Kinmond v The Queen (1982) 5 A Crim R 413

Lambadgee v The Queen, unreported; CCA SCt of WA; Library No 8655; 19 December 1990

Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108

Punch v The Queen (1993) 9 WAR 486

R v Mordecai v The Queen (1985) 18 A Crim R 149

Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998

Wicks v The Queen (1989) 3 WAR 372

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wallwork J, in which the facts are set out. Generally for those reasons, I agree that this application for leave to appeal against sentence should be refused.

2 Having regard to the age of the applicant, to his very deprived background, to the favourable report of the Prison Support Officer and to his surrendering to the Police two days after the event, I am of the opinion that the sentence of 8 years was at the top of the range. However, I find myself unable to conclude that the sentencing Judge fell into error, and I do not consider that this Court, acting in accordance with the principle enunciated by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at 671 - 672, should interfere with his Honour's discretionary judgment.

3 PIDGEON J: I agree with the reasons to be published by Wallwork J.

4 WALLWORK J: On 28 October 1999 the applicant was sentenced to a term of 8 years imprisonment after having been found guilty of manslaughter on Wednesday 20 October. He now applies for leave to appeal against the sentence.

5 The applicant had been tried jointly with another person on a charge of wilful murder. His co-accused was found guilty of murder and, as stated above, the applicant was found guilty of manslaughter.

6 When sentencing the applicant the learned trial Judge said that the trial had arisen from the death of Mr Byrne, a 36 year old man, who had lived in a block of flats in Glendower Way, Spearwood. On the evening of Monday 19 October 1998 Mr Byrne had been disturbed by the sound of someone hitting the meter box or some other part of the gas hot water system on the outside of the building. Because he was concerned that his property, or his neighbour's property, was being interfered with, Mr Byrne had gone into the street outside his flat carrying a cricket bat. He there saw the applicant and his girlfriend. He swung at the applicant with the bat. In warding off the blow the applicant was hit on his left elbow. It was a painful injury. The applicant shouted abuse at Mr Byrne and threatened to return and kill him.

7 The applicant and his girlfriend then ran off to a home unit in a nearby street where the co-offender and some others were present. After the applicant had complained of being hit with the bat, he and his co-offender set off to confront Mr Byrne. The co-offender took a kitchen knife with him. The applicant took a paving brick from outside the building.

8 When the two men reached Glendower Way, Mr Byrne was still there wielding the cricket bat. There was a confrontation, in the course of which, the applicant threw the brick he was carrying at Mr Byrne but it did not hit him. The co-accused then stabbed Mr Byrne in the chest. Mr Byrne died shortly afterwards.

9 The applicant and his co-offender went back to the home unit and were taken away from there by a friend in a car. On 22 October 1998 the co-offender surrendered to the police. Four days later, the applicant surrendered.

10 At the trial both the applicant and the co-offender denied that they had set out together to confront Mr Byrne. In their evidence, each of them said that the applicant had left the home unit and that the co-offender had followed him. The co-offender testified that after the applicant, injured and unarmed, had set off to confront Mr Byrne, the co-offender had taken a knife from the kitchen drawer at the unit and had gone after the applicant. The co-offender said he had intended to use the knife as a scare tactic in order to prevent further harm to the applicant.

11 At the trial the applicant had said that he did not know that the co-offender was holding a knife and was unaware of the co-offender's presence in Glendower Way, until after the applicant had thrown the brick at Mr Byrne.

12 The learned Judge came to the conclusion that in convicting the co-accused of murder, the jury had not been satisfied that he had intended to kill Mr Byrne, but they had been satisfied that he had intended to do grievous bodily harm to Mr Byrne. His Honour concluded that in convicting the applicant of manslaughter, the jury had clearly not been satisfied that he had intended to kill Mr Byrne, or even to do him grievous bodily harm, but they had been satisfied at least that the two men had joined together in the one enterprise with some degree of violence in mind and that the applicant knew before the stabbing that his co-offender had been armed with a knife.

13 The learned Judge said that the applicant was 19 years old and had no prior convictions. He had come from a deprived and unhappy family background. The Judge was told that at the age of 17 the applicant had "gone off the rails" and had associated with a group of people who were engaged in anti-social conduct. A prison support officer had told the learned Judge that she had found the applicant to be a gentle and caring young man; a decent human being with a big heart. His Honour said that the jury had found that the applicant's role in the matter had been less culpable than that of his co-offender. His Honour said:

"You may have intended only to frighten him by way of revenge for his hitting you with a cricket bat in what you thought was an incident unprovoked and unjustified. But by enlisting Ugle's help you brought about this tragedy. From the time when you set out to confront Mr Byrne there was always a likelihood that he would use the knife in some way which would cause death or serious harm."

