R v Bux [2002] VSCA 126

Court of Appeal (Vic)|2002-08-21|Before: BATT and EAMES, JJ.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Sentence - Manslaughter by unlawful and dangerous act - Whether at lowest end of scale - Armed robberies - Applicant with very low IQ - Effective sentence of nine years with six years non-parole period - Held not manifestly excessive

In my opinion, this application for leave to appeal against sentence should be dismissed for the reasons given by Eames, J.A. I would only add, in relation to grounds 1 and 2, that, even though deterrence fell to be moderated, the protection of the community assumed correspondingly greater importance.

The applicant seeks leave to appeal against sentences imposed by a judge of the Supreme Court on 29 June 2001. The applicant pleaded guilty to one count of manslaughter and four counts of armed robbery. He was sentenced to six years' imprisonment on the count of manslaughter and to three years' imprisonment on each of the counts of armed robbery. The learned sentencing judge directed that 18 months of each of the sentences on two of the counts of armed robbery be served cumulatively upon each other and upon the manslaughter sentence, making an effective total sentence of nine years' imprisonment. His Honour fixed a non-parole period of six years and made a declaration pursuant to s.18(4) of the Sentencing Act 1991 with respect to 571 days of pre-sentence detention.

The manslaughter offence occurred in the company of Jason Mailes, who pleaded guilty to the murder of the same victim, one Brett McDonald, on 31 August 1999, whereas the applicant pleaded guilty to manslaughter. Mailes also pleaded guilty to six armed robberies and two attempted armed robberies, at various locations, between 23 October and 2 December 1999. The applicant pleaded guilty to four of the armed robberies which Mailes admitted, those offences in which they had both been involved having taken place in the period between 23 October and 26 November 1999. At the time of his death Mr McDonald was aged 25; the applicant was then aged 30 years (he is now 33), and Mailes 22 years.

4 At the time of these offences Mailes operated a construction business at a factory in England Street, Dandenong and lived on the premises with his de facto wife. Mailes employed both the applicant and Brett McDonald on a casual basis. They were engaged in house renovations. McDonald and Mailes had been friends and together engaged in cultivation of a hydroponic cannabis crop inside a factory premises leased by Mailes in Sinclair Road, Dandenong. Work was performed on that premises by McDonald to hide the illegal activities which were occurring there. McDonald was paid on a casual basis for performing that work but became annoyed at Mailes' failure to pay him the money which McDonald believed he was due. McDonald confronted Mailes in the factory, in front of other employees, thereby causing embarrassment to Mailes and, as his Honour found, this led Mailes to decide to assault McDonald.

The learned sentencing judge accepted the version of events advanced on behalf of the applicant as to his involvement in the killing of Mr McDonald. On the applicant's version it was not until late in the day on 31 August 1999 that the applicant was telephoned by Mailes, who told him that if he attended the England Street factory late that day Mailes would give him work, for which he would be paid. The applicant denied that before he attended the factory that evening Mailes had already told him that he was proposing to assault McDonald at the factory. The applicant told police that it was only upon his arrival at the factory that Mailes first mentioned that McDonald would be attending, and discussed the possibility of McDonald being assaulted. The applicant's answers in the record of interview, however, justified his Honour's finding that prior to the arrival of McDonald, he knew of the "planned assault". As I shall discuss, his Honour found that the applicant had been told that there could be a fight and that he was required to be present in order to back up Mailes, in such event.

After inviting the applicant to the factory Mailes then telephoned McDonald and asked him to attend the factory that evening, at which time he would pay him some of the outstanding money which he owed and would provide a cheque to pay for the cost of materials, which expense McDonald had met for the work done on the premises. At some time after 6.45 p.m. McDonald arrived at the factory where both Mailes and the applicant were present. Mailes had sent his de facto wife away for the evening. The applicant had arrived at the factory about 20 minutes before McDonald.

