DPP v Phillips [2009] VSCA 68

2 I agree with Nettle JA. The appeal should be allowed and the respondent re-sentenced as his Honour proposes.

3 This is a Crown appeal against a sentence of six years' imprisonment with a non-parole period of four years imposed on the respondent on conviction of one count of manslaughter.

4 The deceased, Michael Horn, was a recovering alcoholic who, on the day of his death, was drinking heavily. His good friend, Kenneth Kelly, was also a recovering alcoholic and on that day had brought the deceased back to his home, which was a residential unit among a block of units in Campbell Street, Heathmont. The two of them then spent time together there drinking until the deceased became loud, angry and upset.

5 At that point, the deceased stormed out of Mr Kelly's unit with the intention of returning to his own home. But Mr Kelly was concerned as to the way in which the deceased might behave if he went home in his alcohol affected state, and so followed him out and urged him not to go home at that stage. His efforts resulted in what appeared to be a loud and argumentative discussion between the two men.

6 The respondent lived in an another unit in the block and on that day had two people staying with him: a young woman (MS), who was a drug user, and her brother, who was an alcoholic. MS gave evidence at trial that, when she heard the noise of discussion between the deceased and Mr Kelly, she feared that the deceased might hurt Mr Kelly, and so she went outside to try to prevent it. Mr Kelly's evidence was that he was not being harmed.

7 Either way, however, the deceased was at that stage manifestly affected by alcohol and yelling abuse and, when MS went outside, he directed his invective towards her. That resulted in the respondent going outside, too, and engaging in a physical and verbal altercation with the deceased. But the confrontation was only short lived. After a while, the respondent disengaged from the conflict and ran away, past a number of the units to the back door of his own unit, and there re-entered the unit and armed himself with a piece of wood.

8 As the judge observed, if the respondent had then stayed there in his unit with his piece of wood, and called the police if necessary, the deceased would probably still be alive. But not content with that course, after some time the respondent again left his unit through the front door, went to an area under one of the other units which he used as a storage area, and there took out an unregistered .22-calibre rifle for which he had no licence.

9 In the meantime, the deceased and Mr Kelly had departed the block of units and were walking along Campbell Street away from the units. Nevertheless, the respondent still went after them, with the rifle secreted behind his back. He advanced up the driveway of the units to Campbell Street, stopping in the street just beyond the boundary, took out the rifle from behind his back and, holding it at his hip, pointed it in their direction. Simultaneously, he yelled something at them, which was possibly words to the effect of or including 'piss off' and then, when they turned in response to face him, he shot the deceased in the chest at a distance of approximately 27 metres. The deceased fell to the ground instantly and died a short time later.

10 The respondent went back inside his own unit and refused to help Mr Kelly call an ambulance. Fearing that the police would not be far away, he also took the rifle and hid it at the home of a friend. After that, he spent the night roaming the streets in a borrowed car until he was caught the next day and arrested.

11 The respondent was presented for trial on a count of murder, to which he pleaded not guilty. At trial, he gave evidence that, when he reached the front of the units with his rifle, the deceased turned around and was facing in his direction and that, when he then yelled at the deceased to 'piss off', the deceased started to run towards him, causing him to shoot. He claimed that he was concerned that the deceased would attack him and that he had shot in self-defence. He maintained that he did not mean to hurt the deceased but only to scare him away.

12 Mr Kelly, however, gave contrary evidence, to the effect that, after the deceased left the units and headed for home, he caught up with him in Campbell Street near the intersection with Bedford Road and that they both then stopped there to talk. He next heard a yell, which caused him and the deceased to turn around and face towards the direction of the units, and at that point the respondent shot the deceased. After that, he said, the respondent refused to help him care for the deceased or even to call an ambulance.

13 The jury found the respondent guilty of manslaughter.

14 As the judge observed, the verdict of manslaughter implied that the jury were not persuaded that the respondent acted with murderous intent. But, equally, it was clear that they rejected self-defence. It was to be inferred that the jury found the respondent guilty of manslaughter on the basis that his act of shooting at the deceased was an unlawful and dangerous act which caused the deceased to die.

