R v GREEN

COUNSEL : Applicant: T Molomby Respondent: RD Ellis SOLICITORS : Applicant: TA Murphy Respondent: CK Smith CATCHWORDS : Criminal Law - Sentencing - manslaughter - whether sentence imposed exceeded range of discretion of sentencing judge. R v Alexander (1994) 78 A Crim R 141 R v Morabito (1992) 62 A Crim R 82 CASES CITED: R v Panozzo, Court of Criminal Appeal 25 March 1993 unreported R v Pavia, Court of Criminal Appeal 9 December 1994 unreported R v Isaacs (1997) 90 A Crim R 587 Buckley & Anor v Bennell Design & Constructions Pty Limited & Anor [1977] 1 NSWLR 110 DECISION : Leave to appeal allowed; Appeal dismissed.

Tuesday, 18 May 1999 REGINA v Malcolm Thomas GREEN JUDGMENT

1 BARR J: The applicant, Malcolm Thomas Green, seeks leave to appeal against a sentence imposed on him after his conviction by a jury of manslaughter. 2 The facts may be summarised as follows. On 19 May 1993 the applicant was a 22 year old single man. He had had an unhappy childhood. His father used to beat his mother and sexually assaulted his sisters. He witnessed the beatings of his mother and was told by his mother about his father's conduct towards his sisters. When he was 10 years old the matters came to a head and were reported to the police. The applicant's father left or was expelled from the family. As a result the applicant hated his father. 3 Between 1985 and 1992 the applicant was convicted of twelve offences, principally concerning theft and the cultivation and use of illegal drugs. He served three short prison sentences. Two of his convictions were for assault. 4 The deceased was a 36 year old single man who lived with his mother. He and the applicant had been friends for about six years at the time of the events giving rise to the charge. Their relationship was a close but not a sexual one, and the applicant came to rely on the deceased for friendship and regarded him as a substitute for the father he had lost early in his life. He trusted him and valued his advice. 5 On the night of the killing, 19 May 1993, the deceased's mother was absent from Mudgee and the deceased invited the applicant to his house for dinner. Both men drank a good deal of alcohol. After dinner they watched television and the deceased asked the applicant to stay the night. The deceased told the applicant that he could sleep in his, the deceased's, bedroom and that the deceased would use his mother's room. 6 In his account to the police, the applicant said that he went to bed and that after a while the deceased entered the room and slid into the bed beside him, naked, and started touching him. The applicant pushed him away and protested. The deceased persisted, however, grabbing the applicant with both arms. The struggle intensified as the deceased tried to touch the applicant's private parts and the applicant began hitting him. 7 The applicant told the police that he continued to hit the deceased whilst he was on the bed, that the deceased rolled off the bed and that he noticed some poultry shears lying on the bedroom floor. He grabbed the shears and stabbed the deceased in the back. 8 The objective evidence of injury to the body of the deceased shows that the attack could only be described as ferocious. There were ten stab wounds to the back of the chest. On the left side, one of them passed through the left shoulder blade. Another passed through the seventh rib on the left side and from there into lung tissue, having a minimum depth of four inches. On the right side there were six stab wounds, three of which entered the right chest cavity. Two passed between the fourth and fifth ribs on the right and all three passed into the tissue of the right lung. 9 Dr Duflou, a forensic pathologist, described an additional sixteen injuries on the surface of the body which he said were caused by a blunt object. They included a transverse fracture through both anterior cranial fossae. The fracture extended from one side of the head to the other and Dr Duflou described it as almost a hinge fracture of the skull. The nose and cheekbones were fractured. The second and third ribs on the left and the second rib on the right were fractured. There was bruising and haemorrhaging of the brain, including deep bleeding. 10 Dr Duflou first expressed the opinion that a heavy weapon would have been required to inflict the blunt injuries, but later conceded that it was possible that they could have been caused by a fist. That is what his Honour found. 11 About two hours later, having tried to clean up some of the blood, the applicant telephoned his brother-in-law and asked him to come and get him. When his brother-in-law complied, he asked him to drive him to the police station. The police station was unattended, so the applicant telephoned the Dubbo police station. A message was sent out and a patrolling police officer attended. The applicant told the officer that he had killed the deceased because, as he said, "He tried to root me". He said that he knew he had done the wrong thing but that the deceased had done worse to him. He said that he had just snapped. 12 Later on he was formally interviewed and confirmed hitting the deceased whilst he was on the bed and stabbing him whilst he was on the floor. When he was asked whether he wanted to say anything else about the matter, he said that he tried to take it (which must, I think, mean the deceased's approach) as a funny joke, and continued - but in relation to what my father had done to four of my sisters, it forced me to open more than I could bear. It hasn't changed the fact to what happened to my family, but I couldn't stop myself or control myself what went through me. 13 The applicant pleaded not guilty of murder but guilty of manslaughter. The Crown proceeded with the charge of murder and manslaughter was left to the jury on two possible bases, namely provocation and unlawful and dangerous act. Because of the way the trial was conducted, only the former basis was really available and his Honour expressed himself satisfied in due course that provocation was the basis of the verdict. 14 This was the applicant's second trial. At his first trial his plea and the Crown's attitude had been the same and he had been convicted of murder. In due course that verdict was set aside by the High Court of Australia, which ordered the new trial. 15 The applicant was held in custody, bail refused, between the time of his arrest on 20 May 1993 and 22 December 1997, shortly after the order for the new trial. After that he was allowed bail until his conviction, a period of nine months eleven days. 16 His Honour imposed a sentence of penal servitude of ten years and six months, comprising a minimum term of eight years commencing on 20 May 1993, and an additional term of two years six months, expiring on 19 November 2003. 