DPP v Bryan [2014] VSCA 54

Court of Appeal (Vic)|2014-04-03|Before: Neave JA, Weinberg JA, Beach JA

R v Bryan [2013] VSC 512

SENTENCING - Director's appeal against sentence - One charge of manslaughter - Respondent sentenced to six years' imprisonment, with a non-parole period of three years and six months - Trial judge erred in failing to give appropriate weight to previous offending of a similar nature, gravity of the offence, general and specific deterrence and community protection - Sentence manifestly inadequate - Appeal allowed - Respondent resentenced to eight years' imprisonment with a non-parole period of four years and six months.

1 The respondent, David Bryan, pleaded guilty, in the Supreme Court at Melbourne, to one charge of manslaughter. He was sentenced to a term of six years' imprisonment, with a non-parole period of three years and six months. The Director of Public Prosecutions has appealed against what he contends is the manifest inadequacy of that sentence.

2 By way of particulars, the Director submits that the head sentence and nonparole period:

(a) failed to properly reflect the gravity of the offending;

(b) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(d) failed to give sufficient or any weight to the principle of general deterrence;

(e) failed to reflect the need to protect the community from the respondent;

(f) failed to have sufficient regard for the need to deter the respondent from committing offences of the same or a similar character;

(g) failed to have sufficient regard to the maximum penalty prescribed for the offence;

(h) failed to have sufficient regard to the impact of the offence upon the family of the deceased victim;

(i) failed to have sufficient regard to aggravating features of the offending, and in particular -

the offence represents a serious example of gross violence committed in a public place;
the offender was armed with a knife prior to the commission of the offence;
the infliction of multiple stab wounds upon the deceased;
the offender left the scene and took steps to conceal his involvement in the offence; and
the offender has a prior conviction for a violent offence in a public place upon a stranger.

(j) gave too much weight to mitigating factors concerning the offender, in particular -

his plea of guilty;
his expression of remorse; and
his prospects of rehabilitation and family support.

3 The Crown alleged that, in the early hours of 28 January 2012, the respondent was walking along Fitzroy Street, St Kilda. At around 3.00 am he approached another man, William Turgoose, and offered to sell him drugs. Turgoose described the respondent as twitchy and agitated. After they did the deal the respondent and Turgoose walked towards Grey Street, where they encountered a group of men, one of whom was carrying a car window wiper. The respondent commented, 'Nice wiper mate, it's not raining though'. The man holding the window wiper then turned around and said, 'Come here I'll wipe your face with it'. The respondent replied, 'Come here and say that again cunt, I'll stab you, I've got a knife on me let's go'. The group of males then walked away. At 3.40 am Turgoose left the respondent on the corner of Jackson and Grey Street and returned home.

4 The Crown alleged that shortly afterwards, the respondent met the victim of the offence, David Tserniak, and struck up a conversation with him in the vicinity of the Salvation Army Crisis Centre in Grey Street. The deceased was a drug user who had just been discharged from hospital, and had been unable to find accommodation. The pair walked together to some nearby flats at 40 Barkly Street. Witnesses heard two men talking near the stairwell of the flats. A witness saw one of the men gesturing as if he was rebuking the other, and also heard that man speaking aggressively. Several witnesses heard a loud thump from the bottom of the steps which sounded like a head being struck against the wall. A few seconds later there were further thumps.

5 At 4.10 am a passer-by found the victim lying on the footpath outside the block of flats. He had sustained stab wounds to his chest and torso. A later postmortem examination showed that the victim had 12 stab wounds to his body, including wounds penetrating his left lung and damaging his right femoral vein. It was these wounds which caused the victim's death.

6 In addition to the evidence of Turgoose, and the witness who observed the two men arguing in the stairwell of the flats, there was circumstantial evidence linking the respondent to the scene of the crime. This included the presence of his DNA on a roll-your-own cigarette in front of the first step into the flats, and a partly consumed bottle of Sunkist on the retaining wall nearby. Turgoose said he had purchased this drink for a man answering the respondent's appearance.

7 The respondent was not arrested until just over a month later, 1 March 2012. He had by then altered his appearance. When interviewed, he initially denied any knowledge of the offending. He also denied that he was the man shown on CCTV footage with Turgoose. He maintained that he had not been in Barkly Street, St Kilda on the morning of 28 January 2012.

8 However, the respondent subsequently accepted full responsibility for having stabbed the deceased and entered a plea of guilty to manslaughter. The Crown accepted that the respondent had no recollection of the events which resulted in the death of the victim, because he had been under the influence, on the night in question, of methylamphetamine ('ice'). The Crown accepted, and the

8 sentencing judge[1] found, that the respondent had exhibited remorse and that he had entered a plea of guilty at an early stage.

