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[2009] VSCA 232
Court of Appeal (Vic)
2009-10-09
BUCHANAN, NEAVE JJA and HANSEN AJA
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Director's appeal - Respondent pleaded guilty to defensive homicide - Whether sentence manifestly inadequate - Sentencing practice in defensive homicide cases - Difference to sentencing practice in manslaughter cases - Despite sentence being manifestly inadequate, Court exercised discretion not to intervene - Appeal dismissed.
1 In my opinion the appeal should be dismissed for the reasons stated by Hansen AJA.
2 I agree with Hansen JA that the sentence imposed did not adequately reflect the seriousness of the respondent's offending. I also agree that, in the circumstances of this case the Court should exercise its discretion to decline to intervene and re-sentence the respondent.
3 On 28 May 2008 the trial of the respondent on one charge of murder of Barry Allan O'Neill on 4 June 2006 commenced. On the second day of the trial the Crown filed over a presentment which charged the respondent with defensive homicide contrary to s 9AD of the Crimes Act 1958, and to which the respondent pleaded guilty. Following a plea in mitigation, on 13 August 2008 the respondent was sentenced to 10 years' imprisonment with a non-parole period of 8 years. A pre-sentence detention period of 10 days was declared.
4 The Director of Public Prosecutions appeals against that sentence relying on the single ground that the period of imprisonment and the non-parole period were manifestly inadequate in all the circumstances. Particulars to this ground allege that the learned judge failed to have sufficient regard to a number of relevant sentencing considerations.
5 In opposing the appeal the respondent submitted that no inadequacy in the sentence was demonstrated. Alternatively, if there be error and intervention arises for consideration, in all the circumstances the same or a similar sentence would be imposed. Accordingly, the appeal should be dismissed.
6 The offence of defensive homicide was introduced by the Crimes (Homicide) Act 2005. The relevant provisions are s 9AC and s 9AD of the Crimes Act 1958. Section 9AD states that the offence of defensive homicide occurs where:
A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) ... if he or she did not have reasonable grounds for the belief referred to in that section.
Section 9AC provides that:
A person is not guilty of murder if he or she carries out the conduct ... while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.
7 The incident in which the respondent killed O'Neill occurred on Sunday 4 June 2006 at about 7.10pm at O'Neill's home in the presence of O'Neill's then domestic partner, Kim Martin, and Kevin Edwards Junior, aged eight years, who was the son of the respondent and Martin. The respondent and Martin had lived together until his arrest for an armed robbery committed on 3 September 1997, for which he was sentenced in the County Court on 15 December 1998 to 9 years and 6 months' imprisonment with a non-parole period of 7 years and 6 months. While the respondent was in prison his son Kevin was born, and Martin formed a relationship with O'Neill.
8 The respondent was released on parole in December 2004. After a time the respondent became the primary carer of his son, who would visit Martin and O'Neill every second weekend. The learned judge found that there was a degree of animosity between the respondent and O'Neill but that over time relations had improved.
9 On Friday 2 June 2006 Martin's daughter (by a relationship prior to that with the respondent) drove the respondent and Kevin Edwards Junior to O'Neill and Martin's house. The respondent stayed on Friday and Saturday nights, and he and O'Neill drank heavily over the weekend. An autopsy revealed a high concentration of alcohol in O'Neill's blood, and a high level of the drug Alprazolam and very low levels of other drugs. The forensic physician's opinion was that the high level of alcohol and Alprazolam would have induced 'a state of severe intoxication' in O'Neill. Earlier on the Sunday the police had attended the house and found O'Neill intoxicated, abusive and aggressive.
10 The learned judge described the fatal confrontation between the respondent and O'Neill, and subsequent events, as follows, commencing with the evidence of Kevin Edwards Junior in a statement given shortly after the incident.
11 The autopsy on O'Neill was performed by Professor Stephen Cordner whose report described injuries which, the learned judge noted, could only have been the result of a most severe and savage bashing. Professor Cordner stated that the deceased 'sustained very substantial and severe damage to his head resulting effectively in the crushing of the face with multiple comminuted fractures of almost all compartments of the face and multiple fractures of the skull'. There were also injuries to other parts of his body including the genitalia. The injuries were compatible with having been caused by 'shod feet and/or blunt objects'. Aspects of the injuries demonstrated patterns probably representative of more than one offending instrument. Forensic tests at the scene revealed O'Neill's blood on a coffee table leg, a broken Jim Beam bottle, two Galliano bottles, and one of the respondent's shoes.
