R v Cumberbatch [2004] VSCA 37

5. Before considering the respective submissions of the parties, it is necessary to set out briefly the circumstances of the offender and of the offending and the context in which the applicant was sentenced. The deceased was killed whilst sleeping in his bed at his home in Kalorama. There were no injuries suggesting that he had struggled prior to his death, indicating that he was asleep when he was attacked. He died of severe head wounds caused by an indeterminate number of blows to the head with a blunt, elongated object. Eight discrete injuries were inflicted to the head which were described in evidence. The deceased was also stabbed numerous times in his back, the back of his neck and the side of his head. Forensic analysis of the body found that these stab wounds were probably inflicted after the deceased had died. No murder weapon was found or identified.

8. The applicant and the deceased were born in England, where they were married in 1951 when she was 23 years of age. Initially they lived with the deceased's parents, but later found their own home. It seems that it was not long after their marriage that the deceased's domestic violence towards the applicant commenced and continued until the couple separated in circumstances which I describe later. Their eldest son, Philip, was born in 1952, and in 1960 the family emigrated to this country where the applicant and her husband found employment. Both had an excellent work record and in 1963 their second son, David, was born. As the learned sentencing judge found, the matrimonial discord between the applicant and the deceased continued and the evidence of the eldest son was that the deceased was often goaded by the applicant and pushed to the limit. He would lose his temper and strike his wife. His Honour noted that the committal evidence of both sons made it apparent that the deceased's verbal and physical abuse of the applicant was a common feature of their married life, which ended as long ago as 1981 when the applicant moved out of their matrimonial home, taking with her their son David, who had just completed his H.S.C. The applicant returned to the United Kingdom in the mid-1980s, to see her sister, and stayed there for some months. Not long after she came back to Australia, the applicant moved into the deceased's home in Kalorama. It was put on her behalf at the hearing of the plea in mitigation that this was a particularly difficult time for the applicant, when she suffered from the deceased's violent, physical abuse and was forced, from time to time, to have recourse to refuges. In 1989 the couple legally separated as a result of which the applicant received $90,000. She and David moved to Queensland. By then he was married with a daughter and was working there. When he was transferred back to Melbourne in 1997, the applicant followed. Initially, she rented premises in Ringwood, but then moved to a retirement village in Mooroolbark, St John's Park Hostel, that is conducted by the Anglican Church. This was the applicant's home at the time of the deceased's murder.

11. Notwithstanding their separation and the deceased's previous violent conduct towards her, the applicant maintained what seems to have been an amicable relationship with the deceased, often staying overnight at his home, sometimes up to four nights per week, albeit in a separate bedroom. As his Honour noted in his sentencing remarks, the applicant in her record of interview with the police said this of their relationship: "He was my friend and he helps me a lot. He took me to the doctor's. He took me to all my appointments. He worked out a diet for me." In 1995 the deceased had formed a relationship with another woman, Jan Le Gros, but that had ended in April 1996, although they continued to be on friendly terms. The applicant was aware of the relationship and believed, or suspected, that it was ongoing notwithstanding that, as I have said, it had effectively ended some time before he died.

14. At the trial, and in the statements to the police during interviews, the applicant's case was that the last time she had stayed overnight at the deceased's home was on Monday 4 September 2000. She said that the last time she saw him alive was on the evening of 5 September 2000 when he drove her home after shopping and dinner. It was not until the early afternoon of Saturday 9 September 2000 that the police found the deceased's body in his bed. They attended his house after receiving a report from the applicant that morning that the deceased had failed to answer her telephone calls over some days and that she was at the deceased's home earlier that morning but received no response to her knocking on his door and bedroom window. She said, however, that she saw a smashed window at the back patio. The applicant explained to the police that she was the deceased's estranged wife and said, falsely, that she had no right of access to the house.

17. On the afternoon of 9 September 2000, the police came to the applicant's home and told her that the deceased had been killed. She did not tell them that she already knew that he was dead although, as will be seen later, she claimed to the police in subsequent interviews that she had entered the deceased's house earlier that day and found him dead in his bed. On 12 September 2000, a search warrant was executed at the applicant's home. Notwithstanding her attempt to conceal them, the police found that the applicant had the deceased's bank book and other documents, and in her handbag they found his original will. Shortly thereafter, the applicant was arrested.