9 In his carefully structured sentencing reasons, the sentencing judge referred specifically to the objective gravity of the offending and, in particular, to the victim impact statements which described the terrible distress suffered by the family of the deceased.[2] His Honour also referred to the respondent's prior conviction in Queensland, in 2002, for having inflicted grievous bodily harm[3] upon a complete stranger, arising from an unprovoked attack upon the victim, with a knife, in a public place.

10 At the plea hearing, the respondent's counsel drew to his Honour's attention the fact that, shortly before the offending, the respondent's flat had been broken into, and the lock rendered inoperable. As a result, the respondent was at this time in a constant state of fear, for his own safety. His Honour accepted that the respondent appeared to 'have committed the crime while in a subjective state of fear'.[4]

11 The sentencing judge referred to the respondent's lengthy history of drug abuse, which began early in his teenage years and had escalated to heroin use by the time he was 19. He summarised the contents of reports prepared by Dr Andrew Carroll, a consultant forensic psychiatrist and Ms Carla Lechner, a clinical and forensic psychologist. Dr Carroll said that the respondent was unlikely to have committed such a serious offence if he had not been drug-affected and leading a chaotic and marginalised existence. He further stated that the respondent was unlikely to re-offend if he stopped his substance abuse. Dr Carroll was impressed with the progress the respondent was making in prison. Ms Lechner said that the respondent had a poly-substance abuse disorder, which was a lifelong condition, and that he was emotionally immature.[5]

12 His Honour also took account of references from the respondent's family members and the positive reference which the prison authorities had provided for him. The respondent had obtained a trusted position as a peer supporter at the Port Phillip Prison which required him to provide support for inmates and induction of new prisoners. He had also undertaken various programs relating to drug abuse.

13 The sentencing judge recognised that general deterrence had to be taken into account as a sentencing consideration. However, he added that 'there was little need for the respondent to be specifically deterred from committing similar crimes in the future'.[6]

14 Despite the gravity of the offending, his Honour considered that the respondent could rely on very powerful mitigating factors. The respondent's guilty plea had considerable utilitarian value because his conviction was by no means inevitable and, on the evidence, he stood a good chance of acquittal had he elected to go for trial. The plea of guilty was also strong evidence of remorse.

15 The judge said that the respondent regretted his initial lack of cooperation with the police, and now accepted full responsibility for what he had done. He noted that when the respondent pleaded guilty to the charge of manslaughter he had expressed himself, unusually, in the following terms:

Your [H]onour with great sorrow to a family who's lost their son ... regret, the hurt and pain that's caused all the parties including our community and disgust on my part, I plead guilty.[7]

16 His Honour contrasted the respondent's remorse for this offence with his attitude after committing the earlier offence in Queensland. On that occasion, the Queensland Court of Appeal declined to give him any credit at all for remorse. His Honour considered that the respondent's remorse, family support, exemplary prison record and sincere commitment to change permitted a favourable view to be taken of his prospects of rehabilitation. He said that these mitigating factors combined 'to produce a sentence of imprisonment which, under the applicable sentencing principles, must be much less than that which would otherwise be applicable'.[8]

17 The Director argued that the sentence imposed by the trial judge failed to reflect the gravity of the offence. This involved a savage attack on an unarmed man in a public place, by an offender who had a prior conviction for serious violence. Having regard to the nature of the offending, and the background of the respondent, the sentence imposed fell wholly outside the range of sentences that could have been imposed for an unlawful and dangerous act manslaughter.

18 In support of that claim, the Director relied on a table of sentences imposed in ten cases involving this form of manslaughter. He submitted that the table showed that the head sentence for an offence of this kind would only fall below nine years' imprisonment if there were special circumstances.[9]

19 The Director submitted that the trial judge had failed, in particular, to give sufficient weight to the respondent's previous offending.[10] The Queensland offence involved a similar knife attack against a victim in the street. In that instance, the respondent initiated an argument with the victim who attempted to walk away. The respondent then followed the victim and attacked him. There was a fight and the respondent, who had consumed heroin and alcohol, slashed the victim with a knife, causing three significant wounds, including a life threatening cut to the chest. If left untreated the victim's injuries would have caused his death.[11] Following an appeal by the Attorney-General from the sentence imposed by the sentencing judge,[12] he was re-sentenced to six years' imprisonment with a non-parole period of three years.

20 Although, clearly, the respondent cannot be punished again for his previous offence, the Director submitted that the similarities between the two episodes of offending demonstrated his inability to abstain from drugs, and also cast doubt on his prospects of rehabilitation. Both offences involved savage knife attacks in public places which occurred when the respondent was alcohol and/or drugaffected. On both occasions the respondent took steps to avoid detection. After the first offence the respondent asked his girlfriend to lie to the police for him, hid his tattoos, and moved from his previous address. After the current offence the respondent dyed his hair blond and put a temporary tattoo on his cheek.

