Hopley v R

Court of Criminal Appeal (NSW)|2008-05-13|Before: Beazley JA, Johnson J, McCallum J, Callum J

The Applicant's Subjective Circumstances 5 The Applicant was 35 years of age at the time of the offence and 37 years at the time of sentence. He was educated to Year 10 standard achieving his School Certificate. According to a pre-sentence report which was before the District Court, the Applicant has undertaken sporadic employment predominantly within unskilled labouring positions, but has been largely in receipt of a Commonwealth Benefit (parenting pension) which has enabled the Applicant, as a sole parent, to tend to the needs of his 13-year old son. 6 The Applicant's relationship with the mother of their son lasted about two-and-a-half years. The Applicant has raised the child since then with no real contact with the mother until recent years, and with that contact being sporadic and infrequent. 7 Following his release on bail for this matter in 2005, the Applicant met and formed a relationship with a new partner, who remained supportive of him at the time of sentence. Prior to his imprisonment, the Applicant had been residing in Department of Housing accommodation in the Erskineville area with his son and partner. 8 The Applicant has a criminal history containing entries for drink-driving offences in 1989, 1990, 1992 and 2003, drug possession offences in 1994 and 1996 and assault occasioning actual bodily harm on a taxi driver in 1998. 9 He was sentenced to imprisonment by way of periodic detention for the 1992 drink-driving offence and an associated charge of driving whilst disqualified. 10 A report dated 20 February 2007 of Ms Emma Collins, psychologist, was tendered in the sentencing proceedings, together with a number of references concerning the Applicant, including a letter from his son. In addition, a report dated 8 March 2007 of Professor Carolyn Quadrio, consultant psychiatrist, concerning the Applicant's son was tendered in the District Court. Professor Quadrio considered that the son was clinically depressed. She observed that the boy was at a vulnerable stage of life and that the risks to his development and future adjustment were extremely serious. Professor Quadrio concluded that remaining in the care of his father in the next five years would be critical to the boy's development.

