DPP v England [1999] VSCA 95

Court of Appeal (Vic)|1999-06-25|Before: BROOKING, BATT and CHERNOV, JJ.A.

CRIMINAL LAW - Sentence - Murder - Appeal by D.P.P. - Post-mortem sexual intercourse and incineration of body as aggravating circumstances.

A 75-year-old woman, whom I shall call Mrs F, had a house in West Geelong; she had lived there alone since her husband's death in 1969. In the small hours of Sunday, 12 January 1997 a young man - he was then 19 - named Mark Thomas England broke into her home with the intention of stealing from her. She owned a block of flats and he, as a former tenant of hers, knew something of her habits and believed that at the weekend she would have a tidy sum in the house as rent she had collected. He entered by the kitchen window and, having found a long crowbar in the kitchen, armed himself with that fearsome weapon. He then walked up the hallway to the front of the house and entered the main bedroom (he later said he could not explain why he did this) and saw Mrs F, lying in bed. She was asleep. According to his account, she woke up. Whether he demanded money, and indeed what, if anything, he said to her remains a matter of speculation, but he told the police that she was yelling "You beast" and that she said she had no money and had given it all to her brother or her son. While this was going on he was hitting her over the head with the crowbar. He said that he did this as soon as she woke up and that he kept on hitting her on the head because he had not succeeded in knocking her out ("It was like she had a steel plate in her head or something"). He hit her over the head with the claw-like end of the crowbar at least seven times; injuries to her hands and forearms showed how she had tried to defend herself against the blows. In the course of beating her he put a pillow over her face. She ended up on the floor and he then stood on her throat with one foot. Next he seized a belt which had been hanging on the bedroom door, put it round her neck and strangled her. This it was that killed her.

Mrs F was wearing a night-dress. The young man dragged her across the floor to the bedroom door and proceeded to have sexual intercourse with what was by then her dead body. He achieved ejaculation. The body had fallen onto the woman's handbag, which was on the floor by her bed, and it was apparently in order to retrieve the bag that he dragged the body over to the door. His next act was, it seems, to steal a watch from her dressing table. Then he picked up her handbag, upended it and took possession of the money which had been inside. He counted this while still in the house and found there was about a thousand dollars, which he pocketed. Next he went outside, looking for a can of petrol, found one and returned. He poured petrol, as he said, "all over" the body and also poured it out in every room of the house and in the hall. Finally, he lit a fire in the hall, near the body, escaped by the back door and went home. He there washed all the clothes he had been wearing. Later he gave the stolen watch to his former girlfriend. The money he used to buy a supply of marijuana and a "walkman" device.

It was the fire which led to the finding of the body and then to the discovery that a homicide had taken place. Having recovered the watch and learnt that it had come from Mark England, the police arrested him on 4 February 1997, and a long interview, broken into a number of stages, took place. It comprises 1295 questions and answers and extends over 109 pages.

At first England denied having had anything to do with the death of Mrs F, giving a false account of how he came by the watch and the money, but ultimately he admitted setting out to steal, breaking into the house, bludgeoning, strangling and killing the occupier, having intercourse with the corpse and making off with the money and the watch. There was a contested committal in October 1997, which lasted three days and in the course of which twenty witnesses were cross-examined by his counsel. The defendant's state of mind at the time of the offence was explored in that cross-examination, which appears to have been directed to the possibility of a defence of insanity. Issues were also raised with a view to having evidence of the police interviews excluded. In addition, the matter of "continuity" with regard to forensic samples was probed. But when the defendant was arraigned before Coldrey, J. on 3 August 1998 he pleaded guilty to a presentment charging murder. The case was listed for plea on 25 August 1998, on which day counsel for the prisoner successfully sought an adjournment of the plea until the following day. Next day, counsel announced that his and his instructing solicitor's instructions had been withdrawn and that his client wished to change his plea to not guilty. The prisoner himself, in the course of discussion with Coldrey, J., confirmed that he desired to plead not guilty. The matter was adjourned to a date to be fixed.

In fact, no application for leave to change the plea was made, and on 12 October 1998 the matter was listed again as a plea before another judge. The plea was heard and what was said by the prisoner's counsel suggests a concern that the judge might decline to fix any non-parole period. On 23 October 1998 a sentence of 18 years' imprisonment with a non-parole period of 14 years was imposed; a declaration was made of 627 days' pre-sentence detention. Against that sentence the Director of Public Prosecutions has appealed. Although four grounds of appeal are expressed, they come down to two: that the judge erred in determining that events after the death could not be considered as possible aggravating circumstances, and that both the head sentence and the non-parole period are manifestly inadequate.

