Regina v Toki

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70001/2000 FILE NUMBER(S) : LOWER COURT Howie J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60754 of 2000

LEVINE J HIDDENJ SMART AJ

Tuesday 13 May 2003 REGINA v Martin Marino TOKI Judgment 1 LEVINE J: I have read the judgment of Hidden J in draft. I agree that the appeal against conviction should be dismissed for the reasons his Honour states. 2 However, whilst I agree that leave to appeal against sentence be granted, the sentence originally imposed being manifestly excessive, I am unable to agree with Hidden J as to the sentence to be imposed in lieu of that imposed by Howie J. 3 For the reasons stated by Smart AJ I agree that the appropriate head sentence is one of 22 years and non-parole period is one of 16 years and 6 months. 4 Accordingly, I agree with the orders as proposed by Smart AJ. 5 HIDDEN J: The appellant, Martin Marino Toki, was tried before Howie J and a jury for the murder of his partner, Pauline Anne Croarkin at their flat at Surry Hills in January 1999. He was found guilty and was sentenced to imprisonment for twenty-four years with a non-parole period of eighteen years. He appeals against conviction and seeks leave to appeal against sentence. 6 The principal issue at the trial was whether it was the appellant who had caused the death of the deceased. However, if the jury were satisfied that it was, there was also an issue as to whether he had any of the states of mind requisite for murder. In addition, evidence was called on the question of substantial impairment within the meaning of s 23A of the Crimes Act, and provocation was left to the jury.

Facts 7 I shall turn in a moment to medical evidence bearing upon the appellant's mental state at the relevant time. Otherwise, a sufficient summary of the case for present purposes is to be found in his Honour's remarks on sentence (at pars 4-20):