Some Further Findings of the Sentencing Judge 11 I have set out at [4] his Honour's findings of fact with respect to the offence. His Honour made certain associated findings concerning the offence. 12 His Honour observed that the Applicant "somewhat justifiably places a large part of the blame on Scott Delarue" and that the Applicant "acted in an entirely responsible and restrained manner until Mr Delarue launched his hot headed attack" (ROS6). His Honour concluded that, when sentencing the Applicant, he would "have to bear firmly in mind that he did not go looking for trouble, but trouble came to him", that the Applicant's decision to hit Mr Birss was made after his friend had been attacked and that the offence was not planned or organised (ROS6). 13 The sentencing judge stated that the Applicant's remorse at the death of Mr Birss was obvious both in his electronically recorded interview with police and when giving evidence in court during the trial. 14 His Honour was satisfied that the Applicant was deeply remorseful and, given his own family circumstances, was able to empathise with the position of Mr Birss' family. The only qualification to that finding of remorse concerned the fact that the Applicant did not plead guilty and still apparently blamed others such as security staff and Mr Delarue for what happened. Although it was correct to observe that Mr Delarue's actions precipitated what followed, his Honour found that the responsibility for the Applicant striking Mr Birss, and thus killing him, was solely that of the Applicant (ROS12). 15 The sentencing judge noted that the Applicant's record of previous convictions involved offences committed whilst the Applicant was under the influence of alcohol and that there was a suggestion that, since the birth of his son, the Applicant had moderated his drinking. However, the previous convictions meant that the Applicant was not entitled to any leniency on the basis that this was his first offence (ROS11). 16 His Honour observed that the position of the Applicant's son occupied a great deal of attention during the sentencing proceedings. The sentencing judge accepted that the Applicant was the primary carer of his son, "a function he has performed with enthusiasm and dedication" and that the Applicant was "on all accounts a devoted father" (ROS7). Reference was made to the Report of Professor Quadrio concerning the vulnerable stage of life of the Applicant's son and the suggestion that the boy was clinically depressed. 17 His Honour stated that a significant allowance in sentence could only be made for the fact that the Applicant's incarceration would cause hardship to his son if that circumstance was exceptional. Recognising that the law must be applied in an even-handed way, his Honour observed that single parents do not automatically receive a lesser sentence because their imprisonment will have adverse consequences on children in their care (ROS9). The sentencing judge did not accept a submission that the present circumstances were exceptional. He observed that it was perhaps unusual for a single parent who is facing imprisonment to be a father rather than a mother, but this was not a relevant point of distinction. His Honour observed that, in the vast majority of cases where single parents are facing custody, their children will suffer significantly, that depression in such children will be commonplace and in very few cases are there ideal alternatives for the care of children left behind. 18 The sentencing judge stated that this conclusion did not mean that the position of the Applicant and his son would be ignored on sentence. The Court was able to take that matter into account "as part of the general mix of subjective factors" and take into account that the Applicant's time in custody will be much harder "because of his separation" from his son (ROS10-11). 19 A finding was made that the Applicant had good prospects of rehabilitation and was unlikely to re-offend (ROS12). 20 His Honour referred to a number of manslaughter sentencing decisions where a single blow had caused death: R v Grenenger [1999] NSWSC 380; R v Maclurcan [2003] NSWSC 799; R v O'Hare [2003] NSWSC 652; R v Ristevski [1999] NSWSC 1248 and R v Hyatt [2000] NSWSC 773. The sentencing judge stated that he had looked at these cases and sentences imposed in them in an effort to ensure that the sentence to be imposed on the Applicant was consistent with other sentences, although observing that no two cases are alike (ROS12-13). 21 Special circumstances were found for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999 being the Applicant's first significant period of incarceration and the fact that, upon his release from custody, he and his son would need significant support as he resumed the care for his son (ROS13). 22 The sentencing judge adverted to victim impact statements of Mr Birss' parents and brother and took account of their contents in accordance with the law. 23 His Honour concluded that this was a "very sad case" with the Applicant's actions having caused significant harm to many people, with a young man dying and a child losing the care of his father for a number of years (ROS13). However, his Honour concluded that such emotions could not be allowed to overcome the duty to sentence the Applicant according to law. 24 His Honour referred to the statement by Sully J in R v Grenenger at [13]: "…any unlawful taking of a human life must be, axiomatically, a grave offence against social harmony and public order. This is, in my opinion, even more emphatically the case when as, in the present matter, an unlawful killing results from a public affray in a place of lawful public resort such as licensed hotel premises."

Submissions of Parties 25 Ms Kluss, counsel for the Applicant, submits that his Honour erred in his approach to fact finding following the verdict of the jury. It was submitted that the finding that the Applicant did not believe he was acting in self defence was erroneous. It was submitted that his Honour had given undue weight to the close-circuit television footage of the fatal interaction between the Applicant and Mr Birss without giving proper weight to the antecedent events which, it was submitted, bore on the issue of self defence. In effect, it was submitted that his Honour ought to have sentenced the Applicant upon the basis that, although the Applicant believed it was necessary to strike Mr Birss in self defence, the Crown had proved beyond reasonable doubt that the striking was not a reasonable response in the circumstances. In support of this argument, Ms Kluss repeated the Applicant's submissions on sentence made to the learned sentencing judge in the District Court. 26 The Crown submitted that the findings made were clearly open on the evidence and that no error had been demonstrated in this respect. Decision 27 It was a matter for the sentencing judge to form his own view of the facts so long as that view did not conflict with the jury's verdict: Savvas v The Queen (1995) 183 CLR 1 at 8. It was necessary for the finding of fact presently under challenge to be arrived at beyond reasonable doubt (Cheung v The Queen [2001] 209 CLR 1 at 12-13 [14]) and his Honour applied this test in making the finding. 28 This Court is bound by findings of fact of the sentencing judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King (1936) 55 CLR 499 at 504-505: R v Khouzame [2000] NSWCCA 505 at [33]-[41]; R v Merritt (2004) 59 NSWLR 557 at 573 [61]. 29 The learned sentencing judge had the advantage of presiding at the trial of the Applicant in which evidence of a number of witnesses was given and, importantly, close-circuit television footage was tendered which, in effect, captured the incident. A portion of the close-circuit television footage depicting the fatal interaction between the Applicant and Mr Birss was played at the hearing of the application in this Court. The images depicted provide powerful support for the findings made by his Honour. The written description in his Honour's findings of the actions depicted is entirely accurate. 30 I do not accept the submission that his Honour gave undue emphasis to the footage and inadequate weight to the antecedent events. To the contrary, his Honour's finding that the Applicant was motivated by anger and not fear when he struck Mr Birss was based upon an assessment of the entire incident, including events leading up to the fatal interaction depicted on the footage. 31 The arguments advanced for the Applicant in this Court essentially repeat those advanced and rejected by the learned sentencing judge in the District Court. In my view, the findings of fact made by the learned sentencing judge were open to his Honour. Indeed, in my view, no other finding was reasonably open on the evidence. 32 The sentencing of the Applicant proceeded, correctly, upon the basis that a jury was satisfied beyond reasonable doubt of his guilt of the crime of manslaughter. Thereafter, it was for the learned sentencing judge to pass sentence upon facts found consistent with the verdict of the jury and of which his Honour was satisfied beyond reasonable doubt. His Honour found facts upon that basis utilising a process which, in my view, is unimpeachable. 33 No error has been demonstrated in his Honour's factual findings concerning the offence for the purpose of sentence.

