R v Winter [2006] VSCA 144

CRIMINAL LAW - Sentence - Manslaughter - Manifest excess - Sentence of seven years with a non-parole period of four years not manifestly excessive.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 On 31 August 2002, the applicant, Paul Winter, was at the wheel of his car, which was stationary near a roundabout in Frankston. The car in front of him was also stationary. Another person, David van Velzen, was standing beside that car. Winter tooted his horn. Van Velzen approached the driver's window of Winter's car. There was an altercation between them and Winter stabbed van Velzen in the upper chest, fatally wounding him.

2 Winter was charged with murder. At his trial, he was acquitted of murder but convicted of manslaughter. On 3 March 2004, he was sentenced in the Supreme Court to seven years' imprisonment, with a non-parole period of four years. He now seeks leave to appeal against his conviction and against his sentence. I deal first with the application concerning the conviction.

3 Before doing so, I should point out that, although Winter was represented by senior counsel at the trial, he represented himself on the appeal. He did so most impressively. His submissions were clear and succinct. Remarkably, given that he is in prison because of what he says was a wrongful conviction, his submissions were measured and unemotional. He did himself great credit.

Appeal against conviction - ground 1

4 In his written submission, Winter stated his first ground in the following terms:

"The learned trial judge did not explain to the jury, or explain sufficiently, unwilled act. Automatism or unwilled act can be caused by external forces or stresses. This was not explained to the jury in the judge's charge."

5 At the trial, Winter did not dispute that the knife which caused the fatal wound was in his hand when it entered the deceased's chest. Immediately before the incident, the knife was on the passenger seat beside him. Winter explained in the record of interview that he had placed it there two days earlier, having used it to cut up cardboard boxes. The following exchanges from the record of interview record Winter's version of how the stabbing occurred.

"Q 104 What hand do you say you had the knife in when you thrust it towards the male?

A It was in my left hand, it was in this hand, I didn't thrust it towards the male. I didn't even know it was in my hand, then I saw it. There was just blood. It was this hand, left hand.

Q 105 Do you think that that was a reasonable thing to do?

A No, not at all. I had no intention of doing it. I didn't even know it was in my hand, I didn't see the man, I had my head turned and the first I knew it was in my hand was when my hand came back down and then I saw. And then there was blood and then I turned my head back round and looked at him and I ---

Q 106 What are you telling us, that you had some kind of black out, are you, or you just don't recall?

A I don't recall if I had a black out or I just shut my eyes. I - 'cos I don't remember seeing anything, I definitely didn't grab the knife. Well, I must've grabbed the knife but I didn't - didn't try and grab it. I wasn't trying to hit him. I just threw my hands up across my face somehow and it just came back and it was there. I'd w-, I'd had my head - I dunno if my - it was just my eyes were shut, I didn't see anything. My hair pulled and I just threw my arm out, covered my face and just came back - it was there.

Q 107 If I put it to you that you grabbed the knife and you thrust it towards the male in order to get him away from your car, what would you say to that?

A No, I didn't grab the knife - I obviously did grab the knife but I didn't grab the knife in - with any intention of attacking anybody. I wasn't even trying to punch him. I just threw - I couldn't even see where he was by then, I just turned, I just threw my arm up across my face so he wouldn't hit me. I didn't try, no, no, I didn't thrust it towards anybody.

Q 108 What do you believe that the ramifications are of thrusting a knife towards someone like that?

A What do you mean?

Q 109 Well, what do you think are the likely things that could happen?

A If you tried to stab someone you could stab someone. I didn't try and stab anybody, didn't even know it was in my hand. I saw it, I didn't even know where he was, I just turned and then it was in my hand, it came down and it was there. No, I didn't try and thrust it towards him. I didn't try and stab the man. Didn't even see him till I turned and looked and he stepped back." (emphasis added)

6 In the course of his charge to the jury, the learned trial judge identified and explained the elements which must be proved beyond reasonable doubt before a person can be convicted of murder. He said that the prosecution must establish three elements, namely that -

(a) the accused killed the deceased;

(b) he did so by a conscious, voluntary and deliberate act or acts; and

(c) he had the specific intention either of killing the deceased or of doing him really serious injury.

