Court of Appeal (Vic)|2011-08-23|Before: Hansen JA, Ashley JA

Rintoull v The Queen [2011] VSCA 245 (23 August 2011)

1 I agree with Hansen JA that the appeal should be dismissed.

2 On 15 September 2009 the appellant, Clinton David Rintoull, pleaded guilty on arraignment to one count of murder and one count of intentionally damaging property, namely a house. He was charged with a co-offender, Dylan Giuseppe Sabatino, who on 21 September 2009 pleaded guilty on arraignment to a substitute count of manslaughter and the count of intentionally damaging property.

3 Pleas in mitigation were heard by the same judge, who sentenced the appellant and Sabatino on 18 December 2009. The appellant was sentenced as follows: 20 years' imprisonment for murder and one year's imprisonment for intentionally damaging property. No order for cumulation was made, thus producing a total effective sentence of 20 years' imprisonment. A non-parole period of 16 years was fixed. Her Honour declared pursuant to s 6AAA of the Sentencing Act 1991 that but for the plea of guilty a total effective sentence of 23 years with a non-parole period of 19 years would have been imposed. The maximum sentence for murder is life while that for intentional damage to property is 10 years.

4 The appellant now appeals against his sentence pursuant to leave.

5 Sabatino was sentenced to 10 years' imprisonment on the count of manslaughter and one year for intentionally damaging property, producing a total effective sentence of 10 years. A non-parole period of six years was fixed. He has not appealed.

6 The victim, Liep Johnson Gony, was born in the Sudan. When he was six he fled (with his family) to Ethiopia. He came to Australia with family members in 1999, and ultimately to Victoria in 2001 where they lived as part of the Sudanese community in Springvale South. At the time of his death he had successfully

applied to study graphic design at a TAFE college and was about to commence full time employment. He was aged 19 when he died on 27 September 2007.

7 In September 2007 Rintoull was aged 22 and living with a former girlfriend, Emily Chambers, at a house she rented at 19 Briggs Crescent, Noble Park. Sabatino was aged 19 and also lived at the house with his girlfriend, Shandell Laurie.

8 On Sunday 23 September at 11.42 pm Rintoull rang '000' and advised that a group of 20 Sudanese males were chasing him, and asked police to attend Briggs Crescent, stating that the Sudanese had knives with them and had nearly stabbed him. In this conversation Rintoull referred to problems the Sudanese were causing in Noble Park and asked if the police were going to do something about the problem because if not he might do something about it himself. He refused to give his name but as a result of that call the police from Springvale, together with the Canine Unit, attended. A short time later a group of Sudanese were seen to disperse from the Heatherton Road area. Upon searching a nearby drainage area the police located Gony lying in long grass. He was arrested for being drunk in a public place, conveyed to the Dandenong police station where he was lodged in the cells; he was later released and bailed to appear in court on charges of being drunk in a public place and stating a false name and address.

9 Emily Chambers told the police that after being chased by a group of males Rintoull and Sabatino had returned home and told her what had occurred. Rintoull informed her that they had been trying to assist a young Sudanese male by providing him with a sandwich when they had been chased. Rintoull was angry at what had occurred. On the following days Rintoull complained to her about problems the Sudanese were causing in the local areas. He showed her a newspaper article under the heading 'Bronx Fear' that referred to problems with what the newspaper described as 'Recalcitrant migrants'; Rintoull said that Noble Park was turning into the Bronx.

10 On 26 September 2007, during the evening, Gony spent time in the Noble Park area with friends, congregating around the railway station and the local skate park, the group swelling at times to approximately ten in number and most, including Gony, drinking alcohol. Gony's cousin was part of this group and last saw him at the Noble Park railway station at approximately 9.45 pm. Gony was drunk and by himself.

11 During that evening Rintoull, Sabatino, Chambers and Laurie were at 19 Briggs Crescent; they had been drinking and Rintoull had been smoking cannabis. It so happened that earlier that day Chambers had been told she would have to vacate the house by the end of the week due to non-payment of rent. She was angry at this and so during the evening Rintoull, Sabatino, Chambers and Laurie did significant damage to the interior of the house, kicking and punching holes in a number of internal walls and spray painting graffiti throughout the house. The graffiti included a message sprayed by Rintoull 'Fuck Da Niggas'. The damage was valued at $16,049 and represents the count of intentional damage to property.