12 The learned judge found that the fatal confrontation began when O'Neill threatened the respondent with the leg of a coffee table. He further found that the respondent overpowered O'Neill, then bashed him with the coffee table leg and other objects including bottles, and kicked him, causing terrible injuries which resulted in his death. The respondent continued the fatal attack after O'Neill had been rendered unconscious.
13 The learned judge further found that in the fatal incident the respondent suffered a relatively minor injury to his head. While he could not determine how the injury was suffered, he did not accept the respondent's account in his record of interview of being hit with a bottle by the deceased.
14 The learned judge also accepted that, at the time, the respondent was intoxicated. And he accepted, as by the acceptance of the plea he had to, that the respondent carried out his conduct in the belief that it was necessary to defend himself from the infliction of death or really serious injury. But the plea also meant that the respondent did not have reasonable grounds for that belief. As to the respondent's intoxication, s 9AJ(2) of the Crimes Act 1958 provides that in determining whether a person had reasonable grounds for a belief, regard is to be had to the standard of a reasonable person who is not intoxicated.
15 The respondent was born in 1962 and was 43 years of age at the time of the offence, and 45 years of age when he was sentenced. He has a criminal record which the learned judge fairly described as 'shocking', 23 of the 28 years of his adult life having apparently been spent in custody.
16 The respondent's family background was such that he was made a ward of the state at the age of seven years and thereafter spent much of his childhood in institutions. He has two brothers and two sisters. His father, while providing for the family, was a truck driver and often away, while his mother came to suffer from deafness and psychological problems. Having previously been before the Magistrates' Court in 1979 and 1980, in October 1980 he pleaded guilty in the Supreme Court to charges of armed robbery, conspiracy to commit armed robbery and theft of a motor vehicle for use in connection with a felony, committed when he was 17 years of age, and was sentenced to 8 years and 6 months with a minimum term of 5 years and 6 months. At that time the respondent had 46 prior convictions from twelve court appearances between 17 January 1978 and 31 July 1980.
17 The respondent married in 1983 for approximately two years. The relationship with Martin followed.
18 The respondent suffered further convictions on a range of offences including dishonesty, theft, burglary, assaulting and resisting police, driving offences, escaping from lawful custody, armed robbery, and false imprisonment until 15 December 1998 when (as mentioned earlier) he was sentenced in the County Court on charges of armed robbery, theft, threat to inflict serious injury and damaging property, and was sentenced to be imprisoned for 9 years and 6 months with a non-parole period of 7 years and 6 months. At that time the respondent admitted some 69 prior convictions from 15 court appearances in the period November 1979 to March 1996.
19 The respondent was released on 2 years' parole in December 2004. He sought to re-establish family life with Martin and his son but Martin had formed the relationship with O'Neill. The respondent made efforts to care for his son. His father died in 2005. He formed a relationship with another woman who tragically committed suicide in December 2005.
20 While he was on parole the respondent committed a number of offences of obtaining or attempting to obtain financial advantage by deception and one charge of handling stolen property, and on which he was sentenced in the County Court on 3 November 2006 to 2 years' imprisonment with a non-parole period of 18 months with 142 days of pre-sentence detention. At the time when he was sentenced the respondent was in custody awaiting his trial for the murder of O'Neill. The learned judge noted that these County Court convictions were not prior convictions in relation to the offence concerning O'Neill.
21 The learned judge refers to the dishonesty offences having been an attempt by the respondent to gain funds to aid in establishing a stable home for his son Kevin.
22 For the purpose of the plea in the County Court on the dishonesty offences, a report by a clinical psychologist, Dr Bernard J Healey, was provided. It was also placed before the learned judge in the present case. No more recent report was provided. In that report Dr Healey stated that:
Specific testing revealed average intellectual capacity, with a full scale IQ of 95, where 63% of his peers would do better, and powers of delayed recall were somewhat reduced. Personality testing was indicative of vulnerability to substance abuse, a hypomanic trend and sociopathic features linked to a virtual lifetime of institutionalisation and difficulties in relationships.