15 The judge considered that it counted in favour of the respondent that he fired only one shot and that all the other rounds in the rifle were what is called 'rat shot' (which, the judge said, would not have caused harm in any way similar to the .22 round which killed the deceased). On that basis, her Honour characterised the seriousness of the offence as being in the middle category for manslaughter, towards what she described as the lower end of that category.

16 After noting the contents of the victim impact statements, her Honour also dealt at length with the respondent's personal circumstances. They included that he had been adopted by loving and caring parents at a very early age, and raised with two siblings in a sound family environment. But his adoptive mother was diagnosed with cancer when he was only ten or 11 years of age and she died when he was only 16 years old. Whether as a consequence of that or otherwise, he suffered from attention deficit disorder. But despite that setback, he completed year 10 at school and then enrolled in a pre-carpentry course at Holmesglen TAFE. Shortly after that, however, he moved out of home into a house with friends and began to abuse alcohol and drugs, and that was the end of the course. He started with marijuana at weekends, from which he progressed to the daily use of marijuana, then amphetamines and then heroin, to which he became addicted. At the time of the subject offence, he was taking methadone as well as heroin three days per week and also 'ice'.[1]

17 The respondent had numerous convictions, and a large number of those appeared to be related to his drug dependence. They included possession and use of drugs of dependence, being drunk in a public place, driving while exceeding .05, driving while disqualified and dishonesty offences such as thefts, burglaries and theft of motor cars.

18 In later years, his life had become more stable. He had lived in a relationship with his ex-girlfriend for 16 years, lived in the unit in Campbell Street for seven years and held down a job as a water-proofer with a commercial tiling organisation for nine years, earning approximately $1,300 per week. His relationship with his ex-girlfriend ended some 18 months before the commission of the offence, and MS then moved in. But that was said to be only on a temporary basis whilst she found alternative accommodation.

19 The judge treated as mitigatory factors that the respondent offered before trial to plead guilty to manslaughter by unlawful and dangerous act; at the time of sentencing, he was drug free and remorseful; he was supported by family members who attended court during the trial, and his father and sister gave evidence in support of his plea for leniency; he had had a difficult early life and his drug usage may have been referable to it; there had been a gap in the respondent's offending from 1997 onward up to the time of the commission of this offence; he had been working for a number of years and his lifestyle had assumed a degree of stability; and, in the judge's view, he presented as a low risk of committing another offence of the same kind.

20 The judge considered that, if the respondent maintained his lifestyle drug-free and with the support of his family and employer, he had what her Honour described as 'a very good chance of successful rehabilitation' and that specific deterrence had no role to play in the sentencing process.

21 On that basis, her Honour imposed the sentence of six years' imprisonment with non-parole period of four years against which the appeal is brought.

22 The Crown's contentions are concise and to the point. Counsel for the Director of Public Prosecutions submitted that the judge was in error in characterising the offence as being towards the lower end of the mid-range of seriousness - it was, in his submission, a serious case of unlawful and dangerous act manslaughter - and a sentence of only six years' imprisonment with a non-parole period of only four years failed to give effect to the important sentencing principles of denunciation and specific and general deterrence.

23 Counsel for the respondent contended that the sentence was to be seen in the context of two findings of fact, which he submitted were implicit in the judge's sentencing remarks, namely, that:

1. At the time of shooting the deceased, the respondent believed that the rifle was loaded only with 'rat shot' which, at the distance fired, could not have hurt the deceased; or, at worst, the respondent was carelessly indifferent as to the nature of the ammunition with which the weapon was loaded and so, in effect, had not turned his mind to the possibility that his actions in pointing and firing the rifle were capable of harming the deceased.

2. When the respondent obtained the rifle from its storage place, he was in fear that the deceased intended to return and attack him, and so armed himself with the rifle and fired it in order to fend off what he apprehended to be an imminent attack.

