_R v Sebo; ex parte A-G

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] KEANE JA: I agree with the reasons of Holmes JA and with the order proposed by her Honour.

[3]

[2] HOLMES JA: After being convicted by a jury of the manslaughter of his 16 year old girlfriend, the respondent was sentenced to 10 years imprisonment, with a consequent declaration that the conviction was one of a serious violent offence, requiring him to serve 80 per cent of his sentence. The Attorney-General appeals against that sentence, contending that it is inadequate.

[4]

[3] The respondent was 28 years old at the time of the killing. He and his victim had been in a sexual relationship for some two years. He was charged with murder, but relied on a defence of provocation, which the jury evidently accepted as at least a reasonable possibility, in convicting of manslaughter. On 9 September 2005, he and his girlfriend had been at a casino and were returning home by car. The defence case was that the victim, who was affected by alcohol, taunted the respondent with claims of having slept with a number of other men. The respondent, upset, stopped the vehicle on the roadside, and made her get out. When she said that she would continue to deceive him, he struck her a number of times with a steering wheel lock, continuing after she had fallen to the ground. The blows caused head injuries, the force required to inflict which was described as "severe". The respondent took the injured girl to hospital, where he denied having caused her injuries. She died two days later.

[5]

[4] In sentencing, the learned judge noted the terrible effects that the young woman's killing had on her mother and other members of her family. The use of a weapon was a serious aspect of the offence. The respondent had shown some remorse, but had initially lied to hospital staff about causing the injuries, although he later admitted his responsibility. By way of further mitigation, his Honour recorded that the respondent had no prior convictions; that there were no prior episodes of violence in the relationship between him and his victim; that he had offered a timely plea of guilty to the offence of manslaughter of which he was ultimately convicted; and that he had co-operated in the conduct of the trial, which focussed on the issue of provocation.

[6]

[5] In arguing that the sentence was inadequate, because it insufficiently reflected the gravity of the offence and the need for deterrence, while giving too much weight to mitigating factors, counsel for the appellant emphasised these factors: the youth of the victim; the use of a weapon; the brutality of the attack, which included blows while the deceased was defenceless and on the ground; the fact that the killing occurred in a public place; and the relatively low level of the provocation offered. He argued that the range within which the sentence should have been imposed was between 12 and 14 years imprisonment. Counsel for the respondent contended instead that the proper range was between 8 and 12 years.

[7]

[6] Counsel for the appellant pointed to two authorities, R v Whiting; Ex parte Attorney-General [1994] QCA 425; [1995] 2 Qd R 199 and R v Cummins [1999] QCA 117, as debunking any proposition that there was a demarcation between manslaughter in cases involving domestic violence and other forms of manslaughter, the latter attracting lower penalties. In addition, the appellant canvassed, as did the respondent, a series of sentence appeals in manslaughter cases.

[8]

[7] Both counsel raised the case of R v Schubring; Ex parte Attorney-General (Qld) [2004] QCA 418; [2005] 1 Qd R 515 in which, on an Attorney-General's appeal, a sentence of seven and a half years imprisonment with a serious violent offence declaration was set aside and a sentence of 10 years imprisonment substituted. The respondent had been convicted of the manslaughter of his wife, the learned judge sentencing on the basis that the Crown had failed to negative provocation. There had been a lengthy argument between the respondent and his wife in which she was said to have threatened him that she would take custody of their children and he would lose his house; the respondent believed also that his wife was involved in a relationship with another man and had lied about it to him. He battered her head against some tiles, rendering her unconscious and then garrotted her with a dog lead. The sentencing judge found that the respondent meant to kill his wife; that while there was provocation it was not immediate, and there was an aspect of deliberation in the respondent's conduct, in leaving to get the dog lead, returning, and strangling his wife in what must have been more than a momentary action. The mitigating factors, as recorded in the judgment of de Jersey CJ, were that the respondent "had no prior convictions, was well respected at work, had had a troubled upbringing, was a caring father, and notified early a willingness to plead guilty to manslaughter."[1] This court described "the relevant sentencing level", after allowing for the plea of guilty, as 10 to 12 years imprisonment.

