R v Perini; ex parte A-G

CRIMINAL LAW - PARTICULAR OFFENCE - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE - PARTICULAR CASES - respondent broke into neighbouring elderly woman's unit and killed her by asphyxiation and wounding - respondent later indecently interfered with her corpse and stole property - respondent's actions were pre-meditated but he was found by Mental Health Court to have diminished responsibility at time of offences due to intellectual deficit - respondent showed no remorse - respondent pleaded guilty to manslaughter, two counts of burglary and two counts of interference with a corpse - respondent sentenced to 13 years imprisonment for manslaughter - evidence that respondent would require high degree of supervision upon his eventual release - whether sentence manifestly inadequate - whether sentence failed to reflect the gravity of the offending - whether sentence gave too much weight to mitigating factors - what effect diminished responsibility should have on sentence - whether the ability of the Attorney-General to apply for continuing detention order should alter sentence

Penalties and Sentences Act 1992 (Qld), s 9(1)(a), s 9(1)(d), s 9(1)(e), s 9(4)(a), s 9(4)(b), s9(4)(k), s 13, Pt 9A

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 5(6), s 6, Schedule

R v Aeon Masterson, unreported, Court of Criminal Appeal, Qld, CA No 112 of 1990, 12 June 1990, considered

R v Lacey; ex parte A-G (Qld) (2009) 197 A Crim R 399; [2009] QCA 274, cited

R v Miguel [1994] QCA 512, considered

R v Neumann; ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, considered

R v Potter; ex parte Attorney-General (Qld) (2008) 183 A Crim R 497; [2008] QCA 91, considered

R v Tonkin & Montgomery [1975] Qd R 1, considered

Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited

A W Moynihan SC, with A D Anderson, for the appellant

Director of Public Prosecutions (Queensland) for the appellant

[1] CHIEF JUSTICE: The respondent was 37 years old when he committed the instant offences. They were manslaughter, for which he was sentenced to 13 years imprisonment with a serious violent offence declaration made; aggravated burglary, 12 years; a second count of aggravated burglary, 10 years; two counts of indecent interference with a corpse, two years; and burglary and stealing, two years - the terms to be served concurrently. He had no prior criminal convictions. The Attorney-General appeals on the grounds that the sentences fail to reflect the gravity of the offending and made too much allowance for mitigating circumstances.

[2] The respondent was originally charged with the murder of the deceased. The matter was referred to the Mental Health Court, which found that while the respondent was not suffering from unsoundness of mind and was fit for trial, he was suffering from diminished responsibility at the time of commission of the offences. The prosecution then accepted his plea of guilty to manslaughter (and the other charges).

[3] The deceased was a 76 year old woman who lived in an assisted accommodation centre at the Gold Coast. The respondent also lived there, in another unit. The respondent, previously homeless, had lived at the centre for about three months, and his relations with the other residents (generally aged and infirm) was not good.

[4] The offences occurred on 29 March 2008. The respondent knew that he was to be evicted from his unit, because of his misbehaviour, on 31 March. He was apparently perturbed by the noise made by the deceased's "walker". At 8 pm on 29 March, he was heard to say to the effect that he was facing eviction and had nowhere to live, but that it did not matter because he would be incarcerated for killing someone that night. The learned sentencing Judge observed that the respondent intentionally killed the deceased at least partly to ensure that he had accommodation, in jail.

[5] The circumstances of the killing involved substantial premeditation. In the afternoon of that day, the respondent looked through the window of the deceased's unit and saw her reading. He then decided to kill her. In the evening he gained access through an unlocked door which he had previously noted would be unlocked. He took a kitchen knife with him, a tie and socks. He attempted to strangle the deceased with the tie. When she screamed, he stuffed the socks into her mouth and secured them with the tie. Then he punched and "stomped" on her and stabbed her neck with the knife, leaving the knife embedded in the neck to a distance of about 12 centimetres. The deceased died of asphyxiation, with strangulation and wounding contributing causes.