12 Returning to the evening of 26 September 2007, the judge records that at approximately 10.00 pm a local resident saw Rintoull outside the premises in Briggs Crescent with a gold-coloured metal pole. He was standing in the middle of the road with the police and heard to yell 'These blacks are turning the town into the Bronx. I am going to take my town back, I'm looking to kill the blacks.' Chambers witnessed this and asked Rintoull to return inside, which he did. But at some point he argued with Laurie, and left the house with the pole and began walking down Briggs Crescent towards Mons Parade. As he did this, Laurie overhead him say 'I guess I'll go and take my anger out on some niggers', which led her to ask Sabatino to go after Rintoull to make sure he was alright, and he did so.

13 About 15 minutes after they had left Laurie saw Rintoull and Sabatino walking down the driveway of 19 Briggs Crescent towards the rear yard. She went outside and saw them washing two poles under water. Both poles were bent. Rintoull said 'I bashed a nigger and I think he's dead.'

14 A short time later Chambers, who had gone next door for cigarettes, returned home and Rintoull indicated to her that he had hit someone and took her to the rear corner of the yard where he said he had hidden two poles. Chambers gave evidence at the committal that at this point Rintoull was upset, crying and frightened. Rintoull returned to the house and stated he had hit a Sudanese guy over the head about 15 times and a couple of times in the body. Sabatino said he had hit the guy on the head a few times and also the body. After further discussion, at 11.26 pm Rintoull rang Chambers' sister and told her he had hit a Sudanese over the head with a metal pole and that he thought he was one of the ones that had chased him two days before. He said that he thought he had got one back and killed him.

15 Rintoull and Sabatino, together with Chambers and Laurie, then decided to leave Victoria and travel to South Australia, and prepared for that trip. They left the next morning.

16 Returning to Gony, he was discovered at 10.40 pm by a motorist in Mons Parade, Noble Park, who noticed a male lying on the southern nature strip opposite a derelict house at No 13. He recognised Gony as a person he had played basketball with. Gony was unconscious and bleeding from the head. Following a call to '000' an ambulance arrived a few minutes later, and Gony was transported to the Alfred Hospital in a critical condition. He underwent emergency surgery to relieve pressure on his brain and was placed on a life support system. The judge records that:

Over the following 24 hours his condition deteriorated to the point where it was considered that he was unable to survive his injuries. He was suffering from multiple serious injuries, including multiple petechial haemorrhages, subarachnoid haemorrhage, a commuted fracture of the distal left ulna, a fractured left nasal bone, a right acute subdural haematoma, a fractured left base of the skull, the depressed occipital bone fracture, a fracture of the left orbital floor, and occipital scalp lacerations and forearm lacerations. His injuries were consistent with the severe head injury from trauma to the head. At 10.40 pm on Thursday 27 September 2007, his life support system was removed with the consent of his family, and he died six minutes later.
An autopsy conducted by pathologist, Dr Kate White, later determined that the cause of death was a depressed fracture of the rear left side of the skull. The deceased was found to have a blood alcohol level of .23 grams per 100 millilitres.

17 The police moved quickly. Rintoull and Sabatino were arrested on 30 September in South Australia and subsequently remitted to Victoria.

18 The police conducted a record of interview of Rintoull on 30 September. In that interview Rintoull gave the police different accounts of what had happened. He maintained that a second male was with Gony and that that person ran away. He told the police initially that he hit Gony with his own pole, which was not true, and later said that he found the pole near a bridge, which also was not true. He did however admit to hitting Gony on the head and striking him 15 times with the pole, and acknowledged that it was wrong to kill him. He said the attack was not racial but he had snapped and it was not his fault. He denied he had been looking for a Sudanese person to assault, but admitted that he had armed himself with an iron bar for protection because 'the violence was out of control'. He said it was not his intention to kill Gony and he was 'devastated for the poor boy', although maintaining it was not entirely his [Rintoull's] fault. Among other things, he said he had damaged the house after the attack on Gony, which also was not true. However, while the record of interview was not a full and frank account of what occurred, Rintoull did make significant admissions.

