Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public prosecutions - Respondent Crown
File Number(s): 2007/5907
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: R v Michael Kutschera [2008] NSWSC 1271
Date of Decision: 28 November 2008
Before: Fullerton J
File Number(s): 2007/5907
[2]
Judgment
HOEBEN CJ at CL:
Offence and sentence
The applicant was found guilty by a jury of the murder of Lukas Gleeson (the deceased) at Muswellbrook on 21 July 2007. On 28 November 2008 Fullerton J sentenced him to imprisonment with a non-parole period of 20 years, commencing 21 July 2007 and expiring 20 July 2027, with a balance of term of 6 years and 8 months. An appeal against conviction (Kutschera v R [2010] NSWCCA 150) was dismissed.
The applicant seeks to apply for leave to appeal out of time against the severity of his sentence on the following ground:
Ground 1 - Her Honour erred in her approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.
Application for leave to appeal out of time
The decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 was handed down on 5 October 2011. The effect of that decision was to overturn the approach to standard non-parole periods set out in R v Way [2004] NSWCCA 131; 60 NSWLR 168 which this Court had followed since Way was decided. Following the decision in Muldrock, Legal Aid established a review team whose task it was to identify matters where in its opinion "Muldrock error" had occurred.
This matter was one of those identified by the review team. A further delay occurred after the decision in Abdul v R [2013] NSWCCA 247 while the approach in that case was considered by the High Court in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 and O'Grady v The Queen [2014] HCA 38. The effect of those latter decisions was that the test for granting an extension of time for an appeal against sentence was whether the "interests of justice" required that an extension of time be granted. This would usually involve a consideration of the merits of the application.
It follows that if the applicant is successful in establishing error of the kind relied upon, then the interests of justice would require that an extension of time be granted for the hearing of his application for leave to appeal against sentence.
Did Muldrock error occur?
When this matter came before the Court, it was common ground that Muldrock error had occurred. It is clear that the primary judge did give determinative significance to the standard non-parole period. At [42] of her sentencing judgment (R v Michael Kutschera [2008] NSWSC 1271), her Honour said:
"42 Since I am satisfied that the offence is within the mid range of offending of its type, I am required by s 54B(2) of the Sentencing Act to impose the standard non-parole period of 20 years unless I am satisfied, by reference to s 21A of the Sentencing Act, that there are reasons for departing from it."
Given that approach, it was inevitable that in sentencing the applicant her Honour would engage in the two stage approach to sentencing, specifically disapproved by the plurality in Muldrock, i.e:
"28 … commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period."
Since specific error has occurred in the sentencing process, in accordance with the guidance provided in Kentwell, it is necessary for this Court to re-exercise the sentencing discretion:
"42 … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. …"
In exercising that discretion afresh, this Court has to take into account the factual findings by the primary judge except to the extent that those factual findings have been successfully challenged, or are subject to modification as a result of events which have occurred following the imposition of the original sentence. That is particularly so in cases such as this where the primary judge had the advantage of observing the applicant when he gave evidence at trial.
Factual Background
On the evening of 20 July 2007 the deceased met with a number of his friends at a hotel in Muswellbrook to celebrate the 18th birthday of a young woman. The deceased arrived with a friend, Tony Matthews. The applicant and a friend of his, Mr Newbold, were also present at that hotel on that night. Neither the applicant nor Mr Newbold knew the deceased or any of those persons with him.
At some point in the evening the deceased confronted Mr Newbold over unwanted attention which he was showing the young woman whose birthday was being celebrated. One of the deceased's friends intervened and the matter was apparently settled without the argument descending into violence.
The applicant left the hotel at about 2am, which was closing time. Once outside the hotel, he was involved in an incident with another patron in the course of which he was punched in the face by Tony Matthews. Mr Newbold intervened on his behalf and they walked away together.
As the applicant and Mr Newbold were making their way along Sydney Street in the direction of the applicant's home, they were verbally and then physically accosted by the deceased, Tony Matthews and two other men who approached them from behind. The applicant became embroiled in a fight either defending himself against a renewed attack by Tony Matthews, or defending Mr Newbold, or both. The deceased and the two other men were both well affected by alcohol as was Mr Newbold at this time.
