O'Connell v Regina [2006] NSWCCA 82 | Case summary

27 March 2006 CHRISTOPHER SCOTT O'CONNELL v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Davidson AJ following the plea of guilty by the appellant to a single count of murder. His Honour sentenced the appellant to imprisonment consisting of a non parole period of twenty five years and a balance term of ten years commencing on 9 May 2003, which was the date of commission of the offence and also of the appellant's being taken into custody. Given the length of sentence and other matters pertaining to the grounds of appeal which will be mentioned, leave to appeal should be granted. 2 In his remarks on sentence the learned sentencing judge recounted a Crown submission that the offence had a place in the worst category of the cases of murder. Such categorization would potentially attract imposition of a sentence of imprisonment for life. His Honour referred to that submission when he stated: "But for the prisoner's youth and his plea of guilty, a life sentence would have been imposed." 3 I consider that this was an offence which would find its place in the worst category. 4 The appellant was born on 27 November 1984 and was therefore eighteen years of age when he committed the murder. 5 It is apt to recapitulate, at least in brief, the facts which put the offence into that worst category. Counsel for the appellant in his written submissions acknowledged that "this was a serious case of murder". In a statement tendered in the proceedings, the appellant's mother recorded "I have read about the detail of how (the victim) died and I am horrified by it." It is to the benefit of the appellant that, to the extent that she can, she has expressed her intention to support her son. 6 Nevertheless, the facts and circumstances of the crime manifested behaviour by the appellant which cannot be described as other than horrific and they cannot be ignored. 7 The victim was a girl aged fifteen years. She was acquainted with the appellant. On 9 May there was some telephone contact between them and she went to the residential unit where the appellant lived with his mother and spent at least part of the morning there with him. The appellant's mother was absent at her work. 8 Sometime between noon and 2.30 pm the victim met her death at the appellant's hands. His treatment of her and her suffering can be gauged in a large measure by reference to the post mortem findings of the pathologist, Dr Hulewicz. 9 He described forty nine separate injuries detected on the young girl's body. The direct cause of death was a stab wound to the chest by a single edged knife. Of a number of stab wounds, one was measured to have penetrated some 25 centimetres into the body. As well there were injuries to the legs, face and mouth, which Dr Hulewicz opined were the result of blunt force trauma such as punching, an open handed blow, using the knee or using some blunt object. 10 In particular there were stab wounds to the left breast area which the doctor estimated had been caused by some object with a cylindrical cross section and jagged edges. This instrument was able to be identified. Some five wounds of this type were found to have been caused by the victim being impaled upon the broken shaft of a golf club, which was located by police in a rubbish bin at the residence. The variety of wounds show that as the appellant carried out the slaughter of this girl he, at some point, exchanged penetrative weapons. 11 Another incised injury to the neck area was consistent with a blade having been run across the neck. It is recognized that findings at post mortem included suggestion that some wounds had been inflicted peri mortem although some were post mortem. 12 There were injuries detected in the area of the right labia majorum and the anus. These injuries were consistent with occurrence as a result of blunt force. Police located an instrument described as a vibrator in the bedroom of the dwelling. These injuries were consistent with abnormal forceful penetration by such an instrument, which penetration occurred prior to death. 13 The range within which lay the time of death was deduced from a sighting of the victim at about noon near a supermarket and statements by the appellant to acquaintances shortly after 2.30 pm which included boasts (doubted by listeners at the time) about his having performed a killing. Later in the afternoon the appellant made enquiries about selling a watch and some jewellery which were in his possession and later established to be property of the victim. 14 Some time after 5.30 pm, the appellant loaded the victim's body into a wheeled rubbish bin and transported and left her, wrapped in a doona belonging to neighbours which he had taken from a clothes line, near a scout hall in a park. 15 No challenge was made to his Honour's findings of fact which add detail to the above sketch. He found the appellant was motivated to cause the death in the manner disclosed in the post mortem examination by a desire to act out violent sexual proclivities. He had revealed these in graphic terms in conversations including with one Ben Albrecht who recounted that the appellant "started to tell us grotty details about his sex life". Mr Albrecht found a silver ring in the garage of the relevant unit which was engraved with the initial of the victim. 