R v Bangard [2005] VSCA 313

"(1) The sentence imposed was manifestly excessive in all the circumstances of the case. Particulars: the sentence was disproportionate to the range of sentences for unlawful and dangerous act manslaughter in light of the objective features of the offence and factors personal to the appellant.

(2) The learned sentencing judge failed to give any weight or sufficient weight to the appellant being required as a Crown witness in another proceeding.

(3) The learned sentencing judge failed to give any weight or sufficient weight to the appellant being classified as a protection prisoner.

(4) The learned sentencing judge erred in treating the nature of the killing as a very serious example of manslaughter because it was strangulation.

(5) The learned sentencing judge erred in treating the offence as aggravated by the fact that the appellant was much stronger than the victim when that fact simply made the unintended result of the appellant's actions more explicable.

(6) The learned sentencing judge erred in treating the appellant's concealment of his involvement in the offence and conduct of the trial as having the same aggravating character as defilement of the victim's body.

Grounds 2 to 6 are to be regarded as discrete grounds of appeal as well as further particulars of matters which taken in combination have given rise to a manifestly excessive sentence."

7 The appellant is now 40 years' old. He was born in Mauritius and came to Australia at the age of 18 months. He has been a hard worker since leaving school. At the time of his sentence the appellant was employed as a crowd controller by a security company. The appellant has a daughter who is now five years' old from a relationship which ended some time ago. The sentencing judge found that the appellant's family supported him.

8 The appellant has no prior convictions of any kind. According to a psychologist, whose report was tendered in the course of the plea, the appellant had a developing sense of remorse and was suffering from depression and anxiety, although the psychologist was of the opinion that the appellant was emotionally stable and thought that his prognosis was hopeful.

9 The sentencing judge accepted that the appellant had always behaved as a stable and responsible member of the community and it was likely that he would continue to do so when released. His Honour described the appellant's conduct as "out of character".

10 Prior to the trial the appellant offered to plead guilty to manslaughter. The offer was rejected by the Director of Public Prosecutions.

11 Pursuant to the first ground of appeal counsel for the appellant relied upon some 93 instances of sentences imposed in Victoria for manslaughter, most of which were imposed after the maximum sentence for manslaughter was increased from 15 to 20 years in 1997. The material shows that a head sentence of 11 years for manslaughter was not exceeded by any other sentences and matched only by one other sentence. Sentencing statistics may be of limited value, for each sentence involves a unique synthesis of diverse factors stemming from the circumstances of the crime and the character and antecedents of the offender. Nevertheless, statistics may provide guidance by showing general trends in sentencing. In R. v. Giordano[1] Winneke, P. said:

"However, a general overview of the sentences imposed by courts over a substantial period for offences of a similar character must inevitably play its part in provoking the instinctive reaction of any court which is asked to consider whether a particular sentence is manifestly excessive or manifestly inadequate."

His Honour was speaking of appellate courts, but in my view sentencing statistics may equally benefit judges imposing sentences at first instance.

12 In the present case the judge, who was but recently appointed, enquired of defence counsel whether he wished to say anything about current sentencing practices for manslaughter. Counsel said, "I don't know what the current statistics are ..." and said that he did not expect that the Crown would provide any figures. His prophecy was fulfilled, and accordingly the sentencing judge was denied the assistance which his own experience could not supply.[2]

13 Grounds 2 and 3 were argued together. The sentencing judge was told in the course of the plea that the appellant had been assaulted and that the person who assaulted the appellant had been charged with intentionally causing serious injury. The appellant had given evidence at a committal hearing and was to give evidence at the trial. As a result, the appellant was in protective custody, which was more onerous than serving a sentence among the mainstream prison population. The sentencing judge said:

"I do not think it is appropriate to take into account the administrative arrangements within the prison system, which may be short term and the reasons for which are unknown to me."

14 In my view his Honour ought not to have entirely dismissed what was a factor relevant to sentence[3]. It was an administrative arrangement which the courts do take into account as a matter of course in sentencing. The fact that the appellant was unable to predict the duration of the need for his protection did not wholly devalue its relevance. The reason for the protective custody was in fact revealed.

