R v Seater [2001] VSCA 217

Court of Appeal (Vic)|2001-11-26|Before: CHARLES, CALLAWAY and VINCENT, JJ.A.

Criminal law - Conviction - Murder - Intent to kill or do really serious injury - Evidence of intent - Conviction not unsafe or unsatisfactory.

Criminal law - Sentence - Youthful offender - Murder - Sentence of 17 years not manifestly excessive - Multiple further offences - Cumulation of 3 years not excessive.

The Crown case on the murder charge was as follows. On the evening of 30 November 1998 the applicant was being conveyed to Doncaster police station in a police car. He was handcuffed and had been placed in the back seat of the police vehicle and secured with a safety belt. The police car stopped at a location in Balwyn and the police officers present got out of the car leaving the keys in the ignition. While the officers were outside the car the applicant succeeded in undoing his safety belt and getting into the front seat. He drove away with the police car. A few hours later, on 1 December, shortly after midnight, the applicant was seen at a location in Surrey Hills. Two police officers attempted to apprehend him but the applicant leapt out of the vehicle in which he then was, still handcuffed, and was able to outrun the two police officers attempting to catch him.

On 14 December two police officers went to Blackburn South intending to arrest the applicant, who was believed to be with his girlfriend. The applicant was in a white Mitsubishi Magna parked in Laurel Grove, Blackburn South. A police vehicle drove into Laurel Grove and stopped near the driver's door of the Magna. A detective approached carrying a police revolver, saw the applicant in the driver's seat and called out "police, don't move". The detective put his left arm through the open window of the car but the applicant then drove off, and the detective had to remove his arm quickly but was still swung onto the ground. A number of shots were fired but the applicant, driving the Magna, made his escape, colliding with one of the police cars as he drove away. A detective sergeant was struck on the right knee by the Magna's bumper bar as it accelerated away. Several shots were fired at the Magna. The evidence of one police officer, Sergeant Willey, was that he was standing in Laurel Grove South near the trees on the eastern side of the street and saw the Magna strike a police officer. He then saw the applicant in the Magna lining him up, as it was put, and driving straight towards him. He jumped to the left and fired two or three shots at the tyre of the Magna as it came towards him through the trees. The Magna was later found about a kilometre away with a damaged deflated tyre.

Evidence was given by a Year 8 student at Lynall Hall Community School in Richmond that in November 1998 he had bought a sheath knife and taken it to the school. The knife was fitted with a sheath and a strap. The principal of the school, Keith Muller, saw him with the knife and took the knife away. Mr Muller's evidence was that on 15 December he left on the floor of his study next to his desk a briefcase which contained among other things his wallet and the knife he had confiscated from the student. The knife was then in its sheath and held in place in the sheath with a strap. Just before midday on 15 December he returned to his office and found a young man, later identified as the applicant, standing at his desk. Mr Muller asked if he could help the applicant, who turned and started to walk past him and said, "No, it's okay". The applicant then walked out of the office and down the corridor. Mr Muller asked him to "hang on" and walked after him. The applicant turned right down the main corridor and increased his pace, Mr Muller doing the same. The applicant then ran straight down the middle of the corridor with Mr Muller running after him. In the corridor Mr Muller saw Peter Orr coming towards him, and called out, "Grab him, Peter". There were then approximately 10 metres separating the applicant and Peter Orr. The applicant ran straight at Peter Orr. As Mr Muller was running, he saw something had been thrown or fallen to the floor to the left of the applicant well clear of his path. Peter Orr then grabbed the applicant by the jacket, catching the shoulder area of one arm with two hands. The two men started to fall due to the momentum of the applicant running. Mr Muller had his left hand on the shoulder of the applicant's jacket as they were falling to the floor, but overshot the other two men, running past them by a pace or two. As Mr Muller stopped and turned he saw that the left side of Peter Orr's head was very bloody around the temple, but had not seen a blow being struck. By the time Peter Orr and the applicant had fallen to the floor, Mr Muller saw the knife on the ground between them. The applicant struggled to get free and get to his feet, Peter Orr still having hold of him. The applicant's arms were flailing about. The applicant picked up the knife and Mr Muller yelled, "Let it go, Peter", and then, "Get out. He's let you go". The applicant stood up and ran west down the corridor.

