DPP v Heblos [2000] VSCA 229

Court of Appeal (Vic)|2000-11-02|Before: PHILLIPS, C.J., BROOKING, J.A. and EAMES, A.J.A.

Criminal law - Sentence - Appeal by Director of Public Prosecutions - Murder - Whether sentence manifestly inadequate - Youthful offender - Whether finding open to sentencing judge that verdict was consistent with lack of intention to kill - Victim impact statements.

I shall ask my brother Eames to give the first judgment in this matter.

The respondent, who is aged 20, was convicted by a jury in the Supreme Court at Melbourne on 21 March last of a count of murder. This offence, which carries a maximum penalty of imprisonment for life, was committed at Brunswick on 23 February 1999. The victim was the respondent's employer, who was aged 57 at the date of his death. The respondent was then aged 18. The respondent had no prior convictions, and after hearing a plea for leniency during which several certificates were tendered on the respondent's behalf and a psychological report prepared by Mr Bernard Healey was available in court and referred to, the respondent was remanded in custody. On 13 April the learned judge imposed a sentence of 15 years' imprisonment and fixed a non-parole period of 10 years. A declaration of pre-trial detention of 412 days was made. On 8 May last, the appellant Director of Public Prosecutions for the State of Victoria lodged a notice of appeal against the sentence, pleading the following grounds:

"1. The sentence imposed was manifestly inadequate. 2. In fixing a term of imprisonment of 15 years with a non-parole period of ten years' imprisonment the learned sentencing judge - (a) erred in concluding that the verdict of the jury was consistent with a finding that the respondent intended to cause grievous bodily harm to Samuel Borenstein but inconsistent with a finding that the respondent intended to kill Samuel Borenstein; (b) failed to adequately reflect the gravity of the offence generally and in this case in particular; (c) failed to take into account or sufficiently to take into account the impact of the offence on the relatives of Samuel Borenstein; (d) failed to take into account or sufficiently to take into account the aspect of general deterrence; (e) failed to take into account or sufficiently to take into account the aspect of specific deterrence; (f) gave too much weight to factors going to mitigation."

It is now necessary to set out in summary form the facts of this matter.

At about 7.00 p.m. on Tuesday 23 February the deceased commenced to lock up his business called "Sam's Tyres" in Brunswick Road, Brunswick. At this time he was carrying a briefcase containing cash, cheques and personal items including two mobile telephones. The respondent had, as at this date, been employed by the deceased for about 15 to 16 months. His job entailed fitting tyres to vehicles and tidying the business premises. In about June 1998 the respondent had stolen $3,500 from the deceased. Confronted about this theft, he returned the money and the deceased maintained him in his employment, but in August 1998 the respondent was dismissed by the deceased for stabbing and damaging tyres with a sharp metal object.

On 23 February 1999, the alarm was raised when the deceased did not return home as expected, and a security officer attended at Sam's Tyres and saw, by torchlight, the deceased's body lying on the floor. At about 8.30 p.m. ambulance officers attended and found the deceased to be dead. He had sustained severe head injuries.

A search of the crime scene located a red torch, a knife, a blue woollen glove and a black Adidas cap that appeared to be connected with the deceased's death. A post mortem examination revealed the deceased had died from severe head injuries. No less than 24 separate external injuries were identified on the body. Severe fractures to both sides and back of the skull were found, together with severe brain damage and intramuscular haemorrhage to the left forearm. Eight discrete sites of impact on the head were found, together with additional injuries consistent with defence-type injuries. The other injuries of the deceased would have required, in the opinion of the post mortem examiner, a severe degree of force.

On Saturday 27 February 1999 the police went to the respondent's home and arrested him. En route to the Homicide office, he admitted his involvement in the killing of the deceased, declaring that an earlier version he had given to the officers about his movements on 23 February was incorrect.

