a long minimum term by reason of difficulty of making a forecast of future behaviour so long ahead.	Their relevance and significance remain the same; the weight that they have depends upon the judge's assessment of the prisoner's prospects of rehabilitation."	(emphasis mine)
See also R v Shrestha (supra) at pp67-70, per Deane, Dawson and Toohey JJ.	In the light of these factors, I turn to the learned sentencing Judge's remarks on sentence.
After setting out all relevant matters, his Honour concluded:-
"You've been assessed as suffering from post traumatic stress disorder reactive to your past sexual abuse.	I accept the psychiatric view that you have no psychosis.		I accept that you are not psychologically ill in a conventional sense, but that you may be described as having an antisocial personality disorder.		- - - You have aggressive tendencies, and whilst it may be appropriate for you to have major tranquillising medication to produce some stability of mind, you're not psychologically ill.	Medication in the long term is not indicated.	There is apparently no long term psychological intervention which is likely to be of assistance to you.		It is to be hoped that Doctor Walton's prediction that you will eventually undergo psychological maturation some ti e in your late twenties or early thirties is correct and that you will eventually adjust as best you can to normal society.
Your admitted prior convictions - - - don't disclose serious convictions for violence.	Your crime is a very serious one.	It was unprovoked, premeditated, vicious and cowardly.	Your victim was unsuspecting.	It involved the intentional

inflicting of extreme violence which was done with the intention of killing your victim. It resulted in horrific permanent medical consequences to your victim.

Your victim is permanently in the Royal Perth Rehabilitation Hospital.	He is severely incapacitated with quadriplegia.	He has severe dysphasia, with a vocal limit of but two or three words.	He is very unstable emotionally and has profound cognitive problems.	His injuries have caused severe permanent disability.	The enormity of this crime must necessarily outweigh the subjective factors.	The offence occurred on
14 April 1992.	At that time you'd only been released from the [Borallon] Correctional Institution Brisbane on 9 March 1992.

I sentence you to 12 years imprisonment and fix a nonparole period of 5 years.	That is to be backdated to when you first went into custody on
15 April 1992.	When the time comes, the Parole Board shall have to carefully consider terms of parole having particular regard to your past substance abuse, your unemployability, your dire need for assistance and counselling to come to terms with your quite shocking past.	I can only hope the prison authorities give you every assistance in the latter regard."
It can be seen from Bugmy (supra) that the perceived prospects of the rehabilitation of this violent offender, directly relevant to the need to protect the community, are important in fixing the length of his nonparole period.	His Honour did not expressly assess the respondent's prospects of rehabilitation.	Amongst the material before him was an assessment by a psychologist
Mr Franklin, who stated, inter alia:-

"Mr Longshaw's profile suggests a silent, retiring and brooding person who demonstrates an angry dissatisfaction with social convention, revolt against family and society and a reckless disregard for the consequences of his actions.
Mr Longshaw is likely to feel alienated, misunderstood and not part of the general social environment.	There is also an inordinate need for excitement and stimulation which will be converted into aggressive behaviour.	Overall the profile

suggests a basic schizoid configuration, highlighted by distrust, hostility, rejection and a strong tendency to lash out in anger and rebellion, an inability to relate and highly malevolent psychopathology."
In his conclusions, Mr Franklin stated:-

"- - - Mr Langshaw is suffering from an untreated case of post traumatic stress disorder as a result of the sexual abuse he received as a child.
Coupled with this is the effect of the heroin, LSD and alcohol.	It is possible that there is some degree of brain damage, since Mr Longshaw is unable to exercise normal inhibition and has episodes of uncontrollable anger.
His personality profile, which was analysed against a range of statistical procedures demonstrates a profound psychiatric condition.

In his current state, Mr Longshaw is likely to be unpredictably violent and requires psychiatric intervention, firstly to address the psychosis and secondly to address the post traumatic stress disorder.
He is likely to be a danger to others in his present state and will require appropriate institutionalisation."
There was also a report by a psychiatrist
Dr Walton.	Dr Walton noted that the principal psychiatric diagnosis while the respondent was in custody in Queensland "appears to have been that of psychopathy."	He disagreed with Mr Franklin's conclusion that the respondent was suffering from "psychosis".	He said:-
"This man has a history of anti-social behaviour from childhood and there are parallel problems of extensive alcohol drug abuse.	He is properly described as alcohol and drug dependent.