7 It is the charge with respect to the second of these elements which is the subject of this first ground. It is necessary, therefore, to set out in full that part of the charge:

"The second element of the offence is that the accused killed the deceased by a conscious, voluntary and deliberate act or acts. Those words have a special meaning in law.

'Conscious' simply means that he knew what he was doing and he was not acting like a sleepwalker or like someone who rolls over in bed when they are asleep.

'Voluntary' means that the act which killed the deceased was a willed act, that is one resulting from the control by the accused of his own actions.

An act done when a person is not conscious in the sense I have just referred to would not be a voluntary act, but situations may also arise where although the mind is conscious of what the body is doing it is not in control of it so that the body acts like a machine, or an automaton, and there may be a dissociation or a division, if you like, between the mind and the body. Obviously that is not a common condition but it may result from head injury or from serious illness.

'Deliberate' means it was not accidental, such as tripping over and falling down the stairs and killing someone by accident, or if, say, someone fell over the balcony up there by accident and you were unlucky enough to be underneath, that would be an accident.

So once again you can see that something might not be deliberate although the person was conscious at the time. In other words, they are not asleep, they are not in a state of automatism, but what happens may not be a deliberate act.

To go back to those words again: conscious means not like a sleepwalker; voluntary means not like an automaton; and deliberate means not done by accident.

In the present case the accused man says that he was not aware that he had grasped the knife at the time he struck out with his arms in a state of blind panic to fend off the deceased. If this was so the consequent stabbing would be accidental. The very act of stabbing would be an accident. You must be satisfied beyond reasonable doubt that it is not reasonably possible that the accused did not know he was stabbing with a knife. I have put two negatives in that so to put it the other way: You must be satisfied beyond reasonable doubt that the accused was acting deliberately when he stabbed with the knife at the time the deceased suffered the fatal wound.

If it is reasonably possible that the situation was that he did not know he was stabbing with a knife you could not be satisfied beyond reasonable doubt that the act of stabbing was itself a conscious, voluntary and deliberate act. If you are not satisfied that the accused's action was deliberate you cannot convict him of either murder or manslaughter.

I will repeat that: If you are not satisfied the accused's action was deliberate you cannot convict him of either murder or manslaughter."

8 In his summary of the evidence, his Honour said:

"The defence points to the record of interview and says that you could not be satisfied beyond reasonable doubt that the accused did other than throw up his arm in blind panic when confronted and assaulted by the deceased. You could not be satisfied that in blind panic he had the murderous intent required."

9 It is important also to note what his Honour told the jury about manslaughter, as follows:

" ... [T]he Crown must prove beyond reasonable doubt that the accused caused the death of the deceased by a conscious, voluntary and deliberate act, so that you must be satisfied beyond reasonable doubt in the present case that he did something with the knife which was deliberate and that that something resulted in the deceased's death. In order for it to be unlawful that something must amount to an assault, and you will recollect that I told you that if someone deliberately stabs another person with a knife to the root of the neck that is an assault unless it is done in self-defence, and I then went on to deal with the possibility of a stabbing in the direction of the deceased without the intention to kill or cause really serious injury, possibly involving injury caused in consequence of the deceased stumbling and falling. In that scenario you would have to be satisfied that the accused intended either to injure or threaten the deceased when he stabbed towards him.

So it is an element of assault that the act be one done with the intention either to injure or threaten the victim. You must be satisfied, therefore, in the present case, firstly, that there was some deliberate act of stabbing which was a substantial cause of the death of the deceased; and secondly, that that act was done with the intention to injure or threaten the deceased; and thirdly, as I told you earlier, that it was done otherwise than in self-defence."

10 During the course of its deliberations, the jury asked the following question:

"Could his Honour please go over the element of conscious, voluntary and deliberate for the jury as well as the element of intent?"

His Honour provided a further direction, in terms which were substantially identical to his original direction, set out above.

