R v Sypott [2003] VSC 327

Supreme Court of Victoria|2003-09-05|Before: REDLICH J

Sentence - Manslaughter by unlawful and dangerous act - Nature of unlawful act - No intention to harm victim - Accidental discharge of rifle - Highly dangerous act - Compensation payment - Remorse

John William Sypott was charged with the murder of Ms Frances Margaret Rhook on 8 December 2001. Ms Rhook sustained a single gunshot wound to the chest at about 5.35 p.m. on Friday 7 December 2001 at her home in 16 Rasmussen Street, Hamilton. The wound was inflicted by a .22 calibre Bruno bolt action repeating rifle which was owned by Mr Sypott. As a result of the infliction of that wound, Ms Rhook died some 12 hours later on 8 December 2001. On 27 June 2002 Mr Sypott was committed for trial on the charge of murder. In early March 2003 a submission was made to the Director of Public Prosecutions that manslaughter was the appropriate charge. On 9 April 2003 the Crown indicated its willingness to accept a plea of guilty to manslaughter. On 15 April 2003 at the Hamilton sittings of the Supreme Court of Victoria Mr Sypott was arraigned and pleaded guilty to the manslaughter of Ms Rhook.

Mr Sypott commenced a relationship with Frances Rhook in 1992. Both of them had previously been married. Ms Rhook had a young son from her marriage, Gregory Rhook who was born on 10 December 1988. Mr Sypott had a daughter from his previous marriage, Rebecca, who was 21 years of age at the time of this offence. Mr Sypott separated from his wife in 1979 when he was some 32 years old. Mr Sypott retained contact with his daughter Rebecca who moved to Melbourne with her mother where she remarried and settled.

Mr Sypott and Ms Rhook had a somewhat unusual relationship over the next 10 years characterised by a degree of emotional ambivalence and a lack of commitment. For most of that 10 years each of them lived in separate houses, Ms Rhook living for some time in a house owned by Mr Sypott in Coleraine. They had a daughter, Karlie Renee Rhook born 28 February 1994 but it was not until August 2000 that Ms Rhook and Mr Sypott commenced to live together with Gregory and Karlie at Mr Sypott's home on the family farmlet near Coleraine.

It appears that until mid 2001 Mr Sypott and Ms Rhook lived reasonably happily together despite some verbal conflicts. In June 2001 Mr Sypott ordered Ms Rhook out of the farmhouse following a heated verbal argument. Ms Rhook moved with her children from Coleraine to Hamilton where she first lived in crisis accommodation in Hamilton and then moved into a house in Rasmussen Street, Hamilton where she remained. Mr Sypott and Ms Rhook continued to see each other sporadically while on occasions Mr Sypott would stay the night at the Rasmussen Street address.

In the months immediately prior to Ms Rhook's death, the relationship between them deteriorated to the point where a decision by one or both of them was made to terminate the relationship. Mr Sypott continued to attend at the Rasmussen Street address often arriving unannounced to visit Karlie or to take her to the Hamilton Primary School. He frequently entered the house without knocking. These unannounced visits were a source of argument between him and Ms Rhook. Despite Ms Rhook's intention to end the relationship Mr Sypott continued to hope for a reconciliation. By December 2001 Ms Rhook was in a new relationship with one Jason Caldow which was a source of distress to Mr Sypott. Ms Rhook expressed her dissatisfaction in the form of SMS text messages about attempts by Mr Sypott to upset this new relationship.

In the period shortly prior to Ms Rhook's death, Mr Sypott attempted to put their affairs into order. He arranged to have Karlie's birth certificate amended to acknowledge his paternity of her and he organised for Centrelink to make maintenance payments for her. He also sought to finalise property arrangements between himself and Ms Rhook.

By 7 December 2001 as a consequence of what he was told by Gregory he believed that Ms Rhook had obtained or was about to obtain some Court order which would prevent him from visiting the house at Rasmussen Street to see Karlie. He also believed that Ms Rhook was intending to take the children and move interstate.