[6] The respondent's subsequent behaviour was also appalling. He attempted unsuccessfully to penetrate the deceased sexually. He left and later returned, armed with pornographic material. He then digitally penetrated the deceased, and masturbated, ejaculating over her body. Yet later again he returned looking for money, and then stole coffee and milk.

[7] The circumstances of the offences viewed alone are undoubtedly horrendous. The complicating circumstance, in relation to sentencing, is the respondent's state of diminished responsibility at the time.

[8] The Mental Health Court found that his abnormality of mind arose from intellectual deficits caused by problems in utero, a personality disorder and an adjustment disorder. The result was substantial impairment of his capacity to know that he ought not to have done what he did. Counsel for the respondent emphasized that on the psychiatric evidence before the Mental Health Court, the respondent was exhibiting a high degree of impairment of his capacity to reason, that in the view of Dr Varghese, he had a "profound inability ... to cope on his own", and a personality disorder with "paranoid, schizoid, schizotypal, antisocial, and narcissistic features, together with marked dependency". The learned Judge noted that were the respondent outside an "institution or supervised environment" that "may well result in dangerous behaviour".

[9] His Honour referred to the view of the psychiatrist Dr Schramm that the likelihood of similar offending again was very low, with the prospect that after 10 years' or so incarceration, the respondent "may develop" some capacity to live in the general community. The doctor's view was qualified: he said, for example, "I am not certain whether the passage of time would necessarily reduce the chances of significant violence...". He also said the prospect of "any significant improvement in functioning and being able to live without the highest degree of supervision" was "extremely poor"; adding that "medication will only ever play a minor role in improving his function".

[10] The preponderance of the expert psychiatric evidence before the Mental Health Court was that upon his eventual release from prison into the community, the respondent will require intense supervision and support. He will need to continue to take regular medication to maintain stability. Dr Neillie referred to the need for him to be detained in the high security section of the correctional centre, and that he requires "continued direction and limit setting by staff". Dr Schramm said that "his placement at the end of his prison sentence will provide an extreme challenge to those whose responsibility this falls to", and offered the following additional views:

"No matter who looks after him, he will require intense support. The framework would include supported accommodation from a service prepared to put up with and be able to manage potential disruptive behaviour. As the experience in the year or so leading to the offences attests, many privately run hostels and boarding houses are likely to have their limits and welcome tested, if he was to return to that same demanding and disturbed behaviour. Accommodation in such environments would also pose problems given that it is most likely that he would be living with other persons with vulnerabilities of their own, such that they may be potential victims of violence."

Dr Schramm expressed those views in his report of 12 June 2010.

[11] The learned Judge also referred to the oral evidence of Dr Fama that the respondent would be dangerous if not satisfactorily treated and that because of his illness, he would always be a danger to society, and the evidence of Dr Varghese:

"The personality disorder is of a profound type and it is likely to be persistent for a long time if not throughout Mr Perini's lifetime. It's most unlikely that the defendant would function outside of an institutional or supervised environment and if put in such an environment it may well result in dangerous behaviour."

[12] As to remorse, his Honour referred to the police record of interview and observed:

"You appeared to display no consciousness of the severity of the crimes you had committed nor any significant signs of remorse for them then. You described your own actions as cold-blooded in an apparently detached statement to the police, devoid of normal human emotion that one would expect in circumstances such as these. Mr Briggs submitted that there was subsequent evidence of remorse and it may be likely that your mental condition inhibits your capacity to feel remorse in a normal manner."

[13] The respondent's confession to the police was motivated in large part, it seems, by his wish to ensure incarceration and thereby secure accommodation. That was plainly not indicative of remorse. Dr Schramm expressed that view. Nevertheless the respondent's plea of guilty to manslaughter should somewhat moderate the sentence visited upon him because it aided the administration of justice, notwithstanding the abundant strength of the prosecution case.

[14] His Honour referred to R v Miguel [1994] QCA 512, where a sentence of 12 years imprisonment had been imposed for comparable offending, but without the element of sexual degradation, and R v Aeon Masterson CA 112/1990, where a 78 year old man who presented a real continuing threat to the community was imprisoned for 14 years. Counsel for the appellant rightly pointed out that they were prisoners' appeals, and to the circumstance that Aeon Masterson was of considerably advanced years; and also that those sentences preceded the commencement of Part 9A of the Penalties and Sentences Act 1992, which signalled the legislature's expectation that sentences for serious violent offending should be strengthened.