The learned sentencing judge found that what occurred upon the arrival of McDonald was that Mailes escorted him through the front door of the premises whereupon the applicant immediately struck McDonald on the jaw and caused him to fall to the floor. Before McDonald could regain his feet Mailes struck him a number of blows to the head with a wooden mattock handle, causing severe injuries to the head. Mailes then struck McDonald to the head with a steel pipe which had been on the bonnet of his car, which was close by. His Honour found that heavy blows were inflicted on a helpless McDonald, causing serious head injuries and profuse bleeding. Whilst this was occurring the applicant became physically ill and went to the toilet in the factory in order to vomit. When he returned McDonald was already dead.

The applicant then assisted Mailes in placing plastic bags around the head of the deceased and binding his hands and feet. The body of the deceased was then wrapped in plastic insulation material and placed inside a large galvanised steel tool box owned by Mailes. Efforts were made to cover up bloodstains on the floor of the premises. Some days later both the applicant and Mailes filled the tool box with quick-set cement. The body was eventually buried, by Mailes, in the backyard of the factory. The burial occurred on 3 September 1999. Mailes later told the applicant that he had done so. Mailes and the applicant subsequently undertook a series of armed robberies, the first of which occurred on 23 October 1999 at Glenroy TAB.

The applicant participated in the armed robberies because, as he told police, he required the money to feed his gambling addiction. His Honour accepted that the armed robberies were the brainchild of Mailes and found that the applicant's participation was motivated by the need for finance due to his gambling addiction. His Honour noted that the applicant told police that in two of the armed robberies Mailes, the nephew of the applicant, had appealed for assistance from the applicant by stressing his own financial problems and by threatening that he would kill himself if the applicant did not help him. His Honour did not make an express finding as to whether such threats had been made and, if so, were believed by the applicant, but it seems probable that he found in the applicant's favour as to those matters. However, even assuming that such threats and entreaties did have a bearing on the applicant's decision, it is clear that the primary reason for his involvement was, as his Honour found, to feed his own gambling addiction.

The armed robberies in which the applicant engaged with Mailes commenced on 23 October 1999, when the Glenroy TAB was robbed whilst Mailes was armed with a nail gun. The applicant was the driver of the getaway car and remained in the vehicle. He received $500 as his share of this robbery. On 5 November 1999 the applicant and Mailes robbed the bottle shop of the Sylvania Hotel in Campbellfield. Whilst the applicant remained in the vehicle Mailes threatened the attendant with a nail gun and together they stole about $1500. On 16 November 1999, using similar methodology, they together robbed the bottle shop at Gladstone Park Hotel Mailes obtaining $300 in cash. Finally, on 26 November, they robbed the Sylvania Hotel in Campbellfield, and stole about $200. In all, the applicant's share of the proceeds of the robberies was in the order of $1500. The applicant's role in each robbery was that of the driver of the getaway vehicle.

The grounds for appeal have been amended several times but now read as follows:

1. That the learned sentencing judge erred in failing to give sufficient weight to the relevant factors disclosed by the intellectual disability of the applicant.

2. That the learned sentencing judge erred by giving too much weight to the principles of specific and general deterrence when arriving at sentence.

3. That the learned sentencing judge erred in ordering accumulation of sentences that produced a penalty that was excessive in all the circumstances of the case.

4. That in view of the personal circumstances of the accused and in all the circumstances of the case the sentence imposed was manifestly excessive.

5. The learned sentencing judge erred in the finding he made as to the applicant's role in the offence of manslaughter and in sentencing the applicant on that basis.

On 21 September 2001 an application for leave to appeal was rejected by a judge of this Court and by notice dated 19 October 2001 the applicant elected to have his application for leave to appeal determined by the Court of Appeal.

