Regina v Williams

COUNSEL : S R Norish QC for the Appellant C K Maxwell QC for the Crown SOLICITORS : T A Murphy for the Appellant S E O'Connor for the Crown CATCHWORDS : Appeal against declining to find "special circumstances" and a manifestly excessive sentence. LEGISLATION CITED : s, 5(2) of the Sentencing Act 1989 CASES CITED: Regina v Brindley (1993) 66 ACR 204 at 207 Regina v Phelan (1993) 66 ACR 446 at 449 DECISION : Leave to appeal be granted.; The appeal be dismissed.

1 FOSTER AJA: This is an application for leave to appeal against the sentence imposed upon the applicant by Adams J in the Supreme Court on 30 November 1998. The applicant had been charged with murder but was on 14 October 1998 acquitted of that charge but found guilty of manslaughter by Adams J, who heard the trial without a jury (s.33 Criminal Procedure Act, 1956). His Honour sentenced the applicant to a term of eight years penal servitude, comprising a minimum term of six years, to commence on 13 September 1998 and expire on 13 September 2001, together with an additional term of two years commencing on that day and expiring on 13 September 2003. 2 The grounds of appeal are: 1. The judge erred in declining to find special circumstances pursuant to s.5 sub-s.2 of the Sentencing Act, 1989;