11 In my opinion, the attack on the judge's charge must fail. With respect, his Honour's explanation of the meanings to be attributed respectively to the terms "conscious", "voluntary" and "deliberate" was clear and readily comprehensible. The fact that the jury sought to have those terms explained a second time signifies, in my view, that the jury were paying conscientious attention - as the evidence required them to do - to whether that element was made out beyond reasonable doubt. As the Judge had told them, the issue was relevant both to murder and to manslaughter. Given the terms in which his Honour directed the jury, including the account he gave of the defence position, I am satisfied that the jury were properly apprised of what needed to be proved in relation to the second element.

12 It will be recalled that his Honour summarised the defence case in these terms:

"[T]he accused man says that he was not aware that he had grasped the knife at the time he struck out with his arms in a state of blind panic to fend off the deceased. If this was so the consequent stabbing would be accidental."

He directed the jury that they must be -

"satisfied beyond reasonable doubt that the accused was acting deliberately when he stabbed with the knife..."

13 This summary accurately reflected both the account which Winter had given in the interview,[1] and the way his counsel had presented the defence case to the jury. Defence counsel told the jury that the prosecution had to -

"exclude the possibility that Paul Winter reacted in stabbing this man in the shoulder in fear and panic. ... They've got to exclude that because to convict this man of murder he's got to have deliberately picked up the knife, deliberately struck the blow in the shoulder intending to kill the man."

"What the defence says is that what happened here was the action was in fact a split-second reaction, certainly without murderous intent, or the intent to assault in the sense of an unlawful assault. It was a dynamic situation that happened in split-seconds."

And again -

"[The deceased] just arced up, and when he got out of control, [the accused] didn't know what he was dealing with and it went from bad to worse. But at end of the day he didn't intend to kill him. He didn't intend to kill him. He's not guilty of murder. He didn't intend to assault him. What he was doing was reacting to a situation not of his own making."

15 This Court recently had occasion to consider the requirement that there be a "conscious, voluntary and deliberate act." Like the present case, The Queen v Schaeffer[2] involved death by stabbing. The applicant was convicted of murder. The defence had argued that the killing was accidental. As explained by Eames JA (with whom Warren CJ and Ormiston JA agreed) -

" ... Defence counsel ... used the word 'accident' both in the sense of an act occurring without it being willed and in the sense of an act which was willed but without being accompanied by an intention to cause any or any serious injury."[3]

"At common law, it would be by reference to the requirement that the fatal act be 'voluntary' that a defence of accident would fall for consideration, when the intended meaning of 'accident' was that the fatal act had been an unwilled occurrence. Used in that sense the word 'deliberate' could serve a purpose in helping a jury in its assessment and understanding as to whether the fatal act was voluntary, that is unwilled."[4]

As his Honour pointed out, the common law use of "voluntary" means an act that is done as a result of the accused's will to act.[5]

17 His Honour went on:

"The words 'conscious and voluntary' are relevant both where the Crown must negative a defence contention that the actions were the product of an unsound mind or automatism and where it must negative a defence based on the notion of accident when used in the sense of an unwilled act. Where the word 'accident' is being used to mean an unintended consequence of a willed act it would more appropriately be dealt with under the element of murderous intention. The critical matter was that the jury understood what the defences were and what the Crown had to prove to overcome those defences. If the jury concluded that the act causing the injury was unwilled then the applicant was entitled to be acquitted. If the jury concluded that it was willed but that he did not intend to cause death or really serious injury then the jury would have been obliged to consider manslaughter."[6]

18 Applying that analysis to the present case, it can be seen that Winter's defence was that the stabbing was accidental in the first of the two senses identified by Eames JA. That is, it was an unwilled act. He was not aware that he had the knife in his hand when he "just threw my arm up across my face so [the deceased] wouldn't hit me." On his own account, therefore, the movement of his arm was conscious and deliberate, but the striking with the knife was not a voluntary act. As in Schaeffer, the use of the word "deliberate" in this context - by both trial Judge and defence counsel - is likely to have helped the jury in its task of assessing whether the fatal act was voluntary.

19 In my opinion, the charge in the present case fully complied with what the court said in Schaeffer. The jury could have been in no doubt about what the defence was, or about what the Crown had to prove. In particular, they were made aware that, unless satisfied beyond reasonable doubt that the act of striking with the knife was a willed act, Winter could not be convicted of either murder or manslaughter. This direction accorded with what Barwick CJ said in Ryan v The Queen,[7] as follows:

"If voluntariness is not conceded and the material submitted to the jury ... provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused."[8]

20 The verdict arrived at indicates that the jury rejected the defence of accident and concluded that the act was a voluntary or willed act. They were not satisfied that Winter intended to cause death or really serious injury but were satisfied that he intended to assault the deceased.