23 Following his conviction in the County Court on 3 November 2006 the respondent's parole was cancelled with an outstanding time owed to the Adult Parole Board of 1 year 11 months and 29 days. On this basis, when the learned judge in the present case sentenced him, the respondent's eligibility for parole date was 12 December 2007 and his sentence end date was 12 June 2010. The learned judge sentenced on that basis. The respondent accepts that he was correct to do so.
24 For the respondent it was particularly submitted to the learned judge that there had been significant drinking, that not long before the incident his father and partner had died, he had pleaded guilty, there was no pre-meditation, and a weapon had not been brought to the scene. Further, it was said that regard should be had to principles of totality. In relation to rehabilitation, counsel acknowledged 'difficulties' but said 'some indication of rehabilitation' was seen in the respondent's desire to provide for his son.
25 The learned judge accepted the prosecutor's submission that this was 'a very serious case of this kind', 'especially violent and especially disproportionate'. He also accepted the prosecutor's characterisation of the seriousness of the offence as 'near the worst of its type'.
26 The learned judge referred to the importance in the respondent's case of specific deterrence and general deterrence and referred to the respondent's 'bad criminal history' which involved 'acts of violence and threats of violence', and added that:
35 ... Drunken violence of this kind is prevalent. It is particular [sic] disturbing here where it has occurred against a background of past animosity concerning the domestic relationships, in the presence of the woman with whom both you and the victim had been involved, and in front of your innocent young son.
36 The tragic effect of these events upon your son, who I have no doubt you love sincerely, is one of the most disturbing features of this crime. Perhaps the best thing that can be said in your favour is that you were at least partly motivated to plead guilty to this charge by a desire to spare your young son the possibility of further involvement in court proceedings. I take that matter into account in your favour.
27 Then, after referring to the position concerning parole, the learned judge noted that the non-parole period he was to order:
... will be served first, and then the balance of that sentence and the balance of the other sentences, in relation to which you will be eligible for parole, will be served cumulatively pursuant to s 16(3B) of the Sentencing Act in the absence of exceptional circumstances. Your counsel did not contend that there were exceptional circumstances here.
28 Finally the learned judge accepted the respondent's submission that he should sentence the respondent on the basis that he will have a head sentence of approximately 2 years (being the above period of 1 year 11 months and 29 days) in addition to the sentence he was to impose, which had to be taken into account in considering totality. He also emphasised that he had to approach sentence on the basis that the respondent may be required to serve the full term he imposes and the unexpired portions of the earlier sentences. Proceeding on that basis the learned judge said to the respondent:
43 This is a terrible crime which you have committed. You have taken a man's life, and you have caused great suffering for all those who loved him. You believed it was necessary to act as you did, but your response to his threat was without reasonable grounds. It was savage and brutal.
29 Counsel for the appellant submitted that the sentence revealed such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle and that the appeal should be allowed for the reasons articulated in propositions 2(b), (c) and (e) in R v Clarke.[1] It was pointed out that this was the first occasion that this Court has had to consider an appeal against sentence for defensive homicide. It was submitted that in a number of identified respects the learned judge had had insufficient or excessive regard to relevant considerations.
30 Counsel submitted that the learned judge paid insufficient regard to the very serious nature of the offence, and the fact that the present case was a serious instance of the offence and had a number of aggravating factors. The following matters were significant in assessing the objective gravity of the offence, and the respondent's moral culpability:
(a) the threat to which the respondent reacted was the production but not the use of a table leg;
(b) the respondent's assault occurred after he had disarmed O'Neill;
(c) the respondent's conduct was grossly disproportionate to the threat;
(d) some injuries were inflicted after O'Neill lost consciousness;
(e) the attack occurred in the presence of Martin and their son Kevin;
(f) afterwards the respondent asked his son to lie about what he had seen;
(g) the respondent lied to the police at the scene and to a lesser extent in his record of interview as to what occurred;
(h) at the time the respondent was on parole for armed robbery; and
(i) the respondent's criminal history, which included offences involving violence and weapons.
31 The offence was near to the worst of its type, as the learned judge accepted. Further, and as the learned judge noted, the victim impact statements revealed that O'Neill's death had caused significant suffering to many people.