16 His Honour was satisfied that at some stage during his conduct on that day which led to the death, the appellant formed the intention to kill the victim. Counsel for the appellant pointed out that it was implicit in the finding in those terms that there had not been a planned intention to kill prior to the commencement of the course of conduct. To the extent that this may be of assistance the appellant, it is a factor which should be taken into account. 17 The late formation of intention to kill did not mean that the events leading up to it were spontaneous. Significant findings by his Honour were made and expressed in this passage: "I note the submission of Ms Flannery that there is no evidence that the offence was premeditated. Much of course depends upon what is meant by that term. It does not necessarily involve long and careful planning of which there is no evidence in this case. There is no evidence to suggest for example that the prisoner lured the deceased into his mother's unit with a view to killing her. Statements made to Mr McCormack and Mr Albrecht along the lines that the prisoner was continuing to dwell on the acts and circumstances of the killing and his reference to sexually sadistic acts indicate that, from a source which is not revealed in the evidence, he had developed a set of fantasies which he acted out on the person of the deceased. At some stage during the course of doing so I found beyond reasonable doubt that he formed the intention of killing her. Whilst the submission is sound, that the offence was not premeditated in the rational straightforward way in which that term is generally used, the potentiality for violence and sexual sadism did exist prior to the commission of the offence and the prisoner used the occasion to give vent to that potentiality." 18 The appeal had been presented relying on five grounds. I record my appreciation to counsel for the concise and focussed submissions with which the Court was assisted. It is no minor task to confront and determine issues concerning such a terrible crime committed by a very young man who has confessed his guilt, and the assistance received should not go unacknowledged. 19 Ground 1 - the learned sentencing judge erred in, having found special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, failing to take into account this finding in the determination of the non parole period. 20 As applicable to the present case the provision is: "44(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." 21 His Honour's remarks show that he first set a non parole period and then, hypothesizing a calculation in accordance with s 44(2) and determining it independently of total sentence as "insufficient", he extended the balance term beyond the equivalent of one third of the non parole period which he had set. 22 That he had done this is apparent in these remarks: "The legislation requires me firstly to fix a non parole period being the minimum period for which the offender must be kept in detention in relation to the offence. After 20 percent discount for plea of guilty, I regard twenty five years imprisonment as an appropriate non parole period and that is the non parole period for the sentence which I now fix. The statute requires that the balance of the term of the sentence must not exceed one third of the non parole period unless there are special circumstances for it being greater. In my view having regard to the findings I have made as to the uncertain prospects of rehabilitation of the prisoner I regard an 8-9 year balance of term as insufficient. Accordingly I find that there are special circumstances in this case and I impose a balance of term of ten years." 23 The approach adopted by his Honour has been held to be erroneous in this Court. In R v P [2004] NSWCCA 218 Hulme J (Ipp JA and Hislop J agreeing) said: "Notwithstanding the temptation, provided by the terms of s44 of the Crimes (Sentencing Procedure) Act , to think that his Honour's approach of fixing the non-parole period and then independently fixing the balance of the term is the correct approach, in fact it is not. That was decided in R v Moffitt (1990) 20 NSWLR 114 at 134 in respect of earlier legislation but in R v Way (2004) 60 NSWLR 168 the court indicated that R v Moffitt should be followed in relation to the current wording of s44." 