The primary area of complaint as to sentence to which the applicant's counsel, Mr Kennan, directed his attention related to the sentence for manslaughter. If that sentence was seen to be too high and the court concluded that the head sentence had to be reduced, with a consequent reduction of the non-parole period, then he did not strongly contend that the individual sentences for armed robbery and the orders as to cumulation were themselves manifestly excessive or were wrong in principle. Although he acknowledged that it was the sentence of manslaughter which produced this result, Mr Kennan did submit that when one had regard to the principle of totality the overall effective sentence and non-parole period were manifestly excessive.

There was some overlap between the arguments relating to Ground 5 and those raised by the other grounds of appeal. Mr Kennan submitted that the role played by the applicant in the killing was such as to place his responsibility for the death at the lowest end of the scale of seriousness of manslaughter offences. In failing to so conclude not only was there error in the sentence for manslaughter, Mr Kennan submitted, but that factor, alone, counsel submitted, rendered the sentence manifestly excessive. Furthermore, the manifest excess of the sentence is even more apparent, he submitted, when regard is had to factors personal to the applicant. The sentence demonstrates, counsel submitted, that the judge had failed to give proper weight to mitigating factors and gave inappropriate weight to principles of general and specific deterrence.

As to the specific complaint raised in Ground 5, Mr Kennan contended that the role played by the applicant consisted, only, of striking the first blow, a punch sufficiently strong to cause the victim to fall to the ground but not life threatening. In his record of interview the applicant said that after he struck the first blow Mailes had pushed him aside, and commenced to strike the victim with the wooden mattock handle. There was no evidence that the applicant knew that Mailes intended to use such a weapon, or that he had such a weapon at hand, Mr Kennan submitted, and he correctly noted that his Honour did not make a contrary finding.

The applicant told the police that he was shocked by Mailes' conduct and that he first attempted to stop Mailes, but was discouraged because Mailes' anger was such that the applicant thought that he might himself be assaulted by Mailes. The applicant retreated to the toilet, where he vomited. Upon his return to the scene McDonald was already dead. Thus, Mr Kennan submitted, Mailes had invited the applicant to the scene under false pretences, and the applicant had first learned of the prospect of Mailes fighting McDonald only upon the applicant's arrival at the scene. Mailes had engaged in conduct which went beyond the use of fists, which was the most that the applicant might have anticipated to be involved in any assault, Mr Kennan submitted.

Mr Kennan, therefore, submitted that the judge failed to properly evaluate the role played by the applicant, and in sentencing him had assessed the applicant's role to be more serious than the facts reflected it to be. He submitted that his Honour's assessment of that role was at odds with the concession made by the prosecutor as to the basis on which the Crown accepted the plea to manslaughter. The prosecutor said to the judge that it was the prosecution position, for the purpose of sentence, that the case was one where the victim had been set up and Mailes had the applicant present for the purpose of assisting him in the assault. The prosecutor continued:

"Mailes, certainly by the time the fight began, formed the intention to kill, and did. The manslaughter in so far as Bux is concerned is put on the basis of a number of things, including Bux's particular circumstances. The prosecution says he knew there was a fight to take place before McDonald arrived and he knew Mailes was angry. Bux undertook the first punch which allowed Mailes to continue the attack once McDonald had been taken off guard. On the only version which is admissible against Bux there was no weapon used by him and there was possibly an attempt to intervene by Bux when Mailes continued the attack. There was certainly no further participation by Bux, so that it was an attack, an unlawful and dangerous attack, an attack on McDonald, but one that went beyond what was expected, perhaps, by Bux, and all of that is put and accepted by the prosecution on the basis of the reduced mental capacity of the prisoner Bux."