Judged in that light, counsel contended, there was nothing at all remarkable about a sentence of six years' imprisonment with a non-parole period of four years.

24 I reject that contention. There is no mention of the supposed findings of fact in the judge's sentencing remarks and, in point of fact, they would be against the weight of evidence and the manner in which the defence was conducted at trial.

25 As to the evidence, it is true that the respondent began by deposing in chief that his understanding was that the weapon was loaded only with 'rat shot':

Did you load it or was it already - - - ? It was already loaded.

Do you recall what it was loaded with? - - - From my understanding I thought it was loaded with nothing more than the rat shots.

Do you dispute, however, that it had a more substantial round in it? You don't dispute that, do you? - - - No, well, it must of, I mean, - - -

How long had you had that gun for? - - - I had owned that gun for over ten years.

And when was the last time you'd seen it prior to this? - - - Would have been six months to a year before.

Have you ever taken it shooting, rabbiting, anything like that? - - - No.

Had you any experience with it, using it at a (indistinct) range or anything like that? - - - No.

So, how is it you came to be possessed of it? - - - A mate of mine had it and wanted $150 for it, so I bought it.

Did it come with the rat shot and other shot? - - - It came with all the shells.

In terms of your experience with that gun, what had you done with it in those years? - - - More or less just played around with it from time to time with mates in the house but we'd never really actually fired it.

What did you do? - - - Just looked at it, played around with it and - - -

But there were cartridges - well, tell us what you did with the cartridges? - - - Well, from time to time we used to get the cartridges, pull the head off the bullet, sprinkle a bit of gun powder out and then light it and shoot the cartridge.

...

So, having got that gun what did you then do? Wait on, I should have said did you hear anything whilst you had the gun? - - - Yes, I could still hear Ken and this other man. Ken was telling him' it'll be all right', rah, rah, rah.

What did you do? You're out now, presumably, somewhere around the front of your unit; would that be right? - - - Yes.

What did you do then? - - - I walked up the driveway with the gun behind my back.

Yes, why did you have it behind your back? - - - Because I was hoping I wouldn't have to use it.

Yes? - - - I was hoping I wouldn't even have to point it at this man.

So what happened when you got to - did you step out on the footpath and have a look down [the street]? - - - I stepped out on the driveway, onto the footpath, looked down the street. This man and Ken [Mr Kelly] were both facing towards me.

Yes? - - - That's when I pulled the gun up like in, like this.

Yes? - - - I said 'just piss off, mate'. He started to charge towards me.

Yes? - - - And I fired in their direction.

Did you take aim, looking down the barrel at all? - - - No, I never intended to shoot anyone, never intended to kill anyone.

If you fired what did you think that would do? - - - I was just hoping to scare the bloke. I just wanted him to go away. I didn't know why this guy had come to my house, why this guy had beaten me up that I'd never met before in my whole life.

26 In the course of cross-examination, however, the respondent was ultimately forced to concede that he did know that the weapon may have been loaded with at least one .22 round and thus that, if he pointed it in the direction of the deceased and fired, it could cause the deceased serious injury:

Well, when did you load the magazine, on what occasion? - - - Would have been a good year ago, a year before it happened. There was possums in the roof and I though I might shoot one, but I never actually did.

But you loaded your gun in preparation did you? - - - Yes.

And what type of bullet did you put in? - - - I put rat shots in it but a lot of mates would come around, they would ask to see the gun. I would show them. They'd play around with it. I may have put another bullet in there, someone else may have been - I really can't remember.

Well, the first and about the fifth or sixth bullet, they were 22's weren't they, the rounds? - - - What do you mean? I don't know.

What did you load it with? - - - At times I loaded it with 22 bullets. At times I loaded it with rat shot bullets. Like I said, we pulled it out a lot of times and we - mates would come around and they would say 'show us your gun'. I'd show them They'd have a look at it. They'd play around with it. I'd play around with it. And then I'd wrap it back up and put it back under the house.