15 As to ground 4, I think the sentencing judge was entitled to regard throttling the victim as a very dangerous act in a different category to, say, a single impulsive blow. Nor do I think that his Honour erred in treating the relative strength of the appellant and the victim as an aggravating factor: the appellant's crime was committed against a vulnerable person wholly within his power.

16 The false trail laid by the appellant after the commission of the crime was an aggravating factor, involving as it did the arrangement of the deceased's body to suggest that she had been sexually assaulted and the attempt to cast suspicion on a number of entirely innocent persons.[4]

17 As I have formed the view that the sentencing judge erred in wholly discounting the relevance of the appellant's protective custody, in my opinion the sentencing discretion has been reopened.

18 The offence was serious. General deterrence was an important consideration. No exception has been taken to the trial judge's finding that he was not persuaded that the appellant was genuinely remorseful. The consequences of the death of Ms Hayes for her young children as revealed by victim impact statement were properly described the sentencing judge as "devastating". Nevertheless, the appellant could rely upon a number of mitigating factors. There was evidence that the deceased was of a volatile disposition. It is apparent that the crime was not premeditated and the act which caused death was probably complete within one or two minutes. The sentencing judge found that the appellant was a person of good character with no prior convictions or any history of violence towards the deceased and with good prospects of rehabilitation. The sentencing judge did not consider that specific deterrence was a relevant consideration. The appellant had offered to plead guilty to manslaughter, although that was only done on the eve of the trial. The appellant was in protective custody.

19 I would resentence the appellant to a term of nine years' imprisonment and fix a minimum term of seven years' imprisonment before the appellant is to be eligible for parole.

20 As Gleeson, C.J. observed in R. v. Gallagher[5] the determination of an appropriate sentence often involves analysis of a complex of inter-related considerations. It is for that reason that appellate courts have favoured the approach to sentencing appeals of what is called instinctive synthesis (see Wong v. The Queen[6]).

21 In the context of sentencing appeals which raise complaint that a sentence is manifestly excessive or manifestly inadequate the primary task of the Court is to assess whether the sentence falls within or outside the appropriate range.

22 Frequently, in providing its answer to that question the appellate court notes that manifest excess or inadequacy are matters which do not admit of much argument: a sentence either appears to be within range or it does not. The notion of "the range" presupposes that the courts are guided, in part at least, by an understanding of sentencing practices in cases involving the same or similar offences, and that is undoubtedly so in the case of the Court of Appeal, and probably also true for sentencing judges. But for both appellate and trial judges ascertaining what constitutes the range remains a somewhat mysterious and often elusive process[7].

23 Appellate courts have been reluctant to make direct comparisons between the facts and sentences in different cases in order to determine an appropriate sentence for the instant case. The sentencing process, whether at first instance or on appeal, is not amenable to simple comparisons or mathematical precision: too many variables are involved as between cases and no two cases have the same factors or equally weighted factors of mitigation and aggravation. Partly for these reasons the appellate courts have discouraged counsel from proffering comparisons between the case at hand and the sentencing disposition of other cases. It remains true, as the cases cited by Chernov, J.A in DPP v. Josefski reflect[8], that such direct comparisons are of limited assistance. As Chernov, J.A. also points out in Josefski[9], notwithstanding the admitted difficulty of ascertaining the limit of the range applicable in a given case the Court of Appeal ordinarily declines to invite or entertain submissions by counsel as to the range[10]. However, in my view, whilst discouraging counsel from attempting to usurp the role of judges or from indulging in sentence bargaining, the appellate courts and sentencing judges should be alert not to also discourage counsel from proffering useful and relevant information which may remove some of the uncertainty in the search for the appropriate range in a given case.

24 In this case the trial judge had been recently appointed to the Court and had not practised extensively in criminal law prior to his appointment. He wisely sought the assistance of defence counsel as to what were the current sentencing practices for manslaughter convictions. His Honour emphasised that he was not saying that counsel was obliged to respond, but clearly welcomed any assistance.

25 Defence counsel responded by saying he did not know what the current statistics were for such sentences and said judges usually found such material of little value. He said "I don't know what the current sentencing range is as such, but I don't expect, in accordance with the Director's policy that the Crown would be putting any figures to your Honour, but I would say there is nothing particularly aggravating about the commission of this offence and there is nothing particularly mitigatory about it either."

