R v Gregory [2000] VSCA 212

R v Gregory [2000] VSCA 212 - VSCA 2000 case summary — Zoe

[8]

The appellant had been living in Australia for a little more than 30 years when these shootings occurred. He came to Australia from the United Kingdom when he was 20 years of age. He brought with him his first wife to whom he had been recently married. He had limited education and devoted his life in this country to working on various properties in rural Australia as a station hand. As he told the police, he has seen "nearly two-thirds of outback Australia from the back of a horse". He has two daughters and a son from his first marriage, each of whom is now independent. There was no dispute that he has been a hard worker, but it is clear that the itinerant life-style, combined with aspects of his personality, has brought pressure on his family life. His first wife separated from him in or about 1980, an event which he apparently found difficult to accept and which culminated in the events leading to the previous convictions in 1990. Nevertheless, in 1982, he commenced to live with Cheryl Anne Powell whom he ultimately married in or about 1990 after his first wife had divorced him. At the time when he started to live with Cheryl Anne, she had one daughter, the deceased Yvonne, who was then four years of age. There was, it would seem, a dispute over the custody of Yvonne but, from 1986, the appellant and Cheryl Anne lived as man and wife with Yvonne and Tamara, who was born in 1985. For the most part, they lived on a property at Willowvale in western Victoria where the appellant was working. In 1996, he and his wife purchased their own small farm property at Linton, where these offences occurred. It appears that their life has been difficult, at least since 1994 when Cheryl Anne was involved in a motor vehicle accident, as a result of which she suffered serious injury which deprived her of her earning capacity. Shortly after purchasing their property, the appellant lost his job and was in receipt of unemployment benefits. For some time before these shootings, the appellant's wife had been taking anti-depressant medication prescribed by her doctor - Dr. Wood - some of which, on Dr. Wood's authority, she had been providing to the appellant for about a week prior to the shootings. In mid 1998, Yvonne was encouraged by the Commonwealth Employment Service to move to Ballarat to take advantage of opportunities to further her education and employment prospects. This she did, taking up residence in a unit in Sebastapol and seemingly enjoying the freedom which it afforded her. Her enjoyment, however, was matched by the intensity of the appellant's disapproval of what he regarded as her licentious life-style characterized - as he told the police - by "whoring around", and "opening the door and her legs to every bloody kid who came around".

[11]

Whatever view one takes of the appellant's underlying motives for shooting his wife and step-daughter, they cannot conceal the callous and brutal nature of his conduct. His Honour was far from satisfied, on the material before him, that the conduct was generated by a genuine, but over-zealous, concern for the welfare of Yvonne. Appellant's counsel submitted that such deep-seated concern and remorse was captured in a poem which the appellant had written in prison - in which he described Yvonne as "my lovely little mate" and expressed himself as being "so sorry"; and concluded in these words: "I love you, you are still my little mate, so watch over Mum and Tamara for me". His Honour was not prepared to accept these expressions of sentiment either as representing the real feelings which the appellant bore for Yvonne, or as indications of true remorse. In his Honour's view they stood in stark contrast to statements which the appellant had made to others about Yvonne, both before and after he shot her. His Honour had before him the statement of Michael Rowe, a shearer, who had worked with the appellant for some years until 1997. Rowe said that the appellant had often spoken disparagingly of Yvonne and had told him that "one day he would put a bullet into [her] head". He also said that in June 1998, the appellant had told him that he was "getting sick of that bitch" and "would put a bullet in her head one day". His Honour also had before him the evidence of Mrs. Allen with whom Yvonne rode horses in Ballarat for Mr. John Allen, her husband and a horse trainer. She said she had spoken to the appellant some three weeks before the shootings, when he had told her about his desire for Yvonne to return home so that she could be made to "abide by the rules". Mrs. Allen told the appellant that Yvonne was afraid of him and did not want to return and that, in any event, she was nearly 21 and there was "nothing that he (the appellant) could do about it". She said that, in response, the appellant said: "There's plenty I can do about it. I'll shoot her and then shoot myself".

[26]

