[2009] TASSC 111

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Menichelli v Tasmania [2009] TASSC 111

Criminal Law - Appeal and new trial - Appeal against sentence - Sentence manifestly excessive or inadequate - Causing grievous bodily harm - Culpable negligence with pistol.

Judgment Number: [2009] TASSC 111

2 Sentence of three years' imprisonment, and order that the appellant not be eligible for parole until he has served 21 months of the imprisonment, both quashed.

3 Appellant sentenced to imprisonment for two years to date from 22 December 2008.

4 The appellant is not to be eligible for parole until he has served 15 months of that sentence of imprisonment.

1 This is an appeal against sentence. The appellant contends that the sentence imposed on him was manifestly excessive. He pleaded guilty to a charge of causing grievous bodily harm on the basis that, while he was handling a loaded pistol at his partner's home, the pistol discharged as a result of his criminal negligence, with the result that his partner was shot through the hand and in the head. He was sentenced to three years' imprisonment, and it was ordered that he not be eligible for parole until he had served 21 months of that sentence.

2 The Crown did not contend that the appellant intended to discharge the pistol, nor that he foresaw that the pistol might discharge. The Crown relied on the Criminal Code ("the Code"), ss150 and 152. Section 150 provides:

"It is the duty of every person who has anything in his charge or under his control ... which, in the absence of precaution or care in its use or management may endanger human life, to take reasonable precautions against, and to use reasonable care to avoid, such danger."

"A person who without lawful excuse omits to perform any of the duties mentioned in this chapter shall be criminally responsible for such omission if the same causes ... grievous bodily harm to any person to whom such duty is owed ...".

3 The pistol was defective. If it had been in proper working order, it could only have been discharged if (a) the "slide safety", also known as the "thumb safety", was off; and (b) the trigger was pulled; and (c) pressure was applied to the grip. The trouble with this pistol was that, if the slide safety was off and the grip was squeezed, it would discharge without any pulling of the trigger. The appellant was sentenced on the basis that that was what happened. There was no suggestion that he had pulled the trigger.

4 Only the appellant and his partner were present at the time of the shooting. His partner had a limited recollection of events, and could not say how she came to be shot. The Crown accepted the appellant's explanation of what happened. He told the police this:

"I took the firearm out of my pocket because I was reaching over the top of the couch chair and there was a dog laying [sic] on the couch. I was reaching over the top of her [the dog]. I can't remember whether I was reaching to turn the standard lamp off or reaching to close the curtain properly and, I am not sure, I remember the gun digging into my leg when I was reaching over the couch, so I took it out of my pocket and continued to reach over. That's about all I remember other than a bang ... I was aware that it wasn't pointed at me. I took it out of my pocket and I had it by the butt and I was reaching out so I was aware it was not pointing at me ... ".

5 A single bullet was discharged. It passed through the victim's left hand and hit the top of her head.

6 The appellant contended that he had acquired the pistol only two days before this incident. The Crown disputed that, and sworn evidence was called. Under cross-examination, the appellant refused to say where he obtained the pistol, or who gave it to him. The learned sentencing judge was not satisfied that he was being truthful, and was unable to make a finding, one way or the other, as to how long the appellant had had the pistol, nor any finding as to his familiarity or unfamiliarity with it.

7 The prosecutor told the learned sentencing judge that the appellant had "a history of familiarity with firearms". That was not disputed.

8 The Crown contended that the appellant was criminally negligent in the following respects:

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Failing to ensure the pistol was safe.

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Failing to ensure the pistol was unloaded.

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Failing to ensure the pistol was assembled correctly.

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Failing to ensure the slide safety was on.

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Failing to ensure the grip safety was in proper working order.

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Pointing the pistol at or in the direction of the victim.

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Holding the pistol close to or against the body of the victim.

9 In sentencing the appellant, the learned sentencing judge said:

"I infer that he [the appellant] was culpably negligent for a combination of reasons that include that he possessed a loaded and cocked pistol, that he failed to ensure that the thumb safety switch was on and that he pointed it at or in the direction of Ms Payne in close proximity to her."

10 On my reading of the transcript, the Crown did not assert that the appellant deliberately or consciously pointed the pistol at or towards the victim, as distinct from allowing it to point in her direction as he was handling it. I do not think the comment "that he had pointed it at or in the direction of Ms Payne" should be interpreted as referring to a deliberate or conscious pointing of the pistol towards the victim.

11 The inference that the pistol was close to the victim at the time of discharge was an appropriate one. The victim's blood was found 20 to 30 millimetres inside the barrel of the pistol. A ballistics expert had stated that the shot must have been a "contact shot", or close to being one.

12 The learned sentencing judge described the impact of this crime on the victim very well. He said this:

"The injuries suffered by Ms Payne were indeed grievous. Following emergency surgery and hospitalisation for a month, she has significant psychological and cognitive problems because of brain damage. She often gets headaches, cannot think properly and cannot lead a normal life. She easily becomes muddled and embarrassed as a result. She has difficulty doing simple things. She needs to be accompanied when grocery shopping and helped in dealing with her mail. She tends to be overwhelmed by tasks. She is in a depressed state."