26 The judge was not inviting counsel to nominate a sentence, but to assist him in discovering what the range might be in sentencing for manslaughter, an area in which the range is notoriously broad. He received no assistance from defence counsel in that regard, nor from the prosecutor, but she explained to the judge that she had been assigned the case at the last minute.

27 On appeal, Ms Dixon, counsel for the appellant, produced a nine page attachment giving brief outlines of some 93 manslaughter sentences (and, in some instances, appeal decisions) delivered since 1998 in the Supreme Court of Victoria. The material had been compiled by Mr John McLoughlin of Victoria Legal Aid, an experienced solicitor who frequently appears before the Court as counsel and also when instructing counsel.

28 There were obvious limitations to that material: some of the sentences involved crimes committed before the maximum penalty had been increased to 20 years; the information on each case was limited; and there were some errors in the media neutral citations provided for the cases. Notwithstanding the limitations of the material, it nonetheless provided a very useful overview of both the wide range of manslaughter cases that have come before the Court in recent years and the breadth of sentencing dispositions. Some years ago, as a trial judge, I had been provided with similar information from the Director of Public Prosecutions, and a copy was given to defence counsel. I found the material very helpful, albeit in a "broad-brush" way. I have no doubt that the sentencing judge in this case would also have been assisted had Mr McLoughlin's chart, or similar material, been provided to him. One fact would have struck his Honour immediately, upon considering Mr McLoughlin's analysis. In only one case out of the 93 cases was a sentence as high as 11 years imprisonment imposed for manslaughter (with an 8 year non-parole period), and that was a case of provocation manslaughter, where a husband, with murderous intention, bashed and strangled his wife, in very brutal circumstances.

29 A document such as that prepared by Mr McLoughlin serves another useful purpose, in that it provides some guidance to a judge, necessarily only in a broad way, on the important question of consistency in sentencing.

30 I do not suggest that in all cases such information ought be provided to a sentencing judge by counsel, but certainly where the judge invites assistance in the sentencing task I can see no reason why counsel should be reluctant to provide it. Relevant and accurate sentencing information is much more readily available today than was the case in years past. In my opinion, the exercise of the sentencing discretion may be intuitive, but it neither is, nor should be, uninformed.

31 Computer data bases such as those of the Victorian Sentencing Manual (available to the public on the website of the Judicial College of Victoria) and of the Sentencing Advisory Council are very valuable research tools. The website of the Sentencing Advisory Council is also linked to a number of additional sites, both in Victoria and nationally, which also provide statistical information concerning sentencing.

32 It is to be borne in mind that upon reserving to consider a sentencing decision a judge can conduct his or her own research on sentencing practices whether by consulting sentencing text books, decided cases or by searching relevant data bases. It would rarely be the case that it was necessary for the judge to alert counsel to such researches, since the relevant sentencing issues would inevitably have been addressed during the plea, at least in broad terms. Nonetheless, the sentencing process would be more transparent if counsel and the judge discussed such research information before sentence was passed.

33 Sentencing is, of course, a task that places great emphasis on experience, but not all sentencing judges will be able to call on such experience. The task of determining the sentencing range can be daunting, even for the most conscientious judge. Ironically, the very fact that so many sentencing decisions are now reported or are available upon a search of the internet can make the task of determining the relevant range more, rather than less, difficult.

34 In my opinion the Courts should not discourage counsel from providing such practical assistance as Ms Dixon has demonstrated could have been provided to the judge in this case. The judge made it clear that he was inviting assistance in the exercise of his task; he was not inviting counsel to usurp his role.

35 In this case, for the reasons given by Buchanan, J.A., I consider that sentencing error vitiated the sentence, and the sentencing discretion is therefore re-opened. It is therefore unnecessary to resolve the ground under which complaint is made that the sentence was manifestly excessive. I leave open the question whether the current sentencing range for manslaughter offences pays too little regard to the intention of Parliament, as manifested by the increase in the maximum sentence, to highlight the seriousness of the offence. The range of conduct embraced by manslaughter verdicts makes it an offence for which it is extremely difficult to impose rigid standards as to

what constitutes an appropriate sentence.

36 Upon re-sentencing, I would impose the sentence proposed by Buchanan, J.A. Without deciding whether the sentence imposed by the judge was manifestly excessive, I nonetheless consider that had the judge received the assistance which we received from counsel on both sides on the appeal, then he would have imposed a lower sentence than he did impose.