[15] Counsel for the respondent understandably emphasized the respondent's state of diminished responsibility, which plainly reduced the respondent's moral culpability (R v Neumann; ex parte Attorney-General [2007] 1 Qd R 53, 60, para 27). Yet as observed in R v Neumann; ex parte Attorney-General [2007] 1 Qd R 53, 55, para 8, that may mark an offender as "a more impracticable subject for reform or as likely to offend again".

[16] I have referred to the qualified opinion of Dr Schramm as to the prospect of violent re-offending, and to the Judge's having noted that were the respondent outside an institution or supervised environment, that may well result in dangerous behaviour. I have also referred to the views of the psychiatrists as to the serious risks attending the respondent's ultimate release. The Judge also noted that in the respondent's police interview, the respondent displayed no consciousness of the severity of his crimes, nor any significant signs of remorse, describing his actions, in a detached way, as cold-blooded.

[17] One struggles to find any reasonable basis for a view that the respondent would be unlikely to re-offend violently upon release after even many years of incarceration: there is a high likelihood that he would, unless strictly controlled.

[18] Counsel for the appellant pointed to R v Tonkin and Montgomery [1975] Qd R 1, the intentional killing of an elderly woman in her home, where the (then) Court of Criminal Appeal set aside the conviction for murder, and substituting a conviction of manslaughter, imposed a sentence of life imprisonment. That offender suffered from a form of epilepsy which rendered her liable to violent and uncontrollable reactions upon even slight stimulus.

[19] Counsel for the respondent referred to R v Potter; ex parte Attorney-General [2008] QCA 91; (2008) 183 A Crim R 497, but that was an extraordinarily tragic and fortunately exceptional case of the killing of a young child by its mother while the mother was in a state of diminished responsibility. The instant case was more, in the terms used by Keane JA in Potter, "thuggish brutality as between adults".

[20] In my view, putting to one side the respondent's state of diminished responsibility, the objective circumstances of this offence put it into the worst category of manslaughter. It was a case of savage brutality and depravity visited upon a vulnerable elderly woman, entirely without reason, in her own residential unit. Because of his plea of guilty and other mitigating circumstances, the respondent should not however have been sentenced to life imprisonment, but to a lengthy finite term. What effect, then, should the aspect of diminished responsibility have had? With intentional killing of this character, it would nevertheless ordinarily operate to moderate the penalty, unless it suggested a counterbalancing need for community protection (as to the significance of community protection, see s 9(1)(e), (4)(a), (b), (k) of the Penalties and Sentences Act 1992 and Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 474-81). In the present case, on the evidence before the court, it does. Of course nevertheless the assessment of the significance of these various considerations must be approached in a composite way, with a view to ensuring that the sentence which is imposed is proportionate to the crime, allowing for all relevant considerations.

[21] Counsel for the appellant submitted a term of 18 years imprisonment (rather than life) should have been imposed, after allowance for matters in mitigation, on the basis the Attorney-General will as necessary be in a position to apply for a continuing detention order at the conclusion of the term under s 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003. That is because the period of the respondent's imprisonment includes terms for "serious sexual offences" (s 5(6) and Schedule), being the offences of indecent interference with the corpse. (The Judge was wrongly informed about this.)

[22] I consider that the sentence of 13 years imprisonment for manslaughter did not adequately reflect the gravity of this heinous crime and the need for community protection, and made too substantial an allowance for mitigating circumstances (essentially the diminished responsibility, and the plea of guilty), and that the respondent should have been sentenced to 18 years imprisonment. Reducing a life term to 18 years imprisonment sufficiently reflects the respondent's cooperation in the administration of justice by pleading guilty. The court should now substitute that term of 18 years imprisonment (R v Lacey; ex parte Attorney-General [2009] QCA 274 paras 114ff), because it is the penalty which should have been imposed in the sentencing court.

