R v Toms [2006] VSCA 101

"1. The learned sentencing judge erred by mistaking the effect of the appellant's plea of guilty to count 1 on the presentment, and as a consequence wrongly inflated the level of the appellant's culpability.

PARTICULARS

(a) finding that by his plea of guilty, the appellant had accepted that he was reckless in that he foresaw that a probable consequence of his conduct by injecting Stephanie Gracie would be that she would die;

(b) in so finding the sentencing judge equated the appellant's mens rea with that required for reckless murder.

2. The learned sentencing judge erred by failing to give due weight to the principle of proportionality.

3. The head sentence and the non-parole period imposed on count 1 are manifestly excessive in the particular circumstances of the offence and the offender."

6 It is apparent from his sentencing remarks that his Honour sentenced the appellant on the basis that he foresaw the probable consequences of injecting the deceased with methylamphetamine was that she would die. He said so several times. For example, he said:

"By your plea of guilty you have accepted that you were reckless in that you foresaw that the probable consequence of your conduct of injecting Stephanie Gracie would be that Stephanie would die."

7 In this respect the sentencing judge erred. The offence to which the appellant pleaded guilty was that he foresaw that the deceased would be exposed to the risk of death. In effect his Honour sentenced the appellant as if he was guilty of the offence of reckless murder.[1] Counsel for the respondent concedes that the sentencing judge erred. Accordingly, it is necessary for this Court to re-sentence the appellant.

8 The appellant had a disturbed upbringing. When he was 18 months old his parents separated. The appellant remained with his mother, who formed a number of relationships with different men. Consequently, the appellant moved from house to house and from school to school. A man whom the appellant's mother married was violent towards the appellant. So was the appellant's mother. Between the ages of nine and 13 years the appellant lived with his father. When he returned to live with his mother he suffered emotional abuse. He left school at the age of 15 years and soon afterwards was forced to leave home. From the age of 16 years the appellant lived by himself. He supported himself with a variety of jobs, travelling throughout Australia and overseas to England.

9 The appellant was introduced to cannabis at a young age. At the age of 17 years he began to use methylamphetamine and continued to do so for the better part of the next decade. The appellant gave up using drugs at the beginning of this century, but relapsed towards the end of 2002.

10 The appellant formed a relationship with a woman, also a drug user, who bore him two children. The appellant established a pest control business. In 2001 the business failed and the appellant separated from the mother of his children. The following year the appellant successfully completed a course in industrial sciences at TAFE college and then enrolled at Victoria University and gained employment as a security guard.

11 The crime committed by the appellant the subject matter of the first count was indeed serious. The appellant introduced a very much younger person, one who presumably looked to him for guidance, to real danger. It is relevant to an assessment of the gravity of the offence that the victim suffered and then died. The appellant admitted in the course of his record of interview that he understood the dangers of intravenously injecting methylamphetamine. He said that the "risks are very high" and described his conduct as very reckless. When the appellant saw the deceased's eyes rolling and mouth foaming, he did not seek medical help. He put the deceased to bed, left her there and she died.

12 The appellant could rely upon a number of mitigating factors. He pleaded guilty and was thereby entitled to a discounted sentence. He co-operated with the police, freely admitting that he had injected the deceased with methylamphetamine knowing the risks to which he was subjecting her. The appellant has no prior convictions. The sentencing judge found that he had been and remained remorseful. He was prostrated by grief when he realised that the victim was dead and thereafter exhibited grief and depression. The appellant has sought and obtained treatment for his addiction to drugs. A counsellor who treated the appellant was impressed with his determination to change his life. The sentencing judge accepted, although with some hesitation, that the appellant's efforts to abstain from taking drugs had probably been successful. The appellant's work record and independence are not always encountered in those who have experienced disturbed and deprived childhoods such as the appellant's.

13 In my opinion these mitigating factors do not outweigh the circumstances attending the commission of the offence. The appellant, a man in his thirties, introduced a teenager to drugs. He injected her with methylamphetamine knowing its dangers. He then turned aside and did nothing when she became distressed and displayed the symptoms that preceded her death, in other words, when the danger of which he was cognisant materialised.

14 Notwithstanding the error made by the sentencing judge, I would not impose a different sentence. Accordingly, the appeal should be dismissed.

15 I agree in the disposition of this matter proposed by Buchanan, J.A., and I do so for the reasons advanced by him in his judgment.

16 The error of the sentencing Judge makes it necessary to consider whether a different sentence should be imposed.

17 I agree with Buchanan and Vincent JJA that this is a serious example of the offence of reckless conduct endangering life. The age difference between the appellant and Ms Gracie ("the deceased"); the fact that she had little or no experience with drugs; the appellant's awareness of the risks associated with methylamphetamine injection; and his failure to obtain medical help for the deceased, are all factors which exacerbate his moral culpability. The fact that the victim died as a result of the injection make the appellant's reckless conduct particularly grave, though the appellant's own drug use may help to explain why he did not seek medical help when the deceased began to show signs of an adverse drug reaction.

18 I would, however, have given greater weight than my brother judges to the mitigating factors in this case, which are fully set out in the judgment of Buchanan JA. In particular I would give greater weight to the appellant's genuine remorse and to the fact that he has sought treatment for his drug use.

19 For these reasons I would allow the appeal and impose a lower sentence on the appellant.

[1] Crabbe v. R. [1985] HCA 22; (1985) 156 C.L.R. 464.