R v Giles [1999] VSCA 208

Court of Appeal (Vic)|1999-11-23|Before: PHILLIPS, C.J., BATT and CHERNOV, JJ.A.

The applicant then took a pair of scissors from the centre console of the car. The scissors were eight to ten inches long and the applicant was later able to describe their length, shape and colour to the police with complete accuracy, notwithstanding his use of marijuana and consumption of alcohol. With the scissors he stabbed the deceased to the abdomen 40 times. There were eight major stab wounds, six of which penetrated the abdomen wall and two of which pierced the liver. Then, when the deceased was (as his Honour found) dead, the applicant mutilated her body. With the scissors, he made V-shaped incisions beneath each of her nipples, made lacerations to the vagina and to the pubic area above it and made five lacerations to the anus. He cut off some pubic hair with the scissors and, finally, forcibly inserted the scissors into the anus of the deceased, where they remained until removed at the scene by Professor Cordner. After that the applicant used the deceased's tracksuit trousers to wash himself down at the nearby river. He then took from the floor of the vehicle some items of property which he thought had fallen from his pocket during his attack on the deceased. They were, or included, the deceased's Commonwealth Bank Keycard, another business card with her name on it and her car keys. He then set off to walk home along the Bulla-Diggers Rest Road. The barking of a dog or dogs at his arrival home at about three o'clock on the Saturday morning woke his father, who let him in, told him to go to bed and said that he should pack his belongings and leave the house in the morning.

The applicant was educated to Year 11. He is of low average intelligence, with an IQ of 88. At the time of the offences he was a longstanding abuser of cannabis and alcohol, which disrupted his work performance and impaired his relationship with his father and stepmother. He had low self-esteem and low impulse control. Counsel before us were in agreement that he had a history of giving way to anger. He seems also to have been subject to episodes of anxiety. But he was not suffering from any psychiatric illness at the time of the offences. The psychiatrist, Dr van Ammers, from his reading of the papers offered the hypothesis that the crimes occurred in the context of disinhibition while under the influence of cannabis and when the applicant's anger was sufficiently aroused. It is not clear that his Honour rejected this hypothesis, although he did conclude after examining all the material that no "real" explanation had been put forward for the applicant's "terrible conduct".

His Honour listed six factors in the applicant's favour which caused him not to impose "an even more substantial sentence" than he imposed. First, the applicant had no prior convictions of any sort. Secondly, he was young. Thirdly, the crimes were not planned or premeditated. Fourthly (and really as a particular of that), he did not take any weapon to the scene. (For this purpose his Honour implicitly treated the drawstring as not being a weapon.) Fifthly "and significantly", the applicant had pleaded guilty to the crimes at the earliest opportunity. Sixthly, he had remorse, as indicated by his conduct and plea of guilty, and some potential for rehabilitation, as indicated by his earlier detoxification attendance at the Western Hospital. It is to be noted, however, that, as with certain other matters, the applicant did not follow this up. Further, his remorse would not seem to have been immediate, for he was, as the judge pointed out during the plea, content to walk away, no doubt expelled from the house, without reporting the offences, and initially he denied having seen the deceased on the evening in question.

"But", said his Honour after listing those six factors, "these were wicked crimes." After expressing the view that the fact that the victim was unconscious during the infliction of the rapes upon her could not constitute any diminution of the objective gravity of those offences - a view which was not challenged in this application - his Honour summarised the crimes and said that there was brutality before the victim's death, followed by gross violations and mutilation after it. He stated that the elements of condemnation and punishment must be significant in the sentence he imposed, while taking into account the prospect of rehabilitation and the principle of totality. He then imposed the sentences summarised earlier.