He admitted he had gone to Sam's Tyres intending to rob the deceased of the contents of his briefcase and that he was aware that the deceased kept a substantial amount of money therein and was wont to leave work around the same time each night. He told the police he needed the cash to pay off debts, and evidence of these was later discovered.

The respondent told the police that he entered the premises after watching them. He hid in a storeroom and waited for the deceased to lock up. He obtained a trolley jack-handle, and, as the deceased was leaving, struck him on the head, causing him to fall to the ground. A struggle then ensued during which the respondent picked up two batteries and struck the deceased on the head, causing severe injuries. The respondent also said that he picked up the deceased's briefcase and took it with him, walked to his vehicle parked nearby and drove home, where he changed his bloodstained clothing, which he later burnt on a vacant block of land. Still later, the respondent removed a money pouch containing cash and two mobile phones, which he placed in a garbage bag and buried. The police later found these articles, assisted by the respondent. The money amounted to $9,355 in cash. The respondent also burnt the briefcase and its remaining contents.

There was, at the respondent's trial, evidence from one of his friends that about a week before the killing he was talking with the respondent about fines. The respondent referred to the deceased closing his business at a particular time, and suggested to the friend that he, the respondent, should hit him and run with the money. The friend thought that the respondent was merely joking but recalled the respondent mentioning on earlier occasions that the deceased had money after work when he closed up.

There was other evidence of resentment in the respondent to menial tasks which were assigned to him by the deceased. In the course of a record of interview at the Homicide Squad offices on 27 February, the respondent complained that the deceased would always pick on him and that they frequently argued. He said the deceased had threatened to sack him on many occasions. He said he had made a decision on the fatal evening to go in and take the money "'cause there was something in me telling me, you know what I mean? Like, I didn't know what I was doing, I wasn't even there, put it this way." He denied he had a plan, saying: "Everything just happened at the time, being, you know ... all of a sudden everything just happened." In describing how a battery thrown by him landed somewhere around the deceased's head or neck, and that he had thrown two batteries at him on three occasions, the respondent said: "Well, just trying to make him, you know, just unconscious." Asked what he thought would have happened to the deceased as he struck him on the head, the respondent said he thought it would make him bleed and most probably hurt him. He said he picked up the briefcase and just "took off". He had brought a hat and some gloves so he wouldn't leave any fingerprints. He declared that when he left: "I just thought he was knocked out unconscious and just bleeding, that's it."

At his trial the respondent stood mute and did not call evidence. In addressing the respondent at sentence, the learned judge said:

"At the trial you pleaded guilty to manslaughter. The trial was conducted responsibly by Mr Smallwood, Q.C. on your behalf and was directed to one issue only, that is, your intent at the time when you inflicted the injuries on Mr Borenstein. Mr Read, for the Crown, put the case on the basis that your intention was to kill or at least to inflict really serious injury. Mr Smallwood argued at the trial that although you intended to inflict injury, it was because you were trapped in the course of committing the robbery and panicked."

I deal first with the contention in ground 2(a) that his Honour erred in concluding that the verdict of the jury was consistent with a finding that the respondent intended to cause grievous bodily harm to the deceased man, Samuel Borenstein, but was inconsistent with a finding that he intended to kill Mr Borenstein.

"In the light of the number and nature of the blows inflicted which caused death, and your admissions to the police, it is, I think, not surprising that you were convicted of murder, at least on the basis of the intention to inflict really serious injury. For the purpose of sentencing you I am not sufficiently persuaded that you intended to kill. I agree with Mr Smallwood's submission on the plea that your primary intention was robbery, although you obviously held a grudge against Mr Borenstein."

It is clear that that finding was a critical factor in reducing the sentence which would otherwise have been imposed by his Honour. Counsel for the Director contends that that finding was one that was not reasonably open on the evidence.