14 His Honour noted that it was to the applicant's credit that he had admitted to the investigating officers that he had been involved in the fatal incident. He had also co-operated with the prosecution in shortening the trial. His Honour said that bearing in mind that the applicant at the time of the offence had been only 18 years of age, there was reason for hope that upon his release from prison he would set about becoming a useful member of the society. He said he would impose a sentence which would be shorter than otherwise would have been the case. He then sentenced the applicant to 8 years imprisonment with eligibility for parole. The sentence was dated from when the applicant had surrendered to the police on 26 October 1998.

15 At the hearing of this application, counsel for the applicant conceded that there was no express error which he could point to in his Honour's sentencing remarks. He did not take any issue with the learned Judge's findings in relation to the facts of the matter. However, it was submitted that the sentence was manifestly excessive. Counsel said that one of the important matters in assessing criminal culpability in a case like this was the behaviour which caused the death of the deceased and the aggression displayed by the perpetrator of the offence towards the deceased. There was also the degree of violence and the level of the offender's intentional acts.

16 It was submitted for the applicant that the error which the learned Judge had made was revealed by the finishing point at a sentence of 8 years imprisonment. This indicated that the sentence would have been greater but for the matters in mitigation. It was submitted that the learned Judge had essentially found that the applicant's level of culpability had been at the higher end of the scale for manslaughter offences.

17 It was submitted that the applicant's girlfriend had hit the water system outside the flats, initially with her hand or something else. The applicant had then done the same and carried on walking. Mr Byrne had then come out of his flat armed with a cricket bat. At that stage there had been no aggression on the part of the applicant at all.

18 It was conceded that when the two offenders went back to the flat, the applicant had known that the co-offender had the knife. This was after the applicant had earlier shouted abuse at Mr Byrne, threatening to return and kill him. The applicant had been carrying a brick. However it was pointed out that the learned Judge had said that the applicant had not intended that Mr Byrne be killed or even that he suffer grievous bodily harm. His Honour had said that the applicant may have intended only to frighten Mr Byrne by way of revenge for his hitting him with a cricket bat. I note that his Honour also said:

"But by enlisting Ugle's help you have brought about this tragedy."

19 In this case there were two offenders who returned to the vicinity of the flat to confront a man who had already wielded a cricket bat. The applicant had a brick. The co-offender had a knife. In my view, the gravamen of this offence was that the applicant took part in a joint enterprise to confront Mr Byrne, when both he and his co-offender had weapons. The result of their actions was Mr Byrne's death.

20 The fact that the applicant may only have intended to frighten Mr Byrne for hitting him with a cricket bat is not the end of the matter. The most serious aspect is that the offenders' unlawful conduct resulted in a person's death. The applicant should have known that it was a very dangerous and criminal enterprise to approach Mr Byrne with his co-offender in the manner in which they did. The applicant then threw a brick at Mr Byrne. There was then the confrontation between the co-offender and Mr Byrne. The applicant had thrown the brick, knowing that he was accompanied by a person with a knife.

21 Counsel for the applicant said that the applicant had thrown the brick when Mr Byrne was coming towards him wielding the cricket bat. That his intention had been simply to frighten Mr Byrne.

22 The second aspect of the argument advanced for the applicant was that he had been entitled to a very substantial discount for his antecedents, including the facts that he was only 18 years and 2 months old at the time of the offence and had no criminal record. It was also said that the applicant was a very genuine young man who had been of considerable assistance to other people within the prison system. He had a lot of potential. It was submitted that he should have been given the maximum discount applicable for his personal antecedents.

23 Section 287 of the Criminal Code provides that a person who commits the crime of manslaughter is liable to imprisonment for 20 years.

24 In McKenna v The Queen (1992) 7 WAR 455 at 467, Seaman J said:

"In my opinion in considering this application it is first necessary to determine what is the penalty at the upper end of the range of criminality for manslaughter in general which could properly be applied as a starting point for the construction of the applicant's sentence. Wicks v The Queen [1993] WAR 372 at 390 reveals that 15 years may be appropriate when a penalty at the upper end of the range is warranted."

25 It then has to be borne in mind that in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; (1999) 73 ALJR 1007, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, when discussing discretionary judgments, which the imposition of a sentence in a case like this is, said at 671 - 672; 1010 [par 15]:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing Judge are well established ... Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic (House v The King [1936] HCA 40; (1936) 55 CLR 499). The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."

26 In my view having in mind the abovementioned authorities, it could not be said that the sentence of 8 years imprisonment which was imposed by the learned Judge in this case was outside the permissible range. The offence was extremely serious as it caused the death of a 36 year old man after he had been confronted by two persons who were carrying weapons.

27 I would refuse the application for leave to appeal.