20. In his sentencing remarks his Honour noted that, as was conceded on her behalf at the trial, the applicant told the police a number of significant lies particularly in relation to her access to the deceased's house between 5 and 9 September 2000. The story she gave to the police as to her movements during this period was convoluted and that she fabricated those events, or some of them, was easily recognisable. Nevertheless, it demonstrated her willingness to tell lies for the purpose of avoiding being charged with murder and to throw the blame for that crime on others. Thus, she claimed that she went by taxi to the deceased's house at approximately 11 p.m. on 5 September and 7 September because she was concerned about him and, when there was no response to her knocking at the front door and bedroom window, she decided to stay in the area in case he returned home. On each of the two nights, she claimed, she slept on the verandah of the deceased's neighbour's house. In the early hours of the following morning, she said, she caught the bus home from a bus stop near his house. This seems to have been her explanation for being seen by witnesses getting on a bus near the deceased's home at approximately 6 a.m. on 6 September 2000. She claimed further that on the morning of Saturday 9 September 2000 she caught a taxi to the deceased's house and asked the driver to wait. On this occasion, she said, she went to the back of the house where she saw a broken window at the back patio. According to her, she returned to the waiting taxi and told the driver to take her to the Mooroolbark Police Station to make the report to which I have referred. She claimed that, very shortly after making that report to the police on the Saturday morning, she returned by taxi to the deceased's house and entered using her keys to it. She said she found the deceased in bed and could tell that he was dead. She then searched for and found his bank books, bank statements, a cheque book and other documents. She took them and went home in the waiting taxi, arriving there at about midday. At her trial, the applicant's case was that the deceased was probably killed by a person who had broken into his house for the purpose of robbing him.

23. The learned sentencing judge considered that the applicant's motive for the killing, as accepted by the jury, was her fear that the deceased was about to cut her and their sons out of his will in favour of Jan Le Gros. It was her erroneous perception, said the judge, that the deceased was still involved in an affair with Ms Le Gros at the time of his death. His Honour noted: "An overview of the whole history of your concern about the will and Ms Le Gros points overwhelmingly to that issue being a motivating force almost to the point of obsession."

26. His Honour recognised that, at the time of sentence, the applicant was suffering chronic ill-health, including rheumatoid arthritis, diverticulitis, panic attacks, urinary and faecal incontinence, a trapped sciatic nerve in her left leg, bursitis and a collapsed vertebrae. The judge also noted the applicant's fragile mental state, as highlighted in the report of the psychologist Ms Barnacle who saw her in the period of her incarceration prior to trial. Finally, the judge noted the applicant's isolation whilst in custody.

29. Although counsel argued that the head sentence was crushing and manifestly excessive, he did so but faintly, and rightly so because, on any view, it is apparent that the head sentence is, in all the circumstances, light and is obviously a reflection of his Honour's recognition of the applicant's ill-health and elderly years. The argument that was really pressed by Mr Boyce was that, given the applicant's frail physical and mental condition, the non-parole period is crushing given that there is a "good chance" that she would die in prison. The applicant's earliest release date, said counsel, is 19 January 2013, at which time she will be 84½ years of age. Counsel, with his usual care, highlighted the applicant's poor health and her fragile mental state and in support of the latter condition pointed in particular to the reports of the psychologist Ms Barnacle and the psychiatrist, Dr Walton. In her report of 10 May 2001, Ms Barnacle says that the applicant was suffering from depression, anxiety and stress in the nine months preceding the trial and that she had been prescribed medication for her symptoms. It was also noted that the applicant had "suicidal ideation without a specific plan".

32. Mr Boyce emphasised that whilst the applicant's offending was serious, it did not warrant, in all the circumstances of this case, the likely removal of any reasonable future prospect of life outside prison. Counsel contended that a lower minimum term - he suggested in the order of 10 years - should have been imposed. Such a minimum term, said counsel, would enhance the applicant's chance of enjoyment of some future life in the community without causing the sentence to be manifestly inadequate. Mr Boyce argued that, in the case of elderly offenders, the question whether a sentence falls outside the range of available sentences must be measured by smaller degrees than would be appropriate in the case of an offender of younger years. Counsel submitted that such an approach was appropriate because, the greater the offender's age, the greater is the significance of each year that is left of his or her life. The notion that each year of a sentence represents a substantial portion of the period of life which is left to an elderly offender and should ordinarily be taken into account in the sentencing disposition was recognised by King, C.J. in R. v. Hunter[1]. His Honour said, however, that it was only a factor to be taken into account in the sentencing process and that it should not obscure that "the time required to be spent in prison be adequate punishment for the crime committed". He continued: "The basic concepts of justice which underlie the criminal law require that punishment be fairly proportionate to the crime in accordance with prevailing standards." I mention for completeness that the offender's ill-health may also be a mitigating factor, as it was in this case.[2] It is plain that his Honour took all these matters into account when constructing the sentence and I did not understand Mr Boyce to contend to the contrary.