21 No defence of automatism was advanced. Given Winter's own account - of having deliberately raised his arm to protect himself - this is not really surprising. There would need to have been - at least - expert evidence raising the reasonable possibility that Winter was in an automatic state at the time of the stabbing. In R v Leonboyer,[9] this Court had to consider a defence (to murder) of involuntary action by reason of non-insane automatism. The lengthy reasons of Phillips CJ (with whom Charles JA agreed) summarised the extensive expert evidence called at the trial, by both prosecution and defence, which demonstrated what a rare - and controversial - condition automatism is.

22 In his written submission directed at the sentence appeal, Winter said:

"Even though I fully accept that it was my actions that caused this man to lose his life, I still cannot understand how it happened. The guilt and remorse that I feel will probably never leave me. I know in my heart that I never intended to pick up that knife, whether it was a reflex action to being attacked, or an automatic reaction from fear of the previous attack that happened to me I do not know, but I do know I am not a bad person."

23 The reference here to "the previous attack" is a reference to another matter raised by Winter in the submission directed at the conviction appeal. Winter complains that his trial counsel -

"did not obtain my hospital records, for extensive plastic surgery that I required on the right side of my face. This was the result of an attack upon myself whilst I was on holiday in England, by persons unknown to me, using razor blades, these wounds required nearly 100 stitches. When I returned to Australia a week later, I underwent this plastic surgery procedure at the Frankston Hospital.

My counsel did not call Dr Lester Walton, a psychiatrist with whom I had a consultation, nor did they tender a report he wrote, in which he said, there are strong indications of relevant psychological factors of relevance to this man defending himself against this charge.

I feel that this evidence could [have] explained my defence of an unwilled act."

24 Winter informed this court that his legal advisers were aware of the previous attack, and of the psychiatrist's report. The report was supplied to us. It is sufficient to say that the report was in very general terms. It said that there were "strong indications that there are relevant psychological factors of relevance to this man defending himself against the charge," but those factors were not identified, and the report made no mention of the previous attack. The report ruled out mental illness and mental impairment as possible explanations of what had occurred.

25 In the event, no defence evidence was called at the trial. It is neither possible nor appropriate for this court to speculate as to the basis for that decision, less still to pass judgment on whether it was a wise decision. The decisions of defence lawyers about whether to call any, and if so what, evidence are difficult decisions. As Gleeson CJ noted in TKWJ v R,[10] they are decisions which, ordinarily, the appellate court has "neither the duty nor the capacity to go behind." In TKWJ, his Honour said further:

"Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives."[11]

26 Given the difficulty of establishing the defence of automatism, and the limited evidence available to the applicant, counsel's decision not to call psychiatric evidence is, viewed objectively, capable of rational explanation on forensic grounds. Viewed in the context of the entirety of the evidence, that decision did not result in a miscarriage of justice.

Ground 3[12]

27 Ground 3 was expressed in these terms:

"The learned trial judge was in error in advising the jury that there was no psychotic behaviour on the part of the deceased."

As Winter explained in argument, the thrust of this ground was that the jury were misled as to the nature of the deceased's behaviour immediately leading up to the altercation at the car window. Winter said in his written submission:

"According to medical notes tendered by the deceased man's GP, Dr Taylor, a consultation took place in May 2002, in which he said [the deceased] was psychotic, [that is] he was paranoid and aggressive. You do not have to be hearing or seeing things to have a psychotic episode."

28 According to Winter, if the deceased was psychotic then he could not be calmed down. The jury should have understood, he argued, that the deceased had been "excessively violent", that he was "out of control". This meant, Winter argued, that he himself had been fearful of the deceased.

29 As the judge said in his charge, the Crown case was that the deceased had been drinking and, in the incidents which preceded the altercation with Winter, had -

"reacted adversely to what was actually said to him. It was not psychotic behaviour."

