R v Salew [1998] VSCA 141

[1998] VSCA 141

Court of Appeal (Vic)|1998-12-17|Before: PHILLIPS, C.J., ORMISTON & BATT, JJ.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

1998-12-17

Before

PHILLIPS, C.J., ORMISTON & BATT, JJ.A.

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

The applicant in his interview said that he had gone to the complainant's flat in the afternoon after attending university, had stayed there a while and had gone out again about 6 p.m. He passed time wandering around the Footscray market. Before he left, the complainant had required him to return to her his key to the flat, though he did not know why. When he returned from the market to the flat, which is on the first floor, he knocked on the door, but there was no answer. He sat waiting near the letter boxes of the flats and eventually saw a white man coming out of the complainant's flat. After he had gone, the applicant knocked upon the door again and, when the complainant opened it, confronted her about the man. She told him that the man was her boyfriend and that it was none of his business. The applicant became very angry and lost control. He did not know where he had got the knife and could not recall anything until he saw the complainant lying in front of him and the knife there. He thought at that time that he had killed her. He was aware that he had been stabbing her. The children were present when the complainant was lying on the floor, but he could not remember whether they had been present while he was stabbing her. He could not remember whether his intention was to kill her or simply to hit her. (The applicant did not say how he gained access to the flat and did not mention knocking at Saba's window, though a fingerprint may support Saba as to that.)

[2]

[13]

The prosecutor referred the judge to the material from Saba. He said that the Crown accepted that on the material the applicant had no direct access to his daughter to tell her what to say. (In her statement, which was taken by the police after Saba had been interviewed, the complainant made the inherently unlikely allegation that, after the attack and before he had the police called, she heard the applicant tell Saba to say to the police that a white man had been with her mother and that her mother had obtained and used the knife. Saba had said that her father had said nothing about what happened.) He pointed out that the evidence of the VATE interview was not tested at committal (for a plea to the present offence had been accepted before Saba was called to give evidence). He then took the judge to three particular portions of the VATE interview. They were, however, quite lengthy and covered the critical areas of dispute, namely, the presence of a "white man", when he was seen by the applicant and the events from very shortly before the stabbing to and including the stabbing. Indeed, the third passage was the interviewer's detailed summary of Saba's answers relating to the events of the day in question, which, subject to at least one correction, the child expressly accepted. The prosecutor pointed out that neither the complainant nor the applicant stated that the complainant was the first to have the knife or that she got it from the kitchen, but that the child did. The prosecutor concluded his references to Saba's statements by saying, presumably with reference to the committal hearing, "The Crown was going to offer the child as a witness of truth, because we had no cause to do otherwise." Having regard to the lengthy and all-embracing passages in the VATE interview to which the prosecutor referred, it could not, in my view, be suggested that the Crown was putting Saba forward as a witness of truth on only one or two points. Counsel then appearing for the applicant asked his Honour to take into account the Crown view as to Saba being a witness of truth and, with justification, I should have thought, the consonance and correlation of her observations with the account provided to the police by the applicant.

[15]

In my view, for the reasons which follow, ground 2 in each of its paragraphs is made out and, to that extent at least, ground 1 is also made out. It is convenient to take first para.(b) of ground 2, concerning the finding that the "white man" was leaving the complainant's residence when the applicant arrived in the afternoon, after which the applicant went out for the evening, returning later just prior to the stabbing incident. In her statement to the police and (this Court was told) in her answers in cross-examination at the committal hearing the complainant denied the presence of a white man at any time on 15 September. Accordingly, as the Chief Justice observed during argument, the complainant's evidence could not establish that a white man was, to the applicant's observation, present at the flat but only during the afternoon. Saba's interview, if accepted, clearly established that a white man was present at the flat continuously from about 4 p.m. until shortly before the applicant entered the flat in the evening after waking her. His Honour's statement as to "the current version" of what the applicant said, namely, "that this [scil, that a white man had been at the flat] had been the situation when you arrived on that afternoon, that is, a white man was leaving as you had arrived," is not supported even by the applicant's answers in his interviews. That statement seems to have been made as a finding of fact. Certainly, his Honour later refers to the applicant's belief that another man was there in the afternoon as an established fact. Thus, a finding that, although a white man had been present in the afternoon, he had left during the afternoon and not returned is unsupported by any evidence. Mrs. Quin indeed accepted that his Honour erred in finding that a white man, to the observation of the applicant, left in the afternoon and that in the evening only the applicant returned. For the foregoing reasons I consider that error on the part of the sentencing judge has been established in his finding (necessarily beyond reasonable doubt), adversely to the applicant and contrary to the VATE statement of Saba, that the "white man" was seen by the applicant at the complainant's flat in the afternoon and then left the premises for good, so that "it appears that the incident did not occur in the heat of the moment upon discovery of that situation". (I am conscious that, in the light of Saba's statement that a white man was present in the afternoon and the applicant's statement that he visited the flat in the afternoon and left about 6 p.m., it may be said to be strange that he did not see the white man. But the applicant did say that no-one was at the flat and Saba did not say that the applicant was there in the afternoon. The seeming anomaly may be explicable on timing differences or error.)

[21]

Specific and material errors having been established, the sentencing discretion falls to be re-exercised. It cannot be, and was not, contested that this was a serious example of a serious crime. The stab wounds were inflicted in a frenzied and vicious attack with a dangerous weapon, blinding the victim in one eye and nearly killing her. But there are a number of mitigatory factors. Amongst those are that the applicant was not the initial aggressor and that, even though it is not clear how soon the stabbing occurred after the applicant's discovery of the white man, he was, in the non-technical sense, provoked. As I have explained, those two factors were not, but should have been, taken into account by his Honour. They change the complexion of the applicant's offence significantly. There are several other mitigatory factors which were taken into account by his Honour. I propose merely to list them without reference to the details or supporting evidence, which can be found in his Honour's sentencing remarks. The attack was not pre-meditated, as was made apparent, if not already so, by the response of the applicant when arraigned, which to my mind has a genuine ring about it. The applicant was labouring under emotional stress (Neal v. The Queen [1982] HCA 55; (1982) 149 C.L.R. 305 at 324). The applicant immediately had the police called, co-operated with them, and, whilst denying attempting to murder the complainant, pleaded guilty to the substituted charge early. He was remorseful. He had no prior convictions here or in Ethiopia and the attack was out of character. Finally, any period of incarceration will bear more heavily upon him than upon other prisoners by reason of his cultural isolation and linguistic difficulties. In all the circumstances I consider that a sentence of imprisonment for a term of 6 years with a non-parole period of 3 years 9 months is appropriate to the applicant's criminality and personal factors. I would therefore propose that he be re-sentenced accordingly.