R v Valera

COUNSEL : Applicant: A C Haesler Crown: R D Cogswell SC & B Baker SOLICITORS : Applicant: Sydney Regional Aboriginal Corporation Legal Service Crown: S E O'Connor CATCHWORDS : Criminal Law - application for leave to appeal against severity of sentence - whether life imprisonment was the appropriate sentence - leave granted to appeal - appeal dismissed. Bell v Regina (1985) 2 NSWLR 466 Garforth (unreported CCA NSW 23/05/94) CASES CITED: Twala (unreported CCA NSW 04/11/94) Fernando [1999] NSW CCA 66 Harris (2000) 50 NSWLR 409 R v Bell (1985) 2 NSWLR 466 DECISION : 1. Grant leave to appeal; 2. Dismiss the appeal.

IN THE COURT OF CRIMINAL APPEAL CCA 60050 of 2001 SC 70039 of 1999

MEAGHER JA WOOD CJ at CL BELL J

FACTS V, the appellant, had been found guilty of two counts of murder and was sentenced to life imprisonment. He sought leave to appeal against the severity of his sentence by challenging the 2-step reasoning process adopted by the trial judge.

HELD Per Meagher JA (Wood CJ at CL & Bell J agreeing) (i) The weight of authority required the trial judge to apply the 2-step test in the manner undertaken: Bell v R (1985) 2 NSWLR 466; Garforth (Unreported CCA NSW 23 May 1994); Twals (Unreported CCA NSW 4 November 1994); Fernando [1999] NSWCCA 66; Harris (2000) 50 NSWLR 409. (ii) The argument advanced against the sentences imposed, and in particular, the claim to make an "instinctive synthesis" ( Bell v R (1985) 2 NSWLR 466 Per Street CJ) is largely semantic and should therefore be rejected.

ORDERS (i) Grant leave to appeal. (ii) Dismiss the appeal.

IN THE COURT OF CRIMINAL APPEAL CCA 60050 of 2001 SC 70039 of 1999

MEAGHER JA WOOD CJ at CL BELL J

Judgment 1 MEAGHER JA: This is an application for leave to appeal by Mr Valera who stood trial in Wollongong charged with two counts of murder to which, upon the presentation by the indictment on 12 July 2000, he pleaded not guilty to murder but guilty to manslaughter. Those pleas were not accepted by the Crown and the trial on the murder counts proceeded. On 8 August 2000 the jury found him guilty as charged on both counts, so that he was convicted of the murder of a Mr D J O'Hearn on 12 June 1998 and of the murder of a Mr F N Arkell on 26 June 1998, a fortnight later. His Honour sentenced him to prison for life, as he was entitled - and, in my opinion, obliged, - to do. 2 Using language as restrained as possible, I find the circumstances of each murder disgusting. His Honour's description of the murder of Mr O'Hearn is as follows: "The body of the deceased was found to be decapitated and the head had been deposited in the kitchen sink. The body was otherwise mutilated: the left hand was severed and it was found resting on a sofa in the lounge room; there were deep incisions to the abdomen, and wounding extended from just above the sternum down to the mid point of the abdomen. Dr Cala, who conducted the post mortem examination, observed five intersecting and parallel incised wounds on the lower chest affecting both right and left sides and the wounding of the abdomen exposed the shaft of a hammer which had been inserted through the anus. The head of this hammer was visible between the buttocks of the deceased and the deceased was lying with his jeans and underpants lowered to a point about the knees. The deceased's penis had been mutilated and intestinal material had been disturbed. Indeed, near the foot of the deceased was found a silver coloured tray on which a section of bowel was resting. On the breakfast bar in the kitchen a number of sections of intestine were found lying."

