R v Pyke [2006] VSCA 265

2 I agree that the appeal should be allowed, for the reasons given by Redlich JA. I also agree with the orders for re-sentencing proposed by his Honour, for the reasons stated by him.

3 On 21 September 2005 the appellant, David Neil Pyke, was sentenced to 27 years' imprisonment with a non-parole period of 22 years for the murder of Mark Anthony Logan on 22 May 2005. The appellant, who is now aged 38 years, appeals against that sentence on the sole ground that it is manifestly excessive.

4 A summary of the circumstances concerning this crime should commence with a brief account of events some two years prior to its commission. On 4 June 2003 the appellant was found by Morwell police walking on a roadway in a disoriented state suffering from serious head injuries. He was incoherent and distressed. He was taken to the Latrobe Valley Hospital for treatment and was then transferred to the Alfred Hospital in Melbourne where he remained for an extended period. The appellant had suffered a penorbital and subconjunctional haematoma, multiple abrasions and lacerations, an injury to his left eye and damage to his spleen, which had to be removed. The appellant had only a poor memory of how he came to sustain these injuries but it was not in issue that they were the consequence of an attack by a number of persons. Following the appellant's discharge from hospital he has, to the present date, continued to take medication for recurring pain to his head, leg and back. At the time of the commission of the present offence he was addicted to that medication.

5 A police investigation was undertaken in relation to the assault upon him but he refused to provide the police with any information about the circumstances of the attack or the identity of his attackers. At various times the appellant told friends and associates that the deceased was one of the persons who had attacked him. At other times he suggested that other persons were responsible. Investigators were not able to establish any connection between the deceased and the attack upon the appellant. As time passed it appears that the appellant became increasingly convinced that the deceased was responsible. On a number of occasions the appellant visited the deceased's home and argued with the deceased about the assault on the appellant. The deceased denied any involvement in or knowledge of the assault.

6 In May 2005 the appellant commenced an association with Debbie Piri and moved into her home in Morwell on Friday 20 May. They spent most of Saturday drinking beer and smoking cannabis L. During the course of the afternoon the appellant showed Ms Piri a single-barrel 12 gauge sawn-off shotgun which he had in his bag. On Sunday 22 May the appellant and Piri drank a four litre cask of wine and smoked some cannabis L whilst watching television. The appellant left Piri's home in mid-afternoon. She described his condition as happy and as not badly affected by the alcohol and marijuana that he had consumed. The appellant visited some friends and had with him a bottle containing bourbon whisky from which he drank. The appellant appeared to be affected by alcohol. He talked at length about his new girlfriend and seemed to be very happy. In late afternoon the appellant visited his mother to borrow some money. Before leaving, the appellant took the car keys of his mother's live-in carer and drove the car away. Mrs Pyke promptly telephoned the police and reported that the car had been stolen by the appellant. Shortly thereafter the appellant arrived at a friend's home who was later to describe the appellant as "smashed" from the effects of alcohol or drugs. The appellant then took some of his medication (oxycontin). He told his friend that he intended to go around and see the deceased, who lived nearby. He repeated his belief that the deceased had been involved in bashing him and said that if he found out that his friend had had anything to do with the incident he would come back to see him about it. The appellant revealed that he was in possession of a firearm and his demeanour was agitated and threatening.

7 At about 7 o'clock the deceased was at his home with his fiancé, her three children and a friend. They were having dinner. There was a knock at the front door. The deceased left the table and went to the front door and could be heard telling the appellant in loud and crude terms to leave the premises. The appellant asked the deceased to come outside as he wished to talk to him. It appears that the deceased closed the front door. He was by then aware that the appellant had a gun and, apprehending that there may be some difficulty, the children were taken into an adjoining room. The appellant was by then repeatedly knocking on the front door and calling for the deceased to come outside. The appellant then opened the front door. The deceased ran down the hall towards the front door. There was a loud gunshot and the deceased stumbled backwards holding his left chest and shoulder. The deceased dropped to the floor in the lounge room.

8 The appellant left the house and returned to the stolen car and drove off. He drove only a short distance before doing a U-turn and returning to the deceased's house. He reloaded the shotgun and went back into the house. The deceased, who was still alive, was then on the lounge room floor and his fiancé was with him. The appellant then shot the deceased in the abdomen at very close range. By the time the ambulance service arrived the deceased was dead.

9 The police found the appellant asleep in the stolen car about 4 a.m. the next morning. He was fully co-operative with the investigators and made full admissions. He said that he had killed the deceased because the deceased had been responsible for assaulting him and causing him serious injuries.

Aggravating features of the offence

10 On the plea senior counsel for the prosecution described the killing as a premeditated "cold blooded" "revenge murder". He submitted that the offence was properly so characterised because, on any view of the materials, "the magnitude of the beating suffered by the appellant and the anger that he harboured as a consequence was the genesis of this killing". Attention was drawn to the fact that the appellant had taken his shotgun with him when he visited his mother's home and had stolen her carer's car. The shooting had occurred in the victim's family home and the discharge of the shotgun on the second occasion was particularly callous as it took place in the presence of the victim's partner. There were children present in the victim's home aged 9, 7 and 2. The effect on the family members of the victim was significant. It was submitted that the voluntary consumption of alcohol and drugs immediately prior to the commission of this offence could not be classified as mitigatory.