...

When you pointed the gun in the direction of Mr Horne did you point it at his body? - - - I aimed in their direction, I didn't actually scope anything, but I aimed it down towards them. I realise at the time I could have accidentally hit Mr Kelly.

And in aiming it in the direction, this is a loaded weapon that you knew was loaded? - - - Yes.

And you pulled the trigger? - - - Yes.

And you knew the rifle would fire a bullet, didn't you? - - - Yes, but I didn't know 100 per cent whether it had the buckshot or the rat shots or whether it had the normal 22 bullet in it.

...

You pointed it at him and you pulled the trigger knowing that it would discharge a bullet? - - - Yes.

And you knew that if you did that and the bullet hit him it could cause him pretty significant damage, didn't you? - - - I realise if a gun's fired at someone yes it can cause significant damage if it hits them.

27 Thereafter, consistently with that concession, defence counsel put the defence case to the jury on the basis that the respondent knew that the weapon was loaded and, therefore, that it could hurt the deceased if fired in the deceased's direction, but that he had fired because the deceased was approaching him and the respondent was in fear:

...The accused says 'I fired that gun because he was running at me and I was frightened'. In those circumstances the Crown has the obligation to negate beyond a reasonable doubt any suggestion that the accused was acting in self-defence. The accused doesn't have to prove he was, but having said he was the Crown has to negate it beyond a reasonable doubt because to act in self-defence is everyone's right.

If indeed you are satisfied that my client was acting in self-defence, or you can't be satisfied that he wasn't, satisfied by the Crown that he wasn't, then that would mean that you would have to bring in a verdict of not guilty.

However, there are other matter that you need to concern yourselves with. The accused said to you, under questioning from the prosecutor, that he pointed the gun, he pulled the trigger, he knew it was loaded and he understood that if you were hit by a bullet, you could be seriously injured.

The accused told you he pulled the trigger to discourage this man. Well, that can amount to what the law calls a dangerous and unlawful act. You are not allowed to point a loaded rifle at anyone. It's unlawful. And if you happen to pull the trigger, it's dangerous. It's a dangerous and unlawful act. You may understand why he did it but you may not consider that it was reasonable that he did it.

But if you are so satisfied that what he did was indeed a dangerous and unlawful act, then whilst you can't find him guilty of murder, you can bring in a verdict of guilty of manslaughter. But I don't urge that upon you, I urge upon you that the accused is entitled to the defence of self-defence, he having raised it and on the facts you can be satisfied that he was acting in self-defence and the Crown has failed to discharge its burden of disproving self-defence beyond reasonable doubt. It has to remove the raising [sic].

28 Counsel for the respondent submitted in the alternative that, even if the judge did not find that the respondent believed the weapon to be loaded only with 'rat shot', or that he was in fear of the deceased at the time of pulling the trigger, there was a further range of mitigatory considerations which warranted her Honour's sentencing disposition, and that the efficacy of it was supported by its similarity to the sentence imposed by this court in DPP v Lovett.[2] Counsel emphasised in particular the discount to which the respondent was entitled because he offered before trial to plead guilty to manslaughter; the respondent's difficult circumstances; the fact that he was addicted to drugs and had been taking them in the lead up to the killing; that the respondent had done little in the way of recent offending; that he had a high degree of family support; and that he had demonstrated genuine remorse.

29 That submission is not persuasive either. Although the respondent was entitled to a discount for his offer to plead guilty to manslaughter, it cannot not have been a particularly large discount. Given that there was no dispute that the respondent killed the deceased with a rifle in the circumstances I have described, it was always most unlikely that he would not be convicted at least of manslaughter.