21 The Director further submitted that the sentencing judge gave too much weight to mitigating factors (including, in particular, the respondent's expressions of remorse) and insufficient weight to both the need for specific deterrence, and community protection. He submitted that his Honour had wrongly concluded that there was little need for the respondent to be specifically deterred from committing crimes of violence in the future. He argued that it was only by chance that the respondent had not brought about the death of his victim in the Queensland matter. He further argued that the respondent had not learned from his prior offending. Ten years later, when aged 31, he had violently attacked and stabbed another complete stranger, this time with lethal consequences. In these circumstances, he submitted, specific deterrence had to be a paramount sentencing consideration.

22 Counsel for the respondent submitted that the trial judge had given appropriate weight to all relevant sentencing considerations, and that this Court should not interfere with the sentence imposed. Although he conceded that the sentence of six years, with a non-parole period of three years and six months, fell at the bottom of the range for an unlawful and dangerous act manslaughter of this kind, he submitted that it did not fall wholly outside the range of his Honour's sentencing discretion. Counsel challenged the Director's contention that the sentences imposed for comparable offending rarely fell below nine years, and that it would require 'special circumstances' to justify any sentence below that for an offence of this character.

23 In that regard, counsel argued that the sentences imposed for unlawful and dangerous act manslaughter ranged widely, and that the table of cases provided by the Crown failed adequately to disclose that fact. Counsel relied on a table of 31 cases of his own which were said to have been selected on the basis that they involved the use of a weapon, by an offender who was not youthful, acted alone, and did not rely on Verdins principles. In oral argument, he referred to sentences

23 imposed in the Trial Division in R v Lubik,[13] DPP v McGill,[14] and R v Docking,[15] in support of the argument that the sentence imposed in this case was within the appropriate range.

24 Counsel for the respondent argued that it had been well open to the sentencing judge to give considerable weight to the respondent's guilty plea, having regard to the weakness of the Crown case against him, and the very real possibility that he might have been acquitted had he elected to stand trial. The sentencing judge had also been justified in having placed emphasis upon the respondent's remorse, and having given considerable weight to his prospects of rehabilitation. Dr Carroll's report had supported both of these conclusions. In particular, the respondent had taken significant steps towards overcoming his drug problems during the 18 months that he had spent in gaol.

25 Counsel submitted that, contrary to the Director's submission that the sentencing judge had erroneously given no weight to specific deterrence, his Honour's statement that 'there is little need for you to be specifically deterred from committing similar crimes in the future' simply reflected his favourable view of the respondent's prospects of rehabilitation. The sentencing judge's reasons recognised that the respondent was at a turning point in his life. His Honour was entitled to consider that, unlike the respondent's situation when he committed the Queensland offence, he was now sufficiently mature to take the opportunity to make a new life for himself, after his eventual release from prison.

26 Finally, counsel submitted that even if the Court considered the sentence under challenge to be inadequate, it should exercise its residual discretion, and dismiss the appeal.[16] Otherwise, the respondent's attempts to rehabilitate himself might be thwarted. The respondent had now been moved to Fulham Prison and was continuing to study for a Bachelor of Arts Degree, as well as participating in various remedial programs.

27 In determining a Crown appeal against sentence, this Court does not consider whether it would have imposed a different, and heavier, sentence on the offender. It is trite law that the ground of manifest inadequacy can only be established if the sentence was:

[W]holly outside the range of sentencing options available' to the sentencing judge. Put another way, 'it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender'.[17]

28 In our opinion, the sentencing judge was perfectly justified in significantly reducing the sentence imposed upon the respondent, given that he elected to plead guilty in circumstances where he might well have had a viable defence. That reduction is reflected in his Honour's declaration made under s 6AAA of the Sentencing Act 1991 indicating that if it had not been for the guilty plea the respondent would have received a head sentence of nine years' imprisonment.

29 We have had regard to the tables of comparable cases submitted by the Director and the respondent respectively. Such sentences can provide guidance as to current sentencing practice, although clearly enough they are not precedents dictating what sentence should be imposed in the particular circumstances of this case. We reject the Director's submission that an offender who has committed an unlawful and dangerous act manslaughter of this kind, should, in the absence of 'special circumstances' expect to receive a sentence of at least nine years' imprisonment.

30 On the other hand, the comparable sentences relied upon by the respondent suggest that sentences in the range of five to seven years (such as the sentence imposed by the judge in this case) may be appropriate where the offender does not have any significant prior convictions for violence or, alternatively where the attack was less savage and sustained than that which was inflicted by the respondent. However, sentences of that order would seem to be unduly lenient in cases such as the present.

31 In our opinion, despite the obvious care and attention that his Honour gave to the sentencing task, the sentence imposed in this case was outside the range of sentences reasonably available for offending of this gravity. In other words, the sentence was manifestly inadequate. We think that the sentencing judge must have given too much weight to the respondent's plea of guilty, to his remorse and to what his Honour regarded as his prospects of rehabilitation.