"The crime of murder was of course complete at the death of Mrs Findlay and the shocking events which followed cannot, as a matter of law, be seen as aggravating the circumstances of that criminal act. However, having murdered Mrs Findlay in the course of the burglary, you did not recoil in horror at your brutal act. You certainly did not show any instantaneous remorse or regret for what you had done. Rather, you proceeded to defile the body of Mrs Findlay by sexual penetration of her corpse."

His Honour then went on to refer to the theft of money and watch and the lighting of the fire.

The respondent was, as I have said, 19 at the time of the offence. He admitted a number of convictions, including convictions for theft, handling and escape which had resulted in a sentence of youth training centre detention and a short prison sentence, both in 1996. The offences were not such as would have permitted the prior convictions to be used adversely to the respondent when he came to be sentenced for murder, but I mention them because of the picture of his past life which was painted by his counsel.

Thirteen victim impact statements were before the judge. I shall not dwell on these. One thing mentioned as causing great distress is the identification of the body. Photographs of the body were before the judge. A good deal of material was placed before him by the respondent's counsel on the hearing of the plea. There was a report and oral evidence from Mr Bernard Healey, the psychologist, and a report from Dr Walton, the psychiatrist. A letter from a social worker and a statement from a youth worker were put in evidence, and another youth worker gave oral evidence. It is not possible to provide a succinct summary of the facts and opinions placed before the judge by the respondent's counsel, and the brief account which follows is necessarily inadequate. Dr Walton saw the respondent on 23 June and 29 July 1998. According to his report, the respondent had in these interviews retracted his confession and reverted to his original claim that he had acquired the watch innocently, from a third person. He told Dr Walton that he had been pressured by the police and instructed what to say and that he had not been at the scene of the crime. Dr Walton's conclusion was that, notwithstanding extensive cannabis abuse, the respondent should not be described as a drug-dependant person, and that there was no discernible evidence of any diagnosable mental disorder. It could not be said that the offence occurred by reason of any "mental impairment". The respondent would not be amenable to any conventional psychiatric treatment. Dr Walton further said:

"I suspect that Mr England has finally given vent to long-standing pent-up feelings of rage in an opportunistic fashion. It would seem highly likely that he attended the victim's premises merely to acquire cash but he has overreacted when he attempted to subdue her and the final sexual act was the ultimate expression of his anger, a statement to the world at large, rather than any direct personal hostility or humiliation of the victim."

Mr Healey's report dealt at length with the respondent's background. He complained to Mr Healey of sexual abuse occurring over several years by the brother of his mother's de facto husband. He attended Laverton Secondary College for Year 7, Altona Technical College for Year 8 and Newcombe Secondary College for Year 9. He was unhappy at school and evidently lit a number of fires there. He left home at the age of 15, in about 1993, and worked, first for a commercial cleaning business, and then stacking shelves in a supermarket. Then, after a period of unemployment, he worked for brief periods in the building industry. (He was on unemployment benefits at the time of the killing.) Mr Healey recorded the respondent's serving a sentence of youth training centre detention in 1996 for theft of motor cars and a short prison sentence in 1996 for escape and theft of a motor car. He had had a number of relationships with women, the first when, at the age of 16, he moved in with a 22 year old woman. At the age of about 17 he fathered a child by another woman with whom he was living. He had used cannabis a great deal, and some other drugs, but it was not suggested that his use of cannabis was related to the present offence. He seems to have had relationships of some duration with at least four women between the ages of 16 and 19. At the time of this offence he was boarding with the mother of one of those women.

According to Mr Healey intellectual testing "was indicative of dull capacity with full-scale IQ 77, placing him within the borderline range, at the 6th percentile, where 94% would do better". Strangely, Mr Healey, having said that the margin for error on testing was about three or four IQ points either way, said that with a test result of 77 he was still, after allowing for possible error, within the borderline range of between 70 and 79. Personality testing was said by Mr Healey to indicate "disturbed, distressed emotionality with evidence of thought confusion" and to show him to be a disturbed, distressed person with poor impulse control. Part of his conclusion was expressed in his report as follows:

"Difficulty in 'bridging the gap' as it were in this disturbed, inadequate young man's functioning to the type of person who could carry out such horrific acts - particularly in the absence of any hint of this kind of offending in the past - could only be explained (in part) by the possibility that he may have been motivated to steal from the victim, that he hit her without realising that the blow could result in her death, seemed to panic, hit her again. His functioning became more disturbed then with a sexual component, further panic in which he tried to destroy the scene of his crime by setting fire to it."