2. The sentence was manifestly excessive. 3 The facts as found by his Honour may be summarised as follows: the applicant's mother, a lady in her early seventies, lived at her home in Kirrawee with the applicant, who was in his early thirties. She was in ill health and frail, spending a great deal of time in her bed. On the night of her death she was struck a number of times about the head and face by the applicant who had consumed a very large amount of alcoholic liquor. The blows produced significant bruising. The ascertained cause of death was a subdural haematoma, which was caused by a severe blow to the head. 4 The applicant claimed to have very little recollection of events leading up to his mother's death, which was not ascertained by him until the next morning when her dead body was found lying in her bedroom on the floor between the bed and a bedside cabinet. 5 His Honour, after consideration of medical, forensic and other evidence in the case, was satisfied to the requisite degree that some of the injuries to Mrs Williams' head were inflicted by the applicant. These were a large purple bruise on her right cheek, abrasions on the right and left side of the nose with a displacement of the septum associated with two black eyes and also a lacerated injury to her mouth area caused by a ring worn by the applicant. 6 She also had a large injury to the occipital scalp, which his Honour found was unlikely to have been inflicted by the accused's fists but was probably caused by Mrs Williams' head striking a hard edge in a fall. The most likely explanation for the injury was that "Her head struck either a flat surface or a hard edge in the vicinity of the bed as a direct result of being struck by the accused". He had no doubt that "Mrs Williams' physical dexterity, co-ordination and mental alertness must have been significantly affected by the physical consequences and emotional distress of the assault upon her." His Honour also referred to the other lacerations and bruises on the deceased's body, including the neck area, which indicated a serious infliction of force. 7 His Honour was satisfied beyond reasonable doubt that the subdural haematoma causing death was produced by a blow from the applicant or from a fall arising as the direct result of a blow from the applicant. 8 The applicant, when interviewed by the police stated that he had been drinking heavily during the day and on the evening of the assault. He remembered slapping his mother about the mouth more than once. She was on the telephone in the bedroom, apparently making an overseas call to the United States. He said he slapped her "whenever something went wrong" in relation to the call. He said she was still talking on the phone when he left her and the next thing he remembered was waking up in his bed in the morning. He accepted that he had caused bleeding on his mother's face and had pulled out some of her hair. 9 Other evidence in the case, which I need not refer to, led his Honour to find the applicant's account quite unconvincing. He was satisfied that the deceased had already fallen to the floor before the applicant left her and went to bed. Before doing so he had cleaned up the room to some extent, removing beer cans and other mess. One beer can was found under the deceased's body on the floor. 10 He found, however, that the evidence fell short of enabling or leading to the conclusion beyond reasonable doubt that the applicant intended to kill his mother or cause her grievous bodily harm, these being the bases upon which a conviction for murder was propounded by the Crown. 11 He was satisfied, however, that "the accused committed assaults which were objectively dangerous, which he knew were dangerous and had an appreciable risk of causing serious injury and were unlawful". Accordingly, he found the applicant guilty of the crime of manslaughter. 12 In his judgment and sentence given on 30 November 1998 he referred to his earlier findings. He noted that "a number of her injuries were capable of being caused by relatively mild, even trifling blows, while others required moderate force". However, the prisoner would have understood that even slight blows could have had serious consequences to such a frail and elderly person. There were a number of such blows inflicted out of anger and "calculated rather than instinctive". 13 His Honour noted that the applicant had been in custody since arrest on 13 September 1995 and had been in protection for the whole of the period. He had been "subjected to a regime significantly more harsh than would have been the case had he been a sentenced inmate" and there had been inordinate delay in bringing him to trial. This he said should result in some adjustment to the sentence he proposed. 14 There was a history of heavy drinking by the applicant's father and of violence towards his mother during the early stages of the applicant's life. The applicant had had a solitary and unhappy life and had started drinking to excess in 1990. He had previously assaulted his mother on one occasion and had been convicted. His Honour did not entirely accept the account of his antecedents as given by the applicant and he said that he could not detect any significant degree of remorse and contrition. 15 He said: "I am satisfied that this offence arose out of domestic circumstances in which the prisoner found himself and that he does not represent a danger to the community. I think it most unlikely he will offend again. For all practical purposes he is a man of good character". 16 He further stated: "Were it not for the unconscionable delay in conducting this trial and the fact the prisoner has spent this period on remand and protection I would have sentenced him to a significantly more lengthy term than I consider it is in the circumstances appropriate to impose." 17 His Honour then imposed the sentence which is the subject of this appeal. 18 The ground that the total sentence was manifestly excessive is not relied on. Indeed, the overall sentence of eight years' imprisonment could, in my view, in the circumstances be regarded as a moderate sentence, falling well within the ambit of the proper exercise of a sentencing discretion. 19 I should add that I am quite persuaded that the minimum sentence component of this sentence was also completely appropriate, having regard to the seriousness of the offence. 20 The applicant's complaint is that in his judgment his Honour did not refer to the question of special circumstances as referred to in s.5 sub-s.2 of the Sentencing Act 1989. This was put as being an error in the sentencing process. Reference was made to the case of Regina v Brindley 1993 66 ACR 204 at 207 in which the following passage appears in the judgment of the court given by Hunt CJ at CL: "Next it is submitted that the judge appears, from the absence of any reference to them in his remarks on sentence, to have failed to consider whether special circumstances existed warranting a different proportion between the minimum and additional terms that are required by s.5, sub-s.2 of the Sentencing Act. It is a pity that the judge did not expressly refer to this issue in his remarks on sentence. Judges at first instance should by now be aware that the most common submission made in sentencing appeals to this court relates to s.5, sub-s.2. As such appeals are inevitably conducted by counsel who did not appear at first instance, that submission is almost always based upon no more than the absence of any reference to the issue in the judge's remarks on sentence. I do suggest that, in order to preclude this court from drawing incorrect inferences in response to such submissions, sentencing judges should in every case make some reference to s.5, sub-s.2". 21 It should be noted that his Honour only makes a suggestion. There is no indication of any rule to that effect being laid down. 22 Reference should also be made to the case of Regina v Phelan 1993 66 ACR 446 at 449 where Hunt J also made reference to the concept of special circumstances. He said: "The issue which then arises is whether there are special circumstances within the meaning of the Sentencing Act. The applicant relies, in effect, upon all of these subjective features of the case." 23 His Honour then sets out the features in the particular case. He continues: "To accept these matters - taken either singly or in their totality - constitute special circumstances within the meaning of s.5, sub-s.2 would effectively remove the adjective 'special' from the same section. 'Special' does not necessarily mean 'unusual', but it does mean something more than merely a subjective feature of the case. What does constitute a matter as a special circumstance within the meaning of s.5, sub-s.2 is its production of the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole. That need or desirability may arise from the prospect of particular difficulties in adjustment after long periods in custody, or from the greater prospect of rehabilitation if supervised whilst on parole than from a longer period of incarceration." 24 His Honour went on to say: "The starting point is the need of a desirability of a longer than usual additional term not the need or desirability of a shorter than usual minimum term." 25 We were referred to other cases in argument, but I do not need to address them in these reasons. 26 In the present case his Honour provided for an additional term of two years being one-third of the minimum term. This is strongly suggestive, in my view, of his having considered s.5, sub-s.2 of the Act and having deliberately imposed the maximum available additional sentence which could have been provided in the absence of special circumstances. It might have been better if he had exposed his thinking in relation to s.5, sub-s.2 and followed the suggestion made in Brindley, but I am not persuaded that the question was simply ignored by a judge as experienced as he in this jurisdiction. 27 It was put on behalf of the applicant that there are a number of matters which could have probably been taken into account as special circumstances and should have resulted in a finding to that effect. They are set out in counsel's written submissions. They read as follows: "The offender was a person of otherwise good character, who was being sentenced to his first term of imprisonment. The significant part of the applicant's sentence has been served in protection and the applicant would require professional advice and assistance to facilitate his adjustment to free society - reference being made to Moffat's case. The offence was committed when the applicant was severely or significantly inebriated. More importantly, the surrounding circumstances or immediate history reflect a significant problem of alcohol abuse which would require professional assistance on his release to the wider community. The circumstances of the applicant would be that he would have no material assistance or family support upon his release from custody and he would have to live in the wider community with the consequences of his conduct towards his mother." 28 As indicated in the submissions, each of these matters was adverted to by his Honour in his reasons. However, his Honour was not obliged to find, in the context of this case, that they were special circumstances relevantly requiring a greater period of additional sentence than the two years that he provided for. That two-year period could properly be regarded, in my view, as adequate to facilitate the applicant's rehabilitation and for the provision to him of assistance on his release into the wider community. 29 In my opinion, no appellable error has been demonstrated. Consequently I would propose the following orders: 1. That leave to appeal be granted; 2. That the appeal be dismissed. 30 SMART AJ: I agree. 31 PRIESTLEY JA: I agree. The orders of the court are as proposed by Foster AJA. ***********************

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