Another teacher at the school, Ms Nerys Lewis, gave evidence that she heard shouting and running footsteps and went into the corridor and saw Mr Muller, Peter Orr and the applicant. She saw Peter Orr slumped down against the pillar or the wall with the applicant standing over him. There was a tussle happening, but she could not be specific as to who was in contact with whom. She saw a knife in the hand of the applicant and noticed that it had blood on it. He was holding the knife with the blade against his T-shirt. She saw that Peter Orr's shirt was becoming soaked with blood and observed Mr Muller, who was standing, back away from the young man. The applicant also backed off, then turned and ran towards the western exit. Evidence was given by other teachers of seeing Mr Muller, Peter Orr and the applicant together in the corridor, and the applicant making his escape down the corridor.

Another teacher at the school, Lambis Englezos, heard yelling in the corridor and went into it to see what was happening. He saw a man running towards him, holding a knife which he was securing on his person. The man lowered the hood of his jacket over his head as he moved towards the exit. Mr Englezos moved down the corridor and saw Peter Orr being supported by other members of staff and then turned and went back towards the exit. From the stairs he saw the man about to enter a car in the car park beside the school. Another witness, Bill Baker, was in a parked van in the car park and gave evidence of seeing a young man walk briskly up and get into the car, which reversed out hurriedly into Church Street.

An ambulance was called and Peter Orr was given first aid in the staff room, but by the time the ambulance arrived he had lost consciousness. At the trial it was admitted that on 20 December Peter Orr died at St Vincent's Hospital as a result of injuries to his brain inflicted by the applicant on 15 December 1998. Mr Muller suffered an injury to his left little finger in the struggle.

Evidence was given by Daniel Reynolds that he knew the applicant in December 1998 and that the applicant had stayed at his house for a few days around that time. Mr Reynolds said that one day the applicant came home and said that he had just stabbed someone and that he thought he had killed that person. He showed Mr Reynolds a knife in a black sheath and a brown leather wallet and told Mr Reynolds to put them somewhere. After he had gone Mr Reynolds looked inside the wallet and found no money there. He discovered a reference to the Lynall Hall Community School, and later that day heard on the radio about a teacher being stabbed in a Richmond school. He then took the items to the Ringwood railway station and handed them anonymously to an employee.

Senior Constable Philip Stevens gave evidence of his examination of the crime scene. He found the strap that had been torn away from the knife sheath on the floor of the corridor, and matched the tear pattern on the strap with that of the sheath. Evidence was also given of a post-mortem carried out on the deceased. Dr Robertson, a forensic pathologist, said that she found an incision over the left temple region with a penetrating or stab injury, the bone there being 3 millimetres thick. The brain and membrane below the defect was damaged to a depth of about 8 centimetres, consistent with having been caused by the knife taken from Mr Muller's briefcase, the knife having a blade length of 8 centimetres. The evidence was that at least moderate force would have been required to cause such an injury and that the head of the deceased moving towards the knife could have applied the force that caused this type of injury provided that the weapon had been held at the appropriate angle and sufficiently braced. Death had resulted from this brain injury.

The applicant was later arrested on 15 December near the Heathmont shopping centre in Canterbury, when a stolen Range Rover driven by him ultimately hit a tree. The Range Rover had driven into and out of private property near the shopping centre, damaging some of the property including fences. Shots were fired by police officers at the Range Rover and the evidence of police witnesses was that the applicant was seen to leave the Range Rover and run to a private property nearby. Two police officers gave evidence of jumping fences and pursuing the applicant on foot until they caught him. The applicant struggled violently before and after arrest but was eventually restrained.

The applicant was interviewed by police at Ringwood CIB offices on 15 and 16 December and made no comment in relation to the matters being put to him. On 26 April 2000 he pleaded guilty to 28 counts arising out of his activities between 28 November and 15 December 1998. The application for leave to appeal against conviction is based on the grounds that the verdict was unsafe and unsatisfactory and that the jury should have entertained a reasonable doubt as to whether the applicant intended to stab the victim.