[9]

[8] Counsel for the respondent relied on that sentencing range, while contending that Schubring involved a worse set of facts. Counsel for the appellant, on the other hand, identified two passages in the judgment of de Jersey CJ as of particular significance. In the first, the Chief Justice noted that although provocation had been accepted by a jury, resulting in acquittal on a count of murder, the respondent's intent to kill and his lack of remorse nonetheless lent the crime "a grave complexion". That statement, counsel said, indicated that the existence of provocation did not preclude imposition of a substantial sentence. So much may be accepted. Secondly, counsel said, the court there had been referred to decisions (including Whiting and R v Auberson [1996] QCA 321, also referred to here) which pre-dated amendment of the Penalties and Sentences Act 1992 (Qld). In 1997, s 9(3) had been amended so as to remove the need to have regard to the "last resort" principle in considering imprisonment for violent offences, while Part 9A, containing the serious violent offence provisions, had been inserted. The latter, the Chief Justice said, indicated a legislative intent that violent offenders should serve longer terms in custody, and the new regime as a whole signalled an intention to strengthen judicial responses to serious violent offending. However, I do not think those remarks are a prescription (as counsel suggested) for higher head sentences in manslaughter cases. In context, they constitute a recognition, firstly, that violent offenders are less likely to escape imprisonment; and secondly, that the impact of sentencing is considerably reinforced by serious violent offence declarations (automatically attached to sentences of 10 years or more) which have the effect that at least 80 per cent of the sentence will be served in custody.

[10]

[9] A second case relied on by both counsel was R v Matthews [2007] QCA 144. It was an unusual case, in which the applicant for leave to appeal against sentence had pleaded guilty on an ex officio indictment to manslaughter and some other offences of dishonesty. He had strangled a woman who he believed had been involved in a burglary which had led to his wife suffering a miscarriage. Both he and his victim were under the influence of amphetamines at the time. He had dumped her body in bushland. His involvement in the offending did not come to light until some four years later, when his wife gave information to the police implicating him. He co-operated fully with police thereafter, encouraging his wife to do likewise and expressing remorse. He had an extensive criminal history, principally for offences of dishonesty. This court concluded that the sentencing judge had erred in identifying the starting point for the head sentence as 13 years and in acting on a mistaken perception that the Court of Appeal had indicated that penalties ought to be increased in manslaughter cases. A sentence of ten years imprisonment was set aside and one of nine years imprisonment, without any serious violent offence declaration, was substituted.

[11]

[10] Of the remaining cases to which counsel referred, the first, chronologically, was R v Auberson [1996] QCA 321. The respondent there was convicted of the manslaughter of his wife, the jury having given a verdict of "guilty of manslaughter with provocation". His marriage had broken up and he was suffering from depression. His wife disclosed that she had had an affair and announced that she proposed to "go for" his money, including his superannuation. He strangled her, hit her over the head with bathroom scales and cut her throat with a Stanley knife. He was remorseful, had a good work history and no previous criminal convictions. He had intimated a willingness to plead guilty to manslaughter at an early stage. A sentence of nine years imprisonment (on which the respondent would have been eligible for parole halfway) was described "as at or near the bottom of the range", but not so low as to warrant upholding an appeal by the Attorney-General. The court observed that it was difficult to identify a sentencing pattern in manslaughter offences, given the great variation in their circumstances. Accordingly, it was important not to interfere with a trial judge's sentencing discretion unless that course was plainly warranted.

[12]

[11] The next of the cases relied on by the appellant was R v Sanderson [2003] QCA 338. The applicant there was 48. He had some criminal history, which included convictions for assault. He had been convicted, after a trial, of manslaughter. He had lured to his house a man with whom his de facto wife had had sexual relations. There he struck the victim, who was unarmed, with a piece of timber, hard enough to shatter his skull. The applicant and his de facto wife had disposed of the body on a refuse tip and dumped the victim's car in a forestry reserve. The applicant initially denied any knowledge of the death to investigators, but later claimed that he had killed the victim in self-defence when confronted by him with a rifle, a proposition rejected, plainly enough, by the jury. The learned sentencing judge, not surprisingly in some difficulty in articulating the basis on which a verdict of manslaughter rather than murder was returned, concluded that the killing was carried out in a fit of sexual jealousy without any specific intent to maim or kill. The applicant sought leave to appeal against the sentence imposed, of 10 years imprisonment, on the basis that the sentencing judge had erroneously thought it not possible to declare time spent on remand as part of the sentence. However, on the Court's intimation of its view that in the circumstances of the case, the appropriate head sentence was 12 years imprisonment anyway, the applicant withdrew his application for leave to appeal against sentence.

[13]

[12] The appellant adverted to the sentencing range suggested in R v Ogborne [2006] QCA 236, while acknowledging that it was a significantly worse case. Ogborne, the applicant for leave to appeal against sentence, had pleaded guilty to manslaughter on the morning of his trial for murder. He had battered a man to death with a blunt instrument and coerced another man, with threats of killing him, to help him to dispose of the body in bushland, steps which were described as reflecting

[14]

"an added level of callousness". He denied any knowledge of the death in police interviews and had threatened the man who helped him dispose of the body with death if he co-operated with police. He offered no explanation for the killing. He was sentenced to 14 years imprisonment, to be served cumulatively with another term of imprisonment producing an effective total sentence of 18 years and nine months imprisonment. He had a long criminal history including a number of offences of violence, one of grievous bodily harm, in which his victim had suffered extensive and life-threatening injuries; he was on bail for that charge when he committed the manslaughter.

