Regina v McCaffrey; Regina v Rowsell

31 From this it may first be noted that his Honour had not been asked to find one offender more culpable than the other. Second, it is apparent that his Honour considered whether different sentences should be imposed and, for reasons he gave, determined that he should not. In my opinion, he was entitled to so conclude. His Honour was clearly entitled to conclude that the subjective features of the offenders were similar. Indeed, they were. Further, it appears to me that his Honour was entitled to form the view that the Form 1 offences to be taken into account regarding Rowsell, given the particular circumstances, and the breach of the bond by the applicant McCaffrey, cancelled themselves out. Mere disparity in sentences between co-offenders is not enough for the court to intervene. Manifest disparity is needed, Lowe v R (1984) 154 CLR 606. 32 I would grant leave to appeal and uphold the appeal by the applicant McCaffrey, quash the sentence imposed and in substitution impose the following sentence. The applicant McCaffrey is sentenced to a total sentence of 13 years penal servitude. The sentence is made up of a minimum term of seven years which is to date from 17 February 1998 and to expire on 16 February 2005. An additional term of six years is to date from 17 February 2005, the date upon which the applicant is to be released on parole if found eligible.

The application of Rowsell 33 The principle ground of attack on the sentence by the applicant Rowsell is that his Honour erred in consideration of the applicant's intoxication, particularly his intoxication by LSD. It is maintained that LSD is in a different category to other drugs. It is said that the fact that the intent to commit murder was formed as a result of Rowsell's intoxication makes it less culpable. However, it is submitted that his Honour applied the circumstance (of his intoxication with drugs and alcohol) as an aggravation of the offence. It is submitted that his Honour's reasoning process lead him to increase the sentence because of his intoxication and only then to take something off on account of the intoxication as a mitigating factor. As a consequence, it is contended that the applicant Rowsell did not receive appropriate mitigation. 34 I cannot accept the submission. His Honour said: The use of alcohol and drugs is a matter which is not always mitigating and can, in some circumstances, be an aggravating feature. Had either of the prisoners' experience of drugs made him aware that he might react in an irrational and violent manner, then I would have found the ingestion of drugs to be an aggravating feature. But the effects of alcohol and drugs consumed by the prisoners resulted in them acting in a way which was foreign to their normal behaviour and led to irrational fears of and anger toward the victim.

35 It is clear from this statement that his Honour did not consider the use of drugs or alcohol as an aggravating feature. It is also plain that he considered it as a significant mitigating factor. Giving a fair reading to his Honour's reasons on sentence, I do not see how it can be concluded that his Honour increased the sentence of Rowsell by reason of his intoxication. I see nothing in his Honour's reasons which indicates an inconsistent approach to the question of intoxication. Nor do I see that R v Lane (1990) 48 A Crim R 161, given the disparate facts between it and the present case, provides any assistance to the applicant. 36 I can see no error in his Honour's treatment of the issue of intoxication. His Honour did not regard the applicant's intoxication with, inter alia, LSD as an aggravating feature - rather it was the premeditation, motive and the circumstances leading up to the wounding which he so regarded. Because, quite obviously, intoxication was relevant to these aggravating features, it did not follow that his Honour was compelled to disregard them. Rather, it meant that his Honour had to consider the aggravating circumstances in the light of the intoxication. His Honour did this, as his reasons disclose, and I cannot see how he was in error. 37 However, for the very same reasons discussed above in the application of McCaffrey, I am of the opinion that the judge's starting point was too high and the sentence imposed was excessive. It is necessary to resentence the applicant. In doing so I take account of the content of the affidavits of the applicant and his solicitor. As is apparent from what I have already said in relation to the applicant McCaffrey, I do not see that the sentences imposed on the two co-offenders should differ. 38 I would grant leave to appeal and uphold the appeal by the applicant Rowsell, quash the sentence imposed and in substitution impose the following sentence taking account of the matters on the Form 1. The applicant Rowsell is sentenced to a total sentence of 13 years penal servitude. The sentence is made up of a minimum term of seven years which is to date from 17 February 1998 and to expire on 16 February 2005. An additional term of six years is to date from 17 February 2005, the date upon which the applicant is to be released on parole if found eligible. Orders

Applicant McCaffrey 39 Grant leave to appeal and uphold the appeal by the applicant McCaffrey. Quash the sentence imposed and in substitution impose the following sentence. The applicant McCaffrey is sentenced to a total sentence of 13 years penal servitude. The sentence is made up of a minimum term of seven years which is to date from 17 February 1998 and to expire on 16 February 2005. An additional term of six years is to date from 17 February 2005, the date upon which the applicant is to be released on parole if found eligible.