At the trial the prosecution case was that the accused had murderous intent, that is, he either intended to kill Peter Orr or intended to do him really serious injury. It was submitted that the events preceding the death of the victim showed that the applicant was a fugitive who was determined to avoid capture at all costs. There had been, so it was put, evidence of an escalating level of preparedness to carry out desperate acts. It was submitted that, in attempting to escape from Mr Muller, the applicant kept in a straight line heading for the victim, having with him the knife in the sheath. The prosecutor argued that the evidence showed that the knife had been ripped from the sheath with such force that it tore away the retaining strap and that, when the applicant and the victim closed on each other, the victim was stabbed on the left-hand side of his head, which had been exposed to the right-hand side of the applicant. The knife was then plunged into the victim's head to the depth of 8 centimetres. It was submitted that these events showed that the applicant could only have been acting with an intention to kill or at the very least cause really serious injury. Reliance was also placed on the admission of the applicant after the event to Mr Reynolds that "I stabbed someone. I think I killed him".

Counsel for the applicant at trial responded that there was no evidence to support an intent to kill or do really serious injury on the part of the applicant, but rather that the applicant, running along the corridor with a knife, had been committing an unlawful and dangerous act and that the proper verdict was manslaughter.

In this Court, Mr Turner for the applicant submitted that the jury's verdict was unsafe and unsatisfactory and that on the evidence the jury should have found that there was a reasonable doubt as to whether the applicant intended to stab the victim. He put it that the evidence of Mr Muller had been accepted as accurate and fair by both prosecution and defence, and he had been the only witness who saw the contact between the applicant and the victim. Mr Muller had said that he did not see any blow to the victim's head or the knife before the injury was sustained. Indeed he did not see the knife until both men had fallen to the ground. Mr Muller had not seen the applicant strike a blow to any part of the victim. In his submission the logical and obvious explanation of why Mr Muller had not seen a blow was that there had been no blow. The reasonable inference which the jury should have drawn was that the applicant did not strike the victim with the knife. Mr Turner submitted that the evidence of the pathologist led to the view that although the force required to cause the injury was at least moderate, it need not necessarily have been applied by the holder of the knife. Dr Robertson had accepted that if the weapon had been held at the appropriate angle and braced, the force could have come from the movement of the body. He submitted that the evidence left open a reasonable hypothesis that when the applicant and the deceased fell to the ground, the knife being in the applicant's hand, his elbow may have hit the floor as both were coming down and that the victim may have been struck at that point. In the absence of any direct evidence of an intentional stab or blow, the jury could only speculate or guess as to how the injury had been sustained, and accordingly the verdict of guilty of murder must be considered to be unsafe or unsatisfactory.

As already noted, it was admitted at the trial that the deceased died from a wound inflicted by the knife held by the applicant. The evidence was that the wound had been inflicted with moderate force on the left-hand side of the skull of the deceased, by a sharp-edged weapon penetrating 8 centimetres. The jury were entitled to take the view that the applicant was prepared to take desperate measures to avoid capture, including driving cars directly towards armed police officers attempting to apprehend him and disregarding shots fired in his direction and at the stolen vehicles he was driving. The applicant had, on the evidence, stolen the knife, secured in its sheath, from Mr Muller's briefcase shortly before he made contact with the victim, and the jury were entitled to conclude that the applicant had ripped the knife from its sheath with sufficient force to break the restraining strap in the moments before coming into contact with the victim. Mr Muller's evidence was that he had seen blood on the victim's head before they had fallen to the floor, and Mr Turner conceded that on this evidence it was open to the jury to find that penetration by the knife had taken place before the applicant and the victim actually hit the floor. After the victim was stabbed, the applicant made his escape with some coolness, and later said to Mr Reynolds that he had stabbed someone and thought he had killed him. There was no direct evidence as to precisely how and when the knife contacted the victim's head, or as to the applicant's intentions at the time. Neither to Mr Reynolds nor to interviewing police did he give any explanation of what had happened, and in his trial he stood mute. The evidence of the knife having been ripped from its sheath as the applicant ran down the corridor towards the victim was, I think, particularly damaging to his defence. It was a matter studiously avoided by the applicant's very experienced criminal counsel in his address to the jury. In the absence of any explanation, the jury must have concluded that he tore the knife from its sheath intending to use it to help him make good his escape. The statements made to Mr Reynolds were further evidence upon which the jury were entitled to rely.