19 The judge accepted that on the previous Sunday Rintoull had met a Sudanese boy sleeping in the derelict house at 13 Mons Parade who said he was homeless and eating dirt, and that he went back to 19 Briggs Crescent to make the boy a sandwich. But when he and Sabatino returned to the house the boy had gone, so they ate the sandwiches. By then the boy returned to the house, so he went back to make more sandwiches and returned to the house to give them to the boy but he had left for the railway station so they went down there but were met by a group of 20 to 25 hostile Sudanese, some of whom had knives and a sword. Bottles were thrown in their direction and they ran away and were chased. It was in these circumstances that Rintoull came to make the call to '000' where he reported the incident to the police and sought assistance.

20 The judge dealt with a number of specific issues as follows. First, as to whether a second male was present when Gony was attacked, the judge was not prepared to conclude that a second male had not been present. However, the judge stated, the absence or presence of another male prior to the initial stages of the confrontation did not mitigate what Rintoull and Sabatino subsequently did.

21 Secondly, as to intention the judge did not accept a submission of Rintoull's counsel that his conduct may be regarded as a case of reckless murder. I refer to this below.

22 Thirdly, the judge concluded that she was not satisfied beyond reasonable doubt that Rintoull's actions were racially motivated. This finding was made for the purpose of dealing with the sentencing consideration specified in s 5(2)(daaa) of the Sentencing Act 1991 which provides that in sentencing an offender a court must have regard to:

[W]hether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated.

I interpolate that no issue arises as to the correctness of this finding. That is not to suggest doubt as to the finding but merely to record the fact that it is not in issue on the appeal.

23 Turning now to the appellant's personal circumstances, Rintoull was aged 24 at the time of sentence. He had an unfortunate upbringing, his parents separating before he was born. His father lives in Queensland and his mother in Melbourne, she suffering from schizophrenia and advanced cancer. To the age of 17 he moved between living with his parents or being cared for by friends, his grandmother, welfare agencies and foster care, by reason of his mother's ill health. He could account for 23 changes of address and 14 different primary and secondary schools. The judge recorded that:

You were bullied at school because of your mother's mental health, and the times you lived with your father were marked by his violence and emotional abuse. Indeed the telephone intercepts of the conversations you had with your father give a measure of the man and his attitude.
You began using cannabis at the age of 16 and your cannabis use continued up until your arrest. At the age of 18 you became a binge drinker. However, since you have been in custody all of your random urine analyses have been negative. Despite the considerable instability which marked your early life, you did complete Year 11 at the Noble Park High School at a time when you were living with your grandmother.
Having completed your schooling, you remained in Victoria and then returned to Queensland to live with your father, your older brother and two half siblings. You obtained an apprenticeship as a chef, but left after 12 months, because your cannabis use was such that it was incompatible with your work commitments. Since then you have engaged in a number of short term unskilled jobs.

24 In the 12 months prior to these offences the appellant lived in South Australia, having gone there to visit relatives. He met Sabatino and a girl who became his girlfriend and the three led a transient life staying with friends and living on the streets, Rintoull continuing to use and abuse alcohol and cannabis. He returned to Melbourne on 14 September 2007 hoping to stay with his mother but his half sister was not happy with that and he moved in with Chambers.

