R v Bryant

COUNSEL : J S Stratton (Appellant) R D Ellis (Crown) SOLICITORS : Brenda Duchen (Appellant) C K Smith (Crown) CATCHWORDS : Criminal law - sentencing - manslaughter - sentence inconsistent with jury findings; Criminal law - sentencing - sentence manifestly excessive ACTS CITED : Crimes Act 1900 (NSW) Sentencing Act 1989 (NSW) Bollen (1998) 99 A Crim R 510 CASES CITED: De Simoni (1981) 147 CLR 583 Isaacs (1997) 90 A Crim R 587 DECISION : Leave to appeal granted; Appeal dismissed.

1 SPIGELMAN CJ: This is an appeal against the severity of a sentence imposed by his Honour Justice Dowd on 10 August 1998. The applicant had been found by a jury to be not guilty of murder but guilty of manslaughter. His Honour sentenced the applicant to a total period of ten years comprising a minimum term of six and a half years and an additional term of three and a half years. 2 During the course of the evening of 5 July 1995 a fight occurred between the applicant and the deceased. His Honour summarised the conclusion of this altercation in the following terms: "A struggle occurred in the kitchen of the premises between the deceased and the prisoner in which no injury was inflicted on the prisoner but the deceased received a number of wounds, the principal wound being to the chest and the last penetrating his skull near his left eye and the sharp knife remaining embedded deeply in his skull. The deceased shortly thereafter bled to death." 3 His Honour concluded: "Gary Waller died on 6 July 1995 as a result of a stab wound he received to the left side of his chest just to the side of his nipple. The depth of that wound was about 180 mms or seven inches. The knife passed through his left and right lungs, through his pulmonary artery, one of the main arteries to the lung, through the pericardium terminating at the back of the fourth right rib. The knife missed the heart but slightly bruised the blood vessels that came out of the heart." 4 His Honour also summarised other cuts and stab wounds which the deceased had suffered including cuts and wounds to the hands. 5 Manslaughter was open to the jury on the basis of either provocation or an unlawful and dangerous act. For purposes of the sentencing exercise, his Honour rejected the proposition that the applicant acted under provocation in the relevant sense. His Honour set out his findings as follows: "I have no difficulty in finding to the requisite criminal standard that the prisoner by the use of a Wiltshire Stay Sharp knife stabbed the deceased in the chest which together with other stab wounds to his body caused the death of the deceased. The nature of the blows struck by the prisoner particularly to the head were forceful and savage blows with a deadly long bladed and sharp weapon. The ready availability of such now normal domestic implements does not detract from the dangerous and life threatening nature. The blow to the chest was almost inevitably fatal in the circumstances of its infliction to the deceased. The blow to the head, whatever the reasons for the knife becoming embedded was a savage action, I do not accept the evidence of the accused as to the circumstances in which the wounds were inflicted. I find to that same standard that the prisoner's act was deliberate and voluntary. Having determined two of the necessary elements of the verdict of manslaughter above, it is necessary to examine the alternative basis for the court's finding as to the finding of manslaughter. I am, however, satisfied beyond a reasonable doubt that the death of the deceased occurred by an unlawful and dangerous act. The unlawful and dangerous act being the stabbing of the deceased through his lung penetrating to the back of the deceased's rib cage. Although only a moderate amount of force was necessary to cause such an injury, nevertheless it was carried out with force and it was at least moderate force and such an action with such a weapon enables the court to find beyond reasonable doubt that the act of the prisoner was an unlawful and dangerous act. I find, therefore, beyond a reasonable doubt that the act of the prisoner was an unlawful and dangerous act. I find, therefore beyond a reasonable doubt that a reasonable person in the position of the prisoner would have realised that by the act of stabbing the deceased through the chest that the deceased was being exposed to an appreciable risk of serious injury. I further find beyond reasonable doubt that the prisoner did not do that act in self defence." 6 The first ground of appeal is that his Honour's reasoning in this regard was not consistent with the jury's verdict of not guilty for the charge of murder. It was submitted that on his Honour's analysis of the facts the only missing element for a charge of murder was the requirement that the Crown prove that the accused intended to kill the deceased, or inflict grievous bodily harm upon him, or that he foresaw the probability that the death of the deceased would result from his act. It was submitted that a finding that the stabbing of the deceased through his lung penetrating through to the back of the rib cage was "deliberate and voluntary", necessarily meant that the appellant intended at least to inflict grievous bodily harm to him. It was submitted that that is in substance what his Honour found and on this basis the trial Judge sentenced the applicant, so it was submitted, on a basis inconsistent with the verdict of the jury. 7 The relevant principle to which his Honour himself adverted is set out in this court's decision in a five person bench in Isaacs (1997) 90 ACrimR 587 at 591 where after their Honours referred to the need for the sentencing Judge to find facts material to the exercise of the sentencing discretion, the court said: "The primary constraint upon the power and duty of decision making referred to above is that the view of the facts adopted by the Judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the Judge is obliged to take is different from the view which the Judge would have taken if unconstrained by the verdict. (cf Maxwell (1996) 184 CLR 501). In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the Judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury's verdict, and thus may be required to sentence on a basis different from the Judge's personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury." 8 A not dissimilar principle is at work in the context of the principle based on the High Court decision in De Simoni (1981) 147 CLR 583, that sentencing must not be done on the basis of an offence which would have exposed the accused to a more serious maximum penalty. In the passage in his Honour's reasoning quoted above, it is clear that his Honour treated as a separate element of the offence of manslaughter what he described as "a deliberate and voluntary act". 9 The first ground of appeal is based on the proposition that his finding with respect to the action of the accused as being "deliberate and voluntary" was, in the particular circumstances of this case, inconsistent with the finding of not guilty of murder. Counsel for the applicant submitted that in the circumstances the finding that the act was deliberate and voluntary necessarily implied that it was done with the intention of at least inflicting grievous bodily harm and, accordingly, would be murder. 