The judge accepted Mr Healey's evidence that the test results showed an IQ of 77. This was not the only material bearing on the respondent's intellect. Dr Walton said of him, "I suspect he is of somewhat lowish but normal intelligence". As earlier mentioned, he did have some history of employment, and there was other material, some of which I have mentioned, dealing with his social relations generally in recent years. His own words and acts after the killing bear on his intelligence. The very long record of interview is available for consideration. Then there is what was said by the respondent to Coldrey, J. on 26 August 1998. It is unwise to confine attention to the test results of a psychologist when a good deal of other material bearing on intelligence is available. When regard is had to everything available, Dr Walton's pithy assessment appeals to me.

According to the woman with whom the respondent boarded, he had said in her presence, of Mrs F, "I hate that fucking moll. She's going to get hers one day. I'll make sure of that." He had gone on to explain that, when he was her tenant, Mrs F had withheld furniture and clothing from him because of arrears of rent. According to the young woman who had lived with the respondent in the tenanted flat, he said of Mrs F, when they had to move out, "She's going to die. I'm going to kill her for this." Nevertheless the Crown, while referring to and relying on this evidence of animosity (which was not challenged or contradicted by cross-examination or the calling of evidence on the plea), accepted on the plea that the respondent had gone to the house only with the intention of stealing from her the rents she had collected, so that the killing was not premeditated. But the Crown did not concede that animosity had nothing to do with what took place in the house.

Since the judge expressly sentenced on the footing that the sexual intercourse and burning of the body, having followed the death and so the commission of the crime, could not aggravate it, an occasion has arisen for the bringing of a Crown appeal to have the question of principle determined.

The point now in question was not taken by counsel (not Mr Dickinson) who appeared for the respondent on the plea. Indeed, it was implicit in his submission that post-mortem acts could aggravate a homicide but that in the particular case they should not be treated as doing so in view of the respondent's dull intellect and supposed loss of control. It was the judge himself who, for the first time, formulated and laid down (in his reasons for sentence) the proposition that, the crime of murder becoming complete upon death, acts done after death could not be viewed as aggravating circumstances of the crime. His Honour had regard to those acts, but only in considering whether the respondent had established that he was remorseful. In the meantime, shortly before the end of the plea, the Crown prosecutor had submitted that the defilement and burning of the body should be viewed "as serious features attending the commission of this murder". He added that these acts demonstrated entire absence of remorse, and that this was how the acts could be used.

Mr Dickinson argues that, if the judge did err in failing to treat the immediate post-mortem acts as part of the circumstances of the offence, he had been led into this mistake by the Crown, and he referred to the authorities dealing with the duty of the Crown to strive to assist a sentencing judge to avoid appealable error and the significance of the conduct of the prosecutor below when a Crown appeal is brought. Of course, the present case is very different from one in which the Crown, for example, having accepted before the judge that a non-custodial sentence should be passed, then seeks to overturn that sentence on the ground that its imposition was not open to the judge. Here the respondent's counsel had not submitted that as a matter of law post-mortem acts could not aggravate a homicide, and I do not think that the Crown ever in terms advanced any such proposition to the judge in discussing what it had described as "serious features attending the commission of this murder". I do not think that the Crown's conduct should prevent it from challenging the sentence on this ground.

I turn then to the main question raised by this appeal.

Aggravating circumstances point towards greater severity of sentence. What are the circumstances of the offence for this purpose? May one look only to circumstances which, judged from the standpoint of strict contemporaneity, accompany the criminal act and at nothing which precedes or follows it? It is absurdly artificial to draw a line and limit the circumstances of the offence to those which existed in the period of time (which may be a single second) between the coming into existence of the first and last elements of the offence. Take the crime with which we are concerned - murder. Where someone is beaten or hacked to death and mutilated, must the sentencer pause to determine the precise moment at which death supervened lest the cutting off of some other part of the anatomy be mistakenly treated as a circumstance of a crime which was complete once the head was hacked off? If the criminal torments the victim with promises of what is about to come, are those threats to be left out of account because they precede by minutes the fatal assault? But the insistence of common sense that the circumstances of a crime be regarded even though technically its commission has yet to begin or has already ended is not confined to cases of what might be called substantial as opposed to strict contemporaneity.