I turn now to consider the grounds on which it is sought to appeal and the arguments adduced in respect of them. It is convenient to leave until last the first ground, which asserts manifest excessiveness in the sentences. The other grounds allege the giving of either insufficient weight, or too much weight, to certain factors or sentencing purposes. With regard to ground 2, it cannot be doubted that his Honour gave weight to each of the factors mentioned in the ground, for they were amongst the factors listed by his Honour as leading him to impose a less substantial sentence than he would otherwise have imposed. The last of the factors the subject of ground 2, rehabilitation, was mentioned again by his Honour immediately before he pronounced sentence. Grounds going only to the weight given to factors or sentencing purposes are difficult indeed to make out having regard to the discretionary character of a sentence, and ordinarily will fall to be treated as particulars of an allegation of manifest excessiveness or, as relevant, manifest inadequacy. That is the case here and it must in fairness be said that counsel for the applicant began his address by inviting the Court to treat grounds 2 to 4 in that way.

The same remarks are applicable to ground 3, if one puts aside for the moment the reference to the role of intoxication in the commission of the offences. For his Honour had had explained to him by the applicant's counsel and from the documents which the latter tendered the circumstances leading up to the commission of the offences and the applicant's psychological, social and family difficulties, if not as an explanation for his conduct, at any rate as background to it and a possible explanation for it. Counsel had, in particular, submitted that the applicant's history up to the time of the offences revealed him to be on a "downward spiral". He put it that the offence (treating the three as one) was "rooted in misery". He submitted that it would be incomplete to consider only that an outburst of anger on the night in question led to the offences, for there was "a much broader screen [showing] that he is thoroughly miserable". In immediate response to the last-mentioned submission his Honour said that he understood that and had always been of the view that crimes had to be looked at "in a holistic context ... and I do so". It cannot be doubted that, in arriving at the sentences to be imposed and when giving his sentencing remarks, this very experienced judge followed the course which he said he always did. Indeed, he referred in his sentencing remarks to most of the factors which counsel had drawn his attention to as evidencing the downward spiral which he contended his client was on and the misery from which he contended his client was suffering. His Honour referred, too, to the exhibits upon which counsel based himself. So, again, this ground falls to be treated as a particular of ground 1. As regards intoxication, however, whether from alcohol or cannabis, counsel very properly advanced no written or oral argument to suggest that it was a mitigating factor.

Finally, for like reasons, ground 4, alleging that his Honour gave too much weight to punishment, falls to be treated as a particular of ground 1. His Honour of course gave, as he said, considerable weight to that sentencing purpose.

That leaves for consideration the contention that the individual sentences and the overall sentence were manifestly excessive, that is, outside the range of sentences properly available in the circumstances. Counsel's primary challenge on this ground was to the sentence of 21 years' imprisonment for murder. The sentences imposed for the rapes were, rightly in my view, not challenged and it was accepted, correctly, that partial cumulation of the concurrent rape terms upon the murder term was appropriate. But the period directed to be cumulated, five years, was said, by way of secondary challenge, to be manifestly excessive. The conclusion contended for was that a total effective sentence of 26 years was, for one or other or both of the foregoing reasons, manifestly excessive. Finally, and separately, the non-parole period of 21 years was challenged as manifestly excessive. Although I shall not mention them all, I have taken account of each of the arguments of counsel and the cases cited.

His Honour rightly described these offences as "wicked". The photographs of the body of the deceased in her car and in the mortuary, and of the interior of the car after the applicant had had his wicked way, are eloquent testimony to the savage ferocity and extreme depravity of his conduct. Even though the offences were not planned, they were deliberate. Murder is a crime of the utmost gravity and this was a very grave example of it, in the manner of its commission - by overcoming resistance by force, followed by strangulation and stabbing; in the person of the victim - a young friend; and in the subsequent revolting mutilation of the body. The rapes, too, were very serious instances of that serious crime: they were committed upon a victim who had been subdued by great violence and was unconscious and in the very process of dying.