Based upon Mr Sypott's interview with police, he awoke on 7 December 2001 feeling depressed and wrote a suicide note to his daughters Rebecca and Karlie apologising to them for the way he had treated them. He noted that he had lost Rebecca when she was young and stated that he would not be able to see Karlie any more. He said his life had come to an end and urged his daughters to make sure that they got a share of his property. He asked to be buried near his father Guy. On the plea Mr Sypott confirmed in his testimony that he had written this note for his children Rebecca and Karlie. At the time of writing the note it was his intention to go to the Rasmussen Street address and commit suicide in front of Ms Rhook whilst the children were not there. His intention was to point the .22 rifle at his head and then pull the trigger.

At some time during the morning of 7 December 2001 Mr Sypott wrapped the rifle in a bed sheet after having placed a single cartridge in the breach. He then placed the wrapped rifle in his utility and proceeded to drive around with it in his car. He spent the afternoon of 7 December 2001 with his sister and brother-in-law in Hamilton and then shopping. He collected Karlie from school, taking her initially to Ms Rhook's house and then at about 5.00 p.m. he took Karlie to his sister's house where he left her.

At around 5.35 p.m. Mr Sypott entered Ms Rhook's premises unannounced. He had the loaded rifle with him still wrapped in the sheet. He walked down the corridor of the house where he came upon Ms Rhook. According to Mr Sypott's account to the police, Ms Rhook said something and grabbed the muzzle of the rifle with both hands. A struggle for control of the rifle then ensued.

According to the learned prosecutor's opening which I understood to be agreed, Mr Sypott held the gun with both hands and attempted to wrestle the rifle from Ms Rhook's grasp. In his interview with the police he said that during this time his finger must have slipped into the trigger guard and he must have pulled the trigger discharging the rifle through the sheet into Ms Rhook's chest at very close quarters.

After being shot Ms Rhook staggered into the kitchen. She had taken the rifle from Mr Sypott and collapsed on the floor. At her direction Mr Sypott then made two telephone calls to the police on 000. The police and ambulance then attended. Ms Rhook was taken to the Hamilton Hospital where she was operated on and later died from her wounds. Forensic examination of the rifle showed that it had a light trigger pull. It was also found that it could be discharged by striking the barrel or by dropping it from a moderate height. The sheet in which the rifle had been wrapped showed that the bullet had been fired through it and other forensic examination confirmed that the rifle barrel was very close to Ms Rhook's chest at the time of its discharge.

The Crown accepted a plea to manslaughter on the basis that Mr Sypott's conduct constituted an unlawful and dangerous act. At the commencement of the plea I was informed that the unlawful acts relied upon by the Crown were breaches of ss. 129, 130 and 131 Firearms Act 1996. Section 131 which appears to be the most pertinent provides:

"Section 131(1) A person must not - (a) possess, carry or use a firearm on private property ... Penalty: 12 months' imprisonment."

The learned prosecutor informed me that the Crown had accepted a plea to manslaughter on the basis that it could not exclude as a reasonable hypothesis that the death of Ms Rhook had occurred in the circumstances which I have described, as outlined by Mr Sypott to police in his record of interview.

During the hearing of the plea on 15 April 2003, it was foreshadowed that compensation claims would be made by Gregory and Karlie and other members of Ms Rhook's family pursuant to s 85 Sentencing Act 1991. The further hearing of the plea was adjourned until the first week of June 2003 at which time it was intended to hear the compensation claim and to allow both the defence and the Crown to make any further submission that they wished in relation to the question of sentence. At the request of the parties including the claimants for compensation the matter was not listed until 29 July 2003 whilst negotiations took place between Mr Sypott's legal representatives and those representing the claimants for compensation. On 29 July 2003, I was advised that there had still been no resolution of the compensation claim. The parties continued to express optimism that the claim would be resolved and sought further time to resolve the claims for compensation. I adjourned the hearing of the compensation claim and the conclusion of the plea to 29 August 2003.