30 Equally, although it is not in issue that the respondent had suffered in the past and was addicted to drugs, there is no suggestion that his drug addiction or other disabilities lessened his responsibility for the offending. The judge had before her a psychological report prepared by Ms Pamela Matthews, a forensic psychologist, in which it was stated that, when subjected to the Personality Assessment Screener, the respondent produced a markedly elevated 'P score' indicative of emotional and behavioural pathology of clinical significance, and that he had evidenced chronic dysphoric mood and indicia that he was 'likely to utilise externalised means of managing emotional states'. Ms Matthews opined that, at the time of the offending, the respondent would have met the DSM-IV diagnostic criteria for Opioid Dependence, Cannabis Dependence and Amphetamine Abuse. There is, however, nothing in the report which establishes that his condition at the time of offending was such as to lessen the level of his moral culpability or to imply that he would by reason of his condition suffer more in prison than someone of ordinary psychological health, still less to imply that he would not be an appropriate vehicle for general deterrence.[3]

31 Furthermore, as against the respondent, although Ms Matthews concluded that he was likely to be at low risk of re-offending in 'a similar manner', by which I assume she meant shooting someone else with a .22 rifle in similar circumstances, she observed that the most significant risk factors in his potential to re-offend were management of his mood states, poly-substance abuse, poor insight and personality pathology. So, as it seems to me, there was a significant need for specific deterrence, particularly given the nature of the respondent's prior convictions and his unlawful possession of the firearm with which he killed his victim.

32 Counsel for the respondent invoked certain observations of Isaacs J in Whittaker v The Queen,[4] which were noted with approval by Barwick CJ in Griffiths v The Queen,[5] to the effect that a plea and sentence imposed consequentially to a trial presided over by the sentencing judge may call for special consideration to be accorded to the advantage of the trial judge in seeing and hearing the witnesses give their evidence, the accused's conduct in court and the atmosphere of the trial. Against that background, counsel submitted, it was important to bear in mind that the just sentence passed on an offender after an open trial depends or may depend on many considerations not apparent or available to a court of appeal, and that courts of appeal must be careful not to devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance when an opportunity for reformation of an offender ought to be grasped.

33 In this case that submission is also unpersuasive. The principles to which counsel referred are not in doubt. But in this case it is apparent from the judge's sentencing remarks that she did not consider it appropriate to impose a merciful sentence in order to afford the respondent an opportunity for reformation which ought to be grasped. To the contrary, her Honour expressly stated that consideration had to be given to the community's need and right to ensure that the sentence imposed reflected the gravity of the crime and, above all, that it be just and appropriate in all the circumstances.

34 Counsel for the respondent next contended that, given that Crown appeals should only be brought in rare and exceptional circumstances to establish some point of principle[6] and that, in order to succeed in such an appeal, the Crown must demonstrate clear and egregious error, there was no room here for appellate intervention.[7]

35 In my view, appellable error is established. Short of murder and manslaughter by reason of provocation, the unlawful killing of a human being by the deliberate presentation and firing of a weapon at him or her is amongst the most serious offences against the person. Regardless of the absence of murderous intent, the possibility of extreme harm and the potential for disaster are so obvious as to render the offence most heinous. It follows that any notion that the killing of a human being in that fashion falls towards the lower end of the range of seriousness is seriously misconceived. With respect, the judge was in error in approaching the crime it in that fashion.

36 Perhaps it counted in favour of the respondent that he fired only one shot and that all the other shots in the rifle were 'rat shot'. But if so, the difference is only marginal. To present and fire a loaded .22 rifle at another human being at a range of 30 metres (which is to say at less distance than two ordinary house frontages away) is at best to court disaster, and to play what would be in effect Russian roulette with the victim at that range could seldom be much better.