37 Save for the matters of emphasis discussed above, I agree with the reasons stated by Buchanan, J.A. in concluding that the appeal should be allowed, and I agree with the orders proposed by his Honour.

38 I have had the advantage of reading in draft the reasons for judgment of Buchanan, J.A. Like his Honour, I consider that the sentencing judge erred in treating as irrelevant the fact that the applicant was confined to protective custody.

39 Like Buchanan, J.A. I am also of the view that the sentencing statistics put forward by counsel for the applicant are of limited assistance. Apart from the inherent limitations of sentencing statistics,[11] those which are put forward imply that a number of judges in recent years have given insufficient weight to the increase in the maximum sentence for manslaughter, from 15 years to 20 years, which was implemented with effect from September 1997.[12] Granted that a sentencing judge is enjoined by s.5(1)(b) of the Sentencing Act 1991 to take current sentencing practice into account, the practice is not a tariff. If, therefore, the practice is to impose sentences that are too low, a judge may rise above it.

40 So to say is not to ignore the importance of consistency in sentencing. If a sentence is higher than any other in statistics furnished to a court of criminal appeal, it goes without saying that it is a matter which calls for scrutiny.[13] That is why trial judges should and do take sentencing statistics into account. But if upon analysis a sentence accommodates all of the criteria to which a sentencing judge must have regard, including the maximum sentence set by Parliament, the fact that the sentence may range above the current practice is not a basis to disturb it.[14] I would not be disposed to interfere with this sentence on the basis of statistics alone.

41 In my judgment, the sentence imposed by the sentencing judge in this case, although stern, was not beyond the range. But for the one error to which I have referred, I should not have been disposed to intervene. As Buchanan, J.A. says, however, the error reopens the sentencing discretion and so it must be exercised afresh. In the circumstances, I am not disposed to disagree with the sentence of nine years imprisonment with a non-parole period of seven years which his Honour proposes.

[1] [1998] 1 V.R. 544 at 549.

[2] The sentencing statistics upon which counsel now relies, in my view, tend to show the courts have not reacted appropriately to the increase in the maximum sentence for manslaughter and have not valued human life as highly as the legislature.

[3] See R. v. Roston [1996] VicRp 60; [1996] 2 V.R. 97; R. v. ZNN [2002] VSCA 140; (2002) 4 V.R. 537; R. v. Slater [2001] NSWCCA 65; (2001) 121 A.Crim.R. 369 at [26] - [29]; R. v. Fraser [2004] VSCA 145 at [15]; R. v. Wilhelm [2005] VSCA 192 at [5].

[4] See D.P.P. v. England [1999] VSCA 95; [1999] 2 V.R. 258 at [30] - [31] per Booking, J.A.; R. v. Tran [2003] VSC 165; R. v. Chan (1994) 76 A.Crim.R. 252 at 253; Bell v. R. [2003] WASCA 216.

[5] (1991) 23 N.S.W.L.R. 220 at 228.

[6] [2001] HCA 64; (2001) 207 C.L.R. 584 at 611-2.

[7] See my discussion in DPP v. VH [2004] VSCA 180; (2004) 10 V.R. 234, at 239-242, especially at [22].

[8] DPP v. Josefski [2005] VSCA 265, at [83] and fn 84.

[9] At [82].

[10] In Josefski, two members of the Court left open the question raised by Maxwell, P., at [28] as to whether on a Director's appeal, where complaint is made that a sentence is manifestly inadequate, the Director might appropriately be asked to nominate the range. It is unnecessary to resolve that question in this case, but as presently advised the view expressed by the President seems to me to be persuasive.

[11] R v Simon Milne Snowden Unreported, Appeal Division, 22/3/94, at 6; R v Papazisis and Bird (1991) 51 A. Crim. R. 242 at 245; Fox & Frieberg, Sentencing, State and Federal Law in Victoria, 2nd Ed. at [12.214].

[12] Sentencing and Other Acts (Amendment) Act 1997, s.60 and Schedule 1, cl. 3.

[13] The Queen v Bugmy [1990] HCA 18; (1990) 169 C.L.R. 525 at 538.

[14] Cf. R v Josefski [2005] VSCA 265 at [83], per Chernov, J.A.