On the resumed hearing of the plea on 29 August 2003, I was informed that the compensation claims made on behalf of Gregory Rhook, Karlie Renee Sypott and Kylie Louise Foster and Dennis Walter Foster, the Fosters being the sister-in-law and brother of the deceased had been settled. Mr Sypott had agreed to pay a sum of $80,000 to each of Karlie Renee Sypott and Gregory Rhook and a sum of $10,000 to each of Denis Walter Foster and Kylie Louise Foster, in total a sum of $180,000 in compensation which was to be paid from monies belonging to Mr Sypott which had been frozen pursuant to an order of this Court made on 9 April 2002. It will be necessary for me to refer further to the compensation orders which were made on 29 August 2003.

At the time of the hearing on 29 August 2003, Mr Ross QC who appeared with Mr McGowan for Mr Sypott made some supplementary submissions. He contended that as the firing mechanism of the rifle was always wrapped with a sheet it was clear that the bullet must have been discharged as a result for the victim grabbing the barrel or that the barrel was knocked against something so as to cause it to discharge. No objection was taken to this construction of the facts, presumably because the Crown had accepted that there was no intention by Mr Sypott to assault Ms Rhook or to discharge the gun and as a consequence the means by which the gun came to be discharged did not matter. Mr Sypott's explanation to the police in his interview as to how the gun came to discharge was probably no more than surmise and I am prepared to sentence Mr Sypott on the basis submitted by Mr Ross.

The Crown does not take issue with Mr Sypott's claim that he intended to commit suicide on the afternoon that he went to Ms Rhook's home with a loaded rifle. The suicide note found by the police is some confirmation of his account which he gave the police when interviewed. He was fully co-operative with the police and it is not suggested that I should treat his account to the police as other than truthful.

I am satisfied on the basis of the evidence that he was a devoted father to her and Karlie. In the week before Ms Rhook died he displayed signs of distress when watching Karlie, which I infer was a consequence of his fear that he would soon lose contact with her. Mr Sypott also gave evidence before me stating that shortly before the death of Ms Rhook he had heard that she might go to Western Australia to live with her brothers and that Ms Rhook was going to stop him seeing Karlie altogether. Mr Sypott confirmed in his evidence that it was his intention to commit suicide and it was for that reason that he wrote the note to his daughters.

As a consequence of the testimony I heard and my observations of Mr Sypott during the various hearings, I am satisfied that though his intention was to commit suicide in Ms Rhook's presence, he accepts full responsibility for what occurred and is deeply remorseful for his conduct.

It is not disputed that Mr Sypott is very experienced with firearms. As a consequence of his rural lifestyle he has had access to guns from a very early age and understood how to use them and the need for precautions. Mr Sypott was well aware of the dangers of carrying a loaded firearm and the ease with which someone could be injured. He has a prior conviction for having failed to safely store a firearm in 1994. I accept his evidence that he was unaware prior to Ms Rhook's death that the rifle could be discharged by pressure being applied to the barrel or by the butt being knocked.

Although he readily agreed with the learned prosecutor that he had been incredibly stupid in walking into the house with a gun that was loaded, it was not his stupidity that caused him to do so but his intention to kill himself in the presence of Ms Rhook.

Mr Sypott was psychologically assessed by Ms Wendy Northey on 21 March 2003. Her report dated 12 April 2003 became Exhibit 3 on the plea. Ms Northey concluded that Mr Sypott had developed a form of agitated depression and anxiety, characteristic of an Adjustment Disorder (DSM-IV 309.28) in the six months following Ms Rhook's departure from his house. He had not slept well, and lost appetite and weight and was anxious. He had been prescribed sleeping tablets by his local doctor. Ms Northey found that the symptoms described by Mr Sypott were consistent with an agitated form of depression with anxiety which adversely affected his capacity to act rationally.