24 The relevant observations in Way are: "The view that was taken in R v Moffitt in relation to the former s 5 of the Sentencing Act did not require the sentencing judge to first determine a minimum term, which was thereafter immutable, notwithstanding a subsequent finding of special circumstances. In substance, the section specifies the sequence in which the sentence was to be set, focussing upon the period which was considered appropriate to be served by way of a minimum period of actual imprisonment, followed by the period for a potential supervised release on parole. While there are separate considerations involved for s 44(2) of the Act, they need not be regarded as involving a two-step or sequential process since, as Spigelman CJ pointed out in R v Hampton (1998) 44 NSWLR 729, the relevant steps can be taken simultaneously. To this end the sentencing principles approved in R v Moffitt (at 117-118, 121-122 and 134-135) and also in R v GDR (1994) 35 NSWLR 376 at 381-382 will provide guidance." 25 The Crown submitted that no error has been demonstrated. It was contended that this was an unusual case being one in which, but for the youth and plea of guilty, a life sentence would have been imposed. It was stated that the appellant had therefore been given the benefit of a determinate sentence but, particularly having regard to his uncertain prospects of rehabilitation and the possibility of repeat offence, the setting of an extended potential parole period (impliedly within the scope of what would have been, but for youth and plea of guilty, a life sentence) was not an erroneous approach. 26 Attention was directed to the observation of Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 @ 718 namely: "More significantly, there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence." 27 Of course I do not dissent from that statement, but it is not a corollary of it that if a judge arrives at a final imposition by extending the arithmetical equivalent of one third of a non parole period, the approach has been unproductive of error, provided the resultant head sentence is not disproportionate to the gravity of the crime. 28 To apply such a test would depart from the authority of the approach held to be correct in Way and P and the cases referred to in them. 29 It was submitted that: "The interpretations of s 44 deal with the general application and intention of the section in situations markedly different to the present. There is nothing in the section that precludes the imposition of an appropriate and proportionate sentence where an offender has been given the benefit of a determinate sentence in lieu of life imprisonment for a homicide. Otherwise the section would create an inappropriate fetter upon the discretion of a sentencing judge in respect of homicide." 30 I do not accept the implication of the submission that statutory interpretation can permutate in the manner or for the reason contended. I see no reason to depart from the authoritative statements as to the correct approach stated by the Court in Way and P. I consider that the argument of the appellant in support of ground 1 has been made out. 31 Ground 2 - the learned sentencing judge erred in the determination of the discount allowed to the appellant's sentence on the basis of the utilitarian value of his plea of guilty. 32 It was his Honour's express finding that the plea of guilty was entered at the first available opportunity. He said: "As to his plea of guilty, the prisoner indicated an intention to plead guilty to the charge of murder on 4 May 2004. I am prepared to regard this as the first available opportunity for indicating such a plea. So far as the utilitarian value of the plea as contributing to the overall efficiency of the criminal justice system is concerned however, I am not disposed to accept that in all the circumstances the discount for this aspect should be at the top of the range as submitted by Ms Flannery. A plea entered or indicated, even as early as committal proceedings nevertheless assumes the expenditure of a good deal of time and effort in continuing the investigation after arrest and in putting together evidence for the purposes of establishing a prima facie case, although that aspect has not been the subject of detailed evidence in these proceedings." 33 Thereafter his Honour turned to the qualities of contrition or remorse which may have been indicated by the plea of guilty. He listed some considerations and although his findings, I would respectfully suggest, remain somewhat opaque, he nevertheless concluded that: "Consideration of both aspects of the plea could justify a reduction of about 20 percent which is the discount I will apply." 34 Counsel for the appellant has drawn attention to the guideline judgement of Spigelman CJ in R v Thomson & Houlton (2000) 49 NSWLR 383 @ 419: "The Court should adopt the following guideline applicable to offences against State laws: ………… (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge." 35 The error of principle is contended to have been the taking into account of the expenditure of time and effort in putting together evidence to establish a prima facie case. 36 In dealing with a challenge to evaluation of an early plea of guilty (at 14 percent) Santow JA (Bell and Howie JJ agreeing) unequivocally stated: "The plea was early. It is not relevant that extensive preparation had been undertaken beforehand by the Crown": R v Castles 2005 152 A Crim R 277. 