R v Moore [2002] VSCA 33

9. The original grounds of appeal numbered four and alleged that the sentence was manifestly excessive and that error occurred because insufficient weight was given to mitigating factors. On 10 March this year, twelve months after sentence was imposed and 10 months after legal aid was granted, notice of intention to apply to this Court to amend the grounds of appeal by including an additional ground 5 was given to the Registrar. The proposed additional ground alleged error in sentencing because the sentencing judge erred in stating that the deceased was down on the ground when he was struck by the applicant with the fatal knife, whereas the evidence was that the applicant had been knocked or thrown to the ground and as he got up he struck the deceased with the knife, the deceased standing over the applicant at the time. This morning the Court reserved its decision whether the additional ground could be added in light of it being so late, but allowed argument to be presented by counsel on the additional ground.

12. The victim, who was 31 years of age when he died, was stabbed in the chest, causing an injury to the aorta. The events before the stabbing revealed that the deceased had been drinking during the afternoon in a park and behaving aggressively. About 8.40 p.m. a female named Wilson, who is now deceased, invited the deceased man and the applicant to return to her flat in Kent Avenue, Croydon. The applicant was a friend of Wilson but the deceased man was not. Evidence showed that both the applicant and the deceased man were intoxicated to some degree when they were in Wilson's flat. In the flat the applicant and the deceased man quarrelled and were asked to leave, if there was to be a fight. Some time later, a passing motorist in Kent Avenue observed two males and a female yelling. The deceased man was naked from the waist up and appeared angry and threatening. The other male, the applicant, was standing with his arms outstretched in a pleading gesture. At about 9.30 p.m. residents in Kent Avenue heard a male call for help. On their approach, they saw the deceased, who had been stabbed. The deceased was attended by ambulance officers but died at 10.08 p.m. He had died from a single stab injury to the chest which damaged his aorta and right lung, penetrating to a depth of 10 to 11 centimetres. He had bruise injuries to his right hand which appeared to be offensive injuries. He also had two superficial incised injuries on his left upper arm. A blood alcohol concentration of 0.18 grams per 100 millilitres was obtained.

15. The applicant returned to the Wilson flat and stated he had been "in a blue". He had injuries to his face. The applicant consumed further alcohol in a friend's flat before returning to Wilson's flat. At 12.45 a.m. police located the applicant and noted cuts to his face and that he was affected by alcohol. Several knives were in the kitchen sink in Wilson's flat, one of which could have caused the fatal injury. The applicant was examined by a doctor, who considered he had been drinking but had an appreciation of his situation. The doctor noted injuries to the applicant's face which were not significant.

18. In a record of interview the following morning, the applicant admitted he had stabbed the deceased but claimed he acted in self-defence. He said that when he left Wilson's flat he took the knife for protection because the deceased was a third dan kick-boxer. In his record of interview, in answer to question 17, he said this:

"Somehow I walked up the driveway with Simon [the deceased man] and then he started on me, and I'm not exactly sure how it happened. What happened at the top of the driveway is Simon belted the crap from me, and because he's this kick-boxer, I've grabbed the knife just in case. I had no hope against Simon, and he started belting me and I was on the floor and I just got up and in self-defence I just stabbed him, and all I know is Simon said something like, 'You stabbed me,' and ran back up the road."

"When you say you stabbed him, were you aiming for anywhere in particular?" Answer: "No, I got up off the floor. I had a wild swing and that was it, and he ran off."

"Why didn't you step inside, it's just one step?"

"He would have been one step probably behind me, like, it was a kill or be killed situation as far as I was concerned."

28. During the plea it was common ground that the sentencing judge was concerned with manslaughter by an unlawful and dangerous act. The plea of guilty negated the claim by the applicant in the record of interview that he had acted in self-defence. The account of the incident when the deceased was stabbed, given to the court by the prosecutor, indicated there was a level of obscurity as to what happened outside Wilson's flat. There was no credible evidence to indicate the position of the deceased man when the fatal stab wound was inflicted. The sentencing judge, a very experienced criminal judge, commented:

"This is yet another drunken dispute in which there is an unlawful assault and a death, but precisely what occurred is frequently unknown."

32. A report from Mr Healy, clinical psychologist, was given to the judge at the plea hearing. It revealed that the applicant had high average intellectual capacity, but an alcoholism screening test was indicative of classical symptoms of alcohol abuse.

35. Counsel for the applicant did not seek a non-custodial sentence but asked for his client a lower non-parole period than what normally might be ordered.

38. In his sentencing remarks, the judge described the circumstances of the commission of the offence:

"I am unable, on the basis of the evidence before the court, to make any finding as to the circumstances under which the fight began or who initiated the physical confrontation. There would seem to be little doubt that both of you were clearly capable of aggressive behaviour when under the influence of alcohol. It is, however, reasonably clear that there was a fight between Mr Dessaint [the deceased] and you outside the flat, that you returned to the kitchen area in the premises where you obtained a large knife, returned with it, striking the deceased with this weapon. It also appears that he was down on the ground when this was done."

It is unclear why his Honour formed the belief that the deceased was down on the ground when he was stabbed. It seems he formed this belief after he was told in opening by the prosecutor how the Crown said the stabbing took place. The evidence did not indicate clearly the position of the deceased. Indeed the applicant was the one person who was capable of seeing the position of the deceased man when he stabbed him, and, as appears from the record of interview, the applicant did not indicate with any precision the position the deceased was in when he was stabbed. He dealt particularly with his own position, but never said the deceased was on the ground. It is really not a critical matter, for the judge did not consider the deceased being on the ground was an aggravating circumstance. Mr Croucher submitted that his Honour misunderstood how the death occurred and this probably influenced him to regard the manslaughter as more serious than it was. This is not reflected in his Honour's sentencing remarks, in my view, for he never said the manslaughter was more serious because the deceased was on the ground when he was stabbed.