30 Earlier in his charge, the judge in summarising the medical evidence had reminded the jury that -

(a) one medical witness had formed the view in March 2002 that the deceased had had a psychotic episode, with "prominent persecutory ideas"; and

(b) another, Dr Taylor, who had seen the deceased first in 1993, was aware on seeing the deceased in May and June 2002 that he had had a psychotic illness but by 22 August 2002 assessed him as being "stable, lucid and compliant with his medication. Mentally he was quite normal."

31 Quite properly (and contrary to Winter's submission), his Honour left it to the jury to decide, on the whole of the evidence, what view they should take of the circumstances of the altercation between the deceased and Winter. In the absence of any eyewitness with sufficient expertise to assess whether, at the time of the altercation, the deceased was or was not psychotic, no conclusion on that question could have been arrived at. In any case, the jury was well aware that the deceased had a recent history of psychotic illness, and that earlier the same day he had been - as defence counsel repeatedly emphasised - drunk, angry and violent. The defence told the jury:

"[T]his man, drunk, angry and irritated, is a vital key to understanding this case. This is no ordinary citizen coming to your car window. This is a ticking time bomb. This is no ordinary citizen coming to your car window, this is a very difficult, aggressive, big man."

32 Accordingly, in my opinion, this ground is without substance.

Ground 4

33 Ground 4 is expressed in these terms:

"The learned trial judge allowed the forewoman of the jury to have access to her baby overnight, then removing the child in the morning. The forewoman was concerned for the welfare of her baby. The woman's husband had also contacted the court saying the boy needed his mother. As the jury had nine young women on it, I felt that procedural fairness was overlooked and this jury contamination could have put the woman and others of the jury under duress, to quickly reach a verdict."

34 In his report provided to this Court, the learned trial Judge provided this account of the incident in question:

"(a) I allowed the 21/2 year old child of a juror to have access to the juror during the period of her overnight sequestration in the circumstances set out at page 1063 of the transcript.

(b) On the following morning I invited submissions from counsel as to the course I had taken and no submission was made to me that the circumstances required further investigation or clarification.

(c) No submission was made to me that "the juror was clearly upset when the infant was removed."

(d) The juror was the forewoman and demonstrated herself to be articulate in the course of communication with the court. No communication was received from her that she was unable to properly continue to fulfil her obligations as a juror.

(e) No submission was made to me that the jury should be discharged prior to the verdicts one of which is now the subject of challenge.

(f) Any submission that the juror appeared incapable or possibly incapable of fulfilling her duties would have led to a direct inquiry by me in open court."

35 Winter did not seek to contradict any aspect of this report. The report demonstrates that none of the key participants in the trial - neither the judge nor defence counsel nor the jury forewoman - perceived that the course taken with respect to the child had in any way affected the ability of the juror, or of any other juror, to discharge their duty.

36 On an issue such as this, the contemporaneous assessment of the effect - if any - on the jury is a much more reliable guide than any view which might later be formed by an appeal court. This ground must fail.

Ground 5

37 Ground 5, which was an additional ground added by leave of the court, was expressed in the following terms:

"A blood soaked T-shirt, and photographs of same, were introduced as evidence without being DNA tested. Which the prosecutor refers to [in the transcript where] she says:- it might indicate a different type of bleeding and where he is at the time he is stabbed. She was trying to put him outside the car when he was injured. Against my version of his answer. The prosecutor says she hasn't had any tests done as yet. The prosecutor refers to this T-shirt again [later in the transcript]. The last question the prosecution has, to a homicide detective, who says it was not [the deceased's] blood on the T-shirt."

38 Two different T-shirts were put into evidence by the prosecution. One had been worn by Winter at the time of the stabbing. The other was found in the back seat of the car. Early in the trial, the prosecution made reference to the second T-shirt, which had some blood stains on it. The prosecutor informed the jury that the blood on it had not been DNA tested. Shortly before the close of the Crown case, the prosecutor led evidence of the results of the DNA testing, which showed that the blood on it did not belong to the deceased. In short, the second T-shirt had no relevance to the case.