For my own part, I do not think there is anything in this submission. During the course of the plea, the appellant's counsel had put before his Honour the reports of Dr. Walton and Mr. Cummins, each of whom had expressed the opinion that the appellant, whilst not psychotic, was in a state of acute depression at the time when he shot Yvonne and his wife. Neither gave evidence before his Honour. Their opinions appear to have been largely founded upon what they were told by the appellant whilst he was in custody awaiting trial. Counsel sought to use these opinions as a basis for his submission that, whilst this case was "down a notch" from cases such as Anderson[1] and Tsiaras[2], his Honour should nevertheless have been prepared to moderate the effect of general deterrence in imposing sentence. In the course of argument his Honour indicated that men who commit serious crimes against members of their families, whilst angry and depressed, are commonly encountered and need to be generally deterred. Counsel did not disagree, but persisted in his contention that the expert evidence should lead the Court to the view that the appellant's state of mind at the relevant time was such as to justify a suitably moderated sentence. During his sentencing remarks, his Honour said that he had "taken account" of the reports of Dr. Walton and Mr. Cummins, but regarded their "utility" as limited because of the factual material which he had reviewed but which apparently was not known to the experts. He referred in particular to the expressed view of Mr. Cummins that the appellant was "someone who habitually avoids both verbal and physical conflict" as indicating that he, Mr. Cummins, was not fully conversant with the history of the appellant as it was disclosed in the material to which his Honour had referred. This was a view which, as it seems to me, his Honour was entitled to take. He was not saying that he was rejecting the expert opinions as having no weight; rather he was saying that he regarded their relevance as limited because they were based upon limited information. Whether depression exists - and to what extent - in a particular person at a particular time; and whether it diminishes that person's capacity to make rational judgments at that time, are undoubtedly matters upon which experts, properly informed, might give assistance to a sentencing judge. But, in the long run, it is for the judge to determine whether the opinion is of assistance, and what weight is to be given to it in the sentencing process. Where, as here, the judge had before him a significant amount of material bearing upon the conduct and attitude of the appellant over a period of time both before and after the shootings (none of which appeared to have been known to or taken account of by the experts in forming their opinions), it is scarcely surprising that his Honour found those opinions to be of limited assistance to him in the performance of his task[3]. Nor, indeed, is it surprising that his Honour should discount the value of those opinions in concluding that the aspect of general deterrence had a prominent role to play in fixing the appropriate sentence for these offences. In this respect, I note that Dr. Walton, in concluding that he had little to say "specifically in relation to disposition", nevertheless stated that the appellant "does seem to have a propensity to resort to the use of firearms when in states of intense inter-personal conflict, although on both occasions he seems to have been reasonably seriously depressed". When the doctor was speaking of "both occasions", he was referring to the events of 1990, which were the subject of the previous convictions and the events of 1998 with which we are concerned. In respect of each event, the doctor expressed the view that the appellant was "suicidally depressed", a view which was formed, it would seem, upon the reactions of the appellant after each event. Indeed, in respect of each, there appears to have been little psychological assessment or treatment, either before or after it occurred. Nevertheless the doctor concluded that "the principles surrounding escaping general deterrent aspects of sentencing because of serious mental disorder, in my opinion, can be substantially applied in this case". His Honour was obviously not prepared to act on this observation. In my opinion, he was entitled to reject it, not only because it lacked the necessary evidential foundation, but because it went beyond any legitimate assistance which Dr. Walton could give. The role of an expert witness is to impartially assist the court in the performance of its function - not to tell it how that function should be performed. Whether and to what extent, aspects of general deterrence should influence the formation of the appropriate sentence were, as I have said, matters for the judge to determine upon the whole of the material before him.

[29]

In the absence of specific error, I am not persuaded that the sentences imposed were so wholly disproportionate to the gravity of the crimes that the Court should interfere with them on the basis that they are "manifestly excessive" or "crushing". In the course of his resourceful submissions, Mr. Cash referred the Court to other sentences imposed for murder in this State, and contended that the sentences imposed upon the appellant were "out of kilter" with the standards which have been set. For my own part, I must say that I have not been much assisted by the statistics provided. Statistics, of course will rarely be a useful guide in determining whether a particular sentence is manifestly excessive. Particularly is this so in crimes of murder where the nature of the crime, and the degree of culpability accompanying it, can vary so much. In the 14 years since Supreme Court Judges were invested with a discretion to impose terms of imprisonment short of imprisonment for life, judges have imposed sentences varying from "life imprisonment" down to 15 years (and even, in exceptional cases, less) depending upon the view which they have taken of the gravity of the offence and the culpability of the offender. Those sentences have been influenced by the infinite variety of factors which the sentencer is required to take into account; such as motive, the antecedents of the offender, whether the killing has been cold-blooded and premeditated or committed in a state of high emotion, the number of victims, the mental state of the offender, remorse, co-operation, and so on. So infinite is the variety of factors which must be considered in a crime of this nature that statistics, in my view, become of little relevance. In the long run, the penalty must be fixed according to the judge's view, legitimately open to him on the material before him, of the gravity of the particular crime and the moral culpability of the offender. I venture to repeat the remarks I made in R. v. Goodall[4] that:

[32]

For the reasons I have already given, it was open to the judge to regard these crimes as uncommonly bad crimes committed against two defenceless women, and also to regard the appellant's moral culpability for them as high. Accordingly, I am not persuaded that the sentence of 24 years for the murder of Yvonne was outside the range of penalties properly open to the judge; nor am I persuaded that, by accumulating three years of the moderate sentence of eight years for the injury inflicted upon his wife, the overall sentence became "crushing". Indeed, in imposing sentence on count 2, his Honour was, by dint of the provisions of Part 2A of the Sentencing Act 1991, required to treat the appellant as a "serious violent offender" and prima facie to direct that the sentence imposed be served cumulatively upon the sentence imposed on the murder count. Thus, by "directing otherwise", I assume that his Honour had in mind the age of the appellant and the total impact of the sentences, which he was imposing. Nevertheless, Mr. Cash submitted that the level of the sentences in fact imposed, particularly the sentence of 24 years for the murder of Yvonne, was so high as to demonstrate that insufficient weight had been given to the guilty pleas. Even though his Honour had said that he had taken such pleas into account, it was put that only "lip service" could have been paid to them. Mr. Cash referred us to the decision in Donnelly[6], in the course of which Charles, J.A. (at 648-9) referred to the significance which a plea of guilty has in a murder case, through alleviation of stress which would otherwise attend the witnesses on trial. However the Court also noted that the assessment of an appropriate discount for a plea of guilty will depend on a variety of factors, including the strength of the case against the appellant and the stage of the proceedings at which it is entered. The decision in Donnelly, should now be read in the light of what was said in Goodall, supra, by Batt, J.A. at [19], [20] and [21]. In the long run, the question whether the sentence which his Honour imposed upon count 1 is manifestly excessive cannot admit of much argument. The plea, as was conceded, came "late in the day" and against what seems to me to have been overwhelming evidence pointing to the appellant's guilt. I am, in these circumstances, not persuaded that his Honour failed to give any or sufficient weight to the appellant's plea of guilty, nor am I persuaded that, on that account, the sentence imposed is manifestly excessive.

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