R v White [2005] VSCA 186

1 I will invite Vincent, J.A. to give the first judgment.

2 The appellant was presented before the Supreme Court at Melbourne, charged with the attempted murder, on 4 June 2003, of his sister, Susan Mary French (count 1). He pleaded not guilty to that charge but guilty to an alternative count of intentionally causing serious injury to her.

3 This plea was not accepted by the Crown and a trial was conducted, at the conclusion of which the jury returned verdicts of not guilty of the principal offence but guilty on the alternative count.

4 After hearing a plea in mitigation of penalty, the sentencing judge imposed a term of imprisonment of four years, in respect of which he fixed a non-parole period of three years for this offence.

5 Having been granted leave to do so, the appellant now seeks to overturn that sentence on five grounds:

"1. The learned sentencing judge erred by finding that the appellant's plea of guilty to the count of intentionally causing serious injury reflected the overwhelming nature of the evidence against the appellant on that charge and did not warrant a significant reduction in the appellant's sentence;

2. The learned sentencing judge erred by failing to place sufficient weight on the appellant's plea of guilty to the count of intentionally causing serious injury;

3. The learned sentencing judge erred by finding that the appellant had failed to exhibit any remorse;

PARTICULARS

The learned sentencing judge erred by finding that he was unable to detect in any of the material in evidence in the case, or from the plea made on the appellant's behalf by the appellant's counsel, any reliable indication of genuine remorse;

4. The learned sentencing judge erred by ordering a non-parole period that is manifestly excessive when regard is had to the length of the head term of imprisonment;

5. The sentence imposed is, in all the circumstances, manifestly excessive."

Two further grounds, set out in the appellant's Notice of Grounds, were not pursued and accordingly need not be addressed.

6 The following outline of the circumstances surrounding the commission of the appellant's offence has been prepared principally from his Honour's sentencing remarks. The appellant gave no evidence in the trial and declined to answer questions when earlier interviewed by the police. I should also add that it is apparent from the jury verdicts that the version given by Ms French, which constituted the foundation of the prosecution case in the trial, was not accepted in its entirety by them. If that had been the case, it is almost certain that a verdict of guilty on the count of attempted murder would have been returned. The learned sentencing judge, who was clearly conscious of the difficulties presented by this situation and the need to ensure that his findings of fact for the purposes of sentencing were consistent with the jury verdicts, referred to authorities addressing this aspect, and it is apparent that he carefully limited his findings in consequence.

7 The appellant was at the time of the commission of his offence aged 47 years and a resident of the United States. He had arrived in this country only the day before, that is, on 3 June 2003, in order to visit his mother and Ms French, apparently for the purpose of resolving financial disputes within the family concerning trust moneys belonging to their mother. It appears to have been common ground that the relationship between the appellant and his sister - and, it seems, other members of the family - had been strained for some time due, in part at least, to those disagreements.

8 The appellant's mother was suffering from Alzheimer's disease and was temporarily resident in this country and being cared for by Ms French, who had lived here for some years. However, due to the fact that the Australian Government refused to extend their mother's visa, the two women were to return shortly to the United States.

9 Prior to the appellant's visit, Ms French had received a telephone call from him, in which he told her that he was travelling to Bali on business and asked if he could stop off and see her. There was some doubt as to whether any such business visit was contemplated, as the evidence indicated that travel documents in his possession gave no indication of any such activity.

10 In any event, about two weeks after that telephone call, he called Ms French from Tullamarine airport indicating that he was here. He said initially that he would stay in a hostel, but he quickly found these arrangements to be unsatisfactory and spent the night with Ms French and their mother at the home of Ms French.

11 On the morning of the following day, 4 June 2003, the mother went to a day care group at a community centre. The appellant went to the local library in order to send or check email messages and Ms French went to care for a horse that she owned.