35. Notwithstanding this, counsel claimed that his Honour could not have taken sufficiently into account the fact that the non-parole period was crushing. In my view, it is plain on the authorities that whether a sentence may be adjectively described as crushing on the offender is but one of the matters that is taken into account in determining whether it is beyond the range of sentences properly available to the sentencing judge. The concept does not seem to constitute separate sentencing error, so that the mere fact that the sentence is crushing does not of itself suggest that it is necessarily a manifestly excessive sentence. The majority of the Full Court in R v. Yates[3] explained that the concept of a crushing sentence connotes "the destruction of any reasonable expectation of useful life after release". But, as Murphy, J. pointed out in that case,[4] whether the sentence is crushing of the offender "cannot be determinative of the real issue, which is, whether the sentence imposed is appropriate to the crime having regard to all the circumstances". The relevance of the fact that the sentence may be "crushing" was referred to and put in context by the Court of Criminal Appeal in R v. Bazley[5], where their Honours relevantly said:[6]

"Whilst doubtless that definition [of 'crushed' in Yates] may be accepted as accurate, it by no means follows that every sentence must be such as to avoid such an adjectival description. The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence. See Crowley and Garner (1991) 55 A Crim R. 201 at 206 where it was said by Crockett J (with whom Southwell and Ashley JJ agreed) that: 'it does not follow that every sentence which justifiably deserves that epithet [ie 'crushing'] must on that account and on that account alone be held to be manifestly excessive. There will, in my view, be cases in which the offender has by his criminal act or acts forfeited his right to any such hope of expectation. I have not been persuaded that this is not such a case.' "

In R. v. Whyte[7], after referring to the above two decisions, Winneke, P. explained[8]:

"In such cases, the Court said that it would be inappropriate to approach the selection of a proper minimum term from the point of view that, because of the offender's age, there was a need to grant some measure of life after release."[9]

And in Holyoak[10], Allen, J. dispelled[11] any notion that it can never be appropriate to impose a minimum term upon elderly offenders which would have the effect that they may well spend the rest of their lives in custody. For completeness, I refer also to the caution given by King, C.J. in Smith[12] that ill-health "cannot be allowed to become a licence to commit crime nor can offenders generally expect to escape criminal punishment because of the condition of their health".

42. Thus, it may be accepted that the applicant's old age, her ill-health, the increased burden of incarceration because of her state of health and the fact that she may die in custody are all relevant factors in the sentencing process. But ultimately, as I have said, the question is whether in all the circumstances the head sentence and the non-parole period are unacceptably high. It has often been said by this Court that in determining whether the sentence is manifestly excessive it is not a question what sentence this Court would have imposed had it been in the position of the sentencing judge but whether it is within the range of sentences properly available to his Honour. Essentially, the task of a sentencing judge is to impose the punishment which, in all the circumstances, he or she considers to be appropriate to the offence and to the offender. In that context, regard is had to the gravity of the offence and of the offending and these matters are balanced against the mitigating and personal circumstances of the offender, taking into account the applicable sentencing principles. The mitigating factors here, such as the applicant's previous good character, her elderly years, her ill-health (both physical and mental), her isolation and the relatively greater burden of imprisonment that will have to be borne by her and the prospect that she may die in custody, are all mitigating circumstances that must be (and here were) taken into account in the sentencing disposition. But it is also necessary to bear in mind that murder is the most grave offence in the criminal calendar which recognises the principle that sanctity of human life is paramount. Moreover, the offending here was premeditated and brutal, involving an attack on a sleeping man who was, as the applicant herself said, "her friend", and being carried out essentially for material gain. The applicant here also went to some lengths to

deceive the authorities and to lay a false trail. It is also apparent, in my view, that the principles of just punishment and general deterrence are of considerable significance in the sentencing disposition in this case notwithstanding the age and health of the offender. In particular, I cannot accept that general deterrence can be materially moderated in a case such as this simply because the killer is aged 72 years and suffers from poor health. In all the circumstances, I consider that even if it could be said that the non-parole period is crushing to the applicant in the adjectival sense referred to, neither the head sentence nor the minimum period is outside the relevant range.

46. In the circumstances, I would dismiss the application.

58. The order of the Court is that the application for leave to appeal against sentence is dismissed.

[1] (1984) 36 S.A.S.R. 101 at 103.

[2] See, for example, Smith (1987) 27 A.Crim.R. 315 at 317 per King, C.J.; Eliasen (1991) 53 A.Crim.R. 391.

[3] [1985] VicRp 3; [1985] V.R. 41 at 48.

[4] At 49. His Honour was in the minority but not on this issue.

[5] (1993) 65 A.Crim.R. 154 at 158.

[7] [2004] VSCA 5.

[8] At [29], with whom Bongiorno and O'Bryan, A.JJ.A. agreed.

[9] See also R. v. Liddy (No.2) [2002] SASC 306; (2002) 84 S.A.S.R. 231 at 243-244 per Mullighan, J.

[10] (1995) 82 A.Crim.R. 502.

[11] At 507, with whom Handley, J.A. agreed.