McPhee v The Queen [2014] VSCA 156

1 On 19 July 2013, the applicant pleaded guilty to one charge of murder. Following a plea in mitigation, he was sentenced to a total effective sentence of 20 years' imprisonment with a non-parole period of 16 years. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), the sentencing judge made a declaration that, if not for the plea of guilty, she would have sentenced the applicant to 22 years' imprisonment a non-parole period of 18 years.

2 On 21 May 2014, leave to appeal against his sentence was refused by a judge of this Court. The applicant has elected, pursuant to s 315 of the Criminal Procedure Act 2009 (Vic), to have his application determined by this Court. In the event that leave is granted, the parties wish this Court as presently constituted to determine the appeal.

3 The applicant renews his application for leave to appeal on one ground:

1. The head sentence imposed and non-parole period fixed are manifestly excessive.

Particulars

The sentences imposed reveal that the learned judge failed to give sufficient weight to the Applicant's matters in mitigation, and in particular (a) his admissions and cooperation with police; (b) his unblemished record and productive life; (c) the absence of any premeditation, and (d) his plea of guilty.

4 The applicant has filed additional submissions addressing the reasons given for the initial refusal of leave.

5 The circumstances of the offending may be summarised as follows:

The applicant met the deceased, Cathy McPhee, in 2005. They were married on 30 October 2008 and lived together in Mildura. She had four adult children from her previous marriage and the applicant has two adult children from his previous marriage. Both the applicant and the deceased worked in disability services.

In 2011, the relationship began to deteriorate. The deceased was unhappy about the applicant's drinking and use of pornography and suspected him of having an affair. Friends and family observed that the applicant was jealous and controlling of his wife. In about November 2012, the applicant pulled out a knife and threatened to harm himself.

The deceased saw a psychologist, Eric Brunton, on a number of occasions seeking help with issues relating to the relationship and the applicant accompanied her on some of these occasions. On 11 December 2012 the deceased told Mr Brunton that she wished to end the relationship. The couple also consulted a solicitor about the financial arrangements they would need to make if they separated.

On 29 December 2012, the deceased travelled to Melbourne to spend time with her sons. While in Melbourne, the deceased discussed her plans to leave her husband and move to another property she owned.

When the deceased returned to Mildura on 3 January 2013 the applicant helped her to take her bags from the car and they sat on the front patio together. The applicant and the deceased then began discussing how they might start the year on a positive note and not fight any longer. The conversation turned to their marital problems and the deceased told the applicant that she did not love him any more in the way she once did. The applicant went to have a shower and returned to the front patio. He attempted to kiss the deceased and pull her onto his lap but she resisted. The applicant felt hurt and rejected and went to the back of the house to get a can of beer. The deceased went into the living room and lay on the couch listening to some music.

The applicant went to the kitchen and took a 28 centimetre knife from the cupboard, walked into the lounge room where the deceased was lying on the couch and stabbed her twice in the chest. The applicant then panicked, removed the deceased's skirt and used it to wipe the blood and fingerprints from the knife. He then called triple 0 and attempted resuscitation in accordance with the instructions of the triple 0 operator. Police arrived at 8.29 pm, and an ambulance shortly after, and Mrs McPhee was declared dead at the scene.

In his record of interview, the applicant said that he could not explain why he stabbed the deceased. He said they had been arguing for about a year and that 3 January 2013 was no better and no worse than on other occasions.[1]

6 It is convenient to set out part of the applicant's powerful written submissions before this Court in support of the contention that the sentence imposed was beyond a sound exercise of the sentencing discretion (citations omitted):

The Applicant presented for sentencing with an unblemished and honourable life. At 56, he had no prior convictions, no subsequent matters and no history of violence.

There was as between the Applicant and the deceased no history of domestic violence. In the lead-up to their proposed marital separation, the Applicant had borrowed money to renovate his wife's nearby premises into which she was to relocate; had worked on those premises to make them more comfortable for his wife; and had attended upon a solicitor with his wife to discuss property settlement. He disclosed a lifetime of very hard work.

His remorse was not doubted, and accepted by the sentencing judge without qualification, and by the prosecutor. It was profound. In his record of interview and talking with police, on the evening of the crime, he confessed. Thereafter the matter proceeded through the Court system without any contest as to any matter, by way of straight hand up brief and ultimately by a plea of guilty in the Trial Division.

In short, the Applicant has led an exemplary life, and has committed this most serious crime in a matter of seconds. There was no premeditation, no history of violence, the duration of the crime was short, and it was spontaneous.

Given his exemplary history, his age, his remorse, his admissions on the day of offending, his facilitation of justice at every opportunity, and his plea of guilty, he was entitled to a sentence which gave materially greater weight to the matters in mitigation on which he was able to call in aid.