In determining the circumstances of the offence of manslaughter his Honour accepted the account given by the applicant that he had attended the factory in the belief that he was to be given work so as to earn extra money, and that it was only once he was there that he was told that there "could be a fight and that you were required for backup". The judge noted that the applicant threw the first punch, but then his Honour added:

"It is not alleged by the Crown that you used any weapon on this night or that you physically participated further in the fatal assaults. In accepting the plea to manslaughter, the Crown have taken the view that you were not a party to any intention by Jason Mailes to kill or cause really serious bodily injury to Mr McDonald. Your liability is for an unlawful and dangerous act manslaughter based on your striking of the initial blow together with your presence thereafter, in effect as an aider and abettor, while some of the further blows which ultimately contributed to Brett McDonald's death were inflicted by Jason Mailes. These must have been blows which an ordinary person in your position would have realised would have exposed the deceased to an appreciable risk of death or serious bodily injury. Your failure to purposefully intervene may be attributable to what is conceded by the Crown to be your intellectual disability. Your distress at the swift and unexpected escalation of the violence may explain your leaving the scene to vomit. I accept that the subsequent concealment of the body in the tool box, and the cleaning up activities in which you assisted, were essentially at the direction, and under the influence of your nephew."

Mr Gyorffy, for the respondent, submitted that the judge made a correct analysis of the role of the applicant and that the analysis of the facts for which Mr Kennan contends is inconsistent with the plea of guilty to manslaughter. The applicant was facing a count of murder, and a real risk that a jury might conclude that he was guilty of that offence. Thus, the admission of guilt as to manslaughter must have carried with it an acknowledgment that he engaged in conduct which a reasonable person in his position would have realised exposed the victim to the appreciable risk of serious injury[1]. The applicant cannot now contend that he was a party merely to an assault which did not carry that appreciable risk, Mr Gyorffy submitted, as he should not have pleaded guilty to manslaughter in that case. In effect, Mr Gyorffy submitted that the applicant can not have it both ways. If he had insisted that his role was as limited as Mr Kennan now suggests then the case would have proceeded on the count of murder and he could have argued before the jury that he was entitled to an acquittal on both murder and manslaughter, and was guilty only of assault[2].

In my opinion, Mr Gyorffy's analysis of the offence is consistent with the approach which his Honour adopted, and it was open to his Honour to conclude, as he did in the passage cited above, that the applicant was present when some blows were struck by Mailes using a weapon, and when the applicant remained present, aiding and abetting Mailes. At some point Mailes plainly formed an intention to kill or cause really serious injury, at which moment he went beyond any agreement or common purpose he had with the applicant, but, having regard to the applicant's plea, there were blows before that moment arrived which caused death, and to which the applicant was party, and those assaults carried the appreciable risk of serious injury. Those were essential elements of the offence which were admitted by the plea of guilty.

Thus, notwithstanding the arguments of Mr Kennan, I am not persuaded that the learned sentencing judge did overstate the role of the applicant, and consequently the complaint in Ground 5 is not made out.

However, even if the judge's assessment of the role of the applicant was correct, as I believe it was, was this nonetheless a case of manslaughter which fell at the lower end of the scale of that crime? The conclusion as to that question requires consideration both of the actual conduct of the applicant in the circumstances of the offence, and also of matters personal to the applicant. Mr Kennan submitted that matters personal to the applicant added weight to the conclusion that the applicant should have been regarded as deserving of punishment at the lower end of the scale of punishment for manslaughter. I will deal with those factors when I address grounds 1 and 2.

As to the circumstances of the offence, in my view, rather than this being an instance of manslaughter at the lower end of the scale of such offences, it is a fairly typical, and serious, instance of unlawful and dangerous act manslaughter. As the applicant admitted to police, he knew before McDonald arrived that Mailes was angry, that Mailes had sent his partner away for the night because, as he admitted he understood, Mailes anticipated that an assault would take place. Although the applicant gave some accounts to police of his conduct which suggested he was present merely to break up a fight, if one arose, his Honour was quite entitled to conclude, as he did, that the applicant knew there was to be an assault and that he was there as back up. His job, therefore, was to ensure that Mailes was the victor in any violent confrontation. The fact that the applicant struck the first blow, on an unsuspecting McDonald, and did so with sufficient force to knock him to the ground, amply demonstrated that he knew that Mailes intended to assault the victim.