17 The first ground of appeal related to the time which elapsed between the deceased's provocative act and the applicant's unlawful response. Counsel referred to a passage from the judgment of Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141 at 144 in which his Honour observed that a survey of cases and other material showed, for sentencing purposes, that three particular matters had been taken into account in provocation manslaughter cases. They were the degree of provocation offered or alternatively the extent of the loss of self control suffered, the time between the provocation and the loss of self control and the degree of violence or aggression displayed by the prisoner. 18 It was submitted that his Honour had failed altogether to take into account the second of those matters, a consideration of the time which elapsed between the provocative act and the unlawful response. 19 In fact his Honour referred in terms to the passage to which I have referred from the judgment of Hunt CJ at CL and immediately thereafter dealt with the first and the third matters mentioned in it. Then his Honour said this - … there was almost a complete loss of self control, probably, as submitted by (defence counsel), over a short period of time. 20 It was submitted that his Honour was there referring only to the duration of the attack by the applicant on the deceased and not to the time which elapsed before the commencement of the attack. 21 Even if that were so, I think that it would make no difference. His Honour's summary of the events, in support of which the evidence was all one way, showed that his Honour dealt with the matter upon a finding that the applicant's response followed immediately upon the deceased's approach. 22 There is no substance in this ground. 23 It was next submitted that general deterrence had a limited role to play in sentencing in cases like the present, where death resulted from an immediate reaction to unexpected provocation. It was also submitted that his Honour had overlooked certain subjective factors and some criticism was made of an observation his Honour made about the lack of assistance, in determining a proper sentence, available from a consideration of sentences imposed in other cases of manslaughter. However, I think that these grounds are really subsumed in the principal submission made on behalf of the applicant, namely that by reference to all the objective and subjective features and to whatever assistance can be obtained from a consideration of other sentences in manslaughter cases, the very length of the sentence imposed is too great. 24 Determining a proper sentence for manslaughter is notoriously difficult. Some assistance may be received from a consideration of the facts of other cases and the sentences imposed therein, but those cases do not determine an inflexible range of available sentences or reduce the maximum penalty applicable to a case which falls into the worst category of cases, namely 25 years' penal servitude. 25 Since the applicant spent a little over nine months of the minimum term on bail, the sentence may be regarded for practical purposes as being of nine years nine months, comprising a minimum term of seven years three months and an additional term of two years six months. 26 Counsel referred to a number of decided cases, including those contained in the schedules to the judgment of Hunt CJ at CL in R v Alexander in order to show that those in which sentences were greater or close to the one appealed from were imposed in much worse cases overall, so as to support a submission that the sentence was outside the available range. 27 In R v Morabito (1992) 62 A Crim R 82, where there was a sentence of ten years and six months, there was only a small loss of self control and no immediate precipitating event. The appellant carried out a great deal of planning and deception, motivated partly by a desire to continue with an extra-marital affair, and incited her lover to kill her husband. On the other hand, there were features favouring a lenient sentence which are not present in this case, namely that the deceased's provocation comprised an accumulation of violent and degrading conduct over many years, including the use of force against family members, degrading sexual practices and sexual inference with the children. The case report does not suggest that the appellant had any criminal history. 28 In R v Panozzo, Court of Criminal Appeal 25 March 1993 unreported, there was a sentence of nine years. There was a plea of not guilty but the only issue raised at the trial was provocation. The killing was a particularly violent one, done in the presence of two young children. The prisoner had a predisposition towards violence. 29 In R v Pavia, Court of Criminal Appeal 9 December 1994 unreported, a sentence of twelve years was reduced on appeal to ten years. The appellant killed his homosexual lover in a violent attack, which apparently grew out of a series of arguments and fights that they had had. The appellant was a man of prior good character. 30 In R v Isaacs (1997) 90 A Crim R 587 there was an effective sentence of ten years two months. The deceased was a violent man who had previously threatened the appellant with a rifle. The atmosphere between them and other occupants of the premises where they lived was tense. There was no immediate trigger for the appellant's unlawful act and he went and woke the deceased whilst he was asleep and beat him to death with a dowel. The appellant was a man of prior good character. 31 There were several other cases to which the attention of the Court was referred as well, but I do not think it necessary to refer to them individually. All or virtually all of them involved sentences less, some far less, than the one appealed against. 32 The comparison of the sentences in each of the cases to which I have referred and the similarities and dissimilarities in the facts which gave rise to those sentences illustrate the difficulties faced not only by a trial judge in determining a proper sentence but by an appellant who seeks by reference to such cases to demonstrate that the sentence imposed was outside the available range of sentencing discretion. To my mind, the principal features of the present case were that the provocation offered, though unwelcome and uninvited, was not of the most serious kind, that the applicant's response was of a remarkably violent and frenzied kind, that the applicant was a young man who already had a fairly bad criminal record, that he immediately owned up to the killing and made full confession to the police, that he entered an early and consistent plea of guilty of manslaughter and that he had taken steps in gaol towards rehabilitating himself. Overall, the offence was a serious one of its kind and called for a substantial sentence. 33 The sentence was imposed by a highly experienced trial judge. It has not been suggested that his Honour mistook any of the facts. 34 I do not think that the sentence has been shown, by reference to the cases or independently of them, to have exceeded his Honour's proper range of sentencing discretion. 35 I would grant leave to appeal against the sentence but would dismiss the appeal.

