R v Salew [1998] VSCA 141

44. At 11.55 p.m. an officer at the Footscray police station received a telephone call from a neighbour of the complainant, who said, "My neighbour from flat No.4 knocked on my door and said ', You had better call the police, I've killed my wife'". The police attended the scene shortly thereafter and arrested the applicant.

47. When ambulance officers attended the scene at 12.06 a.m. they found the complainant on her stomach with a quantity of blood on her person and on the floor around her. Her pulse - the summary says - "blood pressure" was not detectable and they began using life-saving equipment. Medical examination of the complainant revealed the following wounds: (1) a penetrating wound over the left eyebrow approximately 2 cm in length and of unknown depth, with bruising below the eye and the eye itself proptosed with a dilated, unreactive, irregular pupil and subconjunctival haemorrhage; (2) and (3) two penetrating wounds to the right cheek, both approximately 1.5 cm by 0.5 cm and of an unknown depth; (4) a superficial laceration to the nose; (5) a penetrating wound of approximately 2 cm by 0.5 cm and of unknown depth over the right loin with the surrounding subcutaneous haematoma; (6) a penetrating wound over the left deltoid approximately 2 cm by 2 cm and of unknown depth; and (7+) multiple superficial lacerations to the left hand. As a result of wound (1) the complainant has lost the sight of her left eye and may have to have it removed.

50. In the course of his sentencing remarks, after referring to the complainant's injuries and the applicant's background and family, the judge, speaking of Saba, said:

"At the committal proceedings she gave evidence against you. There was some conflict between her evidence and that of your second wife. The Crown accepts that there had been no opportunity for you to persuade your eldest daughter to give evidence that was more favourable than that being given by the victim. Accordingly, it is accepted that for purposes of sentencing I should proceed on the assumption that the version given by your daughter on a couple of contested features of this case should be accepted. This does not involve any conclusion that your wife was misrepresenting the position. It is merely a recognition that on the material before me it would be unfair to proceed on any basis other than that version given by your elder child. For reasons that I will give in a moment, in my opinion that makes very little difference in this case. Nevertheless, in view of the way the matter was put to me, I think it appropriate that I express a conclusion on an appropriate approach."

Then, after referring to the applicant's marriages and children, his Honour set out the complainant's account of the history of their marriage in Australia and of the events of 15 September 1997. He continued:

"The conflict between that version and the one that you accept was the subject of evidence by your daughter, Saba, when interviewed by the police. You said that a white man had been at the flat when you arrived. The current version is that this had been the situation when you arrived on that afternoon, that is, a white man was leaving as you had arrived. You say you had gone out during the evening, but had then come back. As I understand it, the presence of the white man was an issue between you and your wife. You also say that it was your wife who had obtained the knife from the kitchen and that it was initially produced and used by her. In cross-examination your daughter, Saba, said that your wife went to the kitchen and got the knife. She put the knife in her jacket. Saba later said that you took the knife from her, but only after you had been cut by its use. There is some independent evidence in support of that. After the incident you were discovered to have an injury with a knife caused laceration to the area of the right mandible. It follows from all these circumstances that I am required to sentence you upon the basis that, so far as the incident, itself, was concerned, you were emotionally overwrought, probably by reason of the state of your marriage and your belief that there had been another man with your wife on that afternoon. However, it appears that the incident did not occur in the heat of the moment upon discovery of that situation. It is clear that the event occurred much later, probably closer to midnight. You had asked your wife for money and this led to the dispute and ended in the way that I have described."

His Honour later said that it appeared to him from the material as a whole, particularly that emerging from the report of Mr. Joblin, that the applicant's anguish was more deep-seated than referable to a belief that his wife had some sort of relationship with another man. He referred to the complainant's alleged change of attitude to the applicant since her arrival in Australia. Without necessarily accepting that "scenario", his Honour stated that he did proceed on the basis that the applicant's degree of anguish was magnified by the belief that the complainant wished to sever the relationship once her object of emigrating to Australia had been achieved. Later still, speaking of remorse, the judge said, "There is no doubt that you are extremely remorseful for what you see as a provoked reaction, but would concede was nevertheless an over-reaction on your part."

57. Ms Graham commenced her oral submissions by reminding the Court of the principle stated in the joint judgment in R. v. Storey [1998] 1 V.R. 359 at 371 that:

"... the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt but if there are circumstances, which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."

This passage had been drawn to the attention of the sentencing judge by the prosecutor.

62. 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.

65. His Honour was, of course, not bound by the attitude of the Crown. But significant weight should have been given to the attitude of the Crown and, to find facts more adverse to the applicant than the facts in Saba's account, the judge had to be able to be satisfied of them beyond reasonable doubt: R. v. Storey at 370-371.

68. 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.)

