DPP v Sypott [2004] VSCA 9

12. This appeal was commenced by the Director of Public Prosecutions against James William Sypott ("the respondent") following his plea of guilty to one count of manslaughter in the Supreme Court at Hamilton on 5 September 2003 and sentence of 5 years' imprisonment with a non-parole period of 3 years' imprisonment. The respondent did not appeal against the sentence imposed.

15. The principles which apply to Crown appeals are well known and the relevant rules are stated by Charles, J.A. in R. v. Clarke[1]. I propose only to mention two. A Director's appeal may be brought "where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle"[2]. This court "is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy, or it is shown that the sentencing judge fell into material error of law or fact"[3].

18. The sole ground of appeal is that the head sentence and the non-parole sentence are each manifestly inadequate. Particulars of the ground specify that the sentencing judge -

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) failed to take into account the aspect of general deterrence;

(c) failed to take into account or sufficiently take into account the aspect of specific deterrence;

(d) gave too much weight to factors going to mitigation.

24. The respondent was born in March 1947 and was aged 56 years when the sentence was imposed. The deceased, Frances Margaret Rhook, was killed on 8 December 2001 at the age of 32.

27. The killing occurred in rather unusual circumstances which were accepted by the sentencing judge and not challenged by the Crown when the plea was heard. It was agreed by the parties that the manslaughter charge to which the respondent pleaded guilty was based upon conduct constituting an unlawful and dangerous act. It was probably open to the Crown to rely upon gross negligence causing death as an alternative basis for the sentence.

30. On 27 June 2002 the respondent was committed for trial on a charge of murder, but on 9 April 2003 the Crown indicated its willingness to accept a plea of guilty to manslaughter because of the difficulty in proving that the respondent had the requisite malice for murder. The Crown could not exclude as a reasonable hypothesis that the death of the deceased had occurred in the circumstances stated by the respondent to the police in his record of interview on 7 December 2001.

33. Before I describe those circumstances it is necessary to say something about the relationship between the deceased and the respondent before and at the time of her death.

36. A sexual relationship between the deceased and the respondent began in 1992. The respondent had been married and had a daughter aged 21 when the killing occurred. The deceased had been married and had a son aged 13 when she died. Arising out of the relationship a daughter was born in 1994. The relationship was marked by the parties living in separate dwellings until August 2000 and a degree of unhappiness, until the deceased moved into the respondent's home near Coleraine in south-west Victoria. The family unit included the daughter born of the relationship and the teenage son of the deceased. In June 2001 the respondent ordered the deceased out of his home following an argument. When the deceased left she took the children with her and moved to Hamilton. From time to time the respondent visited the deceased and the children and sometimes stayed the night. The deceased decided to end the relationship, but the respondent was reluctant to do so. The deceased formed a new relationship with a male friend which upset the respondent. Relations between the deceased and the respondent soured and in early December 2001 the deceased proposed to obtain a court intervention order prohibiting the respondent from entering her home. When the respondent became aware of the deceased's intention he wrote a suicide note to his daughters stating that he believed his life had come to an end. The note was found after the killing.

39. When the incident which caused the death of the deceased occurred in her home at about 5.30 p.m. on 7 December only the deceased and the respondent were present. The respondent's first account to the police of the incident was made before he knew the deceased was dead. He described an accidental and unintended discharge of a .22 rifle. He said that after writing the suicide note he intended to go to the deceased's home and commit suicide by shooting himself in her presence, but in the absence of the children. He said it was his intention to point the .22 rifle at his head and pull the trigger. He made arrangements for the children to be absent from the house when he arrived.

42. Before leaving Coleraine the respondent said that he loaded the .22 rifle with one bullet and wrapped it in a bed sheet. He visited his sister's home in Hamilton during the afternoon and at about 5.00 p.m. he took his daughter to his sister's home and left her.

45. The respondent told the police that he entered the deceased's home with the rifle wrapped in the sheet and confronted the deceased. He said that the deceased grabbed the muzzle of the rifle with both hands and a struggle for the rifle ensued. He said that during the struggle he must have pulled the trigger unintentionally discharging the bullet through the sheet into the deceased's chest. The wound proved fatal some hours later.

48. Scientific evidence showed that the bullet had passed through the sheet and that the muzzle was very close to the deceased's chest when she was shot. The rifle was found to have a light trigger pull and it could be discharged by striking the barrel or by dropping it from a moderate height.

51. The account of the incident provided by the respondent, if accepted, provided evidence that his conduct was unlawful, being in breach of the Firearms Act 1996, and dangerous because it was reasonably foreseeable that the loaded rifle could accidentally discharge in the house and cause death.

54. In the circumstances I have described it was quite appropriate for the Crown to accept a plea to manslaughter. As I indicated earlier, the circumstances were very unusual in my experience. Any suspicion that the respondent intended to murder the deceased was allayed by the suicide note, consistency in the respondent's story to the police and the forensic evidence.

