R v Pashalay [1998] VSCA 18

5. The applicant killed his wife by shooting her in the chest and arm from close quarters in their matrimonial home on 5 August 1996. On the same day the applicant admitted the killing but said that he was only intending to scare his wife after he had found two "non-suggestive photographs" depicting her with another man. As it transpired, the photographs were "mock-ups" which had been fashioned in a photo laboratory at the Highpoint Shopping Centre in Maribyrnong. During the course of this application we have been shown the photographs concerned, and I think it is fair to say that a casual glance at them would indicate to the uninitiated that they were indeed "mock-ups" of the type which I have described. The gun which the applicant used to kill his wife was one of a pair registered to him and which he used for duck shooting. From what he told the police it would seem that he had found the photographs shortly before the shooting, and it would appear that they were the catalyst which led to the events in which the deceased was killed. The applicant had been apparently endeavouring to force his wife to disclose the identity of the man in the photographs and had, in the course of doing so, set about her with a leather belt. He had then taken the gun from a case for the purpose, so he said, of scaring the deceased, and had loaded it, apparently in her presence, with two cartridges. He had then pushed the gun into the stomach of the deceased, and, at the time when the gun was ultimately investigated by the police, it would seem that the safety catch of it was in the "off position". According to what the applicant told the police, he had lost control, and the gun had gone off without any intention on his part to kill or to do really serious bodily injury to the deceased.

8. As his Honour said in the course of his sentencing remarks:

"It is, to my mind, clear how it [i.e. the killing] happened. You confronted your wife, who was a timid person, at a time when each of your sons was absent from the house, with 2 photographs you had found ... You were in a highly emotional state. You further beat your wife and you then confronted her with a loaded shotgun to scare her ... In doing so you acted unlawfully. To confront a person with a loaded shotgun is unlawful ... and there was no lawful justification or excuse for your conduct."

12. His Honour went on to describe the precipitating circumstances of the offence as being the "wicked and cruel" acts of a workmate of the deceased who had caused the two fake photographs to be produced by a "digital imaging" process whereby a number of separate photographs were merged into a "mock-up". The motive for producing the photographs was never disclosed because it appears that the woman concerned had fled the country. However, as his Honour remarked, there was not a shred of evidence that the deceased had ever been unfaithful to the applicant, but the perpetrator of the photographs had contrived, apparently, to place them in a position where they would be located by the applicant and had done so through motives of ill-will.

15. Initially the application for leave to appeal against the sentence was based on five grounds. On this application, however, the only ground substantially argued by Mr Lovitt, who appeared for the applicant, was that the sentence was manifestly excessive. It was put by him on behalf of the applicant, as it had been put to his Honour, that the applicant's behaviour and the criminality involved in it should be assessed in the light of his cultural background. The applicant came from northern Albania and, so it was said, was born and lived there at a time when it was accepted that infidelity of a spouse reflected shame on the husband and family; a shame which was habitually erased by resorting to violence against those responsible for the shame. It was submitted that, while such custom was removing itself from a position of prominence within the confined Albanian community in Melbourne, and could not excuse the applicant from the crime to which he had pleaded guilty, the fact that the applicant lost control and resorted to the method which he did to instil fear into his wife had to be considered against this background and taken account of in assessing the applicant's criminality.

18. It was submitted that, although it was true that there was no basis for suggesting that the deceased had been unfaithful to the applicant, there was equally no doubt on the evidence that, as the consequence of the evil acts of the third party, the applicant had been led to perceive on reasonable grounds the existence of circumstances which, so it was argued, had provoked his loss of control.

