R v Detenamo [2007] VSCA 160

Court of Appeal (Vic)|2007-08-23|Before: WARREN CJ, MAXWELL P and REDLICH JA

Criminal Law - Sentencing - Manslaughter by an unlawful and dangerous act - Sentence of 9 years' imprisonment with a non-parole period of 7 years - Manifest excess - Whether appellant sentenced on incorrect factual basis - Non-parole period - Whether non-parole period imposed adequately explained in reasons for sentence - Where mitigating factors called for lower non-parole period - Head sentence affirmed, non-parole period reduced to 6 years

1 For the reasons stated by Redlich JA I would allow the appeal and re-sentence the appellant as proposed by his Honour. In re-sentencing the appellant I consider a minimum period of six years' imprisonment to sit appropriately within the guiding principles relevant to this matter as set out in the authorities considered by Redlich JA in his reasons, namely, consistency, proportionality, rehabilitation, community interest and mitigation.

2 I agree with Redlich JA and would resentence the appellant as his Honour proposes.

3 The appellant, who was presented on one count of murder, was found guilty by a jury of manslaughter by an unlawful and dangerous act and was sentenced to 9 years' imprisonment with a non-parole period of 7 years. The circumstances surrounding the offence were summarised by the learned sentencing judge as follows:

"[the victim] was a sex worker whom you had picked up in the St Kilda area sometime after 5.45 am on Saturday 17 July 2004. She had taken you to a lane in Elwood where you had sexual intercourse. A struggle broke out between you when she asked you to hurry and, ultimately, to stop. You were not prepared to stop and she attempted to push you away using her hands and legs. She hit an area of your face where you were bleeding from an injury sustained earlier that evening. You struck her face. She began to scream. A rear window of the car was broken in the course of the struggle. You told Ms Ilardi not to scream and kept striking her in order to make her stop. You put your face near hers and bit her on the lip in a further attempt to stop her screaming. She was later found to have a laceration consistent with a bite mark almost through the full thickness of her lower lip. She continued screaming and you applied pressure to her neck for three to four seconds with both hands. When you released her neck, she started to scream again and you pressed on her neck again, this time for five to six seconds. You fractured her hyoid bone and caused extensive bruising to her neck area, as well as

haemorrhaging elsewhere which resulted from the act of strangulation.

[The victim] died as a result of being strangled by you. You pushed her, half clothed, from your car out onto the laneway. You then got out yourself and moved her body so that you would not run over it. You noticed her gasp and thought she might have been breathing. You pulled up your trousers and left the scene, having panicked at the thought of being seen there, after hearing voices behind you. Ms Ilardi was discovered by concerned local people who had heard her screams and came onto the scene as you drove away. An ambulance was called and she was found to have died."

**4 The appellant, who has appealed against the sentence, advances three grounds which are, in summary:

1. The sentence imposed below was manifestly excessive, particularly given the relevant factors in mitigation;

2. The learned sentencing judge erred in imposing a non-parole period which was disproportionately high, having regard to the head sentence; and

3. The sentencing judge erred in sentencing the appellant on a view of the facts which was not open on the evidence.**

5 The appellant contends that a number of passages in the reasons for sentence reveal that her Honour found that the appellant engaged in non-consensual sex with the deceased after she had told him to stop. The appellant argues that this view of the facts that was not open on the evidence. The impugned passages from her Honour's sentencing remarks read as follows:

"A struggle broke out between you when she asked you to hurry and, ultimately, to stop. You were not prepared to stop and she attempted to push you away using her hands and legs."

"...[y]ou used sufficient force to break [the victim's] hyoid bone, when reacting to her attempt to bring what started out as consensual intercourse to an end."

"You resisted [the victim's] requests that you cease having intercourse with her."

**6 This last remark was made after her Honour stated "I do not consider your offence as one properly described as a less serious example of the crime of manslaughter." On the plea, the trial judge suggested that the deceased had struck out at the appellant because he "wasn't going to stop" despite her request for him to do so. Counsel for the appellant took issue with this suggestion, arguing that the effect of the appellant's evidence was that the deceased asked him to stop and began assaulting him at the same time. Before this Court, the appellant's Counsel reiterated this submission, and referred to the appellant's evidence at the trial as indicating that he did stop having intercourse with the deceased when she asked him to.

