R v Whyte [2004] VSCA 5

Court of Appeal (Vic)|2004-02-13|Before: WINNEKE, P., BONGIORNO and O'BRYAN, A.JJ.A.

For the reasons given, I would reject this ground of appeal.

This was a ground which the appellant had initially indicated would not be argued. However, shortly before the hearing of the appeal, Mr. Boyce advanced a supplementary outline of argument in support of the ground initially taken that his Honour was in error in not giving proper weight to the element of delay. Mr. Boyce argued that his Honour was wrong to conclude that little account could be taken of the delay in the circumstances of this case where, in effect, it had been "self-inflicted" by the appellant. Even though the delay in the prosecution of the appellant, so Mr. Boyce conceded, could not be blamed on the prosecution, he nevertheless submitted that the impact on the appellant of being placed in prison so many years after the events occurred was a matter of significance to which his Honour should have given appropriate weight in the sentencing process. He submitted that the appellant had been charged with the murder of the deceased fairly shortly after his death; and that it was clear on the evidence that from the point of her discharge at committal until the date of her confession in 2000, the appellant had lived with a great deal of uncertainty as to her future, believing that she was under surveillance at all times.

Once again, I do not think his Honour erred in according to the fact of "delay" little significance. Delay will very frequently be a matter of mitigation, particularly where the accused has used the time involved to rehabilitate himself or herself. For the respondent, Mr. Ross contended that the concept of delay as a mitigating factor cannot figure largely in the sentencing process where the delay is "self-inflicted"; rather it will become a major mitigating factor if the delay was not due to the fault of the accused but rather the fault of the prosecuting authority or the system of the administration of justice[6]. Where, however, the delay cannot be sheeted home to the prosecution or the system, but can be fairly attributed to the accused, such as absconding from bail, fleeing the jurisdiction or otherwise avoiding being brought to justice, delay must necessarily become of less significance, even to the point of giving less credit for rehabilitation established during that period[7]. As the New South Wales Court of Criminal Appeal said in Shore[8]:

"There is a clear distinction on the one hand between cases such as Todd (supra) where delay occurs because of circumstances entirely outside the offender's control ... and, on the other hand, cases such as the present where the only cause of delay was the applicant's flight to avoid the consequences of his ... criminality. To allow leniency because of delay alone would be ... to place a premium on absconding and would be entirely contrary to the public interest. The proper course is that adopted by the sentencing judge in Kukunoski ..., and approved in this Court, which allows the sentencing judge to recognize the unhappy condition of an accused person living as a fugitive would always fear that his crime might be brought against him, but not to encourage absconding by affording any additional leniency in relation to it."

Likewise, as in this case, offenders should not be given credit for preventing justice from taking its course by concealing the truth from investigating authorities. Of course persons accused of crime are entitled to maintain their silence, but if they profit as a consequence, it is intolerable to think that the profit is to be compounded by a reduction in the ultimate sentence. Staleness and delay can be significant sentencing factors but, as Angel, J. has pointed out in Braham[9], that will not always be so. In this case the judge gave the applicant the benefit of the reclamation which the appellant had achieved during the intervening years of silence; a silence which she maintained to the ultimate prejudice generated by her own conscience and the loss of family support. Those factors were taken into account by his Honour as factors mitigating the punishment to be otherwise imposed. I can see no error in his Honour's conclusions in respect of this matter and I would reject this ground of appeal.

As Mr. Boyce correctly recognized, this ground does not admit of much argument. The submission largely centred around the age of the appellant at the date of sentence. Her age, of course, was the product of the delay between the commission of the crime and the trial; a delay which, for the reasons I have already given, could not be laid at the door of the prosecution or the system of justice administration; but rather due to the silence maintained by the appellant. Nevertheless there are or may be circumstances where the appellate court will interfere with the sentence on the grounds of "manifest excess" if it is satisfied that in the circumstances the sentence is "crushing". Mr. Boyce contended in this Court that such was the case here where, so he submitted, the appellant will not become eligible for parole until she is approximately 70 years of age and thus deprived of a useful part of her life.

The significance of the length of sentence imposed on the appellant was not lost upon his Honour. He nevertheless took the view that he was bound to impose a sentence of the order which he did, because anything less would, in his view, have been incommensurable with the shocking nature of the murder. Mr. Ross, who appeared for the respondent, submitted - I think with justification - that his Honour was justified in describing the conduct of the appellant in administering the poison over a prolonged period to her ever ailing husband as a wicked and despicable murder amounting to a literal "torture to the death".