CORAM: BARR, J. GREG JAMES, J. CARRUTHERS, AJ.

JUDGMENT GREG JAMES, J: 36 I have had the advantage of being provided with the draft judgment of Barr, J. I agree with the conclusion that he reaches and the order that he proposes. 37 I have nothing to add in relation to the first ground. As to the submission that the sentence was manifestly excessive, ie., exceeded the appropriate range available for the exercise of the sentencing judge's discretion, I should add a little more to what has already been said. 38 Sentencing involves a synthesis of considerations and the application of policy such as to achieve an appropriate balance in any given case. It is therefore only when the sentence is such as to be outside the range which embraces those appropriate considerations as balanced in the light of the proper application of policy that an appeal will lie. 39 For my own part, I may not have agreed with the sentence of the learned sentencing judge. That is not the point. When this court comes to deciding a range, it does so in the light of the views of those judges which comprise the instant bench, the views of this court as differently constituted and the views of sentencing judges generally. For me to assert a personal view would be wrong unless it were a differing view as to the range and as to that, I make the same observation as was made by Mahoney, JA. in Buckley & Anor v. Bennell Design & Constructions Pty. Limited & Anor [1977] 1 NSWLR 110 at 126, when he said:- "The matter is one which it is appropriate that, for this court, should be dealt with finally. To press a contrary view, if not 'a confession of failure to convince one's judicial colleagues', would be at least inappropriate."

40 CARRUTHERS AJ : I have read the judgment of Barr J and I agree with the orders he proposes and his reasons therefor.

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