The Severity Appeal
122 The Appellant submits that each sentence is manifestly excessive. Although no particular error was separately relied upon, other than in ground 6 as discussed, his Honour's remarks on sentence were criticised in certain respects.
123 Counsel for the Appellant suggested that in each case his Honour was influenced by what counsel described as:
"[T]he unwarranted characterisation of the Appellant as a 'recidivist' and his Honour's finding that the ordinary principles of sentencing, especially rehabilitation did not apply and that 'longer' sentences were required for such offenders."
124 The passage in his Honour's remarks on sentence that is challenged in this respect is the following:
"[121] Nor in any consideration of the prisoner's prospects of rehabilitation can one ignore his choice to possess over a significant period the weapon with which Mr Hullick was killed. The prisoner's past experience in the law must have made him very familiar with the way such possession would be viewed. Similar observations may be made as to the prisoner's dealing with marijuana, about which he gave evidence. No other conclusion is open but that the prisoner refuses to learn or to accept the standards of decent society.
[122] The Prisoner is a recidivist. One could hope that at some stage he will be rehabilitated, but given his past, any rational judgment is that the prospects of this occurring are remote and, although nothing is impossible and his increasing age might help, virtually nil. I record that in arriving at this conclusion I have not relied on the opinion expressed in the report from the Victorian Department of Justice. However, my conclusion obviously derives support from that report.
[123] In these circumstances, considerations of personal deterrence and protection of society require a longer rather than a shorter sentence, not as punishing him again or further for his past but as bearing on the proper sentence for the offences before me."
125 As the full passage makes clear, these observations were made in the context of his Honour dealing with sentencing for the death of Hullick. However, his Honour took into account the subjective circumstances and personal record of the Appellant with respect to both offences. He had also described the prospects of rehabilitation as "bleak".
126 In both cases the Appellant was on bail at the time of the offence. His record is a long one covering a wide range of offences, including drug dealing, burglary, armed robbery and assault. His Honour's characterisation of the Appellant as a "recidivist" was entirely appropriate. Considerations of personal deterrence were entitled to considerable weight. As his Honour concluded, there was no evidence of any character capable of suggesting that there was any real prospect of rehabilitation. I can detect no error in anything his Honour said in this regard.
127 With respect to the submission that the sentence was manifestly excessive I deal first with the case of Hullick.
128 As noted above, his Honour concluded, as he was entitled to do for purposes of the sentencing exercise, that one of the two alternative routes to a manslaughter verdict which was left to the jury was established beyond reasonable doubt. His Honour found that the Appellant intended to kill or inflict grievous bodily harm but that, consistently with the jury's verdict, this occurred in the context of acting in self-defence, albeit excessive.
129 His Honour was, in my opinion, entitled to make this finding. As his Honour emphasised, the Appellant himself had admitted that he pointed the gun in the direction of the deceased. His Honour rejected the Appellant's suggestion that he had no particular intent in doing so. His Honour was entitled to accept the former part of the Appellant's evidence and reject the latter. The Appellant had retrieved the weapon the night before. He attended at the caravan for the specific purpose of sorting out a dispute with the deceased and, perhaps most significantly, the state of the caravan indicated that the struggle was of very limited proportions and the shot was administered from a distance in excess of 70 centimetres. Furthermore, his Honour was entitled to reject the Appellant's evidence that he simply could not remember shooting the deceased twice. The finding of intent to kill was open to his Honour and, indeed, except in one respect, was not challenged on appeal. His Honour's statement that this was the alternative urged on him by counsel for the Appellant was not questioned.
130 As noted above, the Appellant did challenge his Honour's finding as to the sequence of the shots and particularly that the "fourth shot" to the abdomen, which was discharged at distance, and was discharged into the body of the deceased when he was prone on the floor of the caravan. The Court raised with Crown the possibility that this challenged finding of fact, when combined with his Honour's conclusion about an intent to kill, was inconsistent with the jury's decision to acquit of murder. The scenario of a person standing over the prone body of another, at a distance, with an intent to kill but still acting in self-defence appeared to me to raise a very real possibility of inconsistency. Counsel for the Appellant adopted this characterisation of his Honour's remarks on sentence.
131 Counsel for the Crown submitted that no inconsistency could be said to arise if the jury has acted on a particular basis which his Honour set out for the jury in his written directions. With respect to the alternative of an intention to kill or inflict grievous bodily harm, the Crown had to establish beyond reasonable doubt the negative proposition that at the time of the shooting the Appellant "did not believe his act was necessary to defend himself". It was, accordingly, open to the jury to conclude that the Crown had not discharged its onus of proof on the issue of the Appellant's belief. On that basis, no inconsistency would arise with his Honour's finding of fact about the sequence of the shots.