Not unrelated to the above problems this man was forced to work as a child prostitute and that has had predictable damaging effects upon his self image and self esteem.	I believe much of his aggressive tendencies arise from those particular problems.

This man is not psychiatrically ill in a conventional sense but he would attract a label of an anti-social personality disorder.	He is also of borderline intellectual disability."
Dr Walton observed that the respondent "is at risk of becoming institutionalised and that will further comprise (sic, compromise) his ability to adjust to normal society".
In the light of these and other materials before his Honour, and the respondent's antecedents, I would have considered that the prospects of his rehabilitation are quite bleak, and as a violent offender he is a danger to the community.	However, the learned sentencing Judge must have considered that the respondent's prospects were somewhat better; it was for his Honour to make that assessment, and it was open to him to reach that conclusion on the material before him.		Accordingly, it matters not whether I consider that the nonparole period of 5 years was inadequate to protect the community; a different perception of the respondent's prospects of rehabilitation would result in a significantly different conclusion.
In the normal course the respondent would be released after 8 years, with remissions.	The nonparole period must be fixed taking this into account and cannot in any event approach too close to 8 years.	In this case a nonparole period fixed at plea could not have been longer than about 6	years.	Against that background I am unable to say that the nonparole period of 5 years is so manifestly inadequate as to evince error on the part of the learned sentencing Judge; nor have the specific errors alleged been established.	Even if error were established, in my opinion

the circumstances are such as to call for the exercise of the residual discretion to dismiss the Crown appeal against the length of the nonparole period; see R v Holder [1983] 3 NSWLR 245 at 255-6.
In my opinion, the Crown appeal against sentence
should be dismissed.

THOMAS J:
I have read the reasons for judgment of Kearney J

and Priestley J.
In respect of the respondent's application for leave to appeal Priestley J has set out the relevant statutory provisions and an analysis of the evidence relevant to a consideration of s279 of the Criminal Code.
With respect I agree with His Honour's conclusion that on this material it would not have been reasonable for the sentencing Judge to draw any conclusion that Mr Langshaw "desisted of his own motion from the further prosecution of his intention, without its fulfilment being prevented by circumstances independent of his will."	The sentencing Judge was not asked to consider the provisions of s279 of the Criminal Code.	I agree that on the available material it would not have been open to the sentencing Judge to have accepted a submission that s279 is applicable in this case.
Accordingly, I would allow Mr Longshaw's application for leave to appeal and dismiss the appeal.
With respect to the Crown appeal against inadequacy of sentence I agree with the conclusion of Kearney and Priestly JJ and I have nothing to add.
Accordingly, I would dismiss the Crown appeal against sentence.

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PRIESTLEY J:
Mr J.W. Longshaw pleaded guilty to an indictment charging, pursuant to s 165(a) of the Criminal Code, that he had unlawfully attempted to kill Mr T. Harold. He was convicted of the offence, the maximum punishment for which  is life imprisonment, and on 30 September 1992 was sentenced by Angel J to twelve years imprisonment with a non-parole period of five years.
The Crown appealed against the sentence on the
ground it was manifestly inadequate.
The Crown appeal was listed for hearing on
13 September 1993. On 7 September 1993 Mr Longshaw filed an application for extension of time within which to apply for leave to croE;s-appeal from the whole of the sentence.
Mr Longshaw's application for extension of time for leave to appeal was listed for hearing together with the Crown appeal. Counsel for the Crown, in opening the Crown appeal, referred to Mr Longshaw's application and said the Crown did not oppose time being extended so that the Court could consider the application for leave to appeal on its merits.
It is appropriate to deal with this point first.
The point was that the trial judge had not taken into accounts 279 of the Criminal Code when sentencing
Mr Longshaw. Section 279 is as follows:

"279(1) When a person is convicted of attempting to commit an offence and it appears to the Court
•.. that he desisted of his own motion from the further prosecution of his intention, without its fulfilment being prevented by circumstances independent of his will, he is liable to one-half

15

only of the punishment to which he would otherwise be liable.