Applicant Rowsell 40 Grant leave to appeal and uphold the appeal by the applicant Rowsell. Quash the sentence imposed and in substitution impose the following sentence taking account of the matters on the Form 1. The applicant Rowsell is sentenced to a total sentence of 13 years penal servitude. The sentence is made up of a minimum term of seven years which is to date from 17 February 1998 and to expire on 16 February 2005. An additional term of six years is to date from 17 February 2005, the date upon which the applicant is to be released on parole if found eligible. 41 HULME J: In these matters, I have had the advantage of reading the Reasons for Judgment of Stein JA. While I agree with most of what His Honour has said, there are some respects in which I do not. Nor do I agree with the order proposed by His Honour. In my view no significant error in is to be found in the reasoning of Judge Howie or in the sentences His Honour ordered and the appeals should be dismissed. 42 The sentences imposed, of 15 years, are but 60% of the statutory maximum of 25 years penal servitude. The minimum terms of 9 years are but a little more than one third of that maximum. The circumstances of the offence and of the Applicants which can legitimately be called in aid of a departure from the statutory maximum are adequately reflected in the difference. In my view the sentences imposed were well within the proper exercise of His Honour's sentencing discretion. 43 The circumstances of the offence, including in that description not only the actions but also the states of mind of the Applicants and the causes of those states of mind, do not place their offence in a worst category. However the offence does not fall far short. Judge Howie was well entitled to regard the offence as one which, but for the subjective features of the Applicants, merited a imprisonment for 20 years - 80% of the statutory maximum. 44 The facts were horrendous. The victim was 17 years of age. By the time the Applicants formed the intention to kill him, he was already bound and blindfolded. He was then dragged to a car. After being lifted in to the boot, he was urinated on, Rowsell saying in a sarcastic tone, "Sorry for pissing on you, buddy." The boot was closed and the Applicants then drove off. These events occurred against a background that the victim had earlier been beaten, burnt (albeit not badly) and made to strip naked. His terror, even before he heard McCaffrey say, "How does it feel to know you are about to die." must have been greater than most people experience in their lifetime. 45 The drive continued. When the car stopped McCaffrey was heard to say, "The bastard is still alive.". The victim was lifted out still bound and blindfolded and, placed on the ground. McCaffrey again said, "You are about to die" and Rowsell pushed a knife into his neck until the knife broke, leaving a portion embedded. The victim was then kicked or pushed down an embankment and left - presumably because the Applicants thought they had achieved his death. 46 Such was the pain that, unable to free himself of the bindings or blindfold, the victim tried to drown himself although, having tried, he seems to have changed his mind. (This is, I think, a more accurate way of stating the effect of the evidence than Judge Howie's remark that the victim "was unable to keep his head under water sufficiently long to achieve his purpose". However the difference is of minimal significance.) Then, with the broken off part of the knife in his neck, the victim spent the rest of the night bound and blindfolded beside the creek. One might rhetorically ask, how much more was needed at least so far as the objective circumstances are concerned, to bring the case into a worst category? 47 I agree that the sentencing judge was entitled to, as he did, regard the effect of alcohol and drugs as "a substantial cause for (the Applicants') conduct and the formation of their intention to murder the victim". I agree also that, at least once this conclusion was reached, His Honour was entitled to take the view that, in the particular circumstances, the case was not in a worst category. Nevertheless, it was close enough to warrant as a starting point in the sentencing exercise a term of, or of the order of, 20 years. 48 His Honour did not in fact indicate that this was his process of reasoning or that 20 years was a figure he had in mind. Having referred to the maximum penalty of 25 years penal servitude, His Honour went on to describe the offence as one in the "upper range of seriousness for offences of this kind". However 20 years is a figure to which Stein JA refers, and it is a convenient reference point from which to indicate my disagreement with Stein JA and why I regard the sentences imposed as within the legitimate exercise of Judge Howie's discretion. (As to the appropriateness of expressly enunciating a sentence judged only by the objective circumstances in a case - see AB v R [1999] HCA 46 at [14 and 102]. 49 Of course, on this process of reasoning, account had then to be taken of the subjective features of the Applicants. Such features included their youth, their unusual degree of co-operation with the police and, in Mr McCaffrey's case turning himself in, their pleas, their remorse and their prospects of rehabilitation although it must also be recognised that, in their criminal records, there were factors operating in the other direction. However a five year reduction in the term otherwise appropriate and the unusually high proportion of the total term which the additional term occupies is sufficient, if not more than sufficient, to accommodate the subjective factors. 50 Nor do I think Howie DCJ erred in regarding the Applicants' motive as a "serious aggravating feature". Killing a witness to one's earlier offending is an egregious response to the risk of being reported and while Howie J concluded that the effects of alcohol and drugs "led to irrational fears of, and anger towards, the victim", and by any standards, the Applicants' response to these emotions was utterly unreasonable, there remained a degree of logical reasoning behind it. 51 I referred above to a "background that the victim had earlier been beaten, burnt (albeit not badly) and made to strip naked." To take those events into account as background is not to offend the principle for which R v De Simone (1991 ) 147 CLR 383 stands as a leading authority, viz. that the Applicants must be punished for only the offence charged. The effect on the victim of the conduct and the extent of their criminality which ensued may fairly be judged in light of the state of affairs which existed at the time of commencement of the actions or intention which constituted the offence charged and of which state of affairs all were aware. 52 In light of the conclusion at which I have arrived, it is unnecessary for me to consider the matter except upon the basis of only the actions of the Applicants after they formed the intention to kill their victim and began to put that intention into execution, and the state of affairs which existed at the time that intention was formed. However it is appropriate that I say that in the way the Applicants' offending was dealt with in the District Court, J, I do not regard Judge Howie as having been bound to so limit his consideration. 53 An indictment containing 4 counts was presented some 2 months before the Applicants were sentenced. Unusually, they were invited to plead to only the charge of wounding with intent to murder. In his remarks on sentence, His Honour observed:- "(Apart form the charge of wounding with intent to murder) there were other counts in the indictment arising from the incident but pleas were not sought in respect of those matters and the Crown does not intend to pursue them. However, the incidents which give rise to these counts in the indictment are part of the general circumstances surrounding the offence to which the Prisoners pleaded guilty and to some extent I can take those matters into account in sentencing the Prisoners on the charge that is before me." 54 Putting aside a drug charge against only Rowsell, which seems to accord with an offence taken into account under s21 of the Criminal Procedure Act, the other counts were for assault occasioning actual bodily harm, and detaining with intent to hold for advantage, namely to prevent the victim from reporting a felony. 55 His Honour went on later to refer to the victim having been assaulted on a number of occasions, burnt with a cigarette on his ear, told that he was not going to be taken home, forming the view "rightly, that he was to be held in the house against his will" and tied up, all of which events would seem to have occurred earlier than those which constituted the offence to which they pleaded guilty and for which they were sentenced. 56 The transcript of the sentencing proceedings records the following:- "His Honour: Remind me again, when did they plead guilty?