25 The judge then recorded the following further relevant matters:

Dr Odell, a forensic physician, has perused your medical history from 2002. He reported that it appears you have suffered from a depressive illness for at least a year prior to these offences, and a review of your medical history indicates that you have reported to doctors with symptoms of depression and anxiety and a history of longstanding mild paranoia and heavy cannabis use.
A report by Dr Simon Kennedy, clinical and forensic psychologist, was tendered on your behalf. He describes you as at between average and low average range of intellectual functioning, and although you did not present with the psychosis, he described you as having an undercurrent of anger. You told Dr Kennedy that you were angry at everything, at your mother being sick, about people not listening, and that you always got ignored. You also told Dr Kennedy that you armed yourself on this occasion because it was a dangerous area, and you told him that you smashed up the house after the attack, although that is not the case.
You reported to him a history of paranoid thoughts and some delusions, past and present, the veracity of which Dr Kennedy, based on his evaluation of you, doubted. He opined that you were likely to have a personality disorder stemming from your early childhood experiences and dispositional factors. Otherwise you presented with anxiety and, in Dr Kennedy's opinion, your incarceration to date has allowed you to develop insight and remorse for your actions, and this insight will develop further with appropriate treatment.
Since your arrest, you have been held on protection in custody at various locations, including at the psychiatric unit, St Paul's, for seven months. You are presently being held on protection at the Deakin Unit at the Metropolitan Remand Centre and have been there for the past nine months. You are on daily medication for anxiety and depression, and also receiving medication for high blood pressure and stress headaches.
In the past, while in custody, you have been able to work, but your present classification only allows for limited opportunities for work. Nonetheless you have applied yourself to the educational course available to you and various certificates of completion have been tendered on your behalf.

26 After referring to matters concerning Sabatino, the judge considered a range of factors relevant to Rintoull's sentencing. Her Honour commenced by referring to the victim impact statements tendered on behalf of Gony's mother, sister and uncle which spoke eloquently as to their grief caused by the loss of a loved son, brother and nephew, the uncle speaking with incredulity that with all that the family had endured before arriving in Australia they should suffer such a death in the country they called home. The judge took into account the plea of guilty, and that Rintoull had indicated his preparedness to plead guilty to murder - although on the basis of reckless murder - in April 2009, and that he pleaded guilty to the count of intentionally damaging property at the committal. She accepted that the pleas indicated remorse and had saved the cost of a trial, the victim's family the ordeal of a trial, that the plea facilitated the course of justice, and took account of the significance and weight to be attached to a plea of guilty to murder. The judge took into account that Rintoull was remorseful for his conduct, and that at the time of arrest he had already decided to surrender himself to justice. The judge took into account that he was a youthful offender at the time of the offending and was still a young man at sentence. The judge took into account that due to Rintoull's age, weight should be given to his prospects of rehabilitation, that in his record of interview he ultimately made significant admissions (while not being frank), that he had no prior convictions and would be serving a very substantial period of imprisonment. The judge took into account that Rintoull was a person of low to average intelligence, his unstable and dysfunctional childhood, that he suffered anxiety and depression which may impact upon his wellbeing in the prison system, and that he had been held in protection which presumably would continue for some time. Thus the conditions in which he is held may be more onerous than that endured by the general prison population. The judge took into account that Rintoull was making good use of his time in prison and that if he could address his anger his rehabilitation may be achievable. Against these matters, however, stood the nature and gravity of the offences, his role and the need to pass a sentence which denounced his conduct and punished him and signalled to like-minded members of the community that if they offend in such a way they can expect salutary punishment. Specific deterrence also had to be given due weight.

27 In passing sentence the judge stated that she accepted a submission of the appellant's counsel that a longer than normal non-parole period was appropriate in order to facilitate the appellant's prospects for rehabilitation. (Plainly, what her Honour meant - for this is what counsel submitted - was that the appellant should have a longer than normal period on parole.) Accordingly, the judge ordered a non-parole period of 16 years.

The non-parole period fixed fails to reflect the intention expressed by the learned sentencing judge.
The learned sentencing judge erred in giving inadequate weight to the appellant's plea of guilty.
The learned sentencing judge erred in finding the appellant's state of mind at the time of the offence was not one of recklessness.

29 Noting that the non-parole period imposed represented 80 per cent of the head sentence, the appellant submitted that this period was too great in light of the judge's acceptance of the submission that a longer than normal period on parole was appropriate. It was recognised that there is no standard or mathematical formula for the calculation of an appropriate minimum term,[1] or as to the ratio of that term to the head sentence. It was nevertheless submitted that in this case the ratio was unusually high and that the period imposed indicated that the judge had not given expression to her intention to provide for a longer than usual period on parole. In support of this submission counsel referred to the various mitigatory factors to which the judge referred and said she would take into account. Noting that the purpose of fixing a non-parole period was to mitigate punishment in favour of rehabilitation through conditional freedom[2] and that a lower than normal non-parole period may be fixed to encourage an offender's rehabilitation through an extended period of supervision on parole,[3] counsel emphasised the young age of Rintoull which, in combination with the other mitigatory factors, meant that a non-parole period of less than 16 years should have been imposed.