(2) If that punishment is imprisonment for life, the greatest punishment to which he is liable is imprisonment for seven years."
It was argued that the facts before the sentencing judge brought Mr Longshaw's case within s 279.
Before turning to see whether the facts before the sentencing judge did, as a matter of law, require him to apply s 279 to Mr Longshaw's case, it is relevant to note that at the sentencing hearing no reference was made to
s 279, the judge was not asked to consider its possible application to the case, and, as a consequence, the question whether the facts of the case might fall within the operation of the section was not investigated.
Some basic facts seem to have been undisputed at the sentencing hearing. These were that Mr Longshaw had been travelling with two friends by panel van from Brisbane to Darwin and at Mt Isa met Mr Harold who then joined the group. On 14 April 1992, after the travellers had entered the Northern Territory along the Barkly Highway, they made a toilet stop, in the course of which Mr Harold and
Mr Longshaw were both out of the panel van, and Mr Longshaw came up from behind Mr Harold and struck him once, with considerable force, across the side of the head with a steel, single spoke wheel brace. Mr Harold fell to the ground unconscious. There was abundant evidence that
Mr Longshaw's intention when he struck Mr Harold was to kill him.

In the circumstances, Mr Longshaw's plea of guilty to the charge brought under s 165(a) was a realistic one.
The case made for Mr Longshaw at the sentencing hearing was that when he got out of the panel van he lost control and hit Mr Harold one time and one time only, stopped after the one strike, and expressed and felt immediate remorse at the action he had just taken. This was combined with materials giving in considerable detail the troubled earlier history of Mr Longshaw which was said to be to a large extent explanatory of his behaviour on this occasion.
The submission that as soon as he had struck the
one blow Mr Longshaw expressed and felt immediate remorse, if supportable on the evidence, would at least be consistent with the factual requirements of s 279. It is therefore necessary to see whether it had any substantial foothold in the materials.
Thei submission as put to the sentencing judge (see pp 10 and 11 of the transcript of 28 September 1992) was primarily based on the transcript of a conversation recorded on tape between Detective Senior Constable Marsh and
Mr Longshaw late at night on 15 April 1992 in the Elliot Police Station cells. This was a brief conversation.
Detective Marsh told Mr Longshaw he was going to be taken back to Tennant Creek where a video recorded interview would be conducted. For the "immediate remorse" submission
Mr Longshaw's counsel relied on portions of the following part of this transcript:

"MARSH		Well basically yeah, just a quick overview so that I know that you understand what we're speaking about, you understand the incident we're talking about and you can just, you've just got the opportunity now just to give me a quick version so I'm aware and Detective SETTER are aware of what your version of it is, because I've already got two versions from the other two gentlemen, I'd just like your version before we go any further. So would you like to tell me about it?

LONGSHAW	'inaudible' and I hit him with an iron bar.
MARSH	Yeah

LONGSHAW		And um, he was unconscious for a while and um, I was drunk and he was drunk, Speedy was drunk. Um, sometimes 'inaudible' I get a bit slow sometimes in the head.

MARSH	Yeah
LONGSHAW		And uh, I have been since I was a kid you know?
MARSH	Yeah
LONGSHAW	And when I'm drunk I sometimes blank out.
MARSH	Right.

LONGSHAW	In a fight or I don't know why but when I'm drunk I want to fight all the time and that.
MARSH	Yeah
LONGSHAW		I just want to go, go, go all the time, you know get into it.

MARSH	So, is that what you're saying happened last night, you sort of lost control?

LONGSHAW		Yeah, I do, I admit that, I do you know, I mean I've got a problem.

MARSH	Yeah, do you remember why it happened last night?
LONGSHAW	It shouldn't have happened at all.

MARSH		Did he do anything to make it, to make you want to strike him?
LONGSHAW	No he didn't. MARSH	No arguments?
LONGSHAW	No, not that I know of. MARSH	Alright.
LONGSHAW	Not to my knowledge anyway.
MARSH		Alright, can you remember the incident clearly?
LONGSHAW	Yeah, I remember most of it, yeah. MARSH	Yeah, how drunk do you reckon you were? LONGSHAW	I was pretty pissed.
MARSH		Alright, and now, how do feel now, are you sober now?
LONGSHAW	Yeah, I'm shaking. MARSH	Why are you shaking? LONGSHAW	Ah, I don't know.
MARSH	Yeah, just a little bit nervy? LONGSHAW	Just a little bit.
MARSH		Yeah, yeah, just a little bit upset by the whole incident?
LONGSHAW	I am upset about it, now I now I've done the wrong thing now, you know, it's a bit late to say I'm sorry.
MARSH	Yeah. LONGSHAW	'inaudible'
MARSH	Right, you're fairly sober now?
LONGSHAW	Yeah, I'm sober yeah. MARSH	Yeah, right.
LONGSHAW	Just shaken up a bit you know.

MARSH	Okay, no worries, okay that's basically all, I just wanted to get your account of the story in case it varied.
Detective Setter is there anything ... ?