Assaults on unsuspecting victims which go badly wrong and result in death (especially when the assaults are committed by more than one assailant) often lead to manslaughter convictions. Indeed, it is not unusual for an offender to be guilty of the offence although he did not strike any blow himself, but was present for purposes of "back-up". This was not a case where a fight arose spontaneously. Even allowing for his intellectual disadvantages (which I will later discuss), the applicant had time for cool reflection as to whether he would be involved. The argument was not his; he knew Mailes was angry; he knew the victim was to be taken by surprise and be outnumbered, at a location which was not of his choosing.

The sentence itself does not disclose that his Honour must have overstated the role which the applicant played in the killing. Manslaughter is an offence which can be constituted by a wide range of offending conduct, but I am not persuaded that the conduct of the applicant, as his Honour properly found it to be, should have been regarded as being at a lower level for the offence. His Honour, a very experienced sentencing judge, imposed a six year sentence for an offence which, after all, carried a maximum of 20 years imprisonment. Ground 5 is not made out.

I turn, then, to factors personal to the applicant.

Apart from a Children's Court appearance of some antiquity, and no relevance, the applicant had no prior convictions, and he had no history of violence. The applicant had very limited education, leaving school in Year 9. On leaving school he obtained jobs in shoe factories and was more often unemployed than in work. He commenced a de facto relationship when he was aged 16 and his partner was 14 and has a daughter aged 10 and twin sons aged 8. All children, in common with himself, suffer from asthma. His gambling addiction caused problems in the relationship and he and his partner separated more than eight years ago, his de facto moving into Housing Commission accommodation and receiving supporting parent's benefit. Although they had separated they seem to have maintained close contact. Ms Bowers, the de facto wife, adopted that description of her status when she gave evidence on the plea. She was asked what effect "being separated", by virtue of the applicant's imprisonment, had on her and the children. She said that it was very stressful and the children had visited the applicant regularly in prison and were missing him very much, as did he miss them.

Two reports by a clinical psychologist, Mr Bernard Healey, which were tendered below, disclosed that the applicant was a person of very limited intelligence. Mr Healey reported that the applicant was a victim of violence, from his father, as a child. Both parents were drinkers, with regular episodes of violence between them. From the age of eight or nine, and for a period of about four years, he was sexually abused by a cousin.

On being tested by Mr Healey, the applicant was found to have mentally defective functioning, with a full-scale IQ of 69, an intelligence level at which 98% would do better. Mr Healey concluded that the applicant's mental deficiency was congenital in origin. The most significant disability was with respect to memory. His memory quotient of 60 was at the lowest end of the mentally defective range, where 99.6% of people his age would do better. He had the reading skills of a nine year old and great difficulty with vocabulary. On personality testing, Mr Healey concluded that the applicant had been suffering depression, anxiety and paranoid features for some time, but particularly since the time of his remand on these offences. He was being treated with anti-depressant medication whilst in custody.

The applicant's serious gambling problem was known to both his employer and his wife prior to these offences, and his Honour accepted that his gambling addiction had been out of control at that time, and that attempts through Gamblers Anonymous to overcome the addiction had been unsuccessful.

His Honour took into account the pleas of guilty for the offences, and the remorse which those pleas demonstrated. He took into account, too, the applicant's prior good character and the difficulty he would experience in a prison environment because of his intellectual disadvantages. His Honour noted that the applicant was doing his best to improve himself whilst in prison and was working as a baker and had attended adult literacy courses. Thus, he was demonstrating a capacity for rehabilitation.

It was submitted to his Honour that because of the intellectual disadvantages of the applicant less weight should be given to questions of specific and general deterrence, but Mr Kennan submitted that his Honour had given undue weight to those factors.