On 17 January 1999 ambulance officers, who had been summoned by two telephone calls made by the prisoner, attended a flat in Phelps Street, Surry Hills where the prisoner was residing with the victim, his de facto wife. The ambulance officers arrived at the premises at about 12.30 pm. The victim was found lying naked on the floor covered by a sheet. She was in a state of decreased consciousness and suffering from multiple injuries. She had a bleeding wound to the back of her head. There was significant bruising over her arms and legs and she had sustained numerous fractured ribs. It was apparent that she was suffering the effects of a brain injury and was convulsing. The prisoner was present and told the ambulance officers that the deceased had suffered a fit while having a shower. He said that both he and the deceased had taken ecstasy the night before and they had reacted badly to it. The prisoner was apparently suffering from abdominal pain and on occasions could be heard retching in the bathroom. Shortly after the deceased was removed to the hospital the prisoner spoke to Constable Agnew. He told the officer that he was with the deceased at a house the previous night and they had been given ecstasy mixed with a white powder. He left those premises after an argument but the deceased remained because she was in his words "pretty wasted". The prisoner came home but returned in the morning to take the deceased home. He had cut his thumb when he broke the window in the front door of the premises because he said the occupants would not let him inside. He said that when they arrived home the deceased was all right for a while, but then she "went all crazy". She was coming off the drug and was in pain. The prisoner said he also did not feel well and they both got into the shower. The deceased then had a fit and fell on top of him, hitting her head as she did. The prisoner was later himself conveyed to hospital because of his complaints of pain to his abdomen. An examination of the prisoner did not reveal any significant injury or illness and he was discharged. Immediately thereafter he was arrested by police and taken to Surry Hills Police Station where he was interviewed. He substantially repeated the account he had previously given to Constable Agnew although in more detail. He denied that he had assaulted the deceased in any way and maintained that she had injured herself when falling in the shower. The deceased died at about 3 am on 18 January. When the prisoner was informed of this fact he was so distressed that the custody officer at the police station obtained the assistance of the crisis centre at St Vincent's Hospital to tend to him. The premises, which the prisoner had visited with the deceased on 16 January, were in Crown Street, Surry Hills about 350 metres from the flat in Phelps Street. Ms Ferry and Mr Craft lived there together. The prisoner and the deceased had met these two persons, with whom they were casually acquainted, at a local hotel during that afternoon. After having consumed a substantial amount of alcohol, the four decided to go to the premises at Crown Street so that the two men could watch wrestling on television and the females could chat together. They purchased some more beer on the way. The four arrived at the premises at about 5.30 pm. They sat in the lounge room in front of the television drinking beer and talking. At about 7 pm the prisoner suddenly stood up and facing Ms Ferry and the deceased who were talking on a lounge, he said "Don't talk about my relationship". He then angrily left the premises. The deceased remained behind at the flat. About an hour later the deceased asked whether she could make a telephone call and was shown by Ms Ferry into the bedroom. Records show that two phone calls were made from the Crown Street premises to the flat in Phelps Street one just before and one just after 8 pm. There was other evidence before the jury that proved that the prisoner was at those premises sometime shortly after 7 pm. About five minutes after the deceased had entered the bedroom to make the telephone call, Ms Ferry entered the room and found the deceased in a distressed condition. She asked Ms Ferry if she could have a safe house that night, as she did not want to go home. Ms Ferry sought to comfort the deceased and they sat talking and drinking beer until the deceased fell asleep some time before midnight. Later Ms Ferry and then Mr Craft went to sleep in the bed alongside the deceased. In the early hours of 17 January Mr Craft and Ms Ferry were awoken by the sound of smashing glass. A short time later the prisoner came into the bedroom. Mr Craft, Ms Ferry and the deceased were together in the bed, naked. The prisoner told the deceased to get dressed because they were leaving. The deceased got out of bed, dressed and then left with the prisoner. She was not seen again until the ambulance officers attended at Phelps Street. The deceased died from an injury to her head that caused bleeding within her brain. Dr Botterill, who conducted an autopsy on the deceased, summarised his findings as follows: "In plain terms autopsy findings included numerous extensive bruises over the body and the limbs, a collection of blood over the right side of the brain, many broken ribs with a collection of blood in the right chest cavity. The bruises present over the body were both days old and more recent. Some of the patterned bruises, particularly over the lower limbs, were suggestive of use of a rod like implement, the remaining bruises might be the consequence of other blunt force injury." The doctor found the deceased had 79 injuries of which 12 were consistent with having been caused by medical intervention. There was substantial fresh bruising over the whole of the deceased's body. Some of the bruising was consistent with knuckle marks and some with finger grips. Bruising to the back of her hands and arms were consistent with defence wounds. She had a major wound to the back of her head and a laceration to her chin. There were 11 fractured ribs. Some of the bruises to the left leg and buttock of the deceased were consistent with having been caused by a piece of wood that was found in the flat at Phelps Street. Photographs of this object appear to show a bloody handprint upon it. Analysis of the blood on this item was consistent with it having come from the prisoner. The prisoner was right-handed and was bleeding from his right thumb after he broke into the Crown Street premises. There was evidence that attempts had been made to clean up the flat at Phelps Street before the ambulance officers arrived. There were bloodstains on the wall, which appeared to have been wiped, and there was blood on a sponge found in a sports bag. Bloodstained clothing was found in a pillowslip in the kitchen. In short the evidence revealed overwhelmingly that the prisoner beat the deceased to death in the flat in Phelps Street some time after they returned there from Crown Street. In light of the extent and nature of the injuries she sustained, I believe that the jury must have been satisfied beyond reasonable doubt that the prisoner intended to kill her. This is notwithstanding the obvious remorse shown by the prisoner when the ambulance officers arrived and his endeavours to assist her once he had come to his senses and realised what he had done. These events have to be seen in the context of the relationship between the prisoner and the deceased existing at the time of her death. They entered into a de facto relationship in mid 1996. From that time until a few months before her death the deceased had on numerous occasions suffered injuries at the hands of the prisoner. Either as a result of these injuries or fearing that the prisoner would assault her, the deceased at various times sought shelter with friends, her family in England or at a woman's refuge. However, the prisoner always attempted to find her and she always returned to live with him shortly after leaving him. Notwithstanding the attacks upon her, the deceased refused to seek assistance from the police and on at least one occasion lied to the police about who was responsible for the injuries.

8 On the issue of substantial impairment senior counsel for the appellant at the trial, who did not appear in this Court, called Dr Thomas Clark, psychiatrist. Dr Clark diagnosed the appellant to be suffering from temporal lobe syndrome, also known as focal epilepsy, on the basis of a number of symptoms described by the appellant when furnishing his history. These included such things as blackouts, headaches, bed-wetting and the experience of curious smells, as well as a history of unpredictable and impulsive behaviour, exhibiting a "short fuse". 9 Dr Clark explained that people with this condition can experience "complex partial seizures", which impair their capacity to control "rage or violence". The seizures can also disturb their consciousness of their surroundings and their own behaviour, leading to impaired memory of what occurred during the seizure. Generally, he explained that the temporal lobes are the areas where emotions are coordinated, and the syndrome which he described gives rise to abnormal emotions and can lead to temporary outbursts of violence. 10 The doctor found some support for his diagnosis in an MRI scan which had been supplied to him, although he said that he would defer to the opinion of a neurologist in the interpretation of that scan. The Crown called a neurologist, Dr David Gillies, who disagreed with Dr Clark's interpretation of the scan and considered his diagnosis of temporal lobe syndrome to be "doubtful". The Crown also called Dr Chiu Lung Wong, psychiatrist, who had taken a detailed history from the appellant and who also disagreed with Dr Clark's diagnosis. 11 It must be said that, even accepting Dr Clark's diagnosis, there was a paucity of evidence that the appellant was suffering a seizure at the relevant time.