7 In my view, her Honour's characterisation of the facts in her sentencing remarks is supported by the evidence given at the trial. It was not in dispute that, during intercourse with the appellant, the deceased expressed concern at how long it was taking and urged the appellant a number of times to 'hurry up.' The appellant responded that he wanted to take his time. Finally, the deceased insisted that he stop. In his evidence-in-chief, the appellant described what occurred as follows:**

"I was still taking my time, she was still telling me to hurry up, get on with it, and then she said, 'OK, OK, stop, stop, get off me' and I heard a sort of yelling sound and pushing my chest, she's telling me to get off her. I said, 'what do you mean, stop?', she said, 'that's enough stop, just get off me.'"

8 In cross-examination, the following exchange took place between the prosecutor and the accused:

"COUNSEL: You weren't going to stop until you'd finished?

ACCUSED: I was going to stop and when she said 'stop, stop, get off me' I was going to stop.

ACCUSED: I did stop, I was off her, she already pushed me off."

**9 Before this Court it was submitted that this evidence did not leave it open to the learned sentencing judge to find that the appellant persisted in having non-consensual intercourse with the deceased. In my view, this submission mistakenly focuses on the narrow question of whether the appellant's sexual penetration of the deceased continued after she had asked him to stop.

10 On the appellant's evidence, after the deceased had asked him to stop, she pushed and kicked at him and struck him in the face, at which point he struck her back. The deceased began screaming and scratching at him. The appellant struck her again and bit her lip. Throughout this physical exchange he remained on top of her. In cross-examination, the appellant admitted that, as a reaction to the deceased hitting him and continuing to scream, he punched the deceased in the face three times:**

COUNSEL: "By the time you'd punched her three times, Mr Detenamo, you knew very well that she was struggling to get out from underneath you and get out of the car?"

11 Her Honour's characterisation of the facts was open, whether or not sexual penetration persisted after the deceased's request for it to cease. Assuming that penetration ceased virtually at the same time as the deceased asked him to stop and tried to push him away, her Honour would still have been entitled to conclude that the appellant "resisted" the deceased's attempt to end intercourse and that he "wasn't prepared to stop." This view of the facts is open in light of the whole of the circumstances, and particularly in light of the fact that the accused remained on top of the deceased throughout the physical struggle which took place between them and culminated in his strangulation of the deceased.**

Ground 1 - Manifest excess as to head sentence

**12 Counsel for the appellant referred to the Crown's position, advanced on the plea, that this case was in the 'middle to upper' part of the range of seriousness for manslaughter offences. He then referred to sentencing statistics which indicate that the appellant's sentence of 9 years is a very high one for manslaughter.[1] Thus, he submitted, the severity of the sentence imposed on the appellant went beyond the level which even the Crown considered was appropriate. This submission cannot be sustained.

13 A very wide variety of conduct, varying greatly in degrees of culpability, is embraced within the offence of manslaughter.[2] Clearly, the appellant's offence was a most serious example of manslaughter by an unlawful and dangerous act. Although comparisons with sentences imposed in other cases can only ever be of limited assistance, in a case similar to this one, which also involved manslaughter by strangulation of the victim, this Court, in re-sentencing, imposed precisely the same sentence as that imposed on the appellant.[3] Moreover, sentencing statistics, albeit very useful, do not mark out the 'range' that is referred to when it is contended that a sentence is 'outside the range' for a particular offence.[4] Rather, the 'range' referred to is the range of sentences which are available in the proper exercise of the sentencing discretion[5] having regard to all of the circumstances of the offence.

14 Counsel for the appellant submitted that the manifest excessiveness of the sentence imposed on the appellant becomes apparent when regard is had to the mitigating factors surrounding his offending. Counsel referred to the appellant's remorse, his previous good character, good prospects for rehabilitation, his offer to plead guilty to manslaughter, and to the fact that the offence was not premeditated, but committed in a moment of panic. Although the learned sentencing judge referred to all of these matters, it was submitted on the appellant's behalf that, given the sentence she imposed, her Honour must have given them insufficient weight. I do not accept that contention.