37 In support of this ground, the appellant further argued that error should be detected by reason of the lack of transparency in the quantification of the discount. 38 If his Honour had applied a discount of 20 percent to reach the independently assessed non parole period of twenty five years, then arithmetical deduction would result in a notional, although unexpressed, initial assessment of thirty one years and four months. A similar exercise applied to the total sentence of thirty five years would produce a notional starting point of forty three years and nine months but this exercise is, in my view, unproductive of anything useful as, for the reasons already given, it is clear that his Honour did not assess as such an overall or head sentence of thirty five years (or any other total term of years). 39 It is submitted that a notional initial assessment in the relevant area of length of term would be very unlikely to be made in a figure which included the fraction of a year. This type of arithmetical analysis has given rise to concern in this Court on previous occasions. See R v Lynn [2004] NSWCCA 22; R v Franklin [2005] NSWCCA 24. 40 As was said in Thomson and Houlton at p 419, a purpose of identifying a discount range is to improve the transparency of the process. This was not achieved in this instance. 41 In response to this submission the Crown observed that his Honour's finding was that he would apply a discount of about 20 percent and the appellant's argument is founded upon an assumption of a discount of exactly 20 percent. This observation by the Crown is correct. It is also correct that his Honour was not obliged separately to quantify any discount which he had assessed for contrition from that which he assessed for utilitarian value: Thomson and Houlton @ p 411. 42 Further, even in the case of a plea of guilty which has been entered at the earliest opportunity an offender does not have a vested entitlement to discount at the top of the stated range of 10-25 percent: cf R v Scott [2005] NSWCCA 286. 43 I would not sustain this latter aspect of the appellant's argument in support of this ground. 44 I return to the argument concerning the taking into account of expenditure on investigation. 45 The Crown adverts to the denial by the appellant to police at 1.22 am on 10 May 2003 of any knowledge of the whereabouts of the victim, and that his relevant admissions were not forthcoming until after extensive investigation which, even after his admissions, were continued as to detail in order to be able to present a complete case against him. 46 It is the express submission of the Crown that the extent of savings to the State must have some relevance to the assessment of the utilitarian value of the plea of guilty. Whilst the implicit qualification in asserting "some relevance" is recognized, the submission is in conflict with the statement in the judgment in Castles above quoted. 47 Support for the submission was sought to be derived from the remarks of Simpson J (Hulme J agreeing) in R v Dennis [2003] NSWCCA 137. That appeal was heard by a Bench constituted by the two judges mentioned, such constitution necessarily being directed after the Chief Justice has formed an opinion that the appeal is not likely to require the resolution of a disputed issue of general principle. See s 6AA(2) Criminal Appeal Act 1912. 48 In Dennis, her Honour was dealing with a discount of 10 percent given where there has been a late plea. She said: "The timing of the plea is a very significant matter. An early plea involves considerable saving to the state in the costs of investigation and preparation. In this case, the investigation proceeded to the point of the obtaining of DNA analysis. The preparation continued to the point of a paper committal hearing and the fixing of a date for trial. Another relevant consideration is the saving of the anxiety of witnesses as well as the inconvenience and sometimes trauma for them of having to give evidence." 49 I am unpersuaded that those remarks provide a basis for departing from or overruling the statement in Castles and, insofar as any remark might be taken to appear to be in any conflict with that statement, I am of opinion that Castles should be followed. 50 Consequently, it was erroneous for Davidson AJ to include the assumed expenditure of time and effort in "putting together evidence for the purposes establishing a prima facie case" in his assessment of the utilitarian value of the plea of guilty. On this aspect, ground 2 has been made out. 51 Ground 3 - the learned sentencing judge erred in failing to have proper regard to the appellant's youth. 52 The gravamen of the attack upon the assessment of sentence in this regard is to be found in an expression contained in this extract from his Honour's remarks on sentence: "I accept however that the prisoner has shown a degree of remorse for the offence, particularly as expressed to the prison chaplain, Father O'Rourke. As to whether he was fully aware of the consequences of his actions because of his age I take into consideration the fact that he was but eighteen years of age at the date of the offence. Clearly, however, this was not an offence of a juvenile kind but of a deviantly adult kind. The seriousness of the offence and the circumstances surrounding it, in my view, require limited weight to be given to this factor." 