Long before the Sentencing Act rose above the horizon judges drew on their common sense and their moral sense, as representing that of the community, in deciding what things about a crime could be said to make it more or less serious. They still do; nothing in the Act stops them doing this. Common sense and moral sense, which are and must ever be the essential foundation of sentencing principles and practices, unite in rejecting the notion that "the circumstances of the offence", for sentencing purposes, are neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime. What is premeditation, if not a circumstance of the offence? Yet by definition it precedes the crime. What is provocative conduct of the victim, viewed as palliating the crime, if not a circumstance of the offence? But again something cannot provoke unless it precedes. Similarly, it has long been recognised that the consequences of a crime (which by definition follow it) may form part of its circumstances for sentencing purposes: R. v. Boyd [1975] VicRp 16; [1975] V.R. 168 at 172; R. v. McCormack [1981] VicRp 11; [1981] V.R. 104 at 108. The courts treat the phrases "circumstances of the offence" and "surrounding circumstances of the offence" as interchangeable: R. v. Boyd at 172; R. v. Teremoana (1990) 54 S.A.S.R. 30 at 36-37 and 50; R. v. De Simoni [1981] HCA 31; (1981) 147 C.L.R. 383 at 396 per Wilson, J.; R. v. Newman & Turnbull [1997] 1 V.R. 146 at 152 per Winneke, P. These and similar phrases do not look to some clearly defined period of time. In R. v. Austin (1985) 121 LSJS 181, King, C.J. (Zelling and Bollen, JJ. concurring) said (at 183):

"It is true that in imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation.

Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree."

This passage will be found cited in R. v. Teremoana at 36-37 & 50.

Discussion of the general question raised by what is in substance the first ground of appeal is not easy to find, and that may itself be significant. We find judges treating as part of the circumstances of the offence in cases of homicide things done by the offender to the body both where those acts are performed after death and where it is not clear whether the act preceded or followed the death. In cases of the second kind, the judges do not treat the moment of death as material: the act is treated as a circumstance of the offence regardless of whether it preceded or followed the death.

Having regard to the variety of the circumstances that have been considered, it is not possible to explain this approach to sentencing by saying that the acts in question, although not strictly speaking contemporaneous with the commission of the crime, are virtually contemporaneous. Nor is it possible to explain the approach by saying that it is limited to cases of homicidal attacks constituting a single episode, in which it would be artificial and wrong to confine attention to such of the acts as contributed to the death since each act was intended to kill or seriously injure a person believed to be still alive. Some of the cases in which regard has been had to acts inflicting injury on the body even though they were, or may well have been, committed after death, could be sought to be explained on this basis, although I doubt very much whether the final act by which the body was violated in R. v. Stone [1988] VicRp 19; [1988] V.R. 141 - thrusting a stake into the vagina - could be described as part of a murderous attack. It was very likely committed after death and was a gratuitous violation of the body.

In R. v. Barling (1995) 79 A.Crim.R. 131 the victim was shot twice with a shotgun, then struck over the head several times with the shotgun and then shot twice more with it, one of these last two shootings resulting in a contact wound. It was the last two shots that killed the victim and after this the prisoner took the victim's revolver (he being a security guard) and shot him with it in the lower abdomen. These facts are recited in the reasons for judgment of the Court of Criminal Appeal, which dismissed an application for leave to appeal against sentence. The reasons of the sentencing judge are not available to me and I do not know whether he treated the shooting of the victim after he was already dead as aggravating the offence. Certainly there is nothing in the reasons of the Court of Criminal Appeal to suggest that the infliction of the wound after death was not a relevant circumstance. The case may, however, have been regarded as one in which a number of shots were fired in the course of a murderous attack, each intended to cause death where it would on any view be artificial to distinguish, for sentencing purposes, between those which caused the death and those which did not.