SETTER		Yeah, just quickly uh, the other two fellows that have given us statements 'inaudible' did they have any part in uh

LONGSHAW	They had nothing to do with it.
SETTER	Nothing to do with it whatsoever.
LONGSHAW		No, I'll be honest with you, they had nothing absolutely to do with it. Speedy was out in the bush when I hit him and Jack, he had his back to me, he didn't know what was going on."
This seems to me to be unpromising material for the submission counsel was seeking to base on it. It did indeed support the proposition that Mr Langshaw "stopped after the one strike", but it seems to me to throw no light one way or the other on why it was that he only struck
Mr Harold once. What he said about being upset, knowing that he had done the wrong thing and his comment that the incident should not have happened at all, all relate to his state of mind at the time he was answering Detective Marsh's questions late on 15 April 1992 and do not relate to his state of mind immediately after striking Mr Harold the previous day.
ThE! transcript of the video taped interview which took place in the morning of 16 April 1992, also in evidence before the sentencing judge, was much more informative. The extracts most relevant to the present point are as follows:
"MARSH:		Okay. John what I want you tell me about if you choose to is the incident where Trevor Harold was struck and knocked unconscious while you and your 2 friends

20

Race Purchase and Ken Riley and Mr Harold were pulled up on the Barkly Highway at some point between Adam Downs and the Barkly Homestead on Tuesday night, just gone, 2 nights ago. What can you tell me about that incident?

LONGSHAW: Oh we're driving along the highway and ah Speedy needed to go in the bushes and have a crap, and umm let us out and umm Speedy was looking for the toilet paper and that, he got it out and he hopped out the car and then Trevor and him hopped out, he wanted to have a leak.
And he had his umm he had his back to me. I walked up to the back of the car, I lifted up the Mattress and I pulled out an iron bar, and then ... well Speedy had gone off in the bushes, •.. (inaudible) Jack was standing up near the front end of the car and he had his back to me, if you ... (inaudible) on the side of the head and he fell down face first onto the ground and ah Jack turned around and he saw him down there, saw me with the iron bar in me hand, and he said what did you ... (inaudible) I said I hit him. He's gone down, I thought he was dead there and then. And he wasn't, he was still breathing. And there was a lot of blood everywhere. It was about 5 k's off the Ebenezer turn off I think ... (inaudible) It wasn't far off the road at all." (pp 28 and 29 of the Appeal Book)
Later the transcript records:
"LONGSHAW: Not far up from there, there was a umm, oh it wasn't much of a road, going off the road, it was more like a parking bay you know, pulled up there and ah Speedy sort of
got the toilet paper and he's hopped out and he's wandering off into the bush. Oh hang on before he went off into the bush I went and taken the thing out of the back of the car and he was standing there having his leak •.. (inaudible) just gave him a crack.
MARSH:	Yeah okay.
LONGSHAW: Then you don't know what hurt him.
MARSH:	Yeah.
LONGSHAW: Sort of surprise.

MARSH:	Mmm.
LONGSHAW: And ah Jack had his back turned to me, 'cause he was over out in front of the car having a leak there. By the time he's turned around, Trevor was on the ground, 'cause I struck him in the side of the head. Would of been about there.
MARSH:	Right.
LONGSHAW: And umm Jack come running over, you know, he's taken the bar off me. Shit what have you done there you know.

MARSH: Do you recall what you were thinking as you were removing the bar from the back of the panel van?
LONGSHAW: Nah I just grabbed.

MARSH:	To do with what with, what were you thinking of why you wanted this bar, what were you going to do with it?
LONGSHAW: I was going to hit him over the head and kill him.

MARSH:	Right so when you struck Trevor ...

LONGSHAW: Yeah when I struck Trevor he fell face down onto the ground.

MARSH:	Did you deliberately strike him in any place?

LONGSHAW: No I just hit him where he was, I don't know, just swung and hit him.
MARSH:	Yeah, how hard did you strike him? LONGSHAW: Oh it was a fair swing.

MARSH:		You swung from what point, can you tell me?

LONGSHAW:		(inaudible) When I hit him, I hit him like that. I come around the side of his head.

MARSH: Right no worries. Was he facing away from you or towards you when you did that?

LONGSHAW: Nah he was away from me. I didn't	hit him in the back of the head, I hit him
on the side, it must have ...
(inaudible) I can't remember where I hit him.