30 Finally, counsel referred to the Sentencing Advisory Council's Sentencing Snapshot 84 which disclosed that in sentences for murder in the period between 2007-8 the most common combination of sentences was a total effective sentence of 20 years with a non-parole period of 15 years. The median sentence in that period was 19 years with a non-parole period of 15 years. These figures have been brought up to date in Sentencing Snapshot No 109 published in May 2011. This latest Snapshot discloses that in the period 2005/2006 to 2009/2010 the median length of imprisonment (apart from life sentences) for murder was 18 years and the median length of the non-parole period was 15 years and three months. It is stated that the most common length of imprisonment was 18 years and non-parole period was 17 years.

31 Counsel for the Crown submitted that the non-parole period of 80 per cent of the head sentence was within the range ordinarily fixed for the crime of murder. While on one view this is statistically an unusually high proportion of the sentence and as such would ordinarily invite appellate scrutiny in the absence of reasons, counsel referred to the considerations that properly obtain in cases of long head sentences. In such cases, the ratio that might apply for much shorter sentences for lesser offences than murder would, if imposed, provide an inordinately long period on parole which would not reflect the gravity of the offending.[4] Furthermore, as Redlich JA pointed out in Romero v The Queen,[5] in a judgment with which Buchanan and Mandie JJA agreed, sentencing statistics showed that ' ... the non-parole periods for murder sentences are very rarely of a length that is less than 67 per cent of the head sentence, and a non-parole period for murder that is in excess of 80 per cent cannot be viewed as out of the ordinary.' Given that observation, it was submitted that the parole period fixed in this case was appropriate. Statistics suggested that a three year gap between the head sentence and the non-parole period is common in murder sentences. The judge assessed the appellant's prospects as reasonably good; and, it was submitted, a parole period of four years was a very substantial period of supervision and statistically 'longer than usual' thus giving effect to the judge's intention.

32 In my view the appellant's contention cannot be accepted. I am not persuaded that the judge failed to give effect to her stated intention to allow for a longer than normal non-parole period. The non-parole period imposed means that the appellant may spend up to four years on parole. That is a lengthy period. If the period on parole was to be any greater, the effect would be a very long period on parole with the attendant supervision which that entailed. Further, as was noted in Romero, the non-parole period must not be shortened to such an extent as to fail to reflect the gravity of the offending.

33 The question for the judge, in light of all the circumstances of the offending and the large range of mitigatory factors which the judge took into account, was what was in justice the appropriate period before the appellant should be eligible for parole. This decision lay in the discretion of the judge as did the imposition of the head sentence. In the consideration of this question, statistics are one thing but they are not, as is clear, able to control the exercise of the discretion. In any event, reference to these statistics does not indicate that the period of parole fixed by the judge as that appropriate in the circumstances was out of kilter with that obtaining in cases of murder, or in any event to a degree that would indicate her Honour had in some way erred in fixing that period. This was a very serious offence and considerations of general and specific deterrence and denunciation loomed large. In my view it was open to the judge, regarding the circumstances of the offending and other relevant factors, to impose the period of eligibility for parole which her Honour did.

34 In submitting that the judge gave inadequate weight to the appellant's plea of guilty reference was made to R v Hall[6] where Crockett and Southwell JJ observed that ' ... the more serious the crime, ... the greater the weight to be given to a plea of guilty.'[7] Counsel raised the question whether, as stated in Scerri v The Queen,[8] a complaint about the discount for a plea of guilty is a particular of a ground contending that the sentence was manifestly excessive or, as stated in R v Howard,[9] that where it is manifest that a sentencing judge has grossly undervalued the importance of the discount for pleading guilty it may be viewed as a sentencing error. Favouring the latter approach, counsel submitted that it was manifest that the judge attached such little weight to the appellant's plea that specific error was shown. It followed that in light of the value of the appellant's plea a different sentence should now be imposed.