I have made passing reference to the case of Stone. I need not recount the acts perpetrated there. The Court records - [1988] V.R. at 143 - the fact that death was due either to the stab wounds or to asphyxiation. It seems to me highly likely that some of the acts recounted as having been done by the prisoner by way of further violating the body were done after death. The Court does not treat the question of the precise time of death in relation to those acts as relevant. They were acts of gratuitous violence and degradation. This case cannot be explained as one of a murderous assault constituted by a number of acts, each intended to kill, where it would, I imagine, be accepted by all that for sentencing purposes it would be absurd to ignore such of the acts as occurred after death. The case was plainly one of the depraved infliction of injury, which murderous intent was insufficient to explain. My impression from reading what appears at 142-3 is that the Court even viewed as an aggravating circumstance of the offence the miserable act of one offender in taking nine dollars from the victim's handbag after her death.

Then there is the case of R. v. Hull (1969) 80 W.N. (Pt 1) (N.S.W.) 488, where death was caused by manual strangulation. After the death, the prisoner stabbed the victim twice and then inflicted a deep cut, which extended from breastbone to pelvis. The judgment of the Court of Criminal Appeal records that the mutilation of the body after death was taken into consideration by the judge, Collins, J., in passing sentence and observes that he "obviously gave his attention to every consideration that was relevant and omitted those that were irrelevant" (492).

In R. v. McRae (Court of Criminal Appeal, unreported, 21 February 1990) the victim was killed instantly by a gunshot wound to the head in the kitchen of a house. The offender then carried the body out to a shed, returned to the kitchen and obtained a knife, and then went back to the body, where he inflicted knife wounds upon it. These events are recorded in the reasons of the Court of Criminal Appeal. The trial judge was O'Bryan, J., who passed sentence on 25 October 1989. I have not been able to obtain a copy of the reasons for sentence, but a note in the Victorian Sentencing Manual, 2nd ed., para.28.103, suggests that the mutilation of the body with the knife was regarded by his Honour as an aggravating circumstance.

Another example of the infliction of injuries in the knowledge that the victim was already dead is R. v. Schasko (1989) 43 A.Crim.R. 301, where death was caused by a knife wound which severed the left carotid artery. According to the sentencing judge, O'Loughlin, J., "blows of tremendous force" were struck which inflicted "horrible facial injuries". The blows were described as acts of gratuitous violence. It was impossible to determine whether they were inflicted just before or just after death, but his Honour treated that as immaterial.

Cummins, J. has very recently had occasion to sentence a young man who murdered his grandmother by strangulation and then achieved ejaculation by having intercourse with her dead body: R. v. A.D.P. [1999] VSC 120. The act of intercourse is referred to by his Honour a number of times, and described as an act of depravity, and it seems to me to have been treated as a circumstance of aggravation. In R. v. Giles [1999] VSC 118 the same learned judge had to sentence a man who had strangled his victim, raped her while she was unconscious and then, immediately after her death by strangulation, used a pair of scissors to mutilate her breasts, vagina and anus. The reasons for sentence make it plain that the mutilation of the body was treated as an aggravating circumstance. A few weeks later came R. v. McKee [1999] VSC 207, where Cummins, J. had occasion to sentence a murderer who had dismembered and otherwise mistreated the victim's body. His Honour mentioned these acts as part of the circumstances which made the crime "especially serious". The sequence of events in that case was that McKee killed the victim by shooting him in a house in Frankston North at about 8 p.m. on 24 December and left the house; returned a few hours later and took the body to his own home in Langwarrin, where in the course of the day and night of 25 December he dismembered the body and burnt its parts on a barbecue; on 26 December sank the remains in a dam at Somers.

The mere act of dumping the body after a murder has been viewed as an aggravating circumstance. So in R. v. Von Einem (1985) 38 S.A.S.R. 207; (1985) 16 A.Crim.R. 319 King, C.J., with whom Jacobs and Olsson, JJ. agreed, mentioned the dumping of the body in a remote spot as part of his "recital of essential facts", which at 218; 330 he described as amply justifying the sentencing judge's view that the crime was of unique seriousness. In R. v. Lowe [1997] 2 V.R. 465 a very short time after the killing, the body of the murdered child was wedged into a storm-water drain, where it was found three months later. The Court of Appeal, at 490, referred to the prisoner's heartless concealment of the child's body, and it is to be noted, having regard to what I shall say later about remorse, that the hiding of the body was plainly regarded as not limited in its significance to the light which it threw on remorse. For the Court, having referred to the hiding of the body and other matters, went on to mention as a distinct matter the prisoner's signal and singular lack of remorse.