13 The appellant was 47 years old when sentenced. He had a number of significant prior convictions. He received a suspended sentence of imprisonment for assault in 1980. He first went to prison in 1982, for crimes of dishonesty. He received a number of short prison sentences in 1985, five of them for assaulting police officers. He committed an armed robbery in 1992, for which he was sentenced to three years' imprisonment. To his credit, he had not committed any serious offences since being paroled in 1994. This crime was committed on 15 September 2008.

14 In my view the appellant's refusal to answer questions about the source of the gun is something that should be taken into account when deciding what weight to give to his plea of guilty. The case was fully prepared for trial, and listed for trial, but a plea of guilty was indicated some days before the listed trial date. The plea saved the cost and inconvenience of a trial. It made it unnecessary for the victim to give evidence. It was consistent with remorse, but the appellant did not show an unqualified willingness to co-operate in the administration of justice. Not only did he refuse to answer questions about the gun, but he also breached a bail condition and a family violence order by going to the victim's home in early February 2009.

15 In addition to the plea of guilty, other mitigating factors that had to be taken into account in sentencing the appellant were as follows:

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He did not intend or foresee the discharge of the pistol.

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The negligent act that resulted in the discharge of the pistol was a momentary one and an unplanned one.

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Immediately after the discharge of the pistol, the appellant phoned for an ambulance and the police. He then unloaded the pistol to make it safe.

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He had the pistol at the victim's home because one of her sons had been threatening violence to her and to her property. He went there with it to protect her, not to harm her.

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The appellant was genuinely remorseful. He intended to dedicate himself to being the victim's carer. Their relationship had endured for over 20 years and was ongoing. (Bail conditions, and the revocation of bail, had prevented him from acting as her carer before he was sentenced.)

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The victim continued to love the appellant and did not want him to go to prison.

16 The victim's forgiveness of the appellant, though relevant, must be given very limited weight. The required approach was made clear in R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174, a decision of the New South Wales Court of Criminal Appeal. In that case at par37, Howie J, with whom Levine and Hidden JJ agreed, said the following:

"The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (unreported, Court of Criminal Appeal, NSW, No 60738 of 1993, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. ... Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim."

See also R v Begbie [2001] NSWCCA 206; (2001) 124 A Crim R 300 at par43; R v Burton [2008] NSWCCA 128 at par102.

17 Happily there have not been many cases in Tasmania in which offenders have been sentenced as a result of culpable negligence in the handling of firearms. Counsel referred us only to three such cases in which offenders have been convicted of causing grievous bodily harm: R v Adams, Crawford J, 18 February 1994; R v Powell, Crawford J, 2 March 1995; R v Quarrell, Evans J, 24 September 2003. The sentences imposed in those cases were all significantly lighter than the one imposed on the appellant, but it can hardly be said that any tariff has been established for such cases. A number of sentences for manslaughter committed by culpable negligence in the use of guns are referred to by Professor Warner in Sentencing in Tasmania, 2nd ed, at par11.220: R v Ling, Nettlefold J, 15 May 1981 (3 years); R v Crossan 15 April 1987, Underwood J (3 years); R v Wolf, Nettlefold J, 11 May 1987 (2 years). Since then there has been only one more such sentencing case in Tasmania: R v Lynd, Evans J, 22 August 2001 (9 months). It should be noted that there has since been a marked increase in motor manslaughter sentences in Tasmania, beginning with Shipton v R [2003] TASSC 23. It may be that longer sentences than three years would now be imposed in some manslaughter cases involving negligence with guns. However these few sentences tend to give some indication that the sentence imposed on the appellant was very heavy.

18 According to Professor Warner (supra), at 287, in the years 1990 to 2000 Tasmanian judges imposed 33 sentences on single counts of causing grievous bodily harm, and only 10 of those sentences were for three years or more. For the more serious crime of doing an unlawful act intended to cause bodily harm, contrary to the Code, s170, during the same period there were 12 sentences imposed on single counts, of which five were for three years or more: Warner (supra), at 284. All of the s170 convictions related to intentional acts. The bulk of the 33 convictions for causing grievous bodily harm no doubt related to reckless or intentional acts. It is very significant that this is a case concerning negligence, not a reckless act or an intentional act.

19 In my view the worst aspect of this case was the impact on the victim, involving brain damage and lasting incapacity. However the appellant had to be sentenced on the basis that this was the result of negligence that happened to result in the pistol discharging at the wrong moment and injuring his partner of over 20 years, for whom he now wished to act as a carer. No specific error on the part of the learned sentencing judge has been identified, but I am satisfied that the sentence imposed on the appellant was manifestly excessive in all the circumstances.

20 However this was still a bad case of negligence, given that it involved failures to observe the most elementary precautions in the handling of a gun, particularly keeping the safety catch on, and ensuring that it was not pointing in the direction of anyone, and given the injuries suffered by the victim.

21 I would allow the appeal, quash the sentence of three years' imprisonment and the related non-parole order, sentence the appellant to two years' imprisonment with effect from 22 December 2008 (the starting date selected by the learned sentencing judge), and order that he not be eligible for parole until he has served 15 months of that sentence.

22 I have had the benefit of reading the reasons for judgment of Blow J. I agree with those reasons and with the orders which his Honour has proposed.

23 I agree with the reasons for judgment of Blow J and with the orders proposed by his Honour.