Where an offender suffers a significant intellectual disability the principle of general deterrence is not eliminated altogether, but must be sensibly moderated[3]. Principles of general and specific deterrence cannot be given the emphasis that they might otherwise have in sentencing an offender. The extent of the amelioration of the factors of general and specific deterrence may depend upon a range of matters, most importantly the extent of the intellectual disability. In R. v. Champion[4] Kirby, P., with whom the other members of the Court agreed, considered the decision of the Court of Criminal Appeal in R. v. Letteri[5]. In that case Badgery-Parker, J, with whom Gleeson, C.J. and Sheller, J.A. agreed, had held that less weight should be given to general deterrence in such a case, and that in an extreme case a severe intellectual handicap might, indeed, mean that general deterrence was totally outweighed by other considerations. Kirby P. observed:

"The reason for this variation on the usual theme is not hard to find. It is imputed to the general community that it will understand that a person with the intellectual capacities of a child will need to be deterred but may need special attention in order that the deterrence will be effective. Moreover, the full understanding of the authority and requirements of the law, which may be attributed to the ordinary individual of adult intellectual capacities, cannot be expected of a person who, although adult in bodily form, retains the intellectual capacities of a child. Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community (reflected by the judges) applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case. General deterrence still operates: see R. v. Roadley[6]. It is in place for the protection of the community and the victims of offences, which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given."

In R. v. Tsiaras[7] the Court of Appeal held:

"Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.[8] The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health."

In R. v. Roadley[9] this Court held that "little weight" should be given to general deterrence in such cases. In that case the offender had minimal appreciation of the consequences of his behaviour and limited (possibly non-existent) impulse control. He had the mental age of a five or six year old child. In R. v. Williams[10] Buchanan, J.A., with whom Ormiston, J,A, and Chernov, J.A. agreed, followed Champion and Roadley. His Honour concluded that the sentencing considerations set out in R. v. Tsiaras could be applied in Williams' case (although it was a case of intellectual disability rather than psychiatric illness[11]), and concluded that several, but not all, of the considerations identified in the passage of the reasons from Tsiaras, cited above, were applicable. His Honour concluded that both general and specific deterrence had limited relevance in that case.

Williams was a case where the IQ test result of the appellant was very similar to that which pertained here. In that case, reports from a forensic psychologist and a psychiatrist both concluded that the appellant was "retarded" and had an IQ of 63. Despite the similarity of that test result to the IQ results in this case, however, there are significant differences in the situations of that offender and the present applicant. Williams, was said to be a person of "grossly inadequate personality, socially inept and able to function only in an extremely child-like way". The psychologist reported that he "needs close coercive supervision". The situation of the applicant, in my view, can not be equated with the degree of disability of Williams or Roadley.

Notwithstanding his apparent intellectual deficit the applicant was employed for two years between December 1997 and November 1999 by a security firm, and the managing director of that firm gave evidence on the plea. The applicant's work was so satisfactory that he was awarded "Employee of the Year" in 1998. His employer described the applicant as friendly and totally non-aggressive and well respected by clients and fellow employees. He considered the applicant to be an excellent family man and an excellent employee, but he was "on the slower side".

It is important not to overstate the apparent contra-indicators of intellectual disability which stable employment and a long term relationship might suggest. In his reports Mr Healey stressed the limitations in intellectual functioning of the applicant. As to the de facto relationship, Mr Healey said that it had been undermined by "his reduced functioning personally, his low level of intellect and his gambling addiction". Curiously, Mr Healey made no reference to the applicant's steady employment as a security guard; the employment history given in Mr Healey's two reports suggests that he understood the applicant to have never held a steady job. He concluded that "from his early 20's he was more often unemployed than he had work. In recent years he did some casual work as a builder's labourer - any earnings were squandered on gambling".

Neither the evidence of the employer nor that of the applicants' de facto wife suggests that the applicant was functioning at a level similar to the grossly impaired situation of Williams or Roadley.