Directions to the jury 12 In summing up, Howie J referred to this medical evidence only in connection with the defence of substantial impairment, which was put on the basis of an abnormality of mind impairing the appellant's capacity to understand events and to control himself: s23A(1)(a) of the Crimes Act. On the question whether the appellant had any of the states of mind necessary to establish murder, intent to kill or inflict grievous bodily harm or reckless indifference to human life, his Honour told the jury that they could have regard to the evidence of his emotional state at the time and evidence suggesting that he was affected by a drug. However, he directed the jury that the medical evidence was irrelevant to that issue. 13 What his Honour said was this: For the purposes of determining this issue of intent, namely whether the Crown has proved beyond reasonable doubt that at the time the accused caused the injury which led to the death of the deceased, he intended to kill her or do her really serious bodily injury, you should put out of your minds the psychiatric evidence about the accused suffering an abnormality of the mind which is said to have substantially impaired his ability to control himself. That evidence is of course principally relevant to your consideration of the defence of substantial impairment. You consider that defence only once you come to the view that the Crown has proved beyond reasonable doubt that the accused did murder the deceased, and that he did so with one of the states of mind necessary for the charge of murder.

While his Honour did not expressly refer to reckless indifference to human life in that passage, the jury would no doubt have understood that the medical evidence was also irrelevant to that question. 14 It is this direction which gives rise to the only ground of appeal against conviction.

Appeal against conviction 15 Mr Zahra SC, for the appellant, argued that this direction was in error, relying upon the decision of the High Court in Hawkins v The Queen (1994) 179 CLR 500. It appears from the transcript that his Honour determined that the direction was appropriate, with the concurrence of counsel then appearing for the appellant, in reliance upon R v S [1979] 2 NSWLR 1. No reference was made to Hawkins, either by his Honour or by counsel. This is perhaps not surprising because, despite the importance of the issues with which it was concerned, Hawkins appears to have received very little curial attention in this State. The Crown prosecutor before us, who also did not appear at the trial, told us that he could find no decision of this Court in which it had been applied. 16 Nevertheless, the Crown prosecutor did not deny that evidence of mental disorder may be relevant to intent. So much was assumed in R v Gosling [2002] NSWCCA 351 and, for the purposes of this case, it is not necessary to revisit R v S or to plumb the depths of the High Court's reasoning in Hawkins. The Crown prosecutor's submission was that, in the circumstances of this case, the medical evidence had little or no bearing on the question of intent or reckless indifference and that, in any event, the direction complained of could not have given rise to a miscarriage of justice. 17 In my view, that submission is sound. Dr Clark's evidence could have been no more than peripheral to the question of intent or reckless indifference. The absence of evidence that the appellant was undergoing a seizure at the relevant time is consistent with the fact that he did not suggest any significant impairment of memory when he spoke to the police. Rather, he gave an exculpatory account of how the deceased had suffered her injuries and the central issue in the case was whether he had caused her death. One can readily understand that counsel representing the appellant at trial was content to confine the medical evidence to the issue of substantial impairment, relying upon Dr Clark's evidence primarily to demonstrate and to explain the appellant's impulsivity and lack of self-control. 18 Although no redirection was sought by counsel at trial, the issue is an important one and I would not apply rule 4. However, in the circumstances of this case, I am not satisfied that his Honour's direction was in error. In any event, even if Dr Clark's evidence might have had some bearing upon intent or reckless indifference, I am satisfied that the failure to give such a direction could not have given rise to any substantial miscarriage of justice. The Crown case on murder was a strong one. It was well open to the jury to reject the appellant's exculpatory account and to conclude that he had killed the deceased with one of the states of mind requisite for murder. It is highly improbable that anything in the evidence of Dr Clark, which stood alone and was contradicted by the evidence of two other experts, would have created a reasonable doubt about the mental element of that crime. 19 I would dismiss the appeal against conviction.