37 Additionally, as the judge herself observed, in this case it was not as if the respondent could have been in any doubt about the likely effect of his actions. For at the time of offending, he was thirty years of age with 67 prior convictions from 22 court appearances including convictions of counts of reckless conduct endangering life and assaulting a police officer in the lawful execution of duty, of which the respondent was convicted in the Magistrates Court at Melbourne on 30 June 1994 and sentenced to sentences of 12 months' imprisonment and nine months' imprisonment to be served concurrently.[8]

38 Those latter offences occurred when the respondent was 23 years of age, while engaged in an attempt to steal a trailer and engine. He was seen and chased by a policeman and arrested, and then struggled with the arresting officer. When the officer attempted to search the respondent, the respondent grabbed the officer's weapon and struck him with it on the head and, as the struggle over the weapon continued, the chamber opened and some rounds fell to the ground. Another round remained in the breach and discharged and then the respondent fled, taking the weapon with him before dropping it as he ran. As the judge put it, the taking of the firearm from a police officer and discharging it ought to have convinced the respondent of the risks and dangers associated with firearms.

39 When it is remembered that, in order to be able to kill the deceased, the respondent had to move from a position of safety in his own unit; retrieve the rifle from its storage place; carry it up the driveway to the street, as it were in pursuit of the deceased; and then present and fire the weapon in the direction of the deceased, well knowing of its capacity to cause serious harm, I consider that the respondent's moral culpability in relation to this offence was high.

40 Finally, counsel argued that, even if there were error of the kind which the Crown must establish, the effect of the principle of double jeopardy as it applies to Crown appeals against sentence was such that any increase in sentence would be so marginal that the court should refuse to intervene in the exercise of discretion.

41 In my view, that is not so. The infinite number of ways in which the crime of manslaughter may be committed does not permit of an established sentencing tariff. But as was observed by this court in R v AB (No2),[9] it is plain that the worst instances of manslaughter are liable to be punished with a sentence approaching the maximum penalty of 20 years' imprisonment. As already explained, the unlawful and dangerous killing of a human being by the deliberate presentation and firing of a weapon at him or her is a particularly serious instance of the offence. It follows that an offence of that kind demands rigorous punishment.

42 So to say is not to deny cases of unlawful and dangerous act manslaughter in which the sentence properly to be imposed is at or about the level of six years, even when committed with an intention to cause significant harm. The judgment of this court in Lovett, to which counsel referred, is an example where the borderline personality of the offender and other circumstances of the offending conduced to such a penalty. Cases involving very youthful offenders of otherwise good character, such as R v PP,[10] also come to mind. But in this case, involving, as it does, a mature, seasoned offender without significant extenuating circumstances, there is no warrant for leniency of that order.

43 In my view, the sentence of only six years' imprisonment which the judge imposed in this case was so manifestly inadequate in the circumstances as to

43 prejudice proper sentencing standards and therefore to warrant appellate intervention.

44 Keeping in mind the considerations to which I have referred while, at the same time, having regard to the constraining effect of double jeopardy as it applies in Crown appeals against sentence,[11] I would set aside the sentence passed below and re-sentence the respondent to nine years' imprisonment with a non-parole period of seven years. For the avoidance of doubt, I add that, were it not for double jeopardy, the sentence and non-parole period would be considerably higher.

[2] [2008] VSCA 262.

[3] R v Martin [2007] VSCA 291, [18]-[30]; DPP v Vucko [2008] VSCA 270, [23], cf R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

[4] [1928] HCA 28; (1928) 41 CLR 230, 248-9.

[5] [1977] HCA 44; (1977) 137 CLR 293, 310.

[6] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, 300; R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522; DPP v Whiteside and Dieber [2000] VSCA 142; (2000) 1 VR 331.

[7] DPP v Johnston [2004] VSCA 150; (2004) 10 VR 85, 96 [28]; DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85, 91 [28]; DPP v Oversby [2004] VSCA 208, [19]; DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 543 [10].

[8] It was wholly suspended for 24 months with a requirement that the respondent attend Odyssey House and, for the first six months, as an inpatient.

[9] [2008] VSCA 39; (2008) 18 VR 391, 405 [49] (Warren CJ, Maxwell P and Redlich JA).

[10] [2003] VSCA 100; (2003) 142 A Crim R 369.

[11] R v Allpass (1993) 72 A Crim R 561, 562-3; DPP v Scott [2003] VSCA 25; (2003) 6 VR 217, 222 [18].