During submissions on sentence the prosecutor did not contend that his Honour could be satisfied that prior to entering the premises where the killing took place the respondent had already formed an intention to kill or to cause really serious bodily injury to Mr Borenstein. It was, however, the contention of the prosecution that the number and severity of the blows proved beyond reasonable doubt that there must have been an intention to kill at the time when death occurred. Counsel for the Director submitted that it was not reasonably open to the learned sentencing judge to have found otherwise.

As I have earlier noted, the deceased man died from severe head injuries. The learned sentencing judge found that there had been eight separate blows, in what he described as a brutal attack to the head. The medical evidence disclosed that severe force had to be used to produce those injuries and that some injuries to the deceased's left arm and hands were consistent with defensive injuries, as he had tried to protect himself.

The respondent admitted to police that he had gone to the premises intending to rob the deceased, and had hidden in the workshop, armed with a trolley jack, and then struck the deceased on the head.

The respondent was not wearing a mask; yet he was well known to his victim. He told police, however, that he was wearing a cap for the purposes of disguise, although it is difficult to see how a cap could have achieved that objective.

The jury verdict was not inconsistent with a finding that when the respondent first entered the premises for the purpose of robbing Mr Borenstein, he intended to knock Mr Borenstein unconscious, not to kill him, and that he had struck him with that intention, but that when Mr Borenstein was not rendered unconscious a struggle had then ensued.

The respondent told police that in the course of the struggle he picked up two motor car batteries and dropped, or threw them, to the head of Mr Borenstein on three occasions. He said he thought that would probably hurt him but he was trying to make him unconscious. He said that he did not want Mr Borenstein to die; he didn't know what he was doing when he threw the batteries.

Mr Tehan, who appeared as senior counsel for the respondent, submitted that if the Crown was to contend before the sentencing judge, as the prosecutor did, that the jury verdict was consistent only with a finding that the fatal blows were struck with the intention to kill, then it had to persuade his Honour as to that question beyond reasonable doubt. Mr Tehan referred to R. v. Storey[1]. We did not hear argument as to whether the onus of proof as to that matter did properly fall on the Crown. It might be arguable that, given the jury finding, rather than it being the Crown which was seeking to establish a circumstance of aggravation of the offence, it was the respondent who sought to rely on a circumstance in mitigation, namely, that the verdict was consistent with a finding other than that there had been an intention to kill. If that was the case then the onus of establishing that mitigatory factor, on the balance of probabilities, rested on the respondent. Given my conclusion as to this ground and as to the outcome of the appeal on ground 1, it is not, however, necessary to address that matter further, and I will assume that Mr Tehan's analysis is correct, and that his Honour had to be satisfied beyond reasonable doubt that the verdict reflected a finding of intention to kill.

Having been undoubtedly identified by his victim when the first blow failed to render Mr Borenstein unconscious, as planned, and having held a long-standing animosity towards Mr Borenstein, there were compelling reasons why the jury might have concluded that the respondent must have intended to kill Mr Borenstein. In my view, it is highly likely that the jury were satisfied of that fact beyond reasonable doubt, but having regard to the matters to which we were directed by Mr Tehan, I cannot conclude that it was not reasonably open to the sentencing judge to conclude that an intention to kill, as at the moment when the fatal blows were struck, had not been proved beyond reasonable doubt. Given the terms of the Director's ground of appeal, and the fact that Mr Tehan's contention as to the burden and onus of proof on this issue was not disputed for the purpose of the appeal, it is unnecessary to consider what findings may have been open to his Honour had a different onus or standard of proof been applied. It is sufficient to say that I am not persuaded that the error identified in the terms of ground 2(a) has been established.

I turn to the complaint in ground 2(f) that his Honour gave too much weight to factors going to mitigation. The factor particularly identified as having received undue weight was the youth of the respondent.

At the time of this offence the respondent was aged 18 years, and is now 20 years. He had no prior convictions. In his remarks on sentencing, the learned sentencing judge said that he took his youth at the time of the offence and at the time of sentencing into account. His Honour said that "in the case of a youthful offender the community's interests in having appropriate punishment imposed for such a serious crime must to some extent be offset by the community's further interest in rehabilitation".

