R v MCMUTRIE No. SCCRM-02-108, SCCRM-02-240 [2002] SASC 253

Court of Criminal Appeal Perry, Williams & Gray JJ

PERRY J I agree that the appeals against conviction and sentence should be dismissed for the reasons given by Gray J.

WILLIAMS J For the reasons given by Gray J I agree that the appeals against conviction and sentence should be dismissed.

GRAY J This is an appeal against conviction and sentence.

The appellant Anthony John Stanley McMutrie was charged with attempted murder[1], wounding with intent to do grievous bodily harm[2], possession of an object (a knife) with intent to kill or to cause grievous bodily harm[3] and contravening a restraining order[4]. On 3 September 2001 he pleaded guilty to acting in contravention of the restraining order. The other three charges proceeded to trial. A jury acquitted the appellant of attempted murder and of wounding with intent to do grievous bodily harm. He was found guilty of the alternative charges of unlawful wounding[5] and possessing an object with intent to kill, endanger life or to cause grievous bodily harm.

The maximum penalty for unlawful wounding is five years imprisonment, for possessing a knife with intent seven years imprisonment and for breach of a restraining order two years imprisonment.

The learned sentencing judge indicated that the possession of the knife was part and parcel of the events which constituted the crime of unlawful wounding. The judge applied the provisions of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one penalty for all offences including the breach of a restraining order. A sentence of three years imprisonment was imposed and an 18 month non parole period fixed.

The appellant and the victim had been in a de facto relationship for more than 20 years. There were two children of the relationship. This was a case of domestic violence. The appellant's earlier conduct had led the victim to obtain a restraining order with a view to protecting herself from the appellant. Some time before the incident the victim had ended the relationship. The appellant was unhappy and wished it to continue.

The appellant approached the victim at a club in the Riverland. His case was that he wanted her to come outside so that she could witness an attempt he proposed to make to cut his own throat. He attempted to force her to leave the premises. A struggle ensued. He produced the knife. The victim was wounded by the knife.

The appeal against conviction was restricted to a complaint about the conviction for possessing a knife with intent. It was submitted that the gist or gravamen of the charge of unlawful wounding constitutes the gist or gravamen of the charge of possessing a knife with intent. It was said that there was a real risk that the jury convicted the appellant twice for the one incident of offending conduct. It was argued that in the circumstances the conviction of unlawful wounding should have led to a defence of autrefois acquit to the charge of possessing a knife with intent.

In The Queen v O'Loughlin[6] Wells J observed:

"The third kind of case comprised in the wider group of cases where an accused has been previously convicted is that in which the facts and circumstances that constitute the gist or gravamen of the later charge are in terms, or in effect, the same as those constituting the gist or gravamen of the former. Where a previously convicted accused is confronted with a charge whose gist or gravamen answers that description, it appears that he may advance an objection in the nature of autrefois convict, and the later prosecution is thereupon barred."

These remarks were adopted in R v Sessions[7] where Hayne JA said:

"It is clear that where one offence is an element of a more serious offence a person cannot be convicted of both offences. That is, if the second offence is merely an aggravated form of the first offence a person cannot be convicted of both

Thus in discussing the autrefois pleas and double jeopardy, it is common to speak of identifying two offences as being the same or substantially the same. Sometimes the search is described as being for the gist or gravamen of the two offences under consideration. It is not always easy, however, to decide whether offences are the same or substantially the same and it is not always easy to identify the gist or gravamen of an offence."

On appeal Counsel for the Crown accepted that there was a risk of a miscarriage of justice. It was acknowledged that the jury may have relied on the one set of facts as the basis for both convictions. It was accepted that if this had happened the appellant was entitled to a defence of autrefois acquit to the charge possessing a knife with intent. The Crown's concession was appropriate. The conviction on count 3 must be set aside.

It is necessary to re-sentence the appellant. Section 354(1) of the Criminal Law Consolidation Act 1935 (SA) provides:

"If it appears to the Full Court that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted."

In Ryan v The Queen[8] Brennan J addressed comparable Victorian legislation and observed:

"On appeal against conviction, if the conviction upon one or more counts is quashed but the conviction upon another count or other counts stands, the sentences in respect of the quashed convictions must be set aside while the sentences in respect of the other convictions stand. The overall sentence may thus be altered, and the alteration may prove to be anomalous. Section 569(1) of the Crimes Act allows the correction of such an anomaly. It empowers the Full Court to alter the sentence when a conviction on one count in an indictment is quashed and a conviction on another count stands."

In R H McL v The Queen[9] the High Court reviewed and approved these remarks. McHugh, Gummow and Hayne JJ said :

"However, the power conferred by s 569(1) of the Act is a power to re-sentence the accused de novo. It is not a power merely to review the adequacy of the appellant's sentence following the quashing of convictions. Section s 569(1) declares that, where the section operates, the Court of Appeal may "pass such sentence in substitution therefor as it thinks proper and as may be warranted in law". If the Court of Appeal was entitled to invoke s 569(1), it was entitled to re-sentence the appellant."

Domestic violence is not just physical abuse but includes a range of violent and abusive behaviours perpetrated by one person against another. A high percentage of victims are women and children. Domestic violence has existed for centuries. However over the last 30 years its prevalence has been increasingly recognised. This has caused considerable community and governmental concern. More recently legislation has evolved in an effort to protect the vulnerable.

Legislation has been introduced throughout Australia to deal with the problem of domestic violence. In South Australia the Domestic Violence Act 1994 (SA) applies. The law seeks to protect the innocent and vulnerable. The legislative scheme is directed towards providing protection. This protection is primarily provided through the mechanism of restraining orders.