No finding was made as to whether or to what extent the applicant was affected by alcohol at that time.
In the course of the fight the applicant was again punched to the face by Tony Matthews and had his head forced into an electricity box. Mr Newbold managed to become free of his attackers and ran off, pursued by the two other men. He hid in a house in a side street. His attackers did not find him and they left the area. The applicant also managed to escape from Tony Matthews and ran directly to his house which was approximately 300 metres away. Once there he got into his Nissan Patrol motor vehicle and headed back at high speed to where the fight had occurred.
In the meantime, Tony Matthews and the deceased left the footpath a short distance from where the fight had taken place to urinate in a side alley. The deceased emerged from the alley before Tony Matthews at which time, quite coincidentally, Mr Newbold also emerged from the nearby side street where he had been hiding. The two men confronted one another and despite an attempt by Mr Newbold to end the dispute by the offer of a handshake, the deceased swung a punch at him. Both men fell or wrestled each other to the ground, in the process of which the deceased's head struck the footpath. Mr Newbold succeeded in gaining the advantage over the deceased by pinning his shoulders to the ground. The two men were in this position when the applicant arrived in his Nissan Patrol.
Her Honour made the following findings as to what happened next:
"15 Whatever the offender's intentions might have been in getting his car and driving back along Sydney Street, there is nothing to suggest that he had any particular animus towards the deceased. At worst he may have intended a retaliatory attack on Tony Matthews as the person who had assaulted him twice within the space of less than an hour. Importantly, when he ran off and when he returned with the car he could not have known there was any resumption of the conflict between the deceased and Mr Newbold. I am further satisfied that it was only when he saw the two men fighting on the footpath (and likely identified Mr Newbold as one of them) that he made the decision to involve himself, and to use the car as a weapon of intervention. Were his intentions otherwise I fail to see how, in one continuous driving sequence, he would have crossed to the incorrect side of Sydney Street, mounted the footpath at the point where the driveway to the tyre yard crossed the footpath, ordered Mr Newbold to get out of the way and, by extending his head from the driver's window, deliberately manoeuvre the front driver's wheel at and over the person on the ground. When he saw Mr Newbold jump clear of the car he must have been aware that the deceased could not, or did not, move out of the way and, since he did not pause at this point, but instead accelerated at and across the deceased's upper body as he lay prone on the footpath, I am satisfied that he did so with the intention of killing him. …"
The deceased was effectively shunted under the front wheel of the Nissan Patrol along the footpath so that he ended on his stomach with his left cheek against the footpath and his neck at an acute angle. It was not clear whether the rear wheels of the vehicle also came in contact with the deceased at that time. The most significant injuries suffered by the deceased were to his head and neck and these would have caused immediate death.
After driving over the deceased, the applicant drove off the gutter stopping momentarily to order Mr Newbold into the car. He then executed a U-turn and drove back to his house. The applicant did not know that at this time Tony Matthews was hiding in the alley and had seen everything. The applicant drove into his front yard and went into the house with Mr Newbold. Mr Newbold was extremely agitated and upset. The applicant left shortly thereafter in the Nissan Patrol, telling Mr Newbold that he was going back "to find the other guy". After the applicant drove away, Mr Newbold went home on foot.
The applicant drove to where he had killed the deceased and mounted the gutter and passed along the footpath a second time. The applicant took the opportunity when he found the scene apparently deserted, to see whether the deceased was dead or injured.
The primary judge made the following observation in relation to this conduct by the applicant:
"25 … Suffice to say that quite apart from his chilling lack of empathy for the deceased, who he not only killed but who he had left lying on the footpath a second time, to be found, so far as he knew or cared, by a casual passer-by, his motives from this time and in the events that followed displayed nothing short of a calculated self interest."
When the applicant arrived at his home a second time, he washed the front wheels of his car and left it parked at the rear of his house. He drove to Mr Newbold's home in a different car and persuaded Mr Newbold to accompany him to where he had left the deceased. He did this with a view to pretending to be a curious observer of a hit and run accident and to thereby deflect any unwanted attention in the event that the police were in attendance. In the meantime, Tony Matthews had called 000. The police and ambulance were in attendance as the applicant and Mr Newbold walked into the area. Mr Newbold was arrested, but the offender was allowed to go home. He was arrested later that morning, after Mr Newbold had been interviewed.