32 The main reason why we have come to this conclusion is because we consider the prior conviction for very similar offending in Queensland to be a particularly important factor, and one which had to be given full weight.

33 The respondent seems to have learned little from his Queensland experience. His attack upon the innocent stranger who was the victim in the present case was frenzied, and so far as we can tell, totally unprovoked. The offending may well have been related to his consumption of 'ice' prior to the commission of the offence, but that cannot be regarded as a mitigating factor. The respondent knew that he had previously acted with extreme violence when affected by drugs and alcohol.

34 We do not underestimate the difficulties which confront offenders who are addicted to drugs when it comes to overcoming their problems. We agree, with respect, with his Honour that the respondent has made commendable attempts, whilst in prison, to rehabilitate himself. But his attempts to put his past behind him have occurred in the structured environment of prison life. It will take a huge effort for him to remain drug-free, even with the assistance of his loving and supportive family. It is to be hoped that he will succeed.

35 The evidence suggests that the respondent remains at risk of reoffending in the future. Ms Lechner was concerned about his immaturity. Dr Carroll remarked that in completing a questionnaire which measures the tendency to give socially desirable results, the respondent was both deliberately attempting to present himself in a favourable light, and tending to provide a more favourable presentation of himself (that he himself actually believed to be true) than was actually the case. He said that the respondent was readily influenced by situational demands and had 'somewhat limited insight into his own coping resources and vulnerabilities.'[18]

36 These observations mean that specific deterrence, and the protection of the community, must both be taken into account in the course of any resentencing exercise. The imposition of a lengthier sentence will reinforce the seriousness of the offence, and may assist the respondent to recognise that his drug abuse led him to take the life of another. Such recognition should help him to maintain his resolution to abstain from drug abuse in the future.

37 Having regard to the gravity of the offending and the mitigating factors to which the sentencing judge referred, we would set aside the sentence imposed below and in lieu thereof substitute a sentence of eight years' imprisonment. We would fix a non-parole period of four years and six months.

38 The greater than usual gap between the head sentence and the non-parole period is intended to encourage the respondent's attempts to rehabilitate himself, and to give him the benefit of an extended period of supervision when he is released from prison.

[1] R v Bryan [2013] VSC 512, [65].

[2] R v Bryan [2013] VSC 512, [48].

[3] R v Bryan; ex parte A-G (QLD) [2003] QCA 18.

[4] R v Bryan [2013] VSC 512, [62].

[9] Such special circumstances were demonstrated in Tito v R [2011] VSCA 303 and DPP v Lovett [2008] VSCA 262. In the latter case a head sentence of six years imposed on an intellectually disabled man who had no previous convictions for crimes of violence was described by Maxwell P as 'lenient.'

[10] Reliance was placed on R v Veen ( No 2) [1988] HCA 14; (1987) 164 CLR 465.

[11] R v Bryan; ex parte A-G (QLD) [2003] QCA 18.

[12] Based on submissions made by the prosecutor the sentencing judge sentenced him to five years' imprisonment, all but one year of which was suspended. The Director did not appeal against that sentence, but the Attorney-General did so.

[13] [2011] VSC 137. In that case the offender was acquitted of murdering his wife by a single stab to her neck but found guilty of manslaughter. He had previously assaulted his wife, but had no prior convictions for violence. There was no evidence of a struggle. The offender was alcohol affected. Although he was a diabetic and had low blood sugar he was not cognitively impaired. He was given the benefit of his offer to plead guilty to manslaughter made shortly before the trial. He had no relevant prior convictions, but the judge considered his remorse was limited. He was sentenced to a head sentence of nine years and six months years with a non-parole period of six years and six months.

[14] [2008] VSC 499. The offender stabbed the victim in the chest, after a dispute between the victim, the victim's girlfriend and the offender's girlfriend and an earlier fracas involving the victim, the offender and two other men. He gave himself up to the police the following day, pleaded guilty and was remorseful. He was employed but suffered from major depression. He also had a number of prior convictions for violence. He was sentenced to seven years' imprisonment, with a non-parole period of six years. Some of the Verdins factors appear to have been taken into account in this case, see [23]-[24].

[15] [2010] VSC 566. The offender was convicted by a jury of manslaughter after he punched the victim in the head and the victim died of a brain bleed. The offender was drunk when he offended and had a history of drug and alcohol dependence. The offender had a low IQ and suffered from depression, but the judge regarded the offending as triggered more by his drinking than by his depression. He had significant prior convictions for violence. He participated in drug and alcohol courses while in prison. He was sentenced to eight years and six months' imprisonment with a non-parole period of five years and six months.

[16] DPP (Vic) v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 657-658, [99]-[101] .

[18] Exhibit 6, Report of Dr Andrew Carroll.

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