15 Mitigating circumstances must, of course, be balanced against the aggravating features of the appellant's conduct. Two of the aggravating circumstances mentioned in the sentencing remarks are, in my view, particularly powerful. First, after strangling the deceased, the appellant simply pushed her out of his car. At that time the deceased was distressed and gasping for breath. The appellant made no effort to assist her or to call for help. The appellant testified that when he left the deceased he "thought she would be alright", and he drove away in panic when he heard voices nearby.

16 Secondly, the deceased was in an overwhelmingly vulnerable position with respect to the appellant.[6] As the learned sentencing judge noted, the appellant was a professional weightlifter who weighed around 85 kilograms at the time of the incident. The deceased was a relatively small woman, who weighed 62 kilograms. Despite her struggle with him, she was clearly in no position to do the appellant any significant harm or to defend herself against his assault.

17 In my view, given all of the relevant circumstances and notwithstanding significant mitigating factors personal to the appellant, the sentence imposed on the appellant is not so high as to indicate error in the exercise of the sentencing discretion. Accordingly, this ground fails.**

Ground 1 - manifest excess of non-parole period

Ground 2 - disproportionately high non-parole period

**18 The appellant's prospects for rehabilitation and other factors in mitigation of sentence assumed prominence in the submissions made on his behalf on the plea.

19 The appellant, who is Nauruan, was 26 years old at the time of sentence. He had represented his country in weightlifting and had competed at the 1996 Atlanta Olympic Games. He had trained continuously since that time and had worked when convenient as a courier for the Nauruan Olympic Committee. In late 2003 he obtained a scholarship to train and teach weightlifting at the Oceania Weightlifting Institute in Fiji. The appellant was returning to Fiji from competition in Malta when he stopped over in Melbourne in July 2004 to stay with his aunt and uncle who reside in Middle Park. It was at this time that he committed the offence, the subject of the present appeal. A reference from the President of the Oceanic Weightlifting Federation, upon which the sentencing judge appears to have relied, shows the appellant to have been a person of good character with athletic ability and who was described as responsible, humble and honest.

20 The evidence on the plea showed that the appellant came from a large and supportive family, none of whom had come to the attention of police. The appellant supported his family whilst he was living in Fiji. The appellant has twin children, their mother having died in January 2005 at the age of 22 as a result of a motor vehicle accident. At this time the appellant was in custody in Melbourne. The twins presently live with the appellant's mother.

21 In May 2003, the appellant lost his left eye as a result of an injury. The learned sentencing judge accepted that this loss had a strong psychological impact upon the appellant, causing him to believe that others ridiculed him. The learned sentencing judge proceeded upon the basis that the appellant, whilst acknowledging that his response was excessive, had been trying to protect his head when the deceased hit him during the course of their altercation. The learned sentencing judge also accepted that at the time of this offence the appellant was substantially affected by alcohol and, shortly prior to the offence, had been drinking with some cousins for some hours in a park in the city of Melbourne. The appellant left for Fiji on a prearranged flight on the afternoon of the same day as the offence was committed.

22 Evidence was given by the appellant's uncle, the head of his family, who was a former vice-president of the Nauruan government and the president of the Nauruan Olympic Committee and Commonwealth Games Association. The learned sentencing judge accepted his evidence that upon learning of the deceased's death he contacted the appellant in Fiji and asked him to return to Nauru to meet him. Upon the appellant's return he advised the appellant of the deceased's death. The appellant broke down and cried. The appellant said he would return to Melbourne to face the consequences of his actions. He immediately returned to Melbourne and was arrested and charged with the deceased's murder. Reference is made in the reasons for sentence to the fact that the appellant accepted responsibility for his actions and had offered to plead guilty to manslaughter prior to the commencement of his trial. The learned sentencing judge said that she would take this plea into account in mitigation of sentence. Her Honour also said that she would take into account that imprisonment would be more burdensome for the appellant because he would be required to serve it in a foreign country where his immediate family would be unable to visit him. Her Honour stated that she had taken into account the appellant's good character, his remorse and his good prospects of rehabilitation. Her Honour accepted that the appellant's attack upon the deceased was a spontaneous one and occurred in the course of his endeavours to stop the deceased from screaming. Her Honour found that this conduct and his hasty departure was explicable in terms of "the potential consequences of detection in a compromising situation" in which the appellant had placed himself.