20 As I have said, the appellant was sentenced to imprisonment for twenty-four years with a non-parole period of eighteen years. At the time he was sentenced, he was serving a sentence for an unrelated matter, which had been backdated to the date of his arrest for the murder. The non-parole period in respect of that sentence expired on 18 March 2001, but he remained in custody awaiting trial for the murder. Accordingly, his Honour directed the sentence for the murder to commence on 18 March 2001.

21 His Honour found that the killing was done in anger and was not premeditated. He also found that the appellant regretted what he had done, that he contacted the ambulance service out of concern for the deceased's well being, and that his grief over her death was genuine. He accepted that there was a loss of self-control on his part, such that the level of violence which he inflicted upon her was greater than he had ever exhibited towards her before.

22 On the other hand, his Honour was satisfied that the appellant was not under the influence of ecstasy at the time of the killing and he rejected Dr Clark's diagnosis of temporal lobe syndrome. The appellant was examined for the purpose of sentence by Dr Stephen Allnutt, psychiatrist, who provided a report. Dr Allnutt found the appellant to be suffering from a type of psychosis characterised by auditory hallucinations, which responded to anti-psychotic medication. While having regard to this evidence on the question of sentence, his Honour was satisfied that the appellant was not suffering from any such condition prior to the murder and that it afforded no explanation of his violent conduct then or, indeed, on earlier occasions.

23 His Honour had regard to the fact that the killing was not an isolated incident of violence, but was the culmination of a pattern of violent behaviour towards the deceased. In addition, his Honour was concerned that the appellant's criminal record demonstrated that his resort to violence was not confined to that relationship. Apart from offences of dishonesty and drug offences, that record includes a number of entries for violence, some of them quite serious. He was sentenced to imprisonment for maliciously inflicting grievous bodily harm in 1991, for robbery, assault occasioning actual bodily harm and related offences of violence in 1994, and for robbery in company in 1999.