In all these circumstances it was in my view open to the jury to be satisfied beyond reasonable doubt that the applicant intended to kill Peter Orr or at least to do him really serious injury, and therefore to convict the applicant of murder. I would accordingly reject the application for leave to appeal against conviction.

In arriving at a total effective sentence of 20 years' imprisonment, the judge sentenced the applicant on each of the eight counts of burglary to 3 months' imprisonment, on the 13 counts of theft, the count of escaping from lawful custody, and the count of attempted theft, in each case to one month's imprisonment, on each of the two counts of aggravated burglary to 2 years' imprisonment, on each of the two counts of reckless conduct endangering a person to one year's imprisonment and on the count of causing serious injury recklessly to 3 years' imprisonment. On the count of murder the applicant was sentenced to 17 years' imprisonment. Orders for cumulation were made as to six months of the sentences imposed in relation to the two counts of aggravated burglary and the two counts of reckless conduct endangering a person, and 12 months on the sentence imposed for causing serious injury recklessly, the total period of cumulation thus being years.

The application for leave to appeal against sentence, directed, as I have said, at all the sentences imposed by the learned judge, is based on the single ground that the sentence was unjust and unfairly excessive. Mr Turner submitted that the judge failed to place appropriate weight on the applicant's age, his prospects of rehabilitation, his remorse in relation to the death of the deceased, his personal circumstances and his plea of guilty in relation to all charges other than murder. He was a "youthful offender", being aged 19 at the time of the offences. It was submitted that the judge failed to take into account the plea of guilty in relation to all the offences other than murder, the plea being properly to be regarded as a sign of remorse in relation to these offences. The applicant was a drug addict at the time and much of his criminal activity was conducted in order to obtain money for drugs. Furthermore it was suggested that the judge had failed to acknowledge that the applicant had pleaded guilty to these other offences. Finally it was submitted that the judge had adopted a position in relation to the circumstances of the death of the deceased which had no evidentiary basis, saying that the applicant had struck at the victim's head with a knife. It was suggested that this was prejudicial to the applicant's position and led to a more significant sentence being imposed upon the applicant.

In my view there is nothing in any of these arguments. The applicant, before the present spate of offending, already had a deplorable record, with, between June 1992 and November 1997, some 28 findings of guilt and 89 convictions from 16 court appearances for a range of offending including multiple charges of burglary and theft, crimes of violence, drug offences and driving offences. On eight occasions he had been sentenced to detention in a Youth Training Centre. On 18 November 1997 he was sentenced to a term of 12 months' imprisonment, of which 3 months was suspended for 18 months. As the applicant's counsel said for him during the plea, his age was "the only thing he's got going for him". This was a matter mentioned by the judge in sentencing reasons and the judge appeared to take a favourable view of his future prospects. There was very little evidence of remorse on the part of the applicant (indeed the judge said that he had a continuing lack of remorse towards most of his victims) and his drug addiction was of little or no assistance in mitigation of the extraordinary number of offences he had committed. The judge made reference in his sentencing remarks to the applicant's plea of guilty and the findings of fact made by the judge were, in my view, open to him. A sentence of 17 years' imprisonment for the crime of murder could in all the circumstances be regarded as nothing other than entirely appropriate. Indeed, very sensibly, Mr Turner did not seek to attack the individual sentences imposed, limiting his argument as to sentence to a claim that there had been excessive cumulation. The other offences for which the applicant fell to be sentenced at the same time were many and serious and, notwithstanding his age and his plea of guilty, plainly justified an additional period

by cumulation of 3 years. The appropriateness of some cumulation had been conceded by the applicant's counsel during the plea.

In my view there is no substance in this application for leave to appeal against sentence, and I would dismiss it accordingly.

The order of the Court is that the applications for leave to appeal against conviction and sentence are dismissed.

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