23 Based upon these circumstances, counsel for the appellant submitted on the plea that the sentencing judge should impose a shorter than usual non-parole period. Counsel for the Crown submitted that there should be the 'normal disparity' between the head sentence and the non-parole period. Although he acknowledged that the appellant was previously of good character and was unlikely to re-offend, counsel for the Crown submitted that general deterrence should be the dominant sentencing consideration.

24 The non-parole period was explained in these terms in R v Tran and Tran:**

"The non-parole period imposed demarcated the minimum period that the appellant serve in custody and the longest possible term of his parole supervision. The Sentencing Act 1991 requires that the non-parole period be at least six months less than the terms of the head sentence. Beyond that legislative direction there is no requirement at law which calls for a set ratio between the head sentence and the non-parole period. The Australian Law Reform Commission recently reported that 'case law recognises that the non-parole period is generally set at 60 to 66.6% of the head sentence with the non-parole period increasing to 75% in the worst category of case'. This accords with the observations of Callaway JA in R v Bolton & Barker that "[I]n the majority [of cases] the proportion is between two-thirds and three-quarters but both shorter and longer periods are found."

"The minimum term is recognised to be of benefit to the offender providing the offender with a basis for a hope of earlier release and in turn an incentive for rehabilitation. When a minimum term is fixed, the prisoner's punishment is mitigated in favour of his rehabilitation through conditional freedom, when appropriate, but only after the prisoner has served the minimum term that justice requires having regard to the circumstances of the case. As the benefit of the minimum term is for the purpose of the offender's rehabilitation, the sentencing judge's assessment of the offender's prospects of rehabilitation will have a significant bearing on the minimum term to be fixed. In fixing that term the interests of the community, which the imprisonment of offenders is designed to serve, must be taken into account."[7]

**25 Evidently, her Honour rejected defence counsel's submission that there should be a shorter than usual non-parole period. However, her Honour's reasons for doing so, and for imposing a minimum period that represents a slightly greater proportion of the head sentence than the usual ratio of between two thirds and three quarters, are apparent neither from her sentencing remarks nor from her discussion with counsel on the plea.

26 A non-parole period which exceeds three-quarters of the length of the head sentence is not necessarily indicative of error as there is no fixed standard for the non-parole period.[8] However, where a non-parole period is imposed which is unusual by comparison with other cases and having regard to the facts of the instant case and the course of the plea, reasons should generally be given,[9] and an absence of reference to the sort of factors mentioned by Callaway JA in R v VZ invites appellate scrutiny and may reflect error.[10] The following remarks of Batt JA in R v VZ are apposite:**

"No mechanistic or formulaic approach is, in my view, to be taken to the fixing or reviewing of a non-parole period. But, in the face of his Honour's acceptance of the strong evidence that the applicant was unlikely to re-offend, the length of the non-parole period fixed here ... invites inquiry as to the reason or reasons for arriving at the period fixed. Unfortunately, the sentencing judge vouchsafed none. He was not bound to do so, and in many cases it will be obvious why a period outside the usual range, broadly defined, has been selected. But here, in the absence of reasons and in the face of the applicant's rehabilitation, achieved and prospective, no countervailing reason suggests itself to me."[11]