12 According to Ms French, she returned home at about 1.30 p.m. and found that her brother was already there. He appeared stressed and upset because he was unable to switch on the television receiver. He asked to have his "cards read". She was surprised at this request as he had previously made clear that he did not believe in this activity. She had, on the other hand, been "reading cards" for 30 years. He shuffled the cards and she proceeded to "read them", seated at the table in the living room. She told the appellant that the cards indicated that it was time for him to start afresh, to change his "criminal" ways and to do the "right thing in life" if he wanted to have his wishes fulfilled.

13 The appellant became very angry at these remarks and began pacing behind her chair. As she reached the end of her "reading", she felt a hot pain at the back of her head. She looked behind her and realised that she had been struck with a hard object that he was holding. The appellant hit her again and she fell to the floor. The learned sentencing judge described the attack made by the appellant upon his sister, which continued intermittently for 15 to 20 minutes, as "vicious and cowardly", pointing out that the only explanation proffered in the plea for his engagement in this conduct was a loss of temper occasioned by criticisms of his lifestyle by Ms French.

14 Following this incident, the appellant assisted his mother and Ms French into her car and drove them to a local medical surgery where Ms French was seen by Dr Szatsznajder. Initially, she told the doctor that her injuries were the result of an accident with her horse, but, after the appellant had left the room, she said that she had been struck on the head by him with a metal bar.

15 The appellant then waited with her until an ambulance took her to the Frankston Hospital, where she remained overnight.

16 At the hospital, Ms French was treated by Dr Kamalanathan in the emergency department. She was found to be suffering from a severe headache and nausea and had sustained a starburst laceration on the top of her head, about four centimetres in diameter. She also had a five centimetre burst linear laceration to the midline of the back of her head, and three puncture marks on the back of her head. She also had extensive bruising measuring seven by four centimetres on the back of the neck and a one centimetre bruised area on the left ear lobe. Her hair was matted with blood. She had tenderness to her second and third vertebrae.

17 Grounds 1 - 3 were argued together. Ground 4 was treated by counsel for the appellant essentially as a Particular, advanced to support those grounds and the complaint made in ground 5 that the sentence was manifestly excessive.

18 It is convenient to address them in the same fashion. With regard to the weight to be attributed to the appellant's plea of guilty, the sentencing judge stated:

"I note that an offer to plead guilty to the charge of intentionally causing serious injury was made in May 2004. The offer to plead guilty was not made until after there had been a full committal hearing. Your plea reflected the overwhelming nature of the evidence against you on that charge. In the circumstances, I think the plea warrants a reduction, though not a significant reduction, in your sentence."

"I cannot detect in any of the material in evidence in this case, or from the plea made on your behalf by your counsel, any reliable indication of genuine remorse."

19 Mr Boyce, who appears on behalf of the appellant, submitted that the combined effect of these findings was that the appellant was denied the full benefit of a plea of guilty offered well before the trial. He further contended that, in any event, his Honour's finding that there was "no reliable indication of remorse" on the part of the appellant was not open in the circumstances in view of the contents of two letters sent by the appellant to his victim whilst he was on remand.

20 The contributors to the joint judgment in Cameron v. The Queen made clear that the weight to be attributed to a plea of guilty is determined by the -

" ... extent [to which] the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity."[1]

It must also be borne in mind that, as Coldrey, A.J.A. said in the matter of Ly, Tat and Dao:

" ... it is an important policy consideration in the administration of justice that defendants not only receive appropriate credit for pleas of guilty but that they appear to receive credit for such pleas. Pragmatically barristers have to be able to assure those they represent that the benefit pronounced by a sentencing judge is not illusory but is reflected in the actual sentence imposed."[2]