39 One of the contested factual issues in the case was the extent (if any) to which the deceased had lent towards, or through, the open driver's window. The extent to which there was blood on Winter's T-shirt was a matter relevant to that question. The introduction of the second T-shirt might better have been delayed until the DNA testing had been done. Had that course been taken, the second T-shirt would never have been introduced.

40 In the event, however, I accept the Crown's submission that what turned out to be the mistaken introduction of the second T-shirt did not, in the circumstances of this trial, create any risk of injustice. First, the prosecutor was quite candid in disclosing, when she introduced the T-shirt into evidence, that it had not been tested. The defence took no objection to its introduction on that basis. Secondly, the irrelevance of the T-shirt was made clear - albeit belatedly - before the end of the Crown case. Thirdly, neither the prosecutor nor senior counsel for the defence made any reference whatever to the second T-shirt in their final addresses. It was simply not an issue.

Ground 6

41 Ground 6 was also an additional ground added by leave of the court. This ground was expressed as follows:

"[Four] witnesses were all contacted by the deceased man's mother. They were all told they would be killed if they did not alter their statements, to make him look like he was not angry or aggressive. These witnesses all said this under oath at the committal and made statements to the Mornington Police.

At trial these witnesses altered their statements, either watering down his aggressive behaviour, or changing their evidence completely. My counsel did not tender their original prior inconsistent statements, nor warn the jury that they had been threatened."

42 For the assistance of the Court, the Crown provided copies of the relevant parts of the transcript of the committal hearing. The transcript confirms that the witnesses in question did give evidence of having been contacted by the mother of the deceased, who urged them to moderate their account of the deceased's behaviour on the morning of his death. One witness told the committal that the deceased's mother threatened to have her killed if she did not change her statement to remove any suggestion that the deceased had been aggressive and intoxicated on the day in question.

43 In the course of cross-examining these witnesses at the trial, defence counsel (who had also cross-examined at the committal) did raise the issue of the earlier intimidation and questioned whether the witnesses had felt pressured to change their evidence. For example, the witness who had told the committal of a death threat against her confirmed that evidence under cross-examination at the trial, and was pressed as to whether she had "decided to give a different picture to this jury of what actually happened."

44 The forensic judgment as to how, and to what extent, to pursue these issues with the relevant witnesses was a judgment for defence counsel in the circumstances of the trial, as they unfolded. I repeat what I said earlier about appeal courts not reviewing such decisions. In any case, I see no basis whatever for impugning the judgment made by defence counsel on this issue.

Ground 7

45 This was the third of the additional grounds added by leave of the court. In its relevant part, this ground was put as follows:

"The prosecution, by repeatedly showing to the jury the knife involved, asking them to handle it and repeatedly displaying stabbing motions with it during her address was seeking to bias or inflame the court against the accused."

46 This ground may be disposed of shortly. First, given Winter's inability to remember the act of stabbing, and the consequent factual dispute about how the fatal wound had in fact been inflicted, it is unsurprising that the prosecutor evidently thought it necessary and appropriate to demonstrate to the jury how the knife had been - or might have been - used. Secondly, had the prosecutor done so in such a fashion as to raise any legitimate concern that she was improperly seeking to arouse prejudice or hostility in the jury, I have no doubt that defence counsel would have raised an objection at the time.

47 No such objection was raised, but defence counsel specifically dealt with this issue in his closing address. He told the jury that the prosecution had made -

"a play on prejudice, lots of playing with the knife and telling you about common sense...".

48 Evidently, counsel judged that the jury could assess for itself the use which the prosecution had sought to make of the knife. Once again, counsel's contemporaneous assessment of the effect on a jury of a matter like this is much more reliable than any judgment which an appeal court endeavours to make after the event.

49 For these reasons, in my opinion the application for leave to appeal against conviction must be refused.

50 I turn now to deal with the application for leave to appeal against sentence.

Appeal against sentence - ground 1

51 The first ground on which Winter seeks leave to appeal against sentence is that the sentence is manifestly excessive. In his written submission, Winter argued that:

"Seven years with a minimum of four is excessive because, even though it is manslaughter it is in the bottom range of the sentencing allowable. The jury found me guilty by way of committing a dangerous act. As in a stabbing motion towards the deceased. This was a single stabbing motion, with very little force required as testified. Even though I fully accept that it was my actions that caused this man to lose his life, I still cannot understand how it happened. The guilt and remorse that I feel will probably never leave me. I know in my heart that I never intended to pick up that knife, whether it was a reflex action to being attacked, or an automatic reaction from fear of the previous attack that happened to me I do not know, but I do know I am not a bad person. I am just a family man who was looking for my daughter when these events were thrust upon me. Not only did [the deceased] lose his life that terrible day but in a way so did I and my family."