57. During the plea the respondent gave evidence on oath verifying the account of the incident he gave to the police and of his remorse. The learned judge said in his sentencing remarks that as a consequence of the respondent's evidence and his observations of the respondent he was satisfied that the respondent's intention was to commit suicide, that he accepted full responsibility for what occurred and was deeply remorseful for his conduct.

60. Those findings were open to the judge and no challenge has been made to them in this court. The judge was not satisfied that the respondent was suffering from a serious psychiatric illness at the time, but he accepted that the respondent was in a significantly depressed state of mind. The appellant's submissions in this court are that virtually every one of the judge's findings as to the circumstances of the shooting is unchallenged, as was the stated basis for the sentence. It was argued for the Director that insufficient weight was given to the seriousness of the respondent's conduct and too much weight was given to mitigatory matters.

63. In his sentencing remarks the judge noted that the penalty for manslaughter had been increased from 15 to 20 years in 1997 "reflecting community concern that courts should impose higher penalties for the felonious taking of human life". The judge recognised that general deterrence was a factor in the sentence and that the use of a loaded gun in a domestic quarrel was conduct which must be deplored and deterred.

66. The respondent had no relevant prior convictions. He had been a shearer for most of his working life, but was forced to retire from the work-force when he sustained a back injury.

69. The respondent consented to the court making substantial compensation orders in relation to the children, demonstrating remorse.

72. The sentencing task was by no means easy for the judge. On the one hand counsel for the respondent had sought a non-custodial sentence and on the other hand the prosecutor had urged the judge to impose a custodial sentence beyond the range capable of being suspended.

75. The Director submitted that the sentence was manifestly inadequate and relied upon the four matters specified in the Notice of Appeal. His submissions do not challenge that the respondent went to the house with the intention of committing suicide and that the gun discharged accidentally. In my opinion, the seriousness of the crime charged was diminished somewhat by those findings. No challenge was made by the Director, nor could it be made to the express finding that the respondent was "deeply remorseful" for his conduct.

78. Mr. Gyorffy for the appellant submitted in writing that this case was a particularly serious example of a dangerous and unlawful manslaughter for 5 reasons:

1. The respondent took a loaded gun into the deceased's home with the intention of committing suicide.

2. The respondent was a person who was very experienced in the handling of guns and well knew the dangers involved in taking a loaded gun into the house.

3. The entire situation in which this occurred was a volatile situation where there was a very high probability that a struggle for the gun would ensure.

4. The respondent was in sufficient control of himself to ensure that other people, in particular the children Gregory and Karly, were not present.

5. His purpose for entering the house and shooting himself in front of Ms Rhook was to cause her the maximum distress in being left with memory of his suicide.

During the hearing he submitted that his Honour undervalued the gravity of bringing a loaded rifle into a house and confronting the female occupant in emotional circumstances. But this was not a case where the Crown could prove that the respondent confronted the deceased with the intention of shooting her, and the gun went off accidentally. Serious as the risk was that injury or death might happen, a stern sentence was not called for. The level of danger was high, but it has been overstated by Mr. Gyorffy, in my opinion. The sentencing judge approached his difficult task with considerable care, applying the relevant sentencing principles, and giving consideration to sentences imposed in cases of a similar kind. Reference to other cases is usually unhelpful and in this case revealed a wide range of sentence has been imposed for manslaughter.

87. I am unable to accept Mr. Gyorffy's submission as death occurring in the circumstances outlined calls for a sentence significantly higher than that imposed. To say that 5 years is manifestly inadequate in the circumstances does not strike a chord with me. The sentencing discretion must be shown to have miscarried in a serious way for the Director to succeed. I can only say that I am not persuaded error occurred here. The sentence might have been higher and not manifestly excessive, on the other hand I consider 5 years was open to the unusual circumstances.

90. This court does not like examining sentences imposed by other courts. There is a range of sentence reasonably available for manslaughter and this case is not an example of a judge acting unreasonably in my opinion.

93. I consider that the imposition of an immediate custodial sentence was called for to reflect the seriousness of taking a human life by the accidental discharge of a gun and to deter persons from handling guns in a dangerous manner.

96. But, there were factors going to mitigation such as, the absence of any relevant criminal history, the ill-health of the respondent, the plea of guilty, and remorse.

99. No doubt it can be said that the total sentence was at the low end of the range of sentence appropriate for the crime. A higher sentence could have been justified, but many factors mitigated the respondent's wrongdoing. The circumstances as a whole were most unusual and I am not persuaded that the sentence imposed was manifestly inadequate. Error in sentencing has not been shown.

102. In my opinion the Director's appeal should be dismissed.

[1] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.