53 The submission was that it was erroneous to find that in the circumstances "limited" weight should be given to the fact of youth and that it was a matter in respect of which the appellant was entitled to have attached "significant" weight. A written submission by the appellant conceded: "The present was clearly a case where the seriousness of the offence dictated that a lengthy gaol sentence was required. That fact, it is submitted, did not require that 'limited weight' be given to the (appellant's) youth." 54 It was recognized that there is ample authority for the proposition that where young persons engaged in serious crimes more commonly committed by older persons, claims to leniency on account of youth may be forfeited: R v Pham 1999 55 A Crim R 128; R v SDM (2001) 51 NSWLR 530. Circumstances can, of course, vary immensely and a key consideration is whether the commission of an offence was, to any extent, provoked by youthful impulsiveness or immaturity. In such a case it has been said that criminality may be assessed as less than that in the case of a mature adult: R v Hearne 2001 124 A Crim R 45. 55 A suggestion of impulsiveness and immaturity may emerge from the level of planning and premeditation which can be detected. 56 I have, in dealing with a previous ground, made reference to some of his Honour's remarks concerning the formation of an intention to kill. To recapitulate the context of those remarks, whilst there was no long term planning in the ordinary sense, the appellant used the occasion of the presence of the young girl to give vent to his potentiality for violence and sexual sadism. The absence of a finding that the appellant acted because of youthful impulsivity and immaturity bespeaks no error by his Honour: cf R v Slater 2001 121 A Crim R 369. 57 I return to the complaint focussed upon his Honour's use of the expression "limited weight" attaching to the factor of youth. That factor, together with the considerations consequent upon the plea of guilty were exclusively engaged to determine against the imposition of a life sentence. Whilst the proportionate contributions to weight by each of the two factors in reaching the ultimate result was not disclosed - and I do not suggest that this was required - on any view, the appellant's youth must have been a matter of significance. 58 That conclusion persuades me that his Honour's choice of the expression "limited weight" ought be understood, not as an antonym of "significant", but as an expression of contrast with determinative weight. 59 I would not sustain ground 3. 60 Ground 4 - the sentencing judge erred in failing to have adequate regard to the appellant's mental disorder. 61 A portion of his Honour's remarks on sentence relevant to this ground is: "A question arises therefore, as to the extent if any, to which the mental state of the prisoner as clinically and otherwise determined, and whether or not exacerbated by consumption of alcohol or illicit drugs, is causally related to this offence. In this connection I have already expressed my view as to the level of the prisoner's rationality and comprehension at the time of the offence. His actions in seeking to divert suspicion from himself and the express or implied admissions made to Mr McCormack, Ms Risk and Mr Albrecht all lead me to the view, as I have indicated that I am satisfied beyond reasonable doubt that he did not suffer any blackout or psychotic condition, whether drug induced or otherwise, at the time of the offence. He was in my view fully comprehensive of what he was doing and had done. In reaching this conclusion I have taken into consideration the contents of Ms Seidler's reports and Dr McCarthy's diagnosis and the other evidence tendered on behalf of the prisoner as to these matters, as indeed I have also already indicated." 62 The express or implied admissions mentioned by his Honour were references to the appellant's virtual boasts to acquaintances about what he had done. It is not necessary for present purposes to recite the content of these boasts. 63 The claimed deficit in mental state of the appellant was comprehended by a diagnostic label of attention deficit disorder. 64 The appellant conceded that his Honour was entitled to find in the negative in respect of the existence of blackout or psychotic condition at the time of the offence, further, that it was open to his Honour to find that the appellant's mental state had a bearing on a countervailing consideration of specific deterrence. 65 The appellant pointed to four ways that mental illness may be relevant to sentence and these were conveniently tabulated in R v Hemsley [2004] NSWCCA 228. The first is where a mental illness contributes to the commission of the offence. His Honour found to the contrary. In any event, the Crown submission that it is not a sentencing principle that even where there is a causal connection between mental disorder and commission of offence, a lesser sentence will automatically follow, is correct: R v Engert 1996 84 A Crim R 67. 