32 In short, given the circumstances of the offence and of the offender, the need for specific and general deterrence, denunciation, and the protection of the community had to be accorded considerable weight. The sentence therefore had to be of considerable magnitude.
33 It was submitted that excessive weight was given to the following factors. First, the plea of guilty to defensive homicide was not offered until shortly before the trial was due to commence and thus did not warrant the very significant reduction that can sometimes be appropriate. At the committal hearing the defence had enquired as to a plea of manslaughter. Secondly, there being no essential exceptional circumstances for the purpose of s 16(3B) of the Sentencing Act 1991, the sentences imposed on 3 November 2006 on the respondent had to be served cumulatively with the period of cancelled parole. Thirdly, those offences involved serious criminality. In these circumstances, to properly reflect the total criminality of the respondent, the learned judge was not required to significantly reduce the sentence he would otherwise have imposed.
34 Counsel for the appellant also referred the Court to all sentences that have now been imposed for defensive homicide. In addition to the present case, there was R v Michael Paul Smith,[2] R v Giammona,[3] R v Callum Zane Smith,[4] R v Taiba[5] and R v Baxter.[6] The highest sentence imposed was that in the present case. The next highest head sentence was 9 years (in R v Taiba), and the lowest non-parole period was four and a half years (in R v Callum Zane Smith). It is necessary to mention these matters for, although sentencing practice is not a specific ground of appeal, it was yet relevant to the appellant's submissions to identify past sentences and the type of case to which the present was truly analogous.
35 Counsel for the respondent emphasised two central aspects of the plea in mitigation namely, the plea of guilty and the principle of totality.
36 The plea of guilty meant, and the respondent was sentenced on the basis, that in carrying out the conduct which killed O'Neill, the respondent had a subjective belief that it was necessary for him to carry out such conduct to defend himself from the infliction of death or really serious injury. The fact of that subjective belief was significant, and meant that the respondent's case should not have been regarded as falling within the most serious example of this type of offence. Further, the plea of guilty was significant because it avoided a trial, and witnesses, in particular Kevin Junior and Martin, did not have to give evidence. There had also been an attempt to resolve the matter at committal. Counsel submitted that the sentence of 10 years should be viewed on the basis that a significant discount was applied on account of the plea of guilty.
37 As to totality, the sentence should be viewed on the basis that 'a meaningful adjustment' had been allowed to account for the fact that the sentence to be imposed would be served cumulatively upon a period of 3 years 11 months and 29 days based on the 2006 County Court sentence and the cancellation of parole from the 1998 County Court sentence.
38 Otherwise, counsel for the respondent submitted, the sentencing remarks revealed that the learned judge took account of relevant sentencing principles and had regard to relevant matters. And, as counsel noted, the subject sentence is the highest imposed for the offence.
39 I interpolate that when the respondent was sentenced on 13 August 2008, he was only the second person to be sentenced for the offence of defensive homicide. The first sentence had been imposed by the learned judge earlier in 2008 in R v Michael Paul Smith.[7] In sentencing the respondent, the learned judge said that he took into account the general observations he made in R v Michael Paul Smith, and that he had regard to other cases some of which possessed characteristics analogous to the present case. Those cases were R v McLachlan,[8] R v Roesner,[9] R v Casey,[10] R v Curtain;[11] R v Egan;[12] and R v Stratton.[13] It is to be noted that, with the exception of R v Roesner, these cases were manslaughter by unlawful and dangerous act in which the head sentence ranged between 8 and 9 years, and the non-parole period ranged between 5 and 7 years. R v Egan was the lowest with 8 and 5 years. On the other hand, R v Roesner was a plea of guilty to murder by a man who bashed his sleeping wife to death with a hammer in the presence of their young son who attracted his sister to the scene, and where the sentence was 16 years with a non-parole period of 12 and a half years, notwithstanding mitigating factors.