10 It is not clear to me where his Honour obtained the formulation that an act had to be deliberate and voluntary as a necessary act of manslaughter. For present purposes it is unnecessary to resolve the matter. The issue is whether or not the reference is inconsistent with the jury's verdict of not guilty of murder. 11 In Bollen (1998) 99 ACrimR 510 at 528-529 the trial judge had made a finding when sentencing for manslaughter that the act of stabbing was "deliberate". As Hunt CJ at CL found: "The judge did make a finding that 'at the last moment everything happened rapidly', and that the appellant's act of stabbing the deceased, although deliberate, was by way of reaction only and without specific intent to harm him at the moment when it occurred. Although the Crown did not require the jury to be satisfied that that act was a deliberate one, the judge's finding does not infringe the De Simoni principle, because that act did not make the appellant liable to a more serious maximum penalty." 12 The words "deliberate and voluntary" each qualify the word "act" of the accused below and the applicant in this Court. An act may be "deliberate and voluntary" without any connotation that the person doing the act intended a consequence such as the infliction of grievous bodily harm. 13 In the present case, counsel for the appellant sought to obtain the necessary inconsistency by focusing on his Honour's identification two paragraphs after the reference to "deliberate and voluntary", of the relevant "unlawful and dangerous" act which his Honour found and I repeat in the following terms: "The unlawful and dangerous act being the stabbing of the deceased through his lung penetrating to the back of the deceased's rib cage." 14 It was submitted that by reason of his Honour's identification of the unlawful and dangerous act in this manner, that his Honour's earlier reference should be understood in the same way. When I say his Honour's earlier reference, I mean to the appellant's act which his Honour found to be "deliberate and voluntary". Reasons for sentence should not be construed in this way. 15 There is no reason to believe that his Honour's reference to "the prisoner's act" was a reference to precisely the same act which his Honour a few paragraphs later identified as the relevant "unlawful and dangerous act". In my view, his Honour's reference to the "prisoner's act" which his Honour found to be "deliberate and voluntary" is more likely to refer to acts involving the knife, but not acts of the degree of precision involving the penetration of the lung, in the way his Honour subsequently identified. On this basis there is no inconsistency between his Honour's use of particular terminology and the jury's verdict. 16 The first ground of appeal should be rejected. 17 The second ground of appeal was that the verdict of ten years, comprising a minimum term of six and a half years and an additional term of three and a half years, was manifestly excessive. His Honour referred to authorities which reflected the well-known principle that the range of sentences for manslaughter is a wide one, by reason of the range of variety of circumstances upon which a conviction for this offence can be based. His Honour stated that he had before him a schedule of decisions on sentencing for manslaughter provided by each of the counsel for the applicant and counsel for the Crown. 18 His Honour recited the relevant facts which have not been challenged before us. That the applicant had a long history of heavy binge drinking caused in part by a disturbed family background. His Honour referred to previous offences. His Honour accepted the expression of remorse on behalf of the prisoner and found it to be genuine. His Honour also noted that counsel for the applicant had also offered a plea of guilty of manslaughter in full satisfaction of the indictment, which offer was rejected by the Crown. His Honour indicated that he had taken that factor into account on sentence. His Honour also took into account the effect that alcohol had on the applicant at the time of the commission of the offence. This clearly was substantial and it appears to be the basis on which the jury found the appellant not guilty of the primary offence and found him guilty of manslaughter. 19 His Honour specifically referred to what he described as the "unpremeditated nature of the crime". There is no doubt that this finding was also related to the state of inebriation of the applicant on the particular day. His Honour referred to the broad range of factors relevant to the sentencing task, including deterrence and rehabilitation. 20 His Honour referred to a number of matters relevant to a finding of special circumstances, specifically the need for counselling for alcohol addiction and found such circumstances to exist. This finding is not challenged before us. 21 There can be and there was no criticism of the range of factors which his Honour took into account. The criticism was of the result. 22 Plainly, a significant factor in the ultimate decision was the objective seriousness of the offence in terms of the attack with a knife with a number of wounds, including the fatal stab wound, and the final stabbing which caused the knife to fix in the deceased's eye. On any basis, this was a vicious attack. 23 The task before the Court is to determine whether or not the sentence imposed is within the range of the exercise of a broad discretion in the particular circumstances of the offence and of the offender. Numerous cases have been referred to in written and oral submissions that the Court has received. Necessarily, for a crime of this character, they range over a broad number of years in terms of the final sentences imposed. On the basis of the materials before the Court it appears that the sentence imposed in this case is at the top of the range of sentences for this offence and very few cases to which we have been referred involve sentences of greater length than the sentence imposed in the instant case. 24 However, the task for this Court is to determine whether or not the sentence his Honour determined, bearing in mind the sentences that have been found to be appropriate in the past, was within the range of the discretion for his Honour to exercise. 25 Prior cases are of limited utility in terms of guidance but do give some guidance, because it is important that an element of consistency exists in sentencing practice in this regard. 26 Whilst, in my opinion, the sentence on this occasion can be seen to be a high one and perhaps towards the top of the range, but within the range and therefore permissible. In all of the circumstances of the case I am of the view that his Honour did not exceed the bounds of reasonable exercise of discretion on this occasion and that the appeal should be dismissed. 27 DUNFORD J: I agree. 28 ADAMS J: I also agree. 29 SPIGELMAN CJ: The order of the Court is that leave to appeal should be granted but the appeal should be dismissed. **********

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