I conclude, therefore, that the factors of general and specific deterrence had to be moderated in this case, but nonetheless were relevant in sentencing the applicant. The learned sentencing judge, in my opinion, adopted that approach. His Honour accepted the report of Mr Healey, and his conclusion that the applicant "would most likely qualify for Intellectual Disability Services". Furthermore, after a careful and comprehensive review of the applicant's history, his Honour concluded that the applicant had a capacity for rehabilitation.

His Honour addressed the contention of counsel that, by reason of his disability, principles of general and specific deterrence should be given "less weight" in sentencing, and noted that the Crown had agreed that intellectual disability was a factor "to be weighed in balancing the mix of sentencing considerations". Although his Honour did not discuss that issue in any detail the matter had been canvassed in argument and the prosecutor had suggested that his Honour should merely have "some regard" to general and specific deterrence when balancing sentencing considerations, although contending that the mental disability in this case was not of a gross character.

In his sentencing remarks, after discussing the contentions as to general and specific deterrence, his Honour said:

"I must sentence you attempting to balance the various principles, enunciated in the Sentencing Act, including punishment, specific and general deterrence and rehabilitation. I am also required to fix the individual sentences having regard to a total effective sentence which is appropriate but not crushing".

Mr Kennan submitted that by those remarks his Honour did not indicate that he had moderated the considerations of general and specific deterrence, and contended that the sentence itself confirmed that to be so. It should be noted that these comments were directed not just to the applicant but also to Mailes, who was also being sentenced. In my view, his Honour's remarks, having regard to his acceptance of Mr Healey's reports and his acknowledgment of the competing contentions of counsel, reflected the fact that his Honour was well aware of the relevant principles to be applied in the applicant's case but did not consider that his disability was such that general and specific deterrence should be given as little weight as Mr Kennan submits was appropriate. In my view, his Honour was entitled to come to that conclusion. The complaints in Grounds 1 and 2 are not made out.

Ground 4 complains that the sentence was manifestly excessive. As I have said, Mr Kennan submitted that manifest excess was apparent in the sentence of manslaughter, itself, or else when having regard to the principle of totality, by reference to the effective sentence and non-parole period. Ground 3 complains of the overall effective sentence which was produced by virtue of orders for cumulation made with respect to the armed robbery offences, but Mr Kennan really directed complaint under this ground to the principle of totality rather than identifying error in any of the specific orders made as to cumulation.

The arguments of Mr Kennan were not without force. I was initially inclined to the view that the manslaughter sentence, and its consequent impact upon the length of the overall effective head sentence and non-parole periods, was too severe, and might constitute manifest excess. On reflection, however, I do not think that is so. Parliament increased the maximum sentence for manslaughter from 15 years to 20 years on 20 November 1997, thus reflecting the opinion of Parliament that sentencing for this offence had not adequately reflected community concerns as to the seriousness of the offence. Mr Kennan submitted that the mere fact that the maximum sentence had been increased did not alter the fact that within the category of manslaughter cases in which the present case might be thought to fall, the circumstances of the applicant's offending were at the lower end of the scale.

It is true that the courts have dealt with many offences of manslaughter in which the circumstances of the offence were more serious than those represented by the applicant's conduct in this case, especially so when regard is had to his antecedents and intellectual disability. However, as the learned sentencing judge noted, the courts can not overlook the fact that whilst it was not an intended result, so far as the applicant was concerned, the offence involves the taking of life, in this case of a young man and in circumstances where violence was used when there was an appreciable risk of serious injury. The seriousness of the offence, and the impact of loss of life, were in this case very eloquently stated by the many victim impact statements to which his Honour properly made reference.

If the manslaughter sentence was held to be too severe then the effective head sentence and non-parole period would be reduced, and Mr Kennan accepted that that variation in sentence would answer, at the same time, the complaint raised in the grounds of appeal about the totality of the sentence and non-parole period imposed.