40 As to the appropriate characterisation of the present case, the first point that counsel for the appellant noted was the finding that the present case was near the worst of its type, a characterisation that may readily be accepted, and which he said was not apposite to the other cases of defensive homicide. That may also be accepted. The second point was that but for the respondent's subjective belief this was murder. That led to the third point, that apart from the earlier case of R v Michael Paul Smith, and R v Roesner which was a murder, the cases referred to by the learned judge were manslaughter by unlawful and dangerous act. Counsel acknowledged the fact of the respondent's subjective belief, which of course denied murder, but nevertheless submitted that R v Roesner provided the more appropriate point of reference. He submitted that the manslaughter cases were not an appropriate reference point for several reasons. First, there was a danger in regarding a sentence for manslaughter as analogous to defensive homicide, by reason of the different requirements for the offence of defensive homicide and the relative seriousness or criminality of the varying types of manslaughter. As to that, Nettle JA referred to the range of manslaughter cases in R v Casey[14] thus:
20 The maximum penalty for the offence of manslaughter is 20 years' imprisonment and the most serious cases of manslaughter are liable to attract a penalty of 15 years' imprisonment or more. Such cases involve death caused by acts committed with intent to kill or inflict really serious injury, which, but for provocation, would be murder. Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47 at 68, per Windeyer J; R v Osip [2000] VSCA 237; (2000) 2 VR 595 at [46]. At the other end of the spectrum there are cases of accidental homicide the result of nothing more culpable than momentary neglect, which, depending upon the facts and circumstances, may attract a short sentence of imprisonment or perhaps even a non-custodial penalty. Between those extremes lies a broad range of cases, of both voluntary and involuntary acts of homicide in a wide spread of circumstances, attracting a range of penalties that is very wide indeed.
41 Counsel for the appellant then submitted that the cases of defensive homicide other than the present case, were properly to be regarded as middle of the range cases for sentencing purposes. The present case was top of the range, yet the sentence imposed was more akin to that imposed in a mid range case.
42 As might be expected, counsel for the respondent relied on the subject sentence being the highest yet imposed for a defensive homicide, the fact that the learned judge was alive to the distinction between defensive homicide and manslaughter, and the other matters referred to earlier.
43 Doubtless it is axiomatic, but it is important to keep in mind that the offence is defensive homicide (which but for the subjective element would be murder), and the fact that the legislation provides for the same maximum penalty for defensive homicide and manslaughter should not blur the lines between the two. Moreover, in relation to the maximum penalty and its significance in sentencing, it is important to keep in mind the statements in R v AB (No 2).[15] In a sense, sentencing practice in defensive homicide cases may be regarded as in its infancy, and the present case may provide some guidance for the future. In the present appeal, where sentencing practice was not a specific ground of appeal and the sentences in the other defensive homicide cases were not the subject of attack, it is neither desirable nor appropriate to consider the matter of sentencing practice, such as it is, in defensive homicide cases. The task is confined to the present case, and this judgment is to be understood accordingly.
44 It is true that the learned judge had regard to relevant sentencing considerations. In particular he allowed for the respondent's plea of guilty, which had the particular advantage of saving his son especially, but also Martin, from having to give evidence, the need for totality in sentencing, and to the various other factors on which reliance was placed by the respondent.
45 Yet, allowing for all of this the sentence imposed was so disproportionate to the seriousness of the offence as to shock the public conscience and be manifestly inadequate.[16] It seems reasonable to suppose that the learned judge started from a base that was too low having regard to the seriousness of the offence and the considerations expressed in R v AB (No 2). Considerations of general and specific deterrence, denunciation, the need for a punishment that was just and appropriate in the circumstances including considerations of the sanctity of human life and community protection, required a sentence of greater magnitude.
46 That leaves for consideration the appropriate dispensation of the appeal. Having regard to the considerations of double jeopardy and the approach to re-sentencing that pertain to a Director's appeal, and to the circumstances generally, in particular that this is the first time this Court has considered a sentence for defensive homicide, it is just that the Court exercise its discretion not to intervene and re-sentence the respondent. Accordingly it is not necessary to consider what sentence might appropriately have been imposed by the learned judge or by this Court.
[1] [1996] VICSC 30; [1996] 2 VR 520, 522.
[15] [2008] VSCA 39, [38]-[40]. See also Director of Public Prosecutions v CPD [2009] VSCA 114, [7], [75]-[81]; Director of Public Prosecutions v DDJ [2009] VSCA 115, [67]-[72].
[16] R v Clark [1996] VICSC 30; (1996) 2 VR 520, 522.
DPP
Edwards [2009] VSCA 232
(1968) 119 CLR 47
(2000) 2 VR 595
(1996) 2 VR 520