35 It should be noted that in the course of oral argument counsel stated that the sentence was unremarkable for murder. Counsel also acknowledged that the judge had taken all relevant matters into account but had sentenced too highly. Support for this conclusion was said to be found in the s 6AAA declaration, for that declaration contained the same gap between the head sentence and the non-parole period as the judge imposed taking account of all mitigatory factors including the plea of guilty. That indicated that the judge had not taken sufficient account of the plea of guilty. The discount allowed by the judge was 13 per cent in relation to the head sentence and 15 per cent on the non-parole period. Counsel for the appellant referred to Ciantar v The Queen[10] for support for the submission that the discount allowed by the judge was less than ought have been given on account of the plea of guilty. However, as was pointed out by Nettle and Bongiorno JJA in that case[11] it did not follow that the discount was indicative of error, for reasons to be found in the circumstances of the particular case.

36 Assuming that this ground is a stand alone ground, as distinct from being an aspect of the ground of manifest excess, it cannot succeed for the reason that sentencing error in point of principle is not established. Her Honour took into account all relevant considerations that might be taken into account in favour of the appellant. The argument to the contrary including that inadequate weight was given to the plea of guilty, cannot be maintained.

37 In the course of her sentencing remarks the judge considered a submission made on behalf of the appellant that his conduct may be regarded as a case of reckless murder. In his record of interview the appellant stated that he did not intend to kill Gony although, as her Honour noted, this did not sit easily with his statements heard by others. The judge found that when Rintoull left the house with the pole he did not intend to kill whomever he met but was intent on serious violence directed towards the people who congregated around the Noble Park railway station. Her Honour found that when Rintoull came across Gony he 'could not have presented other than as a hapless and helpless victim' and [that] Rintoull 'set upon him striking him with the pole and continued to strike him even when he was on the ground.' This was a savage, ferocious and brutal attack, and the judge was satisfied that Rintoull intended to inflict really serious injury to him. The judge found that the ferocity of the appellant's attack and the extent of his violence must have been known to him because on return to the house he told Chambers that he had 'bashed a nigger' and thought he was dead. His actions, her Honour found, bespoke his intentions and accordingly she did not accept that his conduct was to be characterised as reckless murder.

38 In submitting that it was not open to the judge to make this finding beyond reasonable doubt the appellant relied on his level of intoxication and statements in his record of interview that he did not know what his intention was at the time. However, these matters were but some only of the relevant matters for consideration. As the judge said in referring to the nature and gravity of the offences, Gony was subjected to an unprovoked and sustained vicious attack by Rintoull which Sabatino subsequently joined in, Gony being heavily intoxicated and unarmed. Further, after the attack Gony was left lying on the ground, left for dead as the judge described it. The effect of alcohol was one matter, as were the answers in the record of interview, but they did not preclude the finding of an intention to inflict really serious injury. In my view it was open to her Honour to conclude as she did.

39 It was submitted for the appellant that taking into account all the circumstances of the case the sentence imposed was manifestly excessive. In my

view this ground has no substance. It is unnecessary to recount the circumstances of the offending and the raft of mitigatory factors which the judge took into account in determining upon the sentence. Quite simply, it cannot be said of this sentence that it is out of the range of that which was in justice appropriate to impose, let alone being out of the range to a degree that could warrant the sentence being regarded as manifestly excessive.

40 For these reasons the appeal should be dismissed.

[1] R v Ashe [2010] VSCA 119; R v Diver [2010] VSCA 254.

[2] DPP v Josefski [2005] VSCA 265; [2005] 13 VR 85, 94 [43].

[3] R v Bullen [2005] VSCA 206; R v Morgan [2008] VSCA 258.

[4] Romero v The Queen [2011] VSCA 45, [25].

[7] See also DPP v Nazari [2010] VSCA 293.

Rintoull v The Queen [2011] VSCA 245

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Rintoull v The Queen [2011] VSCA 245 (23 August 2011)

Parties