The Director of Public Prosecutions complains that the sentence manifests that his Honour gave undue weight to the youth of the respondent, and other factors personal to him, and too little weight to the gravity of the offence and considerations of general deterrence. It is submitted that the sentence itself demonstrates these errors in principle.

The Court of Appeal has held that, as a general proposition, the youth of an offender, and in particular a first offender, at the time of sentencing should be a primary consideration for a sentencing court, and that the consideration of the rehabilitation of the offender is usually far more important than questions of general deterrence: see R. v. Mills[2]. As Batt, J.A. noted in that case, the fact that the offence concerns a violent crime does not mean that it therefore ceases to be one to which those usual principles would apply, so that principles of general and specific deterrence would, instead, hold sway. However, as Batt, J.A. emphasised, cases might arise in which the usual principle, and the general rule, would have to be given lesser weight.

In R. v. Edwards[3], which was a Crown appeal in a case involving a number of serious assaults committed on the one occasion, Crockett, J., speaking for the Court, held that the question to be asked in a Crown appeal - where it was being claimed by the Director that the sentence of a youthful offender was manifestly inadequate - is whether the sentence which was passed is so disproportionate to the seriousness of the crime, in all of the circumstances that have been outlined, so as to shock the public conscience. In considering whether this is such a case it is appropriate to consider, together, the factors identified by the Director and by counsel for the respondent with respect to ground 1, that being the all-embracing complaint that the sentence was manifestly inadequate. A conclusion that the sentence was manifestly inadequate must necessarily constitute a conclusion that factors of general and specific deterrence, in the circumstances of this case, should have outweighed the factor of the youth of the respondent, and that the sentence reflects a failure to have balanced the appropriate considerations to such a degree as to render the sentence wrong in law.

The question whether a sentence is manifestly inadequate is a conclusion which does not require the Court to identify specific error in the reasoning of the sentencing judge. The appellate court's authority to intervene will derive from the fact that the conclusion -that the order which was made was so manifestly disproportionate to the circumstances to which it relates - must mean that in some manner the discretion of the sentencing judge has miscarried: see Everett v. The Queen[4]; Dinsdale v. The Queen[5].

In the case of a Crown appeal against sentence the courts have long held that particular care and restraint must be exercised before an appellate court concludes that manifest inadequacy has been demonstrated. As Kirby, J. noted, in Dinsdale[6], the Crown is normally obliged to demonstrate very clearly the error of which it complains. In DPP v. Whiteside & Deiber[7], Winneke, P. held that, having regard to broader principles of justice, a Director's appeal should succeed only in those rare cases where the Court deems it necessary to do so in order to maintain proper sentencing standards and principles.

The Court does not interfere merely because it thinks that the sentence is less than that which it would have imposed, but only when error is demonstrated by virtue of such inadequacy as to demonstrate departure from principle.

This case was one which, in my view, was at the very worst end of the range of murder cases which come before the court for sentencing.

The crime was committed during a robbery, one which, on any view, had as an essential part of the plan that the victim would be struck a severe blow to the head with a potentially deadly weapon, and with such force as to render the victim unconscious. Mr Tehan submitted that the Court should not treat the fact that the killing took place during a robbery as being an aggravating factor because the Crown, had it wished to rely on that fact, could have arraigned the respondent on a separate count of armed robbery. Mr Tehan referred to R. v. Newman & Turnbull[8]. Murder has long been regarded as the most serious of all crimes, but as also being one in which the circumstances vary to such an extent as between individual cases, that an examination of the circumstances will lead to a wide range of sentences, both as to head sentences and non-parole periods. In my opinion, there is nothing in Newman & Turnbull which suggests that that approach is inappropriate in murder cases, or renders it inappropriate that we have regard to the circumstance that the death in the present case took place during a planned robbery.