There is, it is submitted, a sense of injustice about this sentence. All murders are dreadful. Some are more dreadful than others. Murders more dreadful than this one in recent years have generally attracted similar or only slightly higher sentences.

The murder committed by the Applicant was a murder that fell at the lower end of the spectrum. It was incumbent upon the judge to have sentenced him for a lower end murder, a murder by a man with such an excellent personal life history. The disposition he attracted does not bear that out.

7 In her sentencing remarks, the sentencing judge said:

The maximum penalty for the crime of murder is life imprisonment. Murder is the most serious offence on the criminal calendar. In sentencing you, I must have regard to the nature and gravity of the offence here committed. Although your actions were unpremeditated and spontaneous, you clearly acted out of anger and, no doubt , alcohol played its part. It was not news to you that your wife wanted a separation, although you may not have wanted one. You went along with the idea of it and, indeed, up until that day, had acted reasonably and somewhat responsibly in working on your marital issues and working towards a trial separation. You had spent that afternoon with your wife convivially enjoying each other's company and, it seems, to a point, discussing the state of your marriage without rancour. Your wife did nothing to provoke you, although you say she must have said something. She was defenceless and must have been taken utterly by surprise by your attack. She was doing no more than lying on the couch in the sanctuary of her own home.

Your explanation that you 'snapped' masks the reality that you acted out of anger when you stabbed your wife not once but twice, and in the face of her cries for you to stop, although I accept that this must have all happened very quickly. Although the marriage had its strains and you had reacted aggressively in the presence of the psychologist, the marriage was not marked by violence, you have no history of violence and you have no prior convictions for violence or, indeed, any other offences, and you are regarded as a person of good character. I accept then that this conduct was totally out of character for you and, apart from 'snapping', as you describe it, is otherwise inexplicable, which only serves to compound the great tragedy of this crime both for Mrs McPhee, her family and, indeed, for you. ...

In sentencing you, I take into account that you have made full and frank admissions, and that you have acknowledged your responsibility for murdering Mrs McPhee effectively from the outset. I take into account your plea of guilty, given at the earliest opportunity, and give you a discount for it. I take into account that a committal was not conducted and that by reason of your plea, you have saved the community the cost of a trial and the witnesses the ordeal of one. I take into account that your plea of guilty has facilitated the course of justice and has effected a timely resolution of the Court process for Mrs McPhee's family. I take into account also that you are a person of good character for whom this behaviour is out of character, that you are hard working and reliable. I take into account that you have no history of violence, you have no prior convictions and no matters since the commission of this offence. I take into account also that you are genuinely remorseful and have expressed your remorse as early as when you were interviewed by the police, and that your plea of guilty is also indicative of that remorse. I take into account also the way in which you have conducted yourself in custody to date and the way in which you have applied yourself to programs designed to assist you. I take into account also that you have the continued support of your parents and your own family, all of which leads the Court to conclude that your prospects for rehabilitation are very favourable indeed. I also take into account your age and that, at the age of 56, you will be serving a sentence of imprisonment, and a very substantial one at that, for the first time, and that, at the age of 56, a significant period of your remaining life will be spent in custody. In short, I take into account all things which go in your favour.[2]

8 Every single human situation is unique, and the sentencing judge's instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences. For offences such as murder which, as a matter of course, attract very substantial sentences, the variations between the sentences which might be imposed by different judges will necessarily be greater. The maximum penalty for murder is life imprisonment. The median sentence imposed during the period 2007/08 to 2011/12 was 19 years. [3] As such, and recognising that there is no mathematical rule, one could expect a variance in the order of at least some three to four years in the sentences that different judges would impose for particular offending by a particular offender. In order for an argument of manifest excess to be successful, the excess must be 'obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error'.[4]

9 In its written submissions, the respondent argues that the ground could not be made out unless it is shown that 'no sentencing judge acting reasonably' could have imposed the sentence. Similar phrases, speaking of a reasonable judge, are sometimes used by the respondent in submissions to this Court. Such expressions are found in some passing statements of this Court per incuriam where it has been said that the question was whether 'no reasonable judge could have imposed the sentence' or similar. Senior counsel who now appears for the Crown rightly conceded that such expressions are inapt. The phrase was used in the recent decision of Soylemez v The Queen,[5] to which reference was made in the initial reasons for refusal of leave in this matter. With respect, it should not be thought that an appeal on the ground of manifest excess imports into its analysis any notion of Wednesbury unreasonableness.[6] As senior counsel for the Crown acknowledges, the concept of the manifest excess rests within the residual ground of error in House v The King.[7]

10 As Ashley, Redlich and Weinberg JJA (Warren CJ and Maxwell P agreeing) said in Director of Public Prosecutions (Vic) v Karazisis:[8]

As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[9]

11 The question for this Court, properly expressed, is whether the sentence imposed was reasonably open to the sentencing judge.