Mr Ross in the course of the plea described his condition as a mental or psychiatric disorder. He submitted that by 7 December 2001 Mr Sypott was not merely depressed as a consequence of his concern that he was to lose access to Karlie but he had resolved to take his own life. Mr Ross described this as the deepest of depression that a person can have. He submitted that in light of Mr Sypott's state of mind neither general deterrence nor personal deterrence should apply or if they did they should apply in a very small way. He relied upon Channon v R[1]; R v Anderson[2]; R v Man[3]; The Queen v Bux.[4] I also considered a number of other recent decisions of the Victorian Court of Appeal. R v Tsiaras[5]; R v Roadley[6]; R v Williams.[7]

The learned prosecutor in response submitted that Mr Sypott's depressive illness did not constitute a serious mental illness of the sort contemplated by the Court of Appeal in Tsiaras. He submitted that Mr Sypott's depression did not prevent him thinking rationally about what he was doing. The prosecutor submitted that he intended to go there to kill himself and understood the full nature and quality of what he was doing. Finally, the learned prosecutor submitted that Mr Sypott's depressed state of mind had no relevance to a crime which involved an objective test of a reasonable forseeability of danger. While I do not regard the last of these submissions as having substance, I consider the learned prosecutor's contentions to be otherwise correct.

Mr Sypott was not in my view suffering from a serious psychiatric illness and the sentence that I impose must take into account general deterrence. Nevertheless Mr Sypott's significantly depressed state of mind which led him to ideas of suicide is a matter that I may take into account in considering Mr Sypott's level of moral culpability, the extent to which the sentence should make provision for specific deterrence and the prospects of Mr Sypott's rehabilitation.

Nature and seriousness of unlawful and dangerous act

The classification of this crime of manslaughter as manslaughter by unlawful and dangerous act does not, as the difference between the parties submissions reveals, of itself assist in arriving at an appropriate sentence.

It was submitted on behalf of Mr Sypott that the circumstances of this offence did not require an immediate custodial sentence and that a suspended sentence would be appropriate. By contrast the learned prosecutor submitted that this offence was "somewhere towards the middle to three quarters of the way up the range of dangerous and unlawful act manslaughters". Mr Sypott's conduct was described by the learned prosecutor as an extremely dangerous act with quite clearly foreseeable consequences. It was submitted that a reasonable person in Mr Sypott's position would have realised that he was exposing Ms Rhook to an appreciable risk of serious injury. R v Wilson. [8] This was undoubtedly an extremely dangerous act.

As the parties have taken different positions as to the appropriate sentence I should make these observations. It is well recognised that there is no single tariff for the offence of manslaughter or even within the distinct categories of manslaughter. I have had recourse to sentencing statistics and in particular to sentences of manslaughter involving a loaded firearm.

Each crime has its own objective gravity. Although manslaughter throws up the greatest variety of circumstances affecting culpability, the key element in assessment of gravity of the objective circumstances of such cases is that they involve the felonious taking of a human life. The factual matrix of the offence may significantly reduce the blameworthiness of the offender and that must also be assessed. See Veen No. 2[9]; and R v Dodd [10]. The maximum sentence for manslaughter was increased from 15 to 20 years in 1997 reflecting community concern that Courts should impose higher penalties for the felonious taking of human life. The sentence must reflect the gravity of what the offender does, not only to punish him for what he did, but also to deter others from doing likewise. Where the offence involves the use of a loaded gun in a domestic quarrel, the conduct must be deplored and deterred. The punishment and deterrent aspects of sentencing will usually weigh heavily in the scales. See R v Pashalay.[11]

It is unnecessary for the prosecution to establish that one charged with manslaughter by unlawful and dangerous act intended to commit a dangerous act. It is enough that it is established that the act committed was unlawful and that viewed objectively it was dangerous. See R v Wilson. The prosecution must establish any mental element which is involved in the ingredient of unlawfulness. The present case must be distinguished from those cases where an offender commits an unlawful act which involves physical harm or the threat of harm to the victim. The act may constitute an assault on the victim, and where death results but the act is not accompanied by an intention to at least cause really serious injury, the crime will be manslaughter by unlawful and dangerous act. The facts which the Crown has accepted are that Mr Sypott had no intention to harm or threaten the deceased. I have thus considered the sentences imposed in a number of cases involving the discharge of firearms resulting in death including a number where no harm was intended. See Regina v Blair[12]; DPP v Barnwell[13]; Queen v Nguyen[14]; Queen v Lawson[15]; R v Do[16]; The Queen v Reynolds[17]; The Queen v Cox[18]; The Queen v Pashalay[19]; R v Pemblel[20]; R v Osip[21]; and R v Raccanello.[22] Some of those cases concerned manslaughter by criminal negligence. I can discern little difference in the range of penalties imposed between unlawful dangerous act and criminal negligence manslaughter in cases where the negligence was of a very high order.