It was a crime committed against an older man, aged 57, by a much younger man. The victim was simply going about his business at his work premises, a retail tyre outlet. The attacker was a person who had been employed by the deceased man as a tyre fitter. The respondent resented his employer and was eventually dismissed from his employment, thereby harbouring a grudge which undoubtedly came to the fore at the time of these events, as is demonstrated in many of the answers of the respondent during his record of interview. At the same time, the respondent had benefited in the past by the very considerable generosity of his victim. Having discovered that on a previous occasion the respondent had stolen $3,500 from him, Mr Borenstein did not then sack the respondent or report him to the police, but had allowed him a further chance. Eventually, some months later, in August 1998, he dismissed the respondent after the respondent, angry at being chastised about his work performance, had deliberately damaged tyres at the workplace.

In his sentencing remarks his Honour said that the behaviour of the respondent while in custody awaiting trial, coupled with his youth and supportive family situation, demonstrated that the respondent had reasonable prospects of rehabilitation. It may be thought that the deceased man had presented the respondent with an opportunity for rehabilitation which would be rarely offered by an employer in our community, and that it was one which was ultimately rejected, on 23 February 1999, by the murder of Mr Borenstein in the most appalling of circumstances.

Mr Tehan submitted that in having regard to the apparent failure of the respondent to grasp the chance which Mr Borenstein had provided to him, we should have regard also to the fact that there is evidence that Mr Borenstein was at times unreasonable in his workplace demands upon, and treatment of, the respondent. Fellow workers gave evidence that Mr Borenstein was at times difficult in his treatment of all of his employees, but particularly so with the respondent, who resented his treatment. I take that evidence into account in assessing the circumstances which led to the killing, but it is also to be noted that in the months prior to his dismissal the respondent was a frequent drug user at his workplace, with inevitable effect on his work habits, as his Honour found. But, even if there had been some unreasonableness in Mr Borenstein's attitude to the respondent, he continued to employ him, notwithstanding the attempted theft by the respondent on the earlier occasion.

An important, and possibly related, factor in this case, is that there were few signs of remorse. Indeed, counsel for the respondent did not point to any such evidence during his submissions on sentence before the sentencing judge. In fact, the day after the killing, the respondent rang the son of the deceased man and proffered sympathy for the death of his father and feigned ignorance about the circumstances of his death.

Initially the respondent gave a false alibi to police but later admitted that he killed the deceased. The respondent said that he had robbed him because he needed money for debts and because he was angry at the way he felt he had been treated. The debts proved to be an outstanding mobile phone account and outstanding fines. The respondent was on the dole at the time of the offence. The attack and robbery had been planned for at least a week, the plan having been discussed with a friend, who did not take the discussion seriously.

There were a number of factors personal to the respondent which operated to his benefit on sentencing and which the learned sentencing judge properly took into account. The respondent had no prior convictions, came from a good home, with supportive parents and siblings, had taken courses in prison in an attempt to improve himself, including an anger management course. His Honour was told, and accepted, that psychological tests reflected the respondent's intelligence was at the low end of the scale, that he had limited schooling, and had low self-esteem. His Honour accepted that drug misuse had contributed to the respondent's conduct, it having been submitted that the respondent had been a user of heroin and other drugs including cannabis.

In assessing whether the sentence was manifestly inadequate, all of these factors have to be weighed in the balance too.

Before stating my conclusion as to ground 1, I will turn to one other of the sub-paragraphs of ground 2. It is not necessary, in my view, to deal expressly with the other specific sub-paragraphs of ground 2 save for that matter.

Ground 2(c) makes specific complaint that his Honour failed to take into account, or sufficiently so, the impact of the offence on the relatives of the deceased. In this case victim impact statements were filed by Betty Borenstein, the widow of the deceased man and his partner for 32 years, and also from his sisters, Sarah Bruce and Eva Rabinov, and from his brother, Bennie Borenstein. Counsel for the Director submitted that his Honour's remarks on sentencing demonstrated that insufficient weight was given to those statements.