Restraining orders are the principal legal response to domestic violence. They are can be obtained expeditiously from a magistrate's court. The standard of proof is on the balance of probabilities. Orders can be tailored to the particular conduct of the abuser and breaches are a criminal offence.

In this case the victim had obtained a restraining order. She had done all she could to protect herself. The breach of that order is a matter of particular gravity. The use of the knife to engender fear and wound was an aggravating feature to the appellant's crime. The gravity of his conduct called for the imposition of an immediate custodial sentence.

The appellant's personal antecedents disclosed an unfortunate life. He was born in Adelaide and adopted at age six weeks. He left school after Year 10. He obtained work as a welder and later as a boilermaker attendant. He worked as a fork lift driver. The appellant began to abuse alcohol. This led to marital conflict. He has a history of chronic depression, problems with anger management and domestic violence. He suffers from insulin dependant diabetes, chronic back pain and hypertension. He requires ongoing medication. He attempted suicide at a time when his de facto wife left him temporarily. Their relationship finally terminated in about October 2000. As earlier observed his ongoing poor conduct led to the making of the restraining order. He is now aged 38 and has been receiving unemployment benefits for some time.

The appellant's criminal antecedents disclosed a history of what appears to be alcohol and drug related offending. He has no history of violent offending with the exception of the earlier offences of failing to comply with restraining orders.

Victim impact statements from the appellant's de facto wife and children disclose a sad story. The victim has been left living in fear and anxiety. She now suffers from a marked loss of confidence:

"I felt nobody understood how I felt and sometimes even felt I was going crazy even though I wasn't. I attended a few sessions with mental health workers to try and overcome the trauma I had been through. Talking about it helped some but it didn't help with the sleepless nights when I relived the horror over and over again."

The appellant's son and daughter described her emotional distress:

"I've grown up with violence my whole life I have been subjected to it and seen my mother been subjected to it. It has damaged me mentally and physically."

Counsel for the appellant accepted that there should be an immediate custodial sentence. However it was said that both the head sentence and the non parole period were manifestly excessive. Counsel submitted that the head sentence of three years imprisonment was excessive given that the maximum imprisonment for the offence of wounding was five years. It was said that the appellant had acknowledged his guilt with respect to the counts on which he was convicted at an early date. Counsel submitted that an appropriate sentence should allow for the appellant's immediate release from custody. It was pointed out that the appellant had been in custody since the time of the offence, almost 15 months.

A restraining order had been obtained to prevent the very conduct the subject of the wounding conviction. The need for personal deterrence is a significant factor in this case. The appellant needs to understand that court orders must be obeyed and that non compliance in circumstances of domestic violence will be viewed very seriously. General deterrence is also an important consideration in sentencing.

The sentence imposed by the judge was entirely appropriate. That sentence should be affirmed. The appeal against sentence must be dismissed.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

Attempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).

Anthony John Stanley McMutrie on the 18th day of March 2001 at Berri, attempted to murder Sharon Christine Pogorelec.

Wounding with Intent to do Grievous Bodily Harm. (Section 21 of the Criminal Law Consolidation Act_,_ 1935).

Anthony John Stanley McMutrie on the 18th day of March 2001 at Berri, unlawfully and maliciously wounded Sharon Christine Pogorelec, with intent to do her grievous bodily harm.

Possession of an Object with Intent to Kill or to Cause Grievous Bodily Harm. (Section 31 of the Criminal Law Consolidation Act, 1935).

Anthony John Stanley McMutrie on the 18th day of March 2001 at Berri, without lawful excuse, had the custody or control of an object, namely a knife, intending to use that knife to kill, endanger the life of or to cause grievous bodily harm to Sharon Christine Pogorelec.

Contravene a Restraining Order (Section 99I of the Summary Procedure Act, 1921).

Anthony John Stanley McMutrie on the 18th day of March 2001 at Berri, contravened a restraining order made in Magistrates Court of South Australia sitting at Berri.

5 Section 24 of the Criminal Law Consolidation Act 1935 (SA)

6 (1971) 1 SASR 219 at 258

7 (1997) 95 A Crim R 151 at 155

8 [1982] HCA 30; (1982) 149 CLR 1 at 22-33

9 [2000] HCA 46; (2000) 203 CLR 452 at 469

Attempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).

Anthony John Stanley McMutrie on the 18th day of March 2001 at Berri, attempted to murder Sharon Christine Pogorelec.

Wounding with Intent to do Grievous Bodily Harm. (Section 21 of the Criminal Law Consolidation Act_,_ 1935).

Anthony John Stanley McMutrie on the 18th day of March 2001 at Berri, unlawfully and maliciously wounded Sharon Christine Pogorelec, with intent to do her grievous bodily harm.

Possession of an Object with Intent to Kill or to Cause Grievous Bodily Harm. (Section 31 of the Criminal Law Consolidation Act, 1935).

Anthony John Stanley McMutrie on the 18th day of March 2001 at Berri, without lawful excuse, had the custody or control of an object, namely a knife, intending to use that knife to kill, endanger the life of or to cause grievous bodily harm to Sharon Christine Pogorelec.

Contravene a Restraining Order (Section 99I of the Summary Procedure Act, 1921).

Anthony John Stanley McMutrie on the 18th day of March 2001 at Berri, contravened a restraining order made in Magistrates Court of South Australia sitting at Berri.

[5] Section 24 of the Criminal Law Consolidation Act 1935 (SA)

[6] (1971) 1 SASR 219 at 258

[7] (1997) 95 A Crim R 151 at 155

[8] [1982] HCA 30; (1982) 149 CLR 1 at 22-33

[9] [2000] HCA 46; (2000) 203 CLR 452 at 469