His Honour: That was an indictment which contained other matters?

Crown Prosecutor: No. The indictment may well have done but the plea only was entered to -

His Honour: I understand that the other matters are not proceeding. Are they no billed?

Crown Prosecutor: They will be merged into the facts and circumstances of the current matter.

His Honour: I accept that is so. I don't know if this is technically correct. Any way it is not the Crown's intention to proceed with those matters in any other way?

Crown Prosecutor: No." 57 There was no demur to this approach. No point was taken in the Grounds of Appeal, or in the written submissions advanced on behalf of the Applicants that there was any error by His Honour in this regard. It may be that technically the principle for which R v De Simone (supra) stands as a leading authority was breached, but in light of the approach of all parties apparent in the events and passages to which I have referred, I would infer that it was agreed by all parties that the totality of the Applicants' criminality towards the victim was to be dealt with under the one charge. It may be that this was why a plea to only one charge was required. In the face of such an agreement, my inclination is to think that Judge Howie was entitled to take the criminality involved in these other offences into account too. Certainly, any leave to appeal granted under s5(1)(c) of the Criminal Appeal Act should in this case be limited so as to deny the Applicants any appeal on the basis that Judge Howie was not entitled to take that criminality into account.

58 While that criminality which preceded the formation of the intent to kill was, by comparison, mild it could not be so described otherwise. Inter alia the criminality included the victim being subjected to a substantial, if intermittent, beating by the Applicants and a third person over what must have been a significant period. Rowsell estimated this went on for an hour although McCaffrey's estimate was that part of this activity took about 10 minutes. A report of a medical examination conducted on the victim's admission to hospital said that he had evidence of "multiple superficial recent abrasion and contusions about his head, posterior back and limbs consistent with a history of assault". The maximum penalty for the offence of assault occasioning actual bodily harm is 5 years penal servitude. 59 If one does take the assault occasioning actual bodily harm and the earlier detention into account, further grounds exist for concluding that the sentences imposed were not excessive. 60 The orders which the Court should make are:- (i) Grant leave to appeal against sentence, providing that such leave shall not extend to allowing the Appellants to contend that the sentencing judge took into account criminal actions by the Applicants against Andrew Byron extending beyond the offence of wounding with intent to murder. (ii) Dismiss the appeal.

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