Whilst, of course, sentencing judges must be astute to pay due attention to the age of an accused person, they must also be careful to ensure that confidence in the administration of justice is maintained by imposing sentences which reflect the gravity of the crime which is being punished. This is particularly so in a case like the present one where the sentence needed to reflect the basic principal that the sanctity of human life remains paramount[10]. Mercy will sometimes be afforded to offenders of advanced age because it is recognized that each year of the sentence imposed represents a significant proportion of the life left to an aged offender. In R. v.Yates[11], a case where the accused had pleaded guilty to charges of buggery, a majority of the Full Court of five judges (Murphy, J. dissenting) considered that a sentence of 10 years with a minimum of 8 years imposed upon a man of 68 years of age was a "crushing sentence", in the sense that it connoted "the destruction of any reasonable expectation of useful life after release". However, as the Court of Criminal Appeal recognized in R. v. Bazley[12] (a case in which a 67 year old ailing man had been convicted of two counts of murder), the Court of Criminal Appeal in this State said that whilst age would always be a relevant sentencing factor, it could never be a justification for an unacceptably inappropriate sentence. The Court approved the statement of Crockett, J. in R. v. Crowley & Garner[13] that:

"... It does not follow that every sentence which justifiably deserves that epithet [i.e. "crushing"] must on that account alone be held to be manifestly excessive. There will, in my view, be cases in which the offender has by his criminal act or acts forfeited his right to any such hope or expectation."

In such cases, the Court said that it would be inappropriate to approach the selection of a proper minimum term from the point of view that, because of the offender's age, there was a need to grant some measure of life after release. Such an approach, it was said, would mean that general deterrence and retribution would receive insufficient weight.

In the light of these principles, I cannot accept that the sentence which the learned trial judge here imposed was manifestly excessive. Most cases of murder by poisoning are reprehensible; and, at least in this State, have been few and far between. But, on any view, this murder was a particularly reprehensible crime involving - as his Honour correctly pointed out - a premeditated administration of a slow killing poison in ever increasing quantities over a period of nearly two years; bringing with it excruciating agony to its victim and ultimately leading - as intended - to his death. The only proper description of the crime was the one attributed to it by his Honour; namely that a woman who was pretending to care for her ailing husband was in fact torturing him to a slow death. Very recently, in the case of Director of Public Prosecutions v. Arkan & Anor.[14], this Court had cause to reflect upon the sentences which are imposed upon those who commit brutal murders involving the infliction of torture. Although the Court dismissed a Director's appeal against a sentence imposed of 21 years with a minimum of 17 years upon an accused who had inflicted senseless torture upon an old victim before he died, Ormiston, J.A. (at paragraph {25]) said of the sentence that it was one:

"... at the very lowest end of that range, for this kind of killing, motivated essentially by greed but involving the brutal and vicious drawn out torture of the victim."

His Honour went on to say that such a crime would ordinarily attract a significantly higher sentence. I expressed my agreement with these views stating (at paragraph [2]) that the sentences imposed upon both respondents "were at the lowest end of the range of sentences which the trial judge could reasonably have imposed for a murder of this kind", and that it was "only the restraints emanating from principles of double jeopardy ... which govern Director's appeals" which had led me to the view that the appeals against the sentences should be dismissed.

Like his Honour, I am conscious that a significant part of the appellant's useful life will be gone by the time she is eligible for parole. However, the nature of her crime compels me to the view that his Honour was entitled to impose a sentence of the order which he did without it being labelled as "crushing". In my opinion, the sentence was proportionate to the nature of the crime committed and is not manifestly excessive. I would accordingly reject this ground and with it the appeal against sentence.

I have read the judgment of the President. I agree with it and I have nothing to add.

I have read the draft reasons for judgment written by the President and agree that the application should be dismissed for the reasons given by his Honour.

[1] R. v. Kevich, Court of Criminal Appeal (Vic.), Unreported, 25 November 1977.

[2] cf. R. v. Sellen (1991) 57 A.Crim.R. 294.

[3] cf. R. v. Gray [[1977] VicRp 27; 1977] V.R. 225 at p.231.

[4] cf. R. v. Ellis (1986) 6 N.S.W.L.R. 603.

[5] cf. R. v. R.N.D. [2002] VSCA 192 at [23]- [24] per Eames, J.A.

[6] cf. R. v. Miceli [1997] VSC 22; (1997) 94 A.Crim.R. 327; R. v. Todd (1982) 2 N.S.W.L.R. 517 at 519.

[7] See R. v. Thompson (1987) 37 A.Crim.R. 97 at 100 per Street, C.J.

[10] cf. D.P.P. v. Whiteside & Dieber [2000] VSCA 142; [2000] 1 V.R. 331 at 337.

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