24 It was that last sentence which he was serving when he was dealt with for the murder, and it must be added that he was on bail in respect of that offence at the time of the killing. Clearly, his criminal antecedents did nothing to assist his case on sentence. 25 The appellant was thirty-two years old at the time of the offence and is now thirty-six. His personal background is unremarkable and need not be recited, except to note a history of alcohol and drug abuse since his teenage years. Dr Allnutt reported that in the weeks leading up to sentence, while taking medication, his behaviour had improved and he appeared more receptive to assistance and guidance, displaying more insight into his problems of aggression and substance abuse. While having regard to that evidence, his Honour considered the appellant's violent behaviour to be of continuing concern, particularly if he entered into another intimate relationship upon his release. 26 All these were matters properly to be weighed in the sentencing process. The offence was undoubtedly a serious one of its kind. Although it was spontaneous, this was a brutal attack accompanied, as his Honour found, by an intent to kill. It was perpetrated by a man with a history of violence towards the deceased and others, at a time when he was on bail in respect of another serious offence, and whose prospects of rehabilitation are uncertain. 27 Notwithstanding these features, however, I am persuaded that the sentence is excessive and calls for this Court's intervention. The Crown prosecutor and Mr Zahra provided us with schedules of cases of murder in the setting of an intimate relationship, both in this Court and at first instance. I put to one side three entirely exceptional cases in which sentences of life imprisonment were imposed: Street (CCA, unreported, 17 December 1996), Lewis [2001] NSWCCA 448, Miles [2002] NSWCCA 276. 28 In two cases Greg James J sentenced the offenders to imprisonment for thirty years: Birac [1999] NSWSC 61, Bond [2000] NSWSC 1059. In the first of those cases the killing was premeditated. The offender, who stabbed his second wife to death, had previously been convicted of the malicious wounding of his first wife. His Honour fixed a minimum term of twenty years. In the second case the killing was not premeditated but the offender, who also fatally stabbed his partner, had a substantial criminal record and was on parole at the time for the manslaughter of another woman. A sentence of thirty years was also passed in Berger (Finlay J, unreported, 21 March 1995), in which the offender was on parole at the time of the killing for the manslaughter of his former partner and her daughter in circumstances which his Honour found to be similar to those of the murder for which he stood for sentence. 29 Several of the cases can also be put aside as they involved multiple killings. In almost all of those the offender killed his partner and one or more children, and sentences ranged from twenty-one years: Cikos [2001] NSWSC 35 (Dunford J) to twenty-six years: Park (Sperling J, unreported, 3 August 2000). Otherwise, sentences ranged from fourteen to twenty-four years, the majority of them being less than twenty years. In most of the cases the offender had little or no criminal record. 30 Three of these cases involved sentences of twenty-four years. In Chetcuti (CCA, unreported, 24 December 1993) the offender murdered his estranged wife to prevent her pursuing a property claim in the Family Court. The killing was brutal and premeditated. In Barry [2000] NSWCCA 138, the offender went to the home where his estranged wife was living, in breach of an apprehended violence order. There he killed her and also inflicted a serious wound upon his twelve-year-old stepdaughter. The twenty-four year sentence embraced the criminality of the murder and the malicious wounding with intent of the stepdaughter. In Keir [2000] NSWSC 111, the offender killed his wife in anger because she had had an affair. Adams J found that he did not intend to kill her, but that his violence was "calculated" and was the product of his "arrogant, controlling behaviour" towards her. In what his Honour described as "a chilling degree of remorseless callousness", he then buried her body and claimed that she had left him. 31 Generally speaking, other cases in which sentences of twenty years or more were passed involved killings which were premeditated or were particularly brutal. Examples of the former are Corrigan (Finlay J, unreported, 15 April 1993) - twenty-one years, Whitmore (CCA, unreported, 23 July 1998) - twenty years, and Matheson [2001] NSWSC 332 (Howie J) - also twenty years. Examples of the latter are Herring (Badgery-Parker J, unreported, 4 December 1995) - in round figures twenty-two years, and Everett (CCA, unreported, 13 December 1995) - twenty-one years. In the first of those two cases, the offender struck his wife on the back of the head and held her under water in their swimming pool until she drowned. In the second, the offender doused his wife with petrol and set her on fire. 32 It appears to me that, with the possible exception of Keir, a pattern of sentencing emerges from these cases from which it can be said that it is only in an exceptional case that a sentence in excess of twenty years has been passed where the killing was not premeditated. It is in the light of that pattern that I am satisfied that the sentence of twenty-four years in the present case is excessive. Were it not for the appellant's history of violence towards the deceased, his criminal record and the fact that he was on bail at the relevant time, I would have considered a sentence of less than twenty years appropriate. In so saying, I do not overlook the ferocity of the attack which led to her death. In the light of those aggravating features, however, I think that a twenty year sentence is called for. The application of the usual statutory proportion would lead to a non-parole period of fifteen years. I believe that any lesser term would fail to reflect the applicant's criminality, and it would still leave a substantial period during which he would be eligible for conditional liberty. 33 I would grant leave to appeal against the sentence and would allow the appeal. I would quash the sentence passed by Howie J and I would sentence the applicant to imprisonment for twenty years, to date from 18 March 2001, with a non-parole period of fifteen years. 34 Since preparing this judgment in draft, I have had the benefit of reading the draft reasons of Levine J and Smart AJ. I note that their Honours would allow the appeal against sentence but would substitute a sentence higher than that which I propose. I have given their Honours' views careful consideration, but my assessment that a sentence of no more than twenty years is called for remains unchanged. 35 SMART AJ: I agree with Hidden J for the reasons which he has given that the appeal against conviction should be dismissed. I also agree that the sentence imposed was manifestly excessive. 36 As to the application for leave to appeal against sentence I have found the analysis of the cases contained in the judgment of Hidden J to be helpful. It is unusual to impose a sentence in excess of 20 years where the killing was not premeditated, unless the circumstances of the killing were very bad or there are other aggravating features. 37 In the present case this combination of circumstances must be borne in mind: (a) the killing was a very brutal one, as the injuries detailed in the remarks of the sentencing judge established, and (b) the applicant's history of violence towards the deceased, and (c) his criminal record, and (d) the fact that he was on bail at the time. 38 That combination, and particularly the factors mentioned in sub-paragraphs (a), (b) and (c) leads me to the conclusion that the correct head sentence is one of 22 years and the correct non-parole period is one of 16 years and 6 months. A lesser non-parole period would not adequately reflect the grave criminality involved in this crime. 39 I would propose the following orders:

(1) Appeal against conviction dismissed (2) Leave to appeal against sentence granted (3) Appeal against sentence allowed; sentence quashed (4) In lieu of the sentence imposed the applicant is sentenced to imprisonment for 22 years starting on 18 March 2001 with a non-parole period of 16 years 6 months expiring on 17 September 2017 on which date the applicant would become eligible for release on parole. **********

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