Of particular interest, having regard to the facts of the present case, is the decision of the Court of Criminal Appeal in R. v. Schultz [1997] SASC 6098; (1997) 68 S.A.S.R. 377. The appellant Inge, accompanied by Schultz, broke into the home of the victim late at night, beat him to death and then, having found a can of petrol in the house, poured it over the dead body and ignited it. Perry, J., with whose judgment Cox and Williams, JJ. agreed, observed that the incineration of the body of the deceased was a circumstance of aggravation. It is worth noting that it is clear enough that the sentencing judge himself had also so regarded it.

Against this background it comes, if I may say so, as no surprise to find that the Court of Appeal has recently decided that an offence of culpable driving causing death was aggravated by the offender's act in dragging the dead body of a passenger from the passenger's seat into the driver's seat in an attempt to place the blame for the driving on one of the victims of it. Tadgell, J.A., delivering the principal judgment, entertained no doubt that, while the manhandling of the body was not part of the circumstances of the actual commission of the offence, it was nevertheless one of the circumstances of the offence and bore upon the penalty to be inflicted for it. His Honour gave his reasons for that conclusion at some length: R. v. Scholes [1998] VSCA 17; (1998) 27 M.V.R. 422.

But it is said for the respondent that R. v. Wei Yin Chan (1994) 76 A.Crim.R. 252 stands in the way of the Crown's contention. The applicant for leave to appeal against sentence entered a house in the small hours and abducted a child, whom he took to his own home, where he sexually assaulted and then murdered her. At a time which was, as I would infer, only a little later, he did further violence to the child's body, as mentioned in the short passage in the joint judgment at 253 on which reliance is now placed:

"The respondent then took a number of steps in order to avoid detection and to prevent the discovery of the cause of her death. They concluded with the respondent driving backwards and forwards over the child's body which he had placed in the street in order to make it appear that she had died from injuries caused in a motor car accident. There need be no further reference to these actions. They occurred after the commission of the offence and his guilt of that offence is admitted. It would seem that these later events might be relevant only to the question of remorse."

I am bound to say, respectfully but emphatically, that I cannot accept the view there expressed. My reasons sufficiently appear from what I have already written. I regard the conduct of the offender in Wei Yin Chan as aggravating, and indeed quite significantly, his offence.

I must also disagree with the view taken by Vincent, J. in R. v. Haseloff (unreported, 10 April 1997). Having murdered a woman in a house at Laverton, the prisoner (evidently without delay) disposed of the firearm and took the body to a mineshaft near Ballarat, where he dumped it and burnt it. His Honour, in sentencing, said that what was done to the body after death was relevant "only to the issue of the presence or otherwise of remorse", on the footing that "conduct after the death ..., although reprehensible, cannot affect the sentence which is to be imposed ... for the crime of murder which had earlier been committed." (An application for leave to appeal against sentence was abandoned: [1998] 4 V.R. 359 at 360.)

I should briefly mention the position in the United States, where in most states there is provision for capital punishment in cases of first degree murder. Each of these states requires the finding of an aggravating circumstance or factor (not always described as such in the statute) before the death penalty may be imposed. Many of the statutes list these factors in a way which makes them relatively specific and narrow, for example, the victim's status as a law enforcement officer; killing as - or by - a hired assassin; killing to prevent a lawful arrest; killing a witness. Many statutes also include, as an aggravating factor, that the murder was especially heinous, by the use of such terms as "especially heinous, atrocious or cruel", "depravity of mind", or "outrageously vile wanton or inhuman". In his article, "The `Especially Heinous' Aggravating Circumstance in Capital Cases - The Standardless Standard", (1986) 64 North Carolina Law Rev. 941, Professor Rosen discusses the constitutionality of statutes in so far as they employ terms of this kind, having regard especially to the cruel and unusual punishment clause of the eighth amendment and the consequent need (because "death is different") to channel the sentencer's discretion so as to avoid the arbitrary, capricious and discriminatory imposition of the death penalty. The article is of some present interest because of its discussion of decisions considering whether the post-mortem mutilation of a body can constitute an "especially heinous" factor, for example, by showing "depravity of mind". The views taken in the States of Florida (p.973), Arizona (p.982), Georgia (pp.982-3), Missouri (pp.985-6) and Virginia (p.988) are mentioned in the article. As regards New Jersey, reference may be made to the majority and minority opinions on the "depravity of mind" point in State v. Ramseur 106 N.J. 13; 524 A 2d 130 (1987) and State v. Davis 116 N.J. 341; 561 A 2d 1082 (1989), both decisions given after Professor Rosen's article.