Though the unlawful act which the Crown relies upon was not intended to cause physical harm to the victim, Mr Sypott was intending to discharge the gun to kill himself in Ms Rhook's presence thereby causing her mental anguish, and despite the high risk of injury he approached Ms Rhook with the barrel facing towards her.

It was made clear on the day that Mr Sypott pleaded guilty to manslaughter that he did not oppose the making of compensation orders in relation to Gregory and Karlie and some other members of Ms Rhook's family. Although there was a substantial delay in the resolution of the compensation claim, I am satisfied that Mr Sypott was always willing to pay fair compensation.

It was submitted on behalf of the Crown that an order for compensation is not to be regarded as part of the punishment imposed but that it would be open to me to take it into account as providing further evidence of remorse. Queen v Barcham[23]; R v Braham[24]; Rudra Nath[25]; Mickelberg.[26] Whether the distinction which the learned prosecutor drew between punishment and remorse is a valid one, I do not stay to consider it being submitted that a compensation order may not be taken into account in determining the correct punishment where it does not demonstrate remorse. In the present case, I am satisfied Mr Sypott was prepared to pay compensation and agreed to payment of substantial compensation, at least in part because of the remorse that he has for his conduct. I am satisfied that he recognised the effects of his conduct on both his daughter and Gregory and wished to assist them as best he could over the loss of their mother. Mr Sypott's financial circumstances, as disclosed in the affidavit material which was filed in support of the original confiscation orders that were sought by the Director of Public Prosecutions, reveals that he is not a man of substantial wealth and the orders to which he has submitted substantially affect his financial circumstances. It is appropriate that I take those orders into account when considering the extent to which any sentence which I impose should be discounted by virtue of his plea of guilty and the remorse which has been revealed.

Mr Sypott has three prior convictions which the learned prosecutor fairly described as of a minor nature and I do not propose to take them into account in fixing sentence. See R v Okutgen[27]; R v McInerney[28]; Ryan v The Queen[29]; Weininger v The Queen.[30]

On the further plea Mr Ross drew my attention to the fact that Mr Sypott has conducted himself as a model prisoner whilst in custody. During his period in custody he has completed a Depression Program for managing and gaining insight into depression, has obtained a number of certificates in relation to information technology skills and is also pursuing courses in horticulture and ceramics in which it is observed that he is a courteous, punctual and a keen student.

Mr Sypott, you were born on 23 March 1947 being the eldest of five children living on a dairy farm near Coleraine. You appear to have had an uneventful childhood relating well to both your parents and siblings. Your father who managed the family farm died some five years ago at the age of 92 whilst your mother who is now 72 lives independently on a small farmlet near Coleraine. You attended Coleraine Primary School and then secondary school at Casterton for one year before going to Hamilton Tech. Ms Northey, whose report I have referred to assessed your overall intelligence as below average. By Year 8 you had left school and commenced regular work as a rouseabout. By the time you were 18 you were working as a shearer travelling from Coleraine interstate following the shearing seasons in New South Wales and Queensland. You apparently loved this work. You married when you were aged 30, having a daughter Rebecca who was born in 1977. Not long thereafter you and your wife separated in part because of your transitory lifestyle and your drinking which at that time was a problem. When your former wife moved to Melbourne with your daughter Rebecca, you continued to maintain contact with Rebecca and you have to your credit maintained a close bond with her. You continued to work throughout the 1980's but after some 29 years as a shearer you were forced to retire in 1991 because of a work related back injury. It was shortly after this injury that you commenced your relationship with Ms Rhook. I have already referred to the nature of that relationship and your eventual separation. It appears that you became very distressed at the possibility of not seeing Karlie again and you were reminded of how you had lost Rebecca when she moved away with her mother. You accepted full responsibility for your conduct and exhibit a significant degree of sadness and remorse about the death of Ms Rhook who meant so much to you.