43. His Honour found for sentencing purposes that one action with the knife may have been involved in inflicting all the injuries to the deceased. This was a favourable view for the benefit of the applicant. His Honour was impressed by the applicant's "long and sorry history of alcohol-related offences and conduct indicative of continuing disregard of the rights and safety of others". Those remarks were justified for the prior history had shown a long abuse of alcohol accompanied by persistent unlawful conduct.

46. Mr Croucher for the applicant frankly conceded that ground 1 does not admit of much argument: the total sentence either strikes one as excessive or it does not do so. The following seven factors were relied upon by Mr Croucher to place this manslaughter at the lower end of the scale of seriousness:

1. The deceased died as a result of a single stab wound to the chest in the face of aggression by the deceased.

2. There was evidence that the deceased had been aggressive or violent towards others earlier in the evening.

3. There was evidence that around the time of the incident the deceased was in a rage and adopted a threatening posture, but that the applicant had adopted a stance involving perhaps a pleading posture.

4. There was evidence that immediately following the incident the deceased's hands exhibited offensive injuries and that the applicant had been assaulted.

5. Both the deceased and the applicant were heavily affected by alcohol.

6. The stabbing occurred in the course of a fight which occurred without pre-planning.

7. The deceased was a well-nourished adult measuring approximately 195 centimetres and weighing 84 kilograms. The applicant is much shorter, much lighter and had recently had complications with a serious shoulder injury.

Mr Croucher submitted that the sentence of nine years was appropriate for a more serious example of the offence, and that this manslaughter was at the lower end of the scale of seriousness. Further, Mr Croucher submitted, the plea of guilty at an early stage required a high discount which is not apparent in the sentence imposed.

57. Whilst his Honour said he had regard to the early plea of guilty, it is difficult for the Court to say how much weight had to be given to the guilty plea, for it was offered in the context of the charge being murder before a plea bargain was struck.

60. Further, Mr Croucher submitted, the positive finding of genuine remorse was undermined by the judge's comment that "the regret of a violent alcoholic is frequently self-directed rather than reflecting any real concern for those who have suffered as a consequence of their violent outbursts". Mr Croucher contended that, if the judge considered the applicant was truly remorseful, the sentence does not reflect that finding. I do not agree that his Honour was resiling from his finding that the applicant had shown genuine remorse. Mr Croucher also submitted that in all the circumstances a greater gap between the head sentence and the non-parole period should have been fixed. A two-year gap, without reasons, attracts scrutiny, Mr Croucher submitted. Finally, he submitted that excessive weight must have been given to the applicant's prior convictions.

63. Mr McArdle, Q.C. submitted that the sentence was within the range open to the sentencing judge. He submitted that the sentencing judge was entitled to have regard to the use of a knife, not fists, to settle the dispute and to disregard intoxication as a mitigating factor. He further submitted that the judge expressly said that he took into account the early plea of guilty, remorse and rehabilitation. He submitted that the non-parole period was selected by an experienced judge and was not unusual.

66. 16 In my view the sentence was within the range open to the sentencing judge. Manslaughter covers a wide range of circumstances and includes both voluntary and involuntary acts of homicide. As a consequence, the range of penalty must be very wide indeed. A life was taken in circumstances which are abhorrent to ordinary citizens. When the altercation began in Wilson's flat between the two intoxicated men, they were ordered out of the flat. The applicant alone selected a kitchen knife with a serrated blade capable of inflicting the deep and fatal wound seen in the deceased's chest. In my view, both men were affected by alcohol, but that does not excuse the use of the knife. The deceased was the bigger man and was demonstrating aggression under the influence of alcohol, but the applicant did not have to meet aggression with aggression, and, if he did, a knife was an altogether inappropriate weapon. All of these considerations were open to the sentencing judge. I am not persuaded that the sentencing judge imposed an excessive head sentence. He chose nine years: that is less than half the maximum available. It was open to his Honour to find that the involuntary killing of the deceased by means of a knife was a serious example of manslaughter and not at the lower end of the scale.

69. No reason was given by his Honour for fixing a non-parole period of seven years, but that does not demonstrate error. A gap of two years between a head sentence of nine years and the non-parole period is not unusual, in my experience, and this was conceded by Mr Croucher in his argument. A sentencing judge has to determine in his discretion when the prisoner has served the minimum term that justice requires he must serve having regard to the circumstances of the case. The sentencing judge was very familiar with matters of parole and sentencing in homicide cases and well aware of the prior history of alcohol abuse and unlawful conduct in the applicant.

72. In my view, neither the total sentence nor the minimum term were inappropriate in the circumstances, and the grounds of appeal fail.

75. I consider leave to add the additional ground should be refused. The notice was given very late indeed and I refer to and adopt the remarks of Batt, J.A. in R. v. Haseloff[1].

78. I would dismiss the application for leave to appeal and refuse the application for the additional ground 5 to be added.

85. I agree that leave to amend the grounds of appeal should be refused. I also

agree, for the reasons given by O'Bryan, A.J.A., that the application for leave to appeal against sentence should be dismissed.

91. For the reasons given by O'Bryan, A.J.A., I agree that the application for leave to amend the grounds of appeal should be refused and that the application for leave to appeal against sentence should be dismissed.

The application for leave to amend the grounds of appeal is refused.

The application for leave to appeal against sentence is dismissed.

[1] [1998] 4 V.R. 359 at 375-376.