11 Senior counsel submitted that despite the appellant's plea of guilty, it was inevitable that the appellant would have been convicted of murder and that the sentencing judge should view the plea as deserving only a minimal reduction in the sentence. In describing the seriousness of the offence the learned prosecutor submitted that the sentencing judge would not have fallen into error if he imposed a sentence of life imprisonment as a head sentence and that it was appropriate to impose a sentence which would be in the high category of sentences for murder. His Honour's reasons for sentence appear to be responsive to that submission.

12 On the plea and before this court, it was submitted that the decision to inflict really serious injury or kill the deceased was a "spur of the moment" decision taken shortly before he discharged the firearm. Counsel for the appellant relied upon the appellant's full and frank answers to questions when interviewed, and his accompanying remorse. The appellant told the police that he had gone to the deceased's house to "have it out with him" and had brought the shotgun with him to frighten the deceased. He told the investigators that when the deceased refused to come outside he resolved to shoot the deceased. He admitted that when he fired the first shot he intended to cause the deceased serious injury and when he fired the second shot he intended to kill him. He told investigators that the alcohol and cannabis L that he had consumed that day had given him the courage to confront the deceased. During the interview he was asked when he first decided to shoot the deceased. He said: "It sort of - it hit me all the time, ever since the accident happened - the bashing happened. It wasn't an accident. It happened to me, I - it crosses me mind all the time. And I've tried to push it aside and it just keeps haunting me." He told the investigators that when he went to the house it was not his intention to actually shoot the deceased but to scare him. "I didn't really want to kill him but then it got the better of me and the thoughts got worse." He admitted that when he returned and shot the deceased a second time it was his intention to kill him. He expressed remorse for what he had done.

The appellant's personal circumstances

13 The appellant was the youngest of four siblings none of whom appeared to have greatly prospered. His father was an alcoholic and violent. There had been a fairly strong bond between the appellant and his mother. The appellant's mother, who was aged 72 at the time of this offence, required daily care. The appellant had been engaged in caring for his invalid mother prior to the assault in June 2003 but it appears that he was unable to resume this role after being discharged from hospital. She died in August 2005, some three months after the appellant was placed in custody for this offence.

14 The appellant has a long history of alcohol and poly-substance abuse. Since the assault upon him in 2003 he has been dependent on oxycontin. He has led an unsettled and transient existence. He has a significant criminal history involving 48 previous convictions from 13 court appearances in Victoria and Queensland between July 1986 and March 2004. Relevantly he has numerous convictions for offences of violence including prior convictions for causing injury intentionally, assaults and being armed with an offensive weapon, for which he has been sentenced to short terms of imprisonment.

Personality disorder and moral culpability

15 An assessment conducted on the appellant for an antecedent court appearance in October 2003 showed the appellant to have a schizotypal personality disorder with avoidant and antisocial personality traits and thought disorder. The clinical psychologist found that the appellant's longstanding personality disorder was exacerbated by his head injury and substance abuse.

16 It is now well settled that a personality disorder falling short of a serious psychiatric illness, as discussed in R v Tsiaras,[1] may ameliorate the need for general deterrence where the symptoms have been identified and the consequences of such a disorder sufficiently related to the offending conduct so as to explain how that disorder bore upon moral culpability of the appellant in committing the offence.[2] Where such a disability has contributed to some extent to the appellant's offending it may be appropriate to view the effect of the disorder as reducing the seriousness of the offence and the offender's moral culpability.

17 In short, the appellant, who was a fragile person with few hopeful prospects prior to the assault, was left depressed following the attack and more seriously dependent on drugs and medication. The psychological assessments conducted in October 2003 and September 2005 which were tendered on the plea warrant the conclusion that the appellant became deeply resentful of the destruction of such marginal self-esteem as he had prior to the attack. He brooded over his demoralised condition on a daily basis.

18 The appellant did not seek crimes compensation or engage with the authorities in bringing those he believed to be his assailants to justice. Ms Dixon, who appeared on the appellant's behalf in this Court submitted that his lack of assistance must be seen in the light of a person who was aware of the consequences of assisting the police within his social milieu. In the course of a psychological assessment conducted in September 2005 the appellant told Mr Joblin that he was ridiculed by his friends and associates as weak for allowing himself to be bashed and for having taken no retribution against those who had assaulted him.

19 Ms Dixon submitted that although self-induced intoxication will rarely be a mitigating factor, the extent to which the appellant had given way to violence under the mood altering effects of alcohol and drugs in combination with the appellant's personality disorder and the psychological impact of the result of the injuries which the appellant had received, were relevant to an assessment of the premeditated quality of the crime. I agree with that submission and her further submission that the description of the crime as "cold blooded" is better explained by reference to the appellant's hopeless personal life and incapacity to manage the psychological impact of the injuries which he sustained in the assault and the effects of alcohol and marijuana.