It is invariably said that the question whether a sentence is manifestly excessive admits of little debate[12]. On close analysis, I do not retain my initial concern that the sentence for manslaughter was manifestly excessive. The question on an application for leave to appeal against sentence is not what sentence the appellate judges might themselves have imposed, or what non-parole period they might have fixed, but whether the sentencing judge imposed sentences which were within the limits of a sound discretionary judgment, having regard to all relevant matters[13]. As to the manslaughter component of the sentence, it is severe, having regard to the antecedents and intellectual situation of the applicant, but his Honour fixed the sentence after careful thought, as his reasons disclose. I am not persuaded that it is manifestly excessive, and Ground 4 is not made out.

There remain questions whether there was sentencing error in the orders made as to cumulation, or else whether the total effective sentence and non-parole period were manifestly excessive by reference to principles of totality.

In my opinion, no valid complaint can be made as to the fact, or extent, of cumulation of the sentences. Mr Kennan frankly conceded that he could not argue that the armed robbery offences did not justify orders as to cumulation. Plainly they did. They were serious offences committed over a period of a month on relatively "soft targets". Although only one victim impact statement was filed relevant to the robberies it is likely that all of the victims would have been placed in fear by a masked robber armed, as Mailes was, with what was intended to be taken for a firearm. Mr Kennan conceded that he could not reasonably contend that the orders as to cumulation for the armed robbery offences, of themselves, betrayed error by the sentencing judge.

However, the principles as to the cumulation of sentences recognise that even where the actual sentences and the orders for cumulation which are made do not betray identifiable error adjustment might nonetheless be made to reduce the extent of cumulation when the effective sentence or non-parole period is perceived to offend the principle of totality, or to constitute a crushing sentence[14].

As in the case of complaint that a sentence is manifestly excessive, the issue of totality does not admit of much argument. It either offends one's notion of what is just and appropriate as a total sentence, or it does not[15]. I am not persuaded that the

sentence, overall, does offend the principle of totality so as to require adjustment to the sentence by variation of the orders as to cumulation. Ground 3 is not made out.

Notwithstanding the comprehensive and carefully reasoned argument of counsel for the applicant none of the grounds of appeal in my view has been made out, and the application should be dismissed.

I am grateful to Eames, J.A. for his careful analysis of the arguments advanced by Mr Kennan and the conclusions at which he arrived. I too am satisfied that all the grounds of appeal fail for the reasons given by his Honour. I agree that the application for leave to appeal should be dismissed.

[1] Wilson v. The Queen [1992] HCA 31; (1992) 174 C.L.R. 313, at 333-334.

[3] R. v. Champion (1992) 64 A. Crim R 244, at 254-255, per Kirby P.

[5] Unreported, Court of Criminal Appeal, New South Wales, 18 March 1992.

[8] In R. v. Yaldiz [1998] 2 V.R. 376 at 381 Batt, J.A., with whom Winneke, P. and Hampel, A.J.A. agreed, suggested that the third proposition should, more appropriately, have been stated in the terms applied by Kirby, P. in R. v. Champion at 254-5, namely that general deterrence, suitably moderated, still operated in the case of an intellectually disabled or mentally impaired offender. See, too, R. v. Richard and Gregory [1998] 2 V.R. 1, at 10.

[10] [2000] VSCA 174, at [10] - [12].

[11] In Roadley, at 343, the Court held that mental illness was to be equated with intellectual disablement for sentencing purposes, citing R. v. Anderson [1981] VicRp 17; [1981] V.R. 155.

[12] R. v. Narula (1986) A.Crim.R 409, at 431.

[13] R. v. Bouchard (1996) 84 A. Crim.R 499, at 503, per Callaway, J.A.

[14] Mill v. The Queen (1988) 166 C.L.R. 59, at 63; DPP v. Grabovac [1998] 1 V.R. 664, at 683, per Ormiston, J.A; R. H. McL. v. The Queen [2000] HCA 46; (2000) 203 C.L.R. 452, at 457.

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Parties