[23] Before us, there was discussion about any significance in the Attorney-General's right to apply for a continuing detention order as the respondent's release looms: would that not sufficiently ensure community protection whatever finite term is imposed? That capacity in the Attorney-General does not in my view mean this court should now refrain from substituting the penalty which appropriately reflects the objectives of denunciation, punishment, deterrence and securing community protection, in particular. It would be towards the conclusion of the term which properly reflects those considerations that the issue of continuing detention should arise, not earlier. Put another way, the respondent should not now be relieved of the need to serve a term which properly fits this crime, allowing for the need to protect the community, because of the additional capacity in the Attorney-General to apply for such an order, if considered warranted, down the track.

2. that the sentence of 13 years imprisonment for manslaughter be set aside and a sentence of 18 years imprisonment be substituted therefor; and

3. that the orders and directions made on 20 August 2010 be otherwise confirmed.

[25] MUIR JA: I agree with the reasons of the Chief Justice and with the orders he proposes.

[26] WHITE JA: The Chief Justice has set out the circumstances of the crimes for which the respondent pleaded guilty, the sentences imposed and the essence of the psychiatric evidence particularly as it related to the respondent's criminal responsibility and the risk he poses in the future. This sentence confronted the learned sentencing judge with the very difficult task of balancing the competing requirements of s 9(1) of the Penalties and Sentences Act 1992, the most relevant of which are:

"(a) to punish the offender to an extent or in a way that is just in all the circumstances;

(d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; ...

(e) to protect the Queensland community from the offender."

[27] When a court is sentencing an offender who has committed a crime of violence it must also have regard "primarily" to the risk of physical harm to any members of the community if a custodial sentence were not imposed; the need to protect any members of the community from that risk; the nature or extent of the violence used in the commission of the offence; any relevant psychiatric report in relation to the offender; and anything else about the safety of members of the community the court considers relevant. It is thus plain that the legislature is concerned to emphasise the safety of the community when a sentence is being imposed for an offence of violence.

[28] A further balance must be struck between those purposes and the obligation imposed in s 13, that when imposing a sentence on an offender who has pleaded guilty the sentencing court must take the guilty plea into account and "may reduce the sentence that it would have imposed had the offender not pleaded guilty." (emphasis added)

[29] There can be no doubt that the cruelty and ferocity of the attack upon the victim, following premeditation and planning, in what should have been the safety of her supported accommodation, followed by the degradation of her person, makes this a very serious crime. It would, in my view, have called for a life sentence even though the respondent's moral culpability was substantially impaired.[1] And it may well be the case that the heinousness of the crime together with a real likelihood of continuing dangerousness when released, even after a lengthy sentence, would justify not recognising a plea of guilty by imposing a finite sentence. The protection of the public and the seriousness of the crime may well override the usual obligation to recognise the plea in some meaningful way. However, the Dangerous Prisoners (Sexual Offenders) Act 2003 allows the Attorney-General at the most appropriate time, that is, prior to release, to apply for a continuing detention order if the respondent is then deemed a danger to the community. This was the basis, it seems, for the Attorney-General seeking a finite term.

[30] I agree with the Chief Justice that the sentence of 13 years imprisonment for this manslaughter did not sufficiently reflect the seriousness of this abhorrent crime. The allowance for the mitigating circumstance of the plea of guilty was, in my view, too great, bearing in mind the overwhelming prosecution case against the respondent and the reason which he advanced for the killing (and which was accepted by the psychiatrists) that he wished to be relieved of his concern about impending homelessness. The reduction for the respondent's diminished responsibility did not sufficiently acknowledge the dangerousness of the respondent and the need to protect the public.

[31] I agree with the Chief Justice that a sentence of 18 years imprisonment appropriately reflects the correct balance and agree with the orders he proposes.

[1] R v Tonkin & Montgomery [1975] Qd R 1; Veen v R [No 2] [1988] HCA 14; (1988) 164 CLR 465, especially the discussion at 475-477 by Mason CJ, Brennan, Dawson and Toohey JJ.