MARSH:	What did you expect that blow to do to him?
LONGSHAW: I was hoping it would kill him. MARSH:	. You were hoping it was?
LONGSHAW: Yeah. But it didn't. Thank God for that though, 'cause I didn't ... (inaudible)

MARSH:		So you fully expected after you'd struck him that he was going to be laying on the ground dead?

LONGSHAW: Yeah well we thought he was 'cause he was out for about I don't know, couple of minutes. It wasn't 10 or 15, he was only out for a couple of minutes.

MARSH:		Was he? Yeah. You just stated to me that when you struck him you were hoping to kill him. Did you only strike him the once?
LONGSHAW: Yes.
MARSH:	And did you think that was enough? LONGSHAW: Yeah.
MARSH:	What gave you that impression?

LONGSHAW: I don't know, I tried to hit him you know I just oh I don't know, just just didn't seem right.

MARSH:		What do mean it just didn't seem right John?
LONGSHAW: It just didn't seem right to hit him.
·MARSH:		Yeah. What so after you've struck him you've thought I've done the wrong thing?
LONGSHAW: I knew I'd done the wrong thing.

MARSH:	When you first got the wheelbrace out of the back of the van
LONGSHAW: I thought different then. MARSH:	What did you think then?
LONGSHAW: I can't remember what I was thinking then, thought oh well, when I, when I grabbed it, you know, the adrenalin started pumping and I just went and did it, you know, no hesitation whatsoever. And then Jack, he took the wheelbrace off me, and he was you know, (inaudible)

MARSH:	Were you going to strike him again while he was on the ground?
LONGSHAW: No.
MARSH:	Did you ah, what did you intend to do with him after? After you'd knocked him to the ground, hoping to kill him, what did you intend to do after that?

LONGSHAW: If I killed him I would have chucked him in the bushes. I would have dragged him
... (inaudible) a bit further in you know, right away from the road.

MARSH:	Yeah, for what purpose?

LONGSHAW: Just to leave him there. I'm not going to carry a dead body into a car, no.

MARSH:		No. Why were you going to hide him off, basically to hide him off the road so no-one would find him, is that the, is that what was in your mind?

LONGSHAW: Yeah well if he was dead I would have done that, yeah. But because he was still alive, everything happened so quick you know, everything was just chchch went passed me and the world was staggering around. Yeah and everyone was walking to see what was going on and Jack and that swarm over to him. Jack and Race. They went over to him and had a look at him and I'm standing over the top of them. And Race, went and told Race to bring the ... (inaudible) at the back of the car, and Race couldn't find it so I reached in and grabbed it and I

MARSH:

pulled it round his head and there was blood everywhere.

Can you tell me what happened to the wheelbrace after. I think you said Jack took it from you was that correct?

LONGSHAW: Yeah.
MARSH:	Do you know what Jack did with it?
LONGSHAW: Jack gave it back to me to put back in the car while he was attending to him. 'cause it was just sitting on the back of the tailight, aha tailgate. And Jack said yeah go and put it away." (Appeal Book pp 37 to 41)
A little later in the tape Mr Longshaw said that after putting the wheelbrace back underneath the mattress he walked back to see what was going on with Mr Harold and when he saw he had started to move again that was a relief to him (Appeal Book 42). From that point Mr Langshaw and his two companions did what they could for Mr Harold.
The foregoing are the materials upon which it was
submitted the sentencing judge, had his attention been drawn to s 279, could have found that Mr Langshaw "desisted of his own motion from the further prosecution of his intention, without its fulfilment being prevented by circumstances independent of his will".
In my opinion it would not have been reasonable for the sentencing judge to draw any such conclusion on the materials before him. Although the sentencing judge did not consider the precise factual question raised bys	279, what he did say that bore upon this area, was of some significance. In recounting the facts he was taking into account for sentencing purposes he made the following

references to what Mr Longshaw had said in the video taped interview:
"When asked what you were thinking of when you obtained the wheelbrace you stated: 'I was going to hit him over the head and kill him'.

Whe.n asked: 'What did you expect the blow to do to him?' you said: 'I was hoping it would kill him'. You also stated during the record of interview: 'When I grabbed it, you know, the adrenalin started pumping. I just went and did it you know, no hesitation whatsoever'."