20 The fact that the appellant had been the victim of a previous serious criminal offence was relevant to the sentence to be imposed.[3] The trauma, anxiety and fearfulness flowing to the appellant from the attack upon him was consistent with what could reasonably have been expected to flow from having suffered a violent and protracted beating and having been abandoned in a remote bush location. The

sentence imposed failed to give sufficient weight to the appellant's demoralised condition prior to the murder.

21 The presence of these factors in combination is relevant to the appellant's mens rea, the degree of premeditation and to the overall assessment of the appellant's moral culpability. There is much force in Ms Dixon's submission that his Honour's characterisation of this murder indicated that these factors had not been given sufficient weight. That is to say that the sequelae of the assault upon the appellant, his fragile psychological state, his medication dependency and the effects of alcohol and drugs did not warrant the crime being placed in the upper range of sentences for this serious offence.

22 Although it is often stated that comparison with the sentences imposed in other cases will be of limited assistance in arriving at a just sentence because each sentence necessarily involves a unique synthesis of objective and subjective factors relevant to the crime and the offender, courts may derive some assistance from them and from sentencing statistics[4] in determining where within a range of sentences a particular case should be placed.[5]

23 Even the most cursory examination of the type of cases which generally attract sentences of this order reveals that they are reserved for cases such as double or multiple killings, contract executions, killings within the context of organised crime, killings attended by extended aggravating circumstances such as torture of the victim by mutilation or defilement of the corpse, carefully planned and calculated killings motivated by avarice or killings involving substantial connected criminality.

24 The appellant's conduct, though objectively very serious, did not justify the suggestion made by the prosecutor on the plea that it was a case that could have warranted the imposition of a life sentence. It was not conduct which should be placed in the category of offences which attract sentences at the higher end of the range for the offence of murder. None of the cases referred to by the prosecutor during the plea would explain why a sentence of this order should have been imposed.[6]

25 Ms Dixon further submitted that the sentence was manifestly excessive as it did not reflect the appellant's plea of guilty, his co-operation with the police and his remorse. His plea of guilty and co-operation with investigating police entitled the appellant to a substantial discount in the sentence which would otherwise have been imposed, not only because his conduct in pleading guilty and confessing was of significant utilitarian value,[7] but because it demonstrated significant remorse. Counsel relied upon the fact that the appellant had made full admissions in which he indicated his remorse. In the psychological assessment by Mr Joblin, he reported that the appellant showed a high degree of conscience over his conduct. Because of the appellant's plea of guilty at the committal hearing and his co-operation, the appellant came to be sentenced a little over four months after the commission of his crime.

26 The use of a shotgun by the appellant with the intent to kill is a serious example of the dreadful offence of murder. It merits the imposition of a very substantial term of imprisonment. That said, the appellant's plea of guilty, his remorse, his unfortunate background, his personality disorder and the psychological effects of the assault in 2003 when taken into account lead me, unhesitatingly, to conclude that the sentence was manifestly excessive. The sentence imposed, in my view, did not reflect the weight which should have been afforded to these considerations and may also be explicable because of the submission advanced on behalf of the prosecution on the plea.

27 I would therefore allow the appeal and re-sentence the appellant to a term of imprisonment of 23 years. I would fix a non-parole period of 18 years.

[1] [1996] VicRp 26; [1996] 1 VR 398.

[2] R v Yaldiz [1998] 2 VR 376 at 383 per Winneke ACJ; R v Skura [2004] VSCA 53 at [8] per Eames JA; R v Chambers [2005] VSCA 34; (2005) 152 A Crim R 164 at [27]- [28] per Charles JA.

[3] R v Yaldiz [1998] 2 VR 376 at 383; R v Foley [1999] VSC 278 at [10]; R v Lomax [1998] 1 VR 551 at [25]; R v AWF [2000] VSCA 172; [2000] 2 VR 1 at [5].

[4] R v Winter [2006] VSCA 144 at [57]; DPP v Fevaleaki [2006] VSCA 212 at [19]. See also R v Ross [2006] VSCA 212 at [21]- [23] per Maxwell P, cf at [39]-[40] per Buchanan JA.

[5] R v Bangard [2005] VSCA 313 at [27]- [32]; R v Walsh [2006] VSCA 87 at [28]- [31].

[6] The cases referred to were R v Karageorges [2006] VSCA 49 - 18 years head sentence, non-parole period 14 years; DPP v Arkan and DPP v Andrakakos [2003] VSCA 170 - head sentence 21 years, non-parole period 17 years and head sentence 19 years, non-parole period 16 years; R v Ng [2002] VSC 562 - head sentence 19 years, non-parole period 14 years.

[7] R v Duncan [1998] 3 VR 208 at 215; R v Tasker and Tasker [2003] VSCA 190; (2003) 7 VR 128 at [24]; R v Monardo [2005] VSCA 115 at [2]- [4].