His description of Mr Arkell's murder is as follows: "The body of the deceased was found lying on the floor beside the bed in the granny flat. The crime scene evidenced that this victim had been the subject of a savage attack. The deceased was found lying on his back with his legs outstretched, wearing tracksuit pants and a white singlet. The face of the deceased was heavily bloodstained and his head had been very extensively traumatised and was resting in a large pool of blood. Three tie pins had been placed in his person, one in the left cheek, one in the corner of the left eye and one in the right eyelid and there was a splinter of timber found on post mortem examination to have been embedded in the neck of the deceased. This plainly enough had broken off a timber peg, most of which was found on the bed. There was a leather belt lying partially around the neck of the deceased as well as the electrical cord of a lamp. Beside the bed was a broken timber lamp stand, which the evidence revealed had been used to attack the head of the deceased. Also used in the attack was a glass ashtray." 3 Mr Valera does not appeal against conviction. He has restricted his case to an application to appeal against severity of sentence. 4 His Honour concluded his remarks on sentencing with the following words: "The level of heinousness involved in these two killings does not allow for the imposition of anything less than imprisonment for life." 5 It is a sufficiently fair analysis of his Honour's reasoning to say that he reached his conclusion by way of a 2-step process. First, he considered the objective features of each crime, and came to the conclusion that life imprisonment was the appropriate sentence. It is hardly necessary to elaborate on the process of reasoning which led him to that conclusion. 6 He then turned his attention to the subjective features of the case, to ascertain whether any discount should be allowed to modify his conclusion. They were these: that Mr Valera was very young, less than 20 years in fact; that he had had a miserable early life, his father bashing him regularly and with great brutality; that, instead of waiting to be arrested, he gave himself up, and thereafter co-operated with the police; and that he had no prior convictions. Contrition, however, was expressly negatived by His Honour. There was no provocation: nor was there any element of mental impairment. On balance, his Honour came to the conclusion that none of these factors required the sentence to be less than life imprisonment. 7 The submission put by Mr Haesler, with his usual ability, in that it is incorrect to approach the sentencing task by first assessing the objective gravity of the offence without regard to subjective features and then - but only then - considering the subjective features in mitigation. This 2-step approach has its genesis in the judgments of Samuels JA and Lee J in Bell v R (1985) 2 NSWLR 466. It has constantly been followed: see, for example, Garforth (unreported CCA NSW 23 May 1994), Twala (unreported CCA NSW 4 November 1994), Fernando [1999] NSW CCA 66 and Harris (2000) 50 NSWLR 409. An application for leave to appeal in Harris has now been refused by the High Court. Authority to the contrary is confined to the dissenting judgment of Street CJ in Bell. 8 In my view, his Honour was correct in applying a 2-step test. And this for two reasons. First, because the weight of authority (which I have recited) required him to do just that. The second is that the only possible alternative - that advocated by Street CJ in Bell - is to make an "instinctive synthesis", which will lead to exactly the same result. Provided you take into account all relevant factors, it does not matter in which order you take them. 9 Thus, the argument advanced against the sentences, imposed by Studdert J, seem to me largely semantic and should therefore be rejected. Indeed, one might be tempted to suggest that the circumstances of the present case call for a punishment a good deal more severe than mere life imprisonment. 10 The application should be dismissed. 11 WOOD CJ at CL: I have read in draft the judgment of Meagher JA, and agree with it, save that I would resist the temptation to consider whether the case might have called for any more severe punishment than that imposed. 12 The circumstances in which the offences were committed, their objective seriousness, and the absence of any subjective or other circumstances which might have operated in mitigation of sentence were spelled out by Studdert J with clarity, and without any hint of error. I cannot usefully add to those reasons. 13 The single point which might have attracted our attention depended upon whether the High Court decided in Harris v The Queen that some approach different from that taken by his Honour was required. Special leave has been refused, and I am unpersuaded that the approach first enunciated in R v Bell (1985) 2 NSWLR 466, and consistently applied thereafter, is erroneous. 14 Irrespective of that consideration, I am similarly unpersuaded that an instinctive synthesis would have led to sentences for lesser terms. 15 I would grant leave to appeal but would dismiss the appeal. 16 BELL J: I agree with Meagher JA's reasons for rejecting the challenge to the two-step approach adopted by the sentencing judge. I also agree with the remarks of Wood CJ at CL in his concurring judgment. I, too, would grant leave to appeal but would dismiss the appeal.

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