132 The Crown's submission has force, although I still believe there may be some tension, if not an inconsistency, between his Honour's finding in this respect and the jury verdict. Nevertheless, I would not conclude that his Honour committed an error which would of itself justify this Court's intervention in this regard. As quoted above, in [75] of his remarks his Honour referred to the nature of the two wounds to the body of the deceased, and in particular to the absence of powder residue near the stomach wound, as indicating that the shot was fired from a distance. In this regard his Honour said "I do not need to rely on it for present purposes …". Furthermore, it does not appear from his Honour's remarks on sentence later in the judgment that this finding was given weight in his Honour's assessment of the objective gravity of the offence.
133 As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder (R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]).
134 It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.
135 For example where diminished responsibility is relied upon, the extent to which culpability is 'diminished' can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as "child-killing by a parent or carer", it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases. (See Hoerler supra.) This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff. It is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence (see R v Trevenna (2003) 149 A Crim R 505).
136 The test established by s418 of the Crimes Act is whether "the conduct is a reasonable response in the circumstances as he or she perceives them". Such a test must depend on the characteristics and conduct of the deceased and also the nature of the response, in all of the circumstances of the particular case, on the part of the accused. A test of such a wide-ranging character is unlikely to lead to anything in the nature of a sentencing pattern or tariff in which the decisions on one case are of any particular utility for another.
137 In the circumstances of the present case, the objective gravity was of a high order. His Honour's finding that the Appellant had an intention to kill or inflict grievous bodily harm itself indicated a high level of moral culpability. The weight to be given to the particular mitigating circumstances of this case, namely, acting in self-defence, was not of a particularly high order. His Honour rejected, as he was entitled to do, and for good reason, the Appellant's case that the deceased had instituted the conflict by deploying the rifle. His Honour was also entitled to accept the proposition that the firing of the first two shots at opposite ends of the caravan occurred when the deceased had the gun in the course of a struggle. Nevertheless, the struggle, as the state of the caravan indicated, was of limited proportions. The Appellant did fire two shots and on each occasion had to cock the hammer before pulling the trigger. Furthermore, one of the shots, and the one that was likely to have been the fatal shot in the circumstances, was administered from distance. Taken together with the subjective circumstances set out by his Honour, particularly the fact that the prospects of rehabilitation were very low, if not non-existent, I can see no error in the sentence his Honour imposed.
138 The sentence appeal in the case of the death of Hullick should be rejected.
139 I have set out above his Honour's relevant remarks on sentence with respect to the manslaughter of Kimball. I should bear in mind the observations I have made about the lack of utility of comparing sentences in manslaughter of different cases. Nevertheless, I must say it is surprising that the same head sentence was imposed in the cases of Kimball and Hullick and that, in fact, the non-parole period in the case of Kimball was one year longer. The moral culpability of the Appellant in the case of the death of Hullick appears to me to be of a significantly higher order of magnitude than in the case of Kimball.
140 His Honour clearly took a different view and, as quoted above, emphasised the significance of general deterrence and personal deterrence in the context of persons found guilty on a joint enterprise or accessorial basis, in a context where knives are frequently used in the course of fights with serious effects.
141 I accept that the permissible sentencing range for manslaughter must be regarded as particularly wide. Nevertheless, I have come to the conclusion that, in all of the circumstances, the sentence his Honour imposed on this occasion was manifestly excessive. The facts agreed before his Honour stated that the Appellant knew that one of his friends "may have been armed with a knife" and that he appreciated that there were "risks" that one of his friends "might have used a knife while fighting with others". These agreed facts indicate a level of possibility, perhaps even a probability, with respect to both the possession of the knife and its use. There is nothing, however, to indicate precisely how probable was the Appellant's reason to expect either of these matters. In particular, it is not clear how certain he was that one of his friends had a knife at the time.
142 It is of great significance, as his Honour recognised, that the Appellant did not himself wield the knife. Nor was he in the immediate vicinity of the fight occurring between his friends and the deceased.
143 The Appellant's subjective case was weak, indeed virtually non-existent. Considerations of personal deterrence were entitled to considerable weight, particularly so in a context where the prospects of rehabilitation did not suggest any mitigating consideration in that regard. Nevertheless, I am of the view that his Honour's sentence on this case was manifestly excessive.
144 I would allow the appeal and impose a head sentence of nine years with a non-parole period of six years and nine months.
145 The sentence is still a heavy one when compared with the pattern of sentencing for manslaughter. I give considerable weight to the need for general deterrence of persons with a proclivity to engage in brawls carrying knives. Personal deterrence is also entitled to significant weight. I agree with Hulme J that the prospects of rehabilitation are bleak.
146 His Honour partially cumulated the sentence, by having the sentence in the Hullick matter commence seven years after the commencement of the sentence in Kimball, with an overlap of two years. Considerations of totality indicate to me that his Honour's period of an overlap of about two years remains correct. Indeed that was not challenged.
147 In the event there will be an effective non-parole period of 12 years and nine months instead of 15 years and a head sentence of 16 years and nine months instead of 19 years.