**27 It may be, as was suggested by senior counsel for the Crown, that the relatively high non-parole period fixed by her Honour reflected the need to punish the appellant. As a matter of principle, it is correct to say that there is a punitive aspect to the non-parole period.[12] But the factors that weigh heavily in fixing a head sentence will generally be differently weighted in the context of a non-parole period.[13] As a matter of principle, the determination of a non-parole period requires discrete consideration of the factors which bear upon whether the confinement of an offender should be mitigated in favour of his or her rehabilitation.[14] Maxwell P has recently emphasised that the rehabilitation of offenders is very much a matter in which the public has a strong interest.[15] The sentencing judge recognised that there were powerful reasons for thinking that the appellant had sound prospects for rehabilitation. Those factors should have been, as they almost always are, a significant consideration.[16] Such prospects may justify a shorter than usual non-parole period.[17] The mitigating circumstances, some of which were unusual, provided a sound basis for the submission advanced on the appellant's behalf on the plea that the non-parole period should be of a relatively short duration. After account is taken of the aggravating features of the appellant's conduct, there remained persuasive reasons why those discrete factors in mitigation, in combination, would have justified the imposition of a shorter than usual non-parole period. Specific deterrence did not appear to be a relevant sentencing consideration. The non-parole period which was imposed, unaccompanied by explanation, must be assessed in that context.

28 Given the acceptance by the sentencing judge of the appellant's prospects for rehabilitation, his offered plea, his contrition and immediate voluntary return to the jurisdiction to be dealt with, the circumstances of his imprisonment, combined with the absence of reasons why those discrete considerations, personal to the appellant,[18] should not have lead to a lower minimum term than would otherwise be imposed, I am driven to conclude that the sentencing discretion miscarried with respect to the determination of the non-parole period. These were compelling circumstances which called for a lower non-parole period. I am satisfied that the appellant has made out ground 1 in relation to the minimum sentence and ground 2. The sentencing discretion being re-opened I propose the following sentence.**

29 I would impose the same head sentence as that imposed on the appellant by the sentencing judge. I would fix a minimum period of six years before the appellant is eligible for parole.

[1] Counsel referred to a Sentencing Snapshot published by the Sentencing Advisory Council in September 2005, which shows that between 1998 and 2004, terms of imprisonment imposed for manslaughter in Victoria ranged from 3 to 10 years in length.

[2] See R v Winter [2006] VSCA 144, [57] (Maxwell ACJ). See also R v Bangard [2005] VSCA 313; (2005) 13 VR 146, [26] (Eames JA).

[4] Statistics may provide some helpful guidance as to what the range might be. See the discussion of this issue in R v Bangard [2005] VSCA 313; (2005) 13 VR 146, [11]-[12] (Buchanan JA), [20]-[35] (Eames JA), [38]-[40] (Nettle JA).

[5] R v Clarke [2006] VSCA 43, [150] (Buchanan JA).

[6] See R v Bangard [2005] VSCA 313; (2005) 13 VR 146, [11] (Buchanan JA).

[7] [2006] VSCA 222, [27]-[28] (footnotes omitted) (Redlich JA with whom Warren CJ and Nettle JA agreed).

[8] See R v Bolton & Barker [1998] 1 VR 692, 699 (Callaway JA).

[9] R v Krasnov and Shlakt (1995) 82 A Crim R 92, 99; R v Josefski [2005] VSCA 265; (2005) 13 VR 85, [43] (Callaway JA); DPP v Taylor [2005] VSCA 222 (Nettle JA).

[10] DPP v Taylor, [22] (Nettle JA); R v VZ [1998] VSCA 32; (1998) 7 VR 693, [13] (Callaway JA); R v Josefski [2005] VSCA 265; (2005) 13 VR 85, [29] (Maxwell P), [43] (Callaway JA).

[12] See R v Chan (1994) 76 A Crim R 252, 255; R v Josefski [2005] VSCA 265; (2005) 13 VR 85, 94 (Callaway JA); R v Brazel [2005] VSCA 56, [24].

[13] R v Nagul [2007] VSCA 8, [47] (Ashley JA).

[14] R v Mulvale (Unreported, Court of Appeal, 20 February 1996), 11 (Winneke P).

[15] See R v Tokova [2006] VSCA 156, [20]-[21]; R v Merrett [2007] VSCA 1, [49].

[16] R v Josefski [2005] VSCA 265; (2005) 13 VR 85, 94 (Callaway JA); R v VZ [1998] VSCA 32; [1998] 7 VR 693, 698, [15] (Callaway JA).

[17] R v Bulfin [1998] 4 VR 114, 130.

[18] Specific deterrence was not a relevant consideration in view of the sentencing judge's findings.

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