66 Second, mental illness may render the offender an inappropriate vehicle for general deterrence: R v Scoglnamiglio 1991 56 A Crim R 81. The mere fact that a label can be affixed to a condition does not attract application of such a principle. What is required is that the existence of symptoms or handicaps produced by the illness be determined and then the principle can be applied if there is an appropriate ratio between the crime and inhibition upon appreciation of the criminality involved. The personal discrepancies in the appellant's behaviour as a consequence of attention deficit disorder do not demonstrate that he is an unsuitable vehicle for the manifestation of general deterrence. 67 Third, a custodial sentence may weigh more heavily on a mentally ill person. Of course this is so, but again the application is dependent upon just what is involved in any particular ailment. Dr McCarthy spoke of poor impulse control which is to be distinguished from an absence of impulse control and Ms Siedler mentioned "deficits with respect of higher order cognitive functioning." These do not describe the factors which would oblige his Honour to mitigate sentence. 68 Fourth, there is noted the countervailing consideration of community danger which may have a bearing on specific deterrence. I have already noted the appellant's concession in this regard but the appellant's submission is that these considerations do not "cancel each other out." 69 As must be the case wherever countervailing considerations are to be balanced against each other, it is an issue of proportionality to be determined by a sentencing judge. 70 The ground is advanced in terms of failure to have adequate regard to the mental disorder. His Honour expressly had regard to the relevant evidence and no error has been demonstrated. 71 I would reject ground 4. 72 Ground 5 - the sentence is manifestly excessive. 73 The argument in support of this ground immediately encounters an inherent hurdle in his Honour's conclusion that, but for youth and plea of guilty, a life sentence would have been imposed. The issue of excessive assessment can be dealt with when determining what should be the consequence of upholding the argument presented by the appellant in support of grounds 1 and 2. 74 The power of this Court to intervene is critically constrained by s 6(3) of the Criminal Appeal Act 1912: "(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 75 A salutary reminder of this constraint was given in Simpson @ 720: "Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s6(3) this Court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied." 76 For the reasons pertaining to grounds 1 and 2 above discussed I have concluded that his Honour's approach to assessment was tainted by errors, but the ultimate question, indeed the pre-condition to exercise of appellate power, must be whether any less severe sentence should have been passed. 77 Whilst his Honour's approach to extending the potential period of parole was flawed, his findings concerning the unpredictability of the appellant's future conduct were not. Counsel for the appellant drew attention to the remarks in the joint judgment (Dawson, Toohey and Gaudron JJ) in Bugmy v The Queen 1990 169 CLR 525 where their Honours said (@ 537) that a minimum term of eighteen years and six months was of such length as to take the prospect of re-offending in that case beyond even speculation. That opinion is, of course, entitled to great respect but it is to be remembered that it emerged in connection with a sentencing regime which permitted a head sentence of life imprisonment to remain imposed. 78 It is plain that the imposition by Davidson AJ cannot be arrived at by following the same path. I also recognize that, given the "unlikely" notional terms prior to applying any discounts, it would be difficult if resentencing, to postulate figures which would bring about the same result. 79 In a sense, the error comprehended within ground 1 could be categorized as procedural but the same cannot be said of the taking into account of prosecution activity in evaluating the discount for plea of guilty as raised by ground 2. I have given anxious consideration to whether it follows that the resultant sentence assessment is so inevitably infected as to demand intervention by this Court. There is, of course, no indication of the extent to which that factor was reflected in the sentence ultimately imposed. 80 Whilst I bear these matters in mind, I have reached the conclusion that no less severe sentence should have been passed. In consequence I conclude that this Court should grant leave to appeal against sentence but the appeal should be dismissed. 81 SIMPSON J: I agree with Grove J. 82 ROTHMAN J: I agree with Grove J.

O'Connell v Regina

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (13)

Cited By (6)