This view of the evidence is much the same as the one I have formed following a more detailed examination of the materials for s 279 purposes than the sentencing judge was called upon to make. The video taped interview suggests quite strongly, to my mind, that Mr Langshaw intended to kill Mr Harold with the one blow that he struck, that immediately after the blow he thought he had succeeded in killing Mr Hc:rold and that before he formed any intention to hit him again, Jack had taken the wheelbrace away from him. Shortly afterwards, when he realised that Mr Harold was not dead, he felt relieved that he had not succeeded in carrying out his intention.
It is not necessary for me to draw affirmative conclusions from the available materials along the lines indicated in the preceding paragraph, although, in fact, that is the way matters appear to me. It is sufficient to state my opinion that on the available materials it would not have been reasonably open to the sentencing judge to have accepted a submission, had it been made to him, that he should find that it appeared to him (the words of s 279(1)

to my mind require that the court or the Justices of the Peace be affirmatively satisfied of the required facts) that Mr Longshaw had "desisted" in the way described ins	279.
For a person to desist of his own motion from further prosecution of an intention to kill it must at least appear that the person knew at the time of desisting that the attempt already made had not succeeded. I do not think that conclusion was open on the materials. Nor do I think it was open on the materials to conclude that the fulfilment of his intention was not prevented by circumstances independent of his will; the wheelbrace's being taken away from him seems to me to stand in the way of that conclusion.
Some interesting questions were debated in the course of argument as to whether s 279 could ever be applicable to a case such as the present. To answer these questions would involve considering in detail the relation in the Criminal Code of s 4, which defines attempts to commit offences, toss 277, 278 and 279 and their different subject matters.
Upon the view I take of the facts it is not necessary to express any opinion upon these matters in this case, although it is interesting to note that the Queensland Court of Criminal Appeal in the unreported decision of The Queen v Thompson (30 May 1989) seems to have taken it for granted that s 538 of the Queensland Criminal Code (virtually identical with s 279) would have applied in a case such as the present one, had the factual requirements of the section been fulfilled.

In my view Mr Longshaw's application for leave to appeal should be dismissed.
The main point in the Crown's appeal against sentence was that a five year non-parole period was manifestly inadequate in view of the gravity of the crime. The unprovoked and vicious nature of the attack on Mr Harold was emphasised; further more, the court's attention was drawn to the terrible outcome of the attack upon Mr Harold. He is permanently in the Royal Perth Rehabilitation Hospital. He is quadriplegic. He has severe dysphasia. He is very unstable emotionally and has profound cognitive problems.
There seem to me to be two main difficulties in the Crown's appeal. One is that the sentencing judge showed in his reasons for sentence that he had a full appreciation of the enormity of the crime and of the disastrous aftermath to Mr Harold. He dealt with all the relevant sentencing considerations in a way that showed no misunderstanding of his task, the consequence being that the Crown was not able to point to any error of fact or application of principle in the sentencing judge's reasons for sentence. The Crown was thus obliged to say that although no error could be identified in his Honour's reasons nevertheless the result was so disproportionate to the facts of the case that this court should conclude that some error must lie behind the judge's decision. The difficulty with this submission, from the Crown's point of view, in the present case, is that after reading all the material that was before the

sentencing judge dealing with the enormity of the crime and also the detailed history of Mr Langshaw, neither the overall sentence, nor the non-parole period strikes me as being manifestly inadequate. They both strike me as being within the discretionary range open to the sentencing judge upon the facts of the case.
The foregoing reaction is strengthened by consideration  of what seems to me to be the second difficulty faced by the Crown. The sentencing  judge asked the parties whether they could supply him with details of comparable sentences in cases in the Northern Territory. Counsel for the Crown and Mr Langshaw co-operated in meeting this request. The result was that the judge was supplied  with three as being of some relevance,  in that they came from comparatively recent times and dealt with convictions for attempted murder. It was not suggested  in this court that the sentencing judge in any way regarded himself as bound by any of the earlier decisions. It is quite clear  that they were all different in their facts in material  ways. They did however, in a very general way, furnish some background against which the sentencing judge might consider what was appropriate on the facts of the case before him.
Having read those cases (R v Bartram, Rice J, 21 November 1985; R v Gurruwiwi, Nader J, 10 April 1986, and R v Cure, Nader J, 6 June 1991) and having heard them discussed by counsel, it seems to me that the sentence imposed in the present case can not be said in any way to be incongruous with those earlier decisions.

Thus, both on the particular facts of the case before him and seen against the background of other broadly comparable cases, I do not think the Crown has made out the submission that either the non-parole period or the overall sentence in the present case was manifestly inadequate.
In my opinion the Crown appeal should be

dismissed.