Hardship to the Applicant's Son Arising from Imprisonment of Applicant

Submissions of Parties 34 Counsel for the Applicant submitted that his Honour had insufficiently taken into account the individual impact on the Applicant's son as assessed by Professor Quadrio, which was said to be extremely serious and extended beyond the issue of depression to the potential for irreparable damage to the development of the child. It was submitted that this took the present case out of the ordinary. It was submitted that the correct approach was not to isolate the issue by reference to the sex of the offender, the number of children or depression associated with the loss of a parent, but rather to consider the impact of imprisonment of the parent (here the sole primary care giver) on the disrupted and vulnerable life of a child. Viewed in this way, it was submitted that the present circumstances were exceptional. 35 Alternatively, it was submitted that, even if the circumstances were not exceptional, his Honour paid insufficient regard to the effect of imprisonment on the Applicant's family as part of the general mix of subjective matters. Reliance was placed upon R v Day (1998) 100 A Crim R 275 and R v Gip; R v Ly (2006) 161 A Crim R 173. 36 In the event that error was established and the Court moved to resentence the Applicant, Ms Kluss sought to rely upon a supplementary report dated 12 May 2008 of Professor Quadrio concerning the Applicant's son. 37 The Crown submitted that no basis had been demonstrated for intervention by this Court on this issue. The Crown submitted that sentencing judges are routinely obliged to sentence offenders who may be bread winners of families, parents of children and protectors of persons who are weak or vulnerable and that these circumstances are bound to result in hardship to third parties if full-time imprisonment is imposed: R v Edwards (1996) 90 A Crim R 510 at 515. The relevant principle is that hardship to family and dependents is an unavoidable consequence of a custodial sentence and is not a mitigating factor unless such hardship is truly, wholly or highly exceptional. The Crown submitted that the sentencing judge applied the correct principle and considered the evidence, but declined to find that there were exceptional circumstances such as to justify a significant allowance because of the Applicant's role as sole carer for his son. His Honour, however, did not ignore this factor but took it into account in the Applicant's favour as part of the general subjective factors to be considered on sentence.