The United States decisions concern the constitutionality and the interpretation, against the background of the United States Constitution, of particular expressions in state capital sentencing statutes. The expressions sometimes contain not only adjectives, adverbs and nouns but also (as in the New Jersey statute) a verb linking the factor to the murder. It would, I think, be unwise to try to derive significant assistance for present purposes from these decisions.

What should be regarded as the circumstances of an offence is best left to the good sense of sentencing judges, without any attempt to lay down principles or rules, which are all too common in the criminal law nowadays and which are particularly to be avoided in a matter of this kind. I have no doubt that in this case the judge was wrong in failing to characterise as a circumstance of the crime the facts that the murderer had capped the homicide with a sexual assault upon the body from which life had just departed and then burnt what he had just defiled. Cases may arise in which, for example, the murderer, who has allowed the victim's body to lie concealed for a long time, then dismembers it with a view to disposing of it by some different means; and it may be argued that, having regard to all relevant matters, the dismemberment should not be regarded as so connected with the crime as to be viewed as one of its surrounding circumstances. When such a case arises, it can be left to the good sense of the sentencing judge. As was said in the South Australian decisions mentioned earlier, what is a surrounding circumstance may be a question of degree.

The frequently cited case of R. v. Newman & Turnbull [1997] 1 V.R. 146 was called in aid by Mr Dickinson, who submitted (somewhat faintly, I thought) that it prevented the taking into account of the sexual assault, since that constituted the common law misdemeanour of interference with a corpse, as to which he referred to R. v. Van Beelen (1973) 4 S.A.S.R. 353 at 409 and R. v. Riley (Supreme Court of South Australia, Matheson, J., unreported, 1 March 1989). He did not, as I understood him, make the same submission as regards the attempted incineration of the body. Let us assume that the intercourse with the dead body was a criminal offence. I decline to stretch the principle of Newman & Turnbull beyond the bounds of common sense by upholding its invocation in the present case.

Nor am I attracted by Mr Dickinson's further submission that it would be wrong to regard the intercourse and the burning of the body as aggravating circumstances if regard is also had to them as tending to negative remorse. If conduct, notwithstanding that technically it follows the crime, is so connected with it as properly to be viewed as one of its circumstances, that conduct, if it aggravates the crime, must be placed in the scales. If remorse also falls for consideration, there is no element of "double counting" (Mr Dickinson's phrase) if the same conduct is treated as relevant in considering whether, on the whole of the material, the offender has established the fact of remorse.

Having regard to my view on the main point in this appeal, it is strictly speaking unnecessary to deal with the second question, manifest inadequacy. I will say no more than that, had the ground alleging specific error failed, I would have upheld what is in substance the second ground, and held that both the head sentence and the non-parole period were so inadequate as to bring the case within the class in which this Court intervenes on this ground.

I would therefore allow the Director's appeal. After making an allowance for what is usually called double jeopardy, I would propose the passing of a substituted sentence of 23 years' imprisonment, with a non-parole period of 17 years. According to my calculations, pre-sentence detention now stands at 972 days.

In conclusion, I record my indebtedness to Mr. McArdle and Ms Judd for the memorandum which they submitted by leave after the conclusion of the oral argument.

I have had the benefit of reading in draft the reasons for judgment of Brooking, J.A. I agree with his Honour's conclusions and his reasons for reaching them, and with the order he proposes. On the main point, I would say in two sentences that I cannot accept that it would be proper to impose the same sentence for murder where there was post-death defilement, mutilation or burning of the corpse as where they were absent, if the circumstances of the offence and of the offender were otherwise the same. To do so seems to me (as I understand it seems to Brooking, J.A.) to be contrary to commonsense. I too have been assisted by the further memorandum from counsel for the appellant.

I have had the benefit of reading in draft the reasons for judgment of Brooking, J.A. I agree with his Honour's conclusions and his reasons for reaching them and with the orders he proposes.

At a glance

Court

Decision date

Before

Source

Judgment (51 paragraphs)

Parties