The sentence proceedings
Her Honour assessed the objective seriousness of the offending at mid range:
"36 Despite the fact that I am satisfied that the offender only formed the intention to kill the deceased when he decided to manoeuvre the car at and over the upper body of the deceased, the fact that he used the vehicle at that time with deliberation and determination, coupled with the fact that he must be taken to have known that the deceased was vulnerable and unable to defend himself, is sufficient, in my view, to characterise the offending as within the mid range. … Although I am satisfied that there was no premeditation or planning involved, and that the probabilities favour a finding that the offender's decision to drive over the deceased was impulsive and reactive to the circumstances in which he came upon the deceased and Mr Newbold, I am satisfied that this offence nevertheless falls within the mid range. His conduct and behaviour after the deceased was killed confirm my view that having formed the intention to kill he did so with a cold and calculated detachment and not as a result of loss of self control."
Her Honour considered that the use of a motor vehicle as a weapon was a serious aspect of the offending. In that regard, her Honour relied upon what Sully J said in R v Hall [2001] NSWCCA 202 at [66]:
"66 … When, as in the present appellant's case, the crime to be punished is not the crime of dangerous driving causing death, but the crime of murder where the murder weapon is a motor vehicle, then the foregoing statements of principle are strengthened even further, and must be applied accordingly by a primary sentencing Judge."
Because the use of a motor vehicle as a weapon frequently involved young offenders, her Honour determined that general deterrence was a paramount consideration when framing an appropriate sentence.
Her Honour took into account the applicant's subjective case. She noted that on 1 January 2007 the applicant had committed offences comprising assault police, resist arrest, enter a vehicle without permission and possess/make an explosive without lawful purpose. Because of those matters, and his admitted polydrug use of many years, her Honour did not regard him as having an unblemished character. Nevertheless, she was not prepared to regard his criminal antecedents or his drug use as matters of aggravation. Even though this offence was committed while the applicant was subject to a bond to be of good behaviour, her Honour did not regard that as a matter of aggravation.
Her Honour had available a report from a psychiatrist, Dr Walker, a pre-sentence report and favourable testimonials from the applicant's friends and family. The applicant gave a history of chronic drug addiction and of regularly consuming large quantities of alcohol. Her Honour noted, however, that there was no evidence before her that the applicant was under the influence of either drugs or alcohol when he killed the deceased, or that the behavioural disorder identified by Dr Walker was relevant to his offending in any causative sense.
Her Honour took into account that the applicant had had a disturbed upbringing in that his parents had separated when he was an infant. Although during his early years, he had resided with his mother in New South Wales, his father had gained custody of both him and his siblings when he was aged 7. He lived with his father until he was expelled from school at age 14 and by 16 was living alone. The applicant said that over the last three years he had had little contact with family members.
Her Honour found it somewhat surprising that in contrast to the history recorded by Dr Walker, the testimonials from his family, in particular his older brother, described a close relationship between the applicant and his siblings. His brother and a step sister spoke of a shared and happy childhood with the applicant, including recent years. None of the family members spoke of his drug use. Her Honour accepted that the applicant had the love and support of his friends and family.
In relation to rehabilitation, her Honour said:
"52 Because the offender has not acknowledged his guilt and has not given any explanation for his conduct or his motivations, or made known his attitude to his offending and the loss of life that resulted, I have only a very limited basis upon which to make any assessment of his prospects of rehabilitation. I have been invited by his counsel to find his prospects are good by reason of his youth, his relatively minor criminal history, his history of employment and his family support. The fact that he is currently 26 years of age, and that he has been gainfully employed in the motor vehicle trade in various capacities since leaving high school, does not, in my view, advance his case on sentence any material distance having regard to the objective gravity of the offending and his determination to take no public responsibility for his actions. While I accept he has family support and that he came to adverse notice for the first time six months prior to the murder, I am unable, in the absence of any insight into the attitude of the offender, to make any meaningful assessment of his prospects of rehabilitation."