21. His Honour rejected this submission as a basis for mitigating what would otherwise be an appropriate sentence. Having referred to the evidence of an expert witness on Albanian customs, and, in particular, what was said to be a "code of dishonour", the learned judge said:

"I find it hard to accept that a reasonable person, whose origins were in Albania or elsewhere but who has lived in the Australian society and has been exposed to the laws of this country for some time, would hold to old customary codes or customs involving the exposure of another to violence of the kind and nature referred to, or for the reasons provided by the code as referred to in this case. If any person in the Australian community should hold to such codes of conduct or beliefs of this type it should be put from their minds other than as a fact of history, for to engage in violence or dangerous conduct to another is unlawful and it will be punished by the law by which we live. If your conduct on the night that your wife met her death had in any way a connection with such customary code you must know that it provided and provides no excuse or good reason for your acts and conduct which was both unlawful and dangerous and which has caused the death of your innocent wife, for you must now be punished by the imposition of a term of imprisonment. Further, any adherence to concepts which may form a part or parts of such a code, if it did play a part in your conduct that night, does not cause your conduct to be any less culpable."

25. For my own part, I would adopt and endorse his Honour's remarks. Such evidence as was given about the so-called "code of dishonour" was in my view set in a historical context and was non-specific in its application in contemporary Australian society. The applicant has been living in this country for well over 20 years and must understand, as his Honour noted, that what is expected of those who live in the society will not necessarily conform to the incompatible customs of another society moulded in different circumstances. In my view it would be doing less than justice to law-abiding members of our society with a similar background to that of the applicant to suggest that, in circumstances which so acutely affect peace and good order in this society, they march in different step from other members of the community. Certainly the applicant gave no evidence on the plea at all, nor was there anything from him to suggest that he was overborne by ancient custom peculiar to him when he committed this crime, nor in my view did the evidence justify a conclusion that he was more susceptible to be overborne than others by reason of his cultural background.

28. There were a number of factors legitimately put to his Honour on the applicant's behalf in mitigation of penalty. He is a man of mature age who had no relevant prior convictions. He has been, and was conceded to be, a hard-working member of the community who, through his own efforts, has obtained the respect of those members of the community of which he formed part. Following the killing he presented himself to the police within hours. Ultimately he pleaded guilty to the offence of "unlawful and dangerous act manslaughter" which, to the extent required, was in my view taken into account by his Honour. By his conduct he has alienated the affection of his children. None of these matters was disregarded by his Honour, an experienced and indeed distinguished judge of the Trial Division of this Court. However, there was, as his Honour remarked, other evidence which demonstrated that the relationship between the applicant and the deceased was marked by a dominating attitude by the applicant to the deceased, an attitude which had been characterised by acts of violence on other occasions.

31. At the end of the day, it cannot be denied that the crime to which the applicant pleaded guilty was a very serious example of a serious crime. In the course of a domestic dispute, and in order to assert his domination, the applicant chose to select a weapon of destruction, to load it and to wield it against his wife, in circumstances where he must have realised the dangerous nature of the threat which he was posing to her. The comments made by White, J. in delivering the judgment of the Court of Criminal Appeal in South Australia in a Crown appeal in the case of Lupoi (1984) 15 A.Crim.R. 183 at 190, to which Mr Hillman referred the Court on this application, seem to me to be in point. His Honour, in delivering the judgment of the Court, said:

"Making every allowance that can be made for the respondent's general good character and law-abiding life of hard work and provision for his family, the sentence must reflect the gravity of what he did, not only to punish him adequately for what he did but also to deter others from doing likewise. Spouses, both husbands and wives, have to be protected from this kind of violence. The bringing of a loaded gun or any gun or weapon into a domestic quarrel, especially where there has been a history of past violence, must be deplored and deterred as strongly as possible. The punishment and deterrent aspects of sentencing weigh heavily in the scales in this case. They outweigh factors personal to the respondent."

35. In that case, which was not dissimilar from this one, the court increased the head sentence for manslaughter from one of three years to one of eight years.

38. In my view, and for the reasons stated, the sentence imposed by the judge in this case was within the range available to him. The general and specific aspects of deterrence were clearly predominant purposes for which punishment was to be inflicted. His Honour was well entitled to give the weight to these aspects of punishment that he did.

56. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.