52 As so often in sentence appeals to this court, it is necessary before dealing with the particular ground to emphasise the limited nature of the role of an appeal court on such an appeal. The governing principles must always be borne in mind, as follows:

(1) Sentencing is a function which the legislature entrusts to the trial judge (or magistrate, as the case may be).

(2) The sentencing decision is a decision made in the exercise of a discretion.

(3) The appeal court may only intervene where the exercise of the sentencing discretion is vitiated by error, such that there has been no lawful exercise of that discretion.

(4) Then, and only then, does it fall to the appeal court to decide for itself what the sentence should have been.

53 The principles applicable to the review of discretionary decisions are well-known. The appellate court begins with a strong presumption in favour of the correctness of the decision appealed from. This means that the decision should be affirmed unless the court of appeal is satisfied that it is clearly wrong.[13] The categories of error which justify intervention are as follows:

(a) acting upon a wrong principle.

(b) allowing extraneous or irrelevant matters to guide or affect the decision.

(c) failing to take into account a relevant consideration.

(d) mistaking the facts; and

(e) giving insufficient, or excessive, weight to a relevant consideration.[14]

54 There is a further category, which might be described as the "unreasonableness" or "implicit error" category. In House v The King, this category was defined as follows:

"It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."[15]

55 The contention that the sentence is manifestly excessive does not assert specific error. Rather, it asserts error falling into the "unreasonableness" or "implicit error" category. The sentence must be obviously, or strikingly, excessive, such that the appeal court is entitled to conclude that there was no proper exercise of the sentencing discretion at all. The court must conclude that, in some way not apparent on the face of the sentencing reasons, the sentencing discretion has miscarried.

56 In sentence appeals, an argument of manifest excess is typically put on the basis that the sentence is "outside the range". The concept of a "range" involves accepting that opinions may reasonably differ, within a certain range, as to what the appropriate sentence is in a particular case.

57 The statistics published by the Sentencing Council of Victoria show that sentences for manslaughter range from as low as three years to as high as 10 years. The average custodial sentence over the years 1997 - 2003 ranged between five years and four months and seven years and one month. Of course, these are very general statistics, and the offence of manslaughter covers a very wide range of conduct, involving widely differing degrees of blameworthiness, to say nothing of the differences between the circumstances of individual offenders. Nevertheless, there is nothing in these statistics to suggest that the sentence in the present case was obviously outside the available range, so as to be regarded as aberrant or anomalous.

58 Having regard to the jury's finding about what occurred, I do not think it can be said that the sentence of seven years, with a minimum of four, is manifestly excessive, in the sense that it bespeaks error. As his Honour said in sentencing Winter:

"It is apparent from its verdict that the jury did not accept that the stabbing of [the deceased] was other than deliberate. Moreover, it is implicit in such a verdict that the stabbing was done with an intent to assault a deceased man; that is, you stabbed at the deceased with the intention either of injuring him or threatening injury and did so other than in self-defence.

This conclusion is not surprising. The knife you used was a substantial weapon. It is a sheath knife with a 15 centimetre blade, a sharp point and is of significant weight. It was driven into the deceased almost up to the hilt and withdrawn cleanly. Further both the driver and the passenger in a car stopped behind yours observed you deliver a blow out of the car window. It is, in my view, simply not credible that the knife was wielded unintentionally as you have maintained."

59 In my opinion, this ground must fail.

Ground 2

60 The second ground was expressed in these terms in the written submission:

"The Learned sentencing Judge was in error in making an example of me to the community against 'road rage'. I did not leave my vehicle, I did not remove my seatbelt, all I did was to toot my horn at the driver in front of me, as he was blocking the road. His passenger got out of the car and confronted me in an angry abusive violent manner. He was a very large man with a shaven head, was very drunk, 0.25, and was not taking his psychotic medication. Earlier that day he had been involved in violent arguments with three different people, I was number four. I did nothing to provoke him and I could not move as there was a car behind me, this car knew I was in trouble and went to move back (as testified) so I could escape, but by this time it was too late. I did not instigate anything that could be termed as 'road rage' in the commonly accepted understanding of the term."