71. I take next para.(a) of ground 2, which concerns the finding that the applicant had asked his wife for money and this had led to the dispute which ended with the applicant stabbing her. This finding is supported by the complainant's evidence, but it is inconsistent with the applicant's answers. It is also, in my view, notwithstanding that Saba could not hear all that was said, inconsistent with the sequence of events revealed by Saba's VATE interview. The finding, as appears from the paragraph in which it is contained, proceeded from the erroneous finding that it was much earlier, that is, in the afternoon, that the applicant had seen the white man. It is true, as Mrs. Quin pointed out, that, since the stabbing occurred close to midnight and since the approximate time when the applicant gained entry to the flat in the evening did not appear, it was open to find that some interval occurred between the applicant's sighting of the white man and the stabbing incident. (Although Saba was woken from sleep, it may be thought unlikely that the applicant wandered around the Footscray market till close to midnight.) But the finding is inconsistent with the complainant's saying, in the context related by Saba, that she did not want the applicant and did not love him, and scarcely consistent with the complainant's obtaining the knife from the kitchen, a matter yet to be mentioned. In summary, in my view, it was not open to the judge to find beyond reasonable doubt that a request by the applicant of his wife for money had led to the dispute which ended with her being stabbed.

74. It is convenient to take next a matter which, although not the subject of ground 2, was fully debated before this Court and is in fact referred to in a slightly different context in para.(a) of ground 3. This is the question who obtained the knife and produced it. His Honour, after setting out the complainant's account, did, in the second paragraph of the second passage I have set out from his sentencing remarks, state that according to the applicant it was the complainant who had obtained the knife from the kitchen and initially produced and used it, and did refer to Saba's statements to the same effect. His Honour went on also to say that there was some independent evidence in support of that account, which, as I understand it, is a reference to the medical evidence of the then fresh laceration to the applicant's right mandible, to which his Honour next referred. His Honour's sentence referring to independent evidence in support suggests that he accepted the statements of Saba about the knife. But, although the next paragraph of the sentencing remarks begins by referring to "all these circumstances", the terms of the paragraph are, in my view, quite inconsistent with the complainant's having produced the knife and thus been the aggressor. In my opinion, the sentencing judge erred in failing to find in accordance with Saba's VATE statements (if he did so fail), or at any rate in failing to sentence on the basis, that it was the complainant who obtained the knife and produced and used it against the neck of the applicant, and was thus the initial aggressor. That is not mentioned as part of "the basis" on which the judge stated he was required to sentence the applicant. If his Honour was sentencing on the basis that the applicant was not the aggressor, one would expect that to be expressly stated.

77. That brings me to para.(c) of ground 2, which concerns the finding that the incident did not occur in the heat of the moment upon the applicant's discovery or belief that there had been another man with the complainant in the afternoon. (The paragraph telescopes two sentences of the reasons.) It follows from what I have said in relation to the knife and in relation to the other paragraphs of ground 2 that this finding also is erroneous. His Honour's later reference to "what you see as a provoked reaction", belittles, as Ms Graham submitted, or dismisses, the so-called provocation arising from the discovery that a white man had been present earlier in the evening and from the use of the knife (as to which reference may be made to The Queen v. Howe [1958] HCA 38; (1958) 100 C.L.R. 448 at 463).

80. Indeed, I consider that his Honour erred in failing to sentence on the basis of what I have referred to as so-called provocation, which is a mitigatory factor: R. v. Okutgen (1982) 8 A.Crim.R. 262 at 264 and 266 and R. v. Pearce (1983) 9 A.Crim.R. 146 at 150. It follows that ground 3 is made out, but only so far as it refers to "no weight."

83. Mrs. Quin reminded the Court of the remarks of Wells, J. in R. v. Reiner (1974) 8 S.A.S.R. 102 at 114-115, approved the New South Wales Court of Criminal Appeal in R. v. Holyoak (1995) 82 A.Crim.R. 502 at 511-512 and 516, that it is "no part of an appeal court's function to search, with a hypercritical eye, for what may, upon one arguable construction, be error or misunderstanding". I strongly endorse that view. But, particularly when his Honour had said that it was accepted that for purposes of sentencing he should proceed on the assumption that the version given by Saba on a couple of contested features of the case should be accepted, I cannot avoid the conclusion that his Honour erred in not finding or sentencing in accordance with Saba's statements about the white man (acknowledged by his Honour to be an issue) and the knife and in finding that a request by the applicant for money led to the dispute in which the complainant was stabbed. Nor, as a result, can I avoid the conclusion that his Honour erred in failing to sentence on the basis that the applicant was "provoked". Moreover, I think that it may fairly be said that on some issues, such as who obtained the knife, his Honour left the listener or reader in doubt as to his findings. I draw the foregoing conclusions more confidently because there are other misstatements in the sentencing remarks. For instance, it is incorrect that Saba gave evidence at the committal proceedings or was cross-examined, and the attribution to the applicant of the "current version" stated by his Honour is incorrect. (There are some other statements in the sentencing remarks which seem, by deduction from other facts, incorrect, such as the statement that the fourth child of the applicant was born in Australia; but I disregard them because they accord with statements in the summary or with what his Honour was told.)

86. 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.