Decision 38 The Applicant does not contend that his Honour applied an incorrect legal test in approaching this question. The argument is that his Honour's conclusion that the evidence did not establish exceptional circumstances was erroneous. 39 The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship to third parties. Justice will not have been seen to be administered even-handedly if exceptions are made (on this account) in cases which are not truly, wholly or highly exceptional: R v Edwards at 516; R v Day at 277; R v Gip; R v Ly at 179 [29]. 40 His Honour had careful regard to the evidence concerning the impact on the Applicant's son of the full-time imprisonment of the applicant, including the report of Professor Quadrio. 41 The sentencing discretion is especially demanding where a sole parent is to be sentenced for a serious crime. The consequences upon children of imprisonment of an offender in these circumstances will invariably be detrimental. It remains a question of fact and degree for the sentencing judge to determine whether the facts of the particular case are wholly, truly or highly exceptional to allow express account to be had in passing sentence to the hardship to the child arising from the imprisonment of the offender. Minds may differ about this question in a particular case. To succeed on this ground, the Applicant must demonstrate error in accordance with the principles in House v The King at 504-505. In my view, the conclusion reached by the learned sentencing judge on this issue was open to him on the evidence. 42 I am not persuaded that error has been demonstrated in his Honour's approach to this issue in the sentencing proceedings.

Is the Sentence Manifestly Excessive? 43 I have considered and rejected the two specific complaints made concerning the sentence. There remains the broad ground of appeal that the sentence imposed upon the Applicant was manifestly excessive. It is appropriate to consider this issue generally for the purpose of determining the application. 44 The Applicant stood for sentence for manslaughter, a crime bearing a maximum penalty of imprisonment for 25 years. 45 In R v Forbes [2005] NSWCCA 337, Spigelman CJ observed at [133]-[134] that manslaughter is almost unique in its protean character as an offence, that a wide range of circumstances may constitute the crime and that matters of fact and degree arise in all categories of manslaughter. Of course, a constant factor is that manslaughter involves the felonious taking of a human life. This constitutes a starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case: R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995); R v Forbes at [124]. 46 His Honour made detailed findings concerning the objective seriousness of the Applicant's crime. Regrettably, as his Honour observed, single-blow manslaughter cases (by unlawful and dangerous act) are not rare in this State. In addition to the cases referred to by his Honour (see [20] above), the Crown referred to the decision in KT v R [2008] NSWCCA 51. The present case, like KT v R, provides a graphic illustration of a heavy blow being struck which causes the victim to fall to the road or gutter, striking his head, and sustaining fatal brain injury. 47 As the learned sentencing judge correctly observed (by reference to R v Grenenger), this case is a further example of the disastrous consequences which can flow from a public affray in a place of lawful public resort. The violence of the Applicant was perpetrated in a public street where persons were present and where it constitutes a particular affront to civil peace to have a man killed in this way: R v Inzitari (NSW Court of Criminal Appeal, 28 March 1985). It was necessary for the Applicant to be punished for his crime and for an element of general deterrence to be reflected in the sentence. 48 The Applicant had a number of subjective factors operating in his favour. It remained necessary, however, that the objective seriousness of his crime be reflected in the sentence to be imposed. 49 In my view, the sentence imposed was clearly open in the proper exercise of sentencing discretion. No error has been demonstrated with respect to the sentence. Even if error had been demonstrated, I am satisfied that no other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. 50 I propose that leave to appeal be granted, but that the appeal be dismissed. 51 McCALLUM J: I agree with Johnson J.

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R v Grenenger [1999] NSWSC 380 R v Maclurcan [2003] NSWSC 799 R v O'Hare [2003] NSWSC 652 R v Ristevski [1999] NSWSC 1248 R v Hyatt [2000] NSWSC 773 Savvas v The Queen (1995) 183 CLR 1 Cheung v The Queen [2001] 209 CLR 1 House v The King (1936) 55 CLR 499 CASES CITED : R v Khouzame [2000] NSWCCA 505 R v Merritt (2004) 59 NSWLR 557 R v Day (1998) 100 A Crim R 275 R v Gip; R v Ly (2006) 161 A Crim R 173 R v Edwards (1996) 90 A Crim R 510 R v Forbes [2005] NSWCCA 337 R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995) KT v R [2008] NSWCCA 51 R v Inzitari (NSW Court of Criminal Appeal, 28 March 1985)

LOWER COURT MEDIUM NEUTRAL CITATION: R v Hopley [2007] NSWDC 46

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