[15]

[13] Two members of the court on appeal observed that there was a particular need for deterrence in light of the applicant's previous record; it was significant that he was on bail for the offence of grievous bodily harm when he committed the manslaughter. They regarded the starting point for sentence in that case, after allowing for the plea of guilty, as between 17 and 18 years; adjustment was required to allow for the cumulative nature of the sentence. The third member of the court, allowing for the cumulative nature of the sentence, described the appropriate range as being between 11 and 14 years. All concurred in dismissing the application for leave to appeal.

[16]

[14] Of the authorities referred to by the respondent, four - R v MP [2004] QCA 170, R v Corcoran [2004] QCA 441, R v Duncombe [2005] QCA 142 and R v Mooka [2007] QCA 36 - were applications for leave to appeal against sentence and served to demonstrate no more than that in the circumstances of those cases, sentences of nine and 10 years imprisonment for manslaughter were not outside the sentencing range. In R v Katia; Ex parte Attorney-General (Qld) [2006] QCA 300, an Attorney-General's appeal, a sentence of eight years imprisonment with a recommendation for parole eligibility after three years was not interfered with. But that case, too, seems to me to turn on its own peculiar circumstances; it does not really assist in setting the range in the present case. The respondent referred to another authority, R v McDougall & Collas [2006] QCA 365, for completeness rather than comparability. The victim in that case was stabbed after an argument in a shopping centre car park. Collas' involvement in the killing was as a party, not a principal. His sentence of eight years imprisonment with a declaration of a serious violent offence was varied by deletion of the declaration. That case turned principally on whether the circumstances of the manslaughter warranted a declaration of a serious violent offence.

[17]

[15] The respondent also relied on R v DeSalvo [2002] QCA 63; (2002) 127 A Crim R 229. The applicant there had been involved in a drug deal with his victim, who spoke to him aggressively. He, apparently feeling threatened, stabbed the other man. He initially drove away but returned to provide assistance to the victim and give himself up. He was sentenced to eight years imprisonment with a serious violent declaration. The court held that the offending possessed no special feature warranting such a declaration, and substituted a sentence of nine years imprisonment without any declaration. In particular, the respondent relied on this statement by McPherson JA, agreed with by the other members of the court: "For a homicide resulting from a deliberate act like the stabbing in this case, the appropriate head sentence falls properly within the range of 10 to 12 years imprisonment." That was, his Honour went on to say, subject to further discounting, to reflect remorse and an offer to plead guilty to manslaughter.

[18]

[16] R v George; Ex parte Attorney-General (Qld) [2004] QCA 450 was also said to give some guidance: it involved an Attorney-General's appeal against a sentence of eight years imprisonment in respect of a respondent who had killed an intoxicated and harmless man with a single punch. The punch occurred in the context of a series of fistfights in which the respondent had involved himself. The respondent had pleaded guilty, although it was noted by the court that there was little opportunity for him to do otherwise, given that the blow was witnessed by police officers and others. The court substituted a sentence of nine years imprisonment without any recommendation for parole for a sentence of eight years with a recommendation after three years.

[19]

[17] I can begin my conclusions by saying that in my view the cases of Sanderson and Ogborne are of quite different proportions from the present. They involved some degree of calculation, manipulation of accomplices and a striking callousness, particularly in the dumping of the victim's bodies. Schubring, too, was a worse case, involving some deliberation and an absence of remorse. This case, in contrast, involved a brief, catastrophic fit of rage, and the respondent sought aid for his victim immediately after.

[20]

[18] The worst features of the killing in this case were its brutality, the youth and relative defencelessness of the victim, and the limited nature of the provocation which triggered it. (The fact that the fatal assault occurred in a public place seems to me, in this particular context, to have no aggravating effect.) The mitigating factors were the respondent's relative youth, his co-operation and his lack of any previous criminal history. What the cases cited demonstrate, in my opinion, is that having regard to all of those features, the sentence might properly have fallen between 9 and 12 years. A sentence of 10 years imprisonment, which carried the requirement that the respondent serve 80 per cent of it, was plainly not inadequate. There is no basis on which this court should interfere with the learned sentencing judge's exercise of discretion.

[21]

[20] DAUBNEY J: I respectfully agree with the reasons for judgment of Holmes JA and with the order she proposes.

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