12 As the Court (Redlich JA, Harper JA agreeing) observed in Felicite v The Queen,[10] the labels of domestic murder or spousal murder are to be viewed only as descriptive and relate only to the nature of the relationship between an accused and victim:

The existence of great emotional strain within a domestic or spousal relationship which plays upon the offender's emotional susceptibilities and results in a spontaneous act may bear upon the offender's degree of criminality. But murders that occur in such circumstances are not to be approached as though they fall into a discrete and less serious category of the offence.

The taking of a domestic partner's life undermines the foundations of personal relationships and family trust upon which our society rests. The sentence must reflect both the sanctity of human life and societies' abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be the protector, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress.[11]

13 Senior counsel for the respondent accepted, in oral argument, that there was a constellation of mitigating factors enumerated by the applicant which the sentencing judge correctly took into account. He submitted, however, that the objective gravity of this offence justifies the sentence imposed. In the course of that submission, he urged upon the Court the relevance of the history of the relationship between the parties which led directly to the events on the day on which the deceased was killed. He particularly drew attention to the evidence that the applicant had engaged in excessive drinking and had been perusing pornography. In our view, those matters had no relevance to an assessment of the objective gravity of the offending conduct. Senior counsel then submitted that the offending conduct was not to be viewed as spontaneous. He submitted that there was a delay of some minutes after the applicant had been rejected by the victim before the applicant obtained the knife and stabbed the victim. Senior counsel said that 'it took a little time'. We observe that this argument was not one that was explicitly advanced before the sentencing judge. Second, it is difficult to reconcile that submission with that part of the sentencing judge's sentencing remarks, in which her Honour described the actions of the applicant as 'unpremeditated and spontaneous'. Her Honour found that the applicant 'clearly acted out of anger and, no doubt, alcohol played its part'. The respondent's submission, now made, involves an artificial deconstruction of the events which immediately preceded the victim being stabbed and requires an excessive refinement of the notion that the offending occurred in anger and in the immediate aftermath of the applicant's rejection by the victim.

14 In our view, the sentence imposed does fall outside the range of sentences that were reasonably open to the sentencing judge. It is inconsistent with current sentencing practice for the crime of murder. The offence not only fell within the lowest category of seriousness of the offence of murder, but at the lower end of that category. There were not only present the constellation of mitigating factors relied upon by the applicant, including his exemplary work record and an unblemished history, but an absence of the aggravating features that would normally elevate such offending into a more serious category. The applicant was also entitled to the full discount of his plea, both for its utilitarian benefit and his undoubted remorse. Applying current sentencing practice, in our view a sentence of 20 years' imprisonment for murder would ordinarily require the presence of some aggravating features or an absence of the mitigating features that are here present.

15 The applicant initially contended that it was because the mitigating circumstances were not given sufficient weight that a manifestly excessive sentence was imposed. It is unnecessary to seek to identify the reason why such a sentence was imposed. The error may lie in attaching too little weight to mitigating factors or in a misjudgment as to the objective gravity of the offence so that it was placed in a higher category of seriousness of the offence than is warranted,[12] or there may have been a misconception as to current sentencing practice for the relevant category of seriousness of the offence. It may lie in a combination of these or other reasons. In oral argument, counsel for the applicant, in his attractive argument, now submitted that her Honour may have erred in any of these respects. As this case demonstrates, where a sentence is outside the range of sentences available, it will often be impossible to identify why that is so, hence the residual discretion in House v The King.[13]

16 We would grant leave to appeal the sentence, allow the appeal and re-sentence the applicant to 18 years' imprisonment with a non-parole period of 13 years.

[1] McPhee v The Queen (Unreported, Court of Appeal of the Supreme Court of Victoria, Neave JA, 21 May 2014) [3]-[9].

[2] R v McPhee [2013] VSC 581, [24]-[25], [27].

[3] Sentencing Advisory Council, Sentencing Snapshot No 140: Sentencing Trends for Murder in the Higher Courts of Victoria (March 2013) 4.

[4] Hanks v The Queen [2011] VSCA 7, [22].

[5] [2014] VSCA 23, [6].

[6] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[7] [1936] HCA 40; (1936) 55 CLR 499.

[8] [2010] VSCA 350; (2010) 206 A Crim R 14.

[10] [2011] VSCA 274; (2011) 211 A Crim R 266.

[11] Ibid 272 [19]-[20] (citations omitted).

[12] Ashdown v The Queen (2011) 219 A Crim R 454.

[13] [1936] HCA 40; (1936) 55 CLR 499.