61 What the learned Judge said on this point was in these terms:

"... Your case does raise issues of both general and specific deterrence. The more significant of these are issues of general deterrence.

I come, firstly, to what is colloquially referred to as 'road rage'. For present purposes, I mean by this term the failure of a motorist to control his or her emotions when confronted with frustration while driving and the resort to aggression as a consequence. It is apparent that such behaviour has the potential to result in totally unjustified and tragic outcomes as indeed occurred in the present case. The Court must send a clear message that frustration and high emotion on the part of the driver is simply no excuse to resort to violence. It is not enough to say of the victim 'he started it'." (emphasis added)

"Your victim was unknown to you. There was no excuse for your actions other than your inadequate response to emotions of frustration and anger. In this regard I am satisfied on the basis of the observations of the witnesses in the vicinity that you did express anger to the deceased as he approached you and that the confrontation that occurred at your car window was thus one of mutually angry men. You could have sought to avoid such a confrontation by the simple expedient of winding-up your car window. You could, on any view, have controlled yourself for a longer period than the 20 seconds or so which the confrontation took."

63 In my opinion, what his Honour said in these passages was entirely appropriate to the circumstances. This was, quite properly, described as a "road rage" incident. It was not in contest that what prompted the deceased to approach Winter's car was Winter having tooted his horn at the car in front of him, being the car in which the deceased had been travelling. It is not the act of tooting which attracts censure, but what followed.

64 As his Honour said, there was an angry reaction by the deceased, and anger on the part of Winter when the deceased approached him. What might, at worst, have been an abusive verbal exchange at the window ended up with a fatal stabbing. Self-evidently, that should never have been allowed to happen. The jury found Winter criminally responsible for the death. As his Honour pointed out, Winter could have avoided any direct contact with the deceased by the simple expedient of winding-up his window. Given his apprehension of what the deceased might do, that would have been the obvious thing to do.

65 There was no error in his Honour's approach to sentencing in this regard.

66 This ground also fails.

Ground 3

67 By leave, Winter was allowed to substitute a new ground 3 which, as with grounds 2 and 6 of the application for leave to appeal against conviction, alleged unsatisfactory conduct on the part of his counsel. According to his written submission:

"By not calling the consulting psychiatrist or tendering his report I feel the learned Judge did not have a fuller picture of what may have happened in my mind that day, or what could have happened to make me strike out in fear by way of a reflex action. If that is what happened, I do not know."

68 This ground fails for the same reason as the equivalent ground failed in the application for leave to appeal against conviction. The question whether any psychological or psychiatric evidence was to be led on the plea was a matter for defence counsel. There is no basis for this Court to review the decision which was made. I would only point out that such evidence would in any case have carried little weight on the plea, given the jury's finding - referred to by his Honour - that the fatal stabbing was a deliberate act on Winter's part.

69 For these reasons, in my opinion, the application for leave to appeal against sentence should also be refused.

71 For the reasons given by Maxwell, A.C.J., I agree that the application for leave to appeal against conviction and sentence should be refused.

[1] See [5] above.

[2] [2005] VSCA 306.

[3] [32].

[4] [29].

[5] Eames JA cited Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 at 213 and The Queen v Falconer [1990] HCA 49; (1990) 171 CLR 30 at 38-41.

[6] [39] (emphasis added).

[7] Supra.

[8] At 217.

[9] [2001] VSCA 149.

[10] [2002] HCA 46; (2002) 212 CLR 124 at 128.

[11] Ibid. See also Nudd v The Queen [2006] HCA 9 per Gleeson CJ at [9] and [10].

[12] Ground 2 was abandoned.

[13] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 534 per Kitto, J.; Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 per Kitto, J.

[14] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan, JJ; Australian Coal and Shale Employees' Federation at 627 per Kitto, J.

[15] At 505 (emphasis added).