For the purpose of the compensation claims I was provided with reports from psychologist Kate Earle in relation to Gregory Rhook, Karlie Renee Rhook, Dennis Foster and Kylie Foster. I have also been provided with Victim Impact Statements.

Gregory was exposed to a history of conflict between Ms Rhook and Mr Sypott which culminated in the tragic death of Ms Rhook. It is evident that he has been deeply affected by this event and is suffering from post-traumatic stress disorder. Gregory now lives with his father Mr Craig Rhook at Tahara near Coleraine. Karlie also witnessed a history of arguments between her parents before her mother's death. Karlie now lives with Mr and Mrs Foster who have sole responsibility for Karlie's welfare and development. Karlie suffers from sadness and fears related to her mother's death and the loss of contact with Mr Sypott and Gregory. Mr and Mrs Foster are the brother and sister-in-law of the deceased and they are suffering from symptoms of traumatic stress. They have assumed responsibility for caring for Karlie. Mr and Mrs Foster are both conscious of a diminution in their quality of life as a result of the loss of their sister and sister-in-law and they have found coping more difficult because of their responsibility for Karlie and the suffering which she experiences. They must bear the burden of the legacy which you have left them. Ms Rhook's sister Sharon Maree Dunn has also provided a victim impact statements which I have taken into account. The death of Frances Rhook has affected Ms Dunn both physically and mentally. She suffers from post-traumatic depression and is on medication. Her physical fitness has deteriorated as has her capacity to maintain her work as a contract gardener. All of these statements provide an insight into the consequences of your conduct on the lives of those who were so close to Ms Rhook.

You have been in custody for some 16 months facing a charge of murder. Because of the delay in the resolution of the compensation claim you have now been awaiting sentence for some five months and I do not doubt that there has been a significant strain associated with your waiting on remand to be sentenced.

In determining the appropriate sentence I have taken into account the various matters which your counsel so earnestly pressed upon me in the course of his plea on your behalf. By your plea, your demeanour and your willingness to pay generous compensation you have demonstrated your real remorse for your conduct. I regard it as most unlikely that you will offend again and I think there are sound prospects for your rehabilitation and re-integration into the community.

The nature and circumstances of your offence are however of a serious order. To accede to the submission made on your behalf that any term of imprisonment should be wholly suspended would not adequately reflect the nature and seriousness of this offence. You were a man experienced in handling firearms. You well understood the high risks associated with carrying a loaded rifle into a house. It was your intention to kill yourself and by doing so to inflict maximum distress upon Ms Rhook who you intended to witness your death. Your depressive illness culminating in your wish to kill yourself may explain but cannot excuse such conduct. To approach Ms Rhook as you did with a loaded rifle was to perform a dangerous act which rendered it highly probable that some serious injury might occur. All too often loaded firearms causing death or serious injury within a domestic situation bring offenders before this Court.

In considering the nature of your unlawful and dangerous act I sentence you on the basis that the Crown has accepted that you had no intention to threaten or harm Ms Rhook despite the fact that a reasonable person in your circumstances would have foreseen the risk of some really serious injury being done to Ms Rhook by carrying the rifle in the manner in which you did.

Mr Sypott, you have been in custody in relation to this offence for 635 days. Pursuant to s.18(4) of the Sentencing Act 1991 I declare the period of 635 days as already having been served under the sentence I shall impose and I so certify. I have concluded that the appropriate sentence is that you be imprisoned for five years and I fix a minimum period of three years before you become eligible for parole.

[7] [2000] VSCA 174 at para 10-12.

[9] (1988) 1 64 CLR 465 at 472.

[10] (1991-2) 57 A Crim R 349 at 354 per Gleeson CJ.

[17] Victorian Court of Appeal, unreported 28 May 1997.

[18] Victorian Court of Appeal, unreported, 24 June 1997.

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