21 In the present case, the learned sentencing judge observed that the plea of guilty was offered in May 2004, that is, 11 months after the events and subsequent to a full committal hearing. Although he was acquitted on the count of attempted murder, as his Honour remarked, there would seem to be little room for argument concerning the strength of the prosecution case in relation to the other charge. It would appear to have been indisputable that Ms French had been repeatedly and deliberately struck a number of substantial blows from behind and that she had sustained quite serious injuries. The strength of the prosecution case against the individual and the stage at which a plea of guilty is entered are, of course, as the authorities make clear, relevant matters to be taken into account by a sentencing judge in determining the weight to be accorded to this consideration in the determination of an appropriate sentence in a given case. His Honour was entitled to have regard to these factors. Although it is not completely clear what he intended to convey by the use of the expression "a significant reduction" in the passage set out earlier, viewed in context, I consider that it can be reasonably inferred that his Honour was expressing his view that whilst the sentence to be imposed would be less than otherwise appropriate, the difference could not be substantial, particularly in a case in which he found no reliable indication of remorse. He certainly did not suggest that no weight would be accorded to the appellant's plea and the sentence imposed is not itself suggestive of the possibility that inadequate consideration was attributed to this factor. I am unpersuaded that, in the particular circumstances of the case before him, his Honour fell into error on this aspect.

22 With regard to his Honour's finding that there was no reliable indication of the presence of remorse in the material before the court or in the plea advanced on behalf of the appellant, I observe that counsel appearing for him made only a single reference to this consideration, and that related to his client's entry of a plea of guilty as possibly being indicative of remorse. True it was that there were, in the depositional material, two letters sent by the appellant to Ms French in which he expressed remorse for what he had done, but no reference was made to that by his counsel in presenting the plea.

23 It is, on its face, somewhat surprising that the very experienced counsel who appeared for the appellant in the court below said nothing about those letters. He was obviously conscious of the significance of evidence of remorse as a mitigatory factor in sentencing where it was open, on the instructions given to him, to make submissions to the sentencing judge as to its presence. This Court is not able to do more than conjecture concerning the reason that he confined his submission as he did. There is a distinct possibility in my view that, having regard to impressions I have formed on the limited amount of information before the Court as to the relationship between the appellant and his sister, counsel may not have been in a position to properly advance the submission that, save by reference to the entry of a plea of guilty, his client was at all remorseful. Be that as it may, the position remains that nothing was put before the sentencing judge on this aspect.

24 The further proposition advanced before us that it was, in the circumstances, incumbent upon his Honour at the completion of a contested trial to examine the depositions with a view to identifying matters that might militate in mitigation of penalty is not one that I accept. Even in a case such as that presently under consideration in which there is no substantial volume of material involved, the Court should be slow to find error in the case of a legally represented person because a sentencing judge did not address some feature which might possibly operate in mitigation of penalty but to which no reference was made by counsel for the individual in the hearing. It is certainly not the responsibility of a sentencing judge in that circumstance to search for such possibilities in the depositions before the court. This, of course, assumes that, in any event, the sentencing judge in the present matter had not read the depositions and was not aware of the presence of those letters. I note, in this context, that his Honour did not say that there was no evidence whatever of remorse, but rather that there was none that he regarded as reliable. That finding was clearly open to him. He was certainly not obliged to interpret the letters as demonstrating the presence of remorse, particularly when there were other, and fairly obvious explanations for their contents, and in view of the fact that no reference was made to them in the course of the plea.

25 Accordingly, I am of the view that grounds 1 - 3 must fail.

26 Little need be said about grounds 4 and 5, neither of which possesses substance in my opinion. The attack made by the appellant upon his unfortunate victim was both savage and sustained and I am far from persuaded that either the head sentence imposed or the non-parole period fixed by his Honour fell outside the range of those available in the proper exercise of sentencing discretion in the circumstances. It follows that I would dismiss this appeal.

29 The Court's order is that the appeal is dismissed.

[1] Cameron v. The Queen (2002) 209 C.L.R. 339 at 346 per Gaudron, Gummow and Callinan, JJ.

[2] R. v. Ly, Tat and Dao [2004] VSCA 45 at [22].