Victim impact statements are of particular importance to sentencing judges. Section 5(2)(c) of the Sentencing Act 1991 requires that the sentencing judge have regard to the circumstances of the victims of crime, but it is not merely because of statutory obligation that judges value the availability of victim impact statements.

It is an essential part of what is a complex sentencing process, and always has been, to have regard to the impact of the crime on its victims. His Honour said that he had read the statements in this case, and said that they emphasised the tragedy, the grief and the sorrow the crime had caused.

His Honour might perhaps have said more, because the statements in this case were particularly evocative of the depth of the tragedy which had befallen this family. I do not, however, consider that there is any warrant for the conclusion that his Honour did not properly evaluate the statements. Indeed, the very fact that they were so eloquent and powerful in this case makes it unlikely that any reader could be unmoved.

But I do not intend to detract from the importance of those statements in any way when I say that a sentencing judge must have regard to a whole range of matters, including the impact of a crime on surviving victims and their families. Indeed, in a proper case the sentencing judge would have regard to the impact of the crime on the families of the offender also.

As important as victim impact statements are to the sentencing judge, a proper appreciation of the impact of a crime on victims does not, of course, and should not, depend on the eloquence or availability of victim impact statements: see R. v. Penn[9].

I am not at all persuaded that his Honour in this case failed to give proper and appropriate weight to the victim impact statements. There was no error demonstrated in this respect.

I return then to ground 1. I have concluded that when one has regard to the totality of the circumstances in this case, it is manifestly the fact that the sentence was inadequate, and the appeal should be allowed.

Notwithstanding the factors personal and favourable to the respondent, the sentence in my opinion so undervalues the need for general deterrence as to constitute the sentence an affront to the public conscience. In my opinion the appeal should be allowed, as I have said, and a new sentence be imposed.

It is a well recognised principle, which derives from the fact that a Director's appeal against sentence carries with it an element of double jeopardy for the respondent, that upon re-sentencing the appeal court should set a sentence somewhat less than might otherwise have been imposed: see R. v. Clarke[10]. That is an important principle, and I well appreciate the impact on the respondent and his family of the imposition of a heavier sentence now than that imposed at first instance.

52 Having regard to all of the circumstances of this offence, and giving due weight to the youth and antecedents of the respondent, I propose that the respondent be re-sentenced to 21 years' imprisonment, and that a non-parole period of 16 years be imposed.

I agree. I entertain no doubt that the sentence imposed on the respondent is manifestly inadequate, and that it is the duty of this Court to intervene and pass a sentence of greater length. I also agree with the new sentence proposed.

Had I been the sentencing judge, I would have entertained no doubt of the intent to kill, but the importance of this question must not be over-emphasised. A jury may regard as "really serious injury" something which bears no resemblance to the shocking injuries inflicted in this case. In the present case no judge could properly have sentenced the respondent on any basis other than that he at least intended to inflict on his victim not only really serious injury in the necessary sense, but extremely gross injuries which would obviously either cause his death or at least leave him with very grave permanent disabilities. This was a very bad case of murder. I agree with Eames, A.J.A.

The appeal against sentence of the Director of Public Prosecutions for the state of Victoria is allowed. The sentence imposed on the respondent in the court below is set aside, and in lieu thereof he is sentenced to be imprisoned for 21 years. The Court fixes a non-parole period of 16 years.

The Court declares that the period of 615 days is the period of pre-sentence detention already served by the respondent as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.

[2] [1998] 4 V.R. 235, at 241-242, per Batt, J.A.

[4] [1994] HCA 49; (1994) 181 C.L.R. 295, at 306, per McHugh, J.

[5] [2000] HCA 54, at par [6] per Gleeson, C.J. and Hayne, J. and at pars [59]-[60] per Kirby, J.

[7] [2000] VSCA 142, at par [17].

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