Although his Honour did not in terms mention general or specific deterrence, it cannot be doubted that with all his experience the judge, in arriving at the sentences he imposed, had in mind those sentencing purposes as well as the purposes of condemnation (that is, denunciation), punishment and rehabilitation which he did in terms mention. Counsel for the applicant in fact accepted that this was so. Counsel did, however, contend by reference to ground 3 that deterrence, both general and specific, had been over-valued by his Honour and that, as he put it, given the psychological state of the applicant, found (as he claimed) by the sentencing judge, some sensible moderation of general deterrence was required, for which he cited R. v. Kasualitis [1998] 4 V.R.224 at 232; R. v. Lewis [1998] VSCA 54 and R. v. Tsiaras [1996] 1 V.R.398. I am afraid that I regard this contention as hopeless. There was no appropriate finding by the sentencing judge and, more importantly, no evidential basis for the submission. As explained in a number of recent cases, amongst which Lewis and R. v. Yaldiz [1998] 2 V.R.376 at 380-381 and 382-383 are prominent, what is required is a serious psychiatric illness falling short of legal insanity, or mental disorder or severe intellectual handicap. None of those conditions existed here and the psychiatric report tendered before the judge did not suggest otherwise. His Honour clearly did not accept all the evidence and report of the psychologist. At most his evidence amounted to the applicant's being depressed and having an IQ of 88. It scarcely needs to be said that those facts are insufficient to call into play the principle invoked.

The facts of the offences are such that it cannot be doubted that they required the court's denunciation and the imposition of condign punishment. In that regard I have already referred to the brutality of the offences. As to the gross violation of the corpse by mutilation, his Honour's treating the mutilation as an aggravating circumstance has already been approved by this Court in Director of Public Prosecutions v. England [1999] VSCA 95 at [26]. I do not accept the submission that his Honour brought it into account twice. He took it into account, in my view, only in arriving at the sentence on count 1. Nor, I would add for completeness, did he take the rapes into account as aggravating the offence of murder.

Whilst the early plea of guilty is significant in the saving of costs and inconvenience and in the saving of family members from the ordeal of a committal hearing and a trial, the Crown case was overwhelming. It is true, too, that the applicant is a young first offender with some prospect of rehabilitation. But, having regard to the extreme gravity of these offences, this was a case where those four considerations could carry but little weight. The present application is not to be decided by the aggregation of statements about "discounts" normally applicable for early pleas of guilty culled from various decisions. Nor can the general propositions referred to in _R. v. Mil_ls [1998] 4 V.R.235 at 241 be applied without qualification to cases of a very different nature, as counsel fairly accepted. Although I by no means suggest that the present facts are comparable, the decision of this Court in R. v. Beckett [1998] VSCA 148, upholding the imposition, upon a man of 24 who had several prior convictions, of life sentences with a minimum term of 35 years in the face of pleas of guilty and the fullest imaginable co-operation with police in furnishing evidence probably not otherwise available against a co-offender, shows how small the discount for those factors may of necessity have to be in the light of the extreme gravity of the offending. See also R. v. Hall (1994) 76 A.Crim.R.454 at 469-470. It behoves the courts, by the imposition or upholding of the imposition of condign punishment, to set their face against the erosion of the sanctity and inherent worth of human life that offences of the present kind bespeak. The case of England (supra), a Director's appeal where the offender was aged 19, furnishes another recent example of the approach to be taken in the case of a very serious instance of murder.

Whilst I recognise the force in ordinary circumstances of the matters relied upon under ground 2, I am of the opinion, for the reasons already given, that none of the challenges based on alleged manifest excessiveness is made out.

For the foregoing reasons, I would dismiss this application.

I agree with the conclusions of Batt, J.A. and I would subscribe to his Honour's reasons for reaching them. I desire to add the following.

This case is but one of those which have come before the courts where certain of the circumstances are alarmingly similar. They are cases of young men committing, apparently in a state of rage, appalling crimes of violence. These young men have no, or no significant, prior convictions, and in some cases, like the present, no diagnosable mental disorder; but these young men are heavy marijuana users. To the best of my knowledge, no scientific study has been undertaken of these cases, and in my opinion the time has come when such a study ought to be undertaken. Hopefully it would serve to throw some light on these extremely troubling matters.

I agree that, for the reasons given by Batt, J.A., the application should be refused.

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

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