The applicant's submissions
The applicant's father died in February 2014, after having been unwell for several years. His ill health had prevented him being able to visit the applicant. In February 2011 the applicant admitted to his parole officer that he had caused the deceased's death. The applicant had also told his mother that he was responsible for the deceased's death. In recent affidavits, the applicant expressed sorrow for the deceased's death and for the pain which it had caused his family. The applicant said that he was aged 24 at the time and had a "pretty negative attitude towards life". He expressed a willingness to do all rehabilitation programs which were offered to him. He expressed a willingness to engage in a restorative justice program. The Court's attention was drawn to reports on the applicant while in custody. Except for two minor breaches, these were very favourable. In an overall assessment made in November 2014, his performance was described as "excellent reports, good skills and attitude".
By reference to those matters, the applicant submitted that his subjective case was significantly stronger now than when he was sentenced by the primary judge. He submitted that his strong performance whilst in prison indicated good prospects for rehabilitation as did his acceptance of responsibility for the crime and his expressions of remorse.
The applicant submitted that a notation made in his prison records, dated 18 February 2011, placed doubt on her Honour's finding that "having formed the intention to kill he did so with a cold and calculated detachment and not as a result of loss of self control". The notation in the prison records was:
"Whilst he pleaded not guilty and maintained his innocence when he entered into custody he now admits to the offence which he attributes to an explosion of rage."
The applicant submitted that this explanation was more consistent with an impulsive action on his part rather than as characterised by her Honour.
The applicant submitted that her Honour had given almost no weight to his subjective case and that this Court when re-exercising the sentencing discretion pursuant to s6(3) of the Criminal Appeal Act 1912 should do so, as well as taking into account the changes to his subjective case which had occurred since he was sentenced.
Consideration
Apart from the fact that no challenge has been made to her Honour's fact finding, I do not agree that an isolated reference to "an explosion of rage" in the prison records can provide a proper basis for overturning or ignoring an important finding of fact by the sentencing judge. This is particularly so when the entry in the prison records does not purport to be a verbatim statement of what the applicant said but at best is a summary.
In any event, a proper reading of par [36] where her Honour made that finding, does not bear out the criticism which has been levelled against it. Her Honour found that there was no pre-meditation or planning involved and that the applicant's decision to drive over the deceased was impulsive and reactive to the circumstances in which he came upon the deceased and Mr Newbold. That is fully consistent with an explosion of rage. Her Honour's further finding as to the manner in which the applicant brought about the death of the deceased is not inconsistent with the initial reaction having been brought about by an explosion of rage. The point made by her Honour was that having decided "impulsively" to kill the deceased, the applicant went about that task in a cold and calculating manner by driving onto the footpath, directing Mr Newbold to get out of the way and then running over the deceased's torso and head.
The standard non-parole period and the maximum penalty of life imprisonment remain important guideposts for this offence. When taken with the circumstances surrounding its commission, it is clear that this was a very serious example of the offence of murder and well merited an assessment of objective seriousness in the middle of the range for offences of this kind. In re-exercising the sentencing discretion, the objective seriousness of the offence, together with considerations of general deterrence and denunciation, have to play an important part.
The applicant's subjective case at the time when he was sentenced was not particularly strong. While he had had a disturbed childhood, he was still held in high esteem by his family, who provided him with significant support. His drug abuse and alcohol abuse played no part in the offending. There have, however, been important changes to his subjective case between the time when he was sentenced and now. His acceptance of responsibility and expressions of remorse are important and need to be taken into account. His strong performance while in custody and the favourable reports which he has obtained while in prison are also important, particularly from the point of view of rehabilitation.
Taking all those matters into account, I am satisfied that a lesser sentence is warranted in law. Accordingly, the orders which I propose are as follows:
1. The application for an extension of time within which to apply for leave to appeal against sentence is granted.
2. Leave to appeal against sentence is granted.
3. The appeal against sentence is allowed.
4. The sentence imposed by Fullerton J on 28 November 2008 is quashed and in lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 18 years to commence 21 July 2007 and to expire 20 July 2025, with a balance of term of 6 years expiring 20 July 2031.
HALL J: I agree with Hoeben CJ at CL.
R A HULME J: I agree with Hoeben CJ at CL.
[3]
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Decision last updated: 28 April 2015