Sheiles v R

Applicant's submissions as to the law

The applicant relied upon the following principles in relation to his Honour's use of the evidence concerning the loss to the deceased's wife and daughter, brought about by his death.
A purpose of sentencing is to recognise the harm done to the victim of crime and the community (s 3A(g) Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act)). In determining the appropriate sentence for an offence the fact that the injury, emotional harm, loss or damage is substantial may be relevant (s 21A(2)(g) of the Sentencing Act). The fact that such a factor is relevant and known does not require the Court to increase the sentence for the offence (s 21A(5) of the Sentencing Act).
The Court is not to have regard to any aggravating factor if it would be contrary to any rule of law to do so (s 21A(4); R v Wickham [2004] NSWCCA 193 at [26]).
Sections 3A and 21A were not intended to alter common law principles of sentencing (Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [15]-[20]).
A common law principle from R v Previtera (1997) 94 A Crim R 76 is that it is inappropriate to impose a harsher sentence upon an offender because the value of the life is perceived to be greater in one case than it is in the other.
In relation to that principle of law, the applicant had regard to the dicta of Spigelman CJ in R v Berg [2004] NSWCCA 300 where the Chief Justice said that R v Previtera may need to be reconsidered in an appropriate case because of the insertion of s 3A(g) of the Sentencing Act: "42 The final matter to which I wish to refer is the case of R v Previtera (1997) 94 A Crim R 76 which is referred to in par [25] of Wickham. That case does not suggest that a victim impact statement is not relevant to the sentencing exercise, at least in the circumstances considered in that case, where there had been a death. 43 The reasons given in Previtera may need to be reconsidered in an appropriate case, by reason of the inclusion of the statement of the purposes of sentencing in s3A of the Sentencing Procedure Act 1999. I refer particularly to the reference in s 3A(g) "To recognise the harm done to ... the community." (See Re Attorney General's Application under s32 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 136 A Crim R196 at [57]-[59].) 44 It appears to me strongly arguable that the recognition of this purpose of sentencing would encompass the kind of matters which are incorporated in a victim impact statement. It may in some cases, be appropriate to consider the contents of such statements in the sentencing exercise. This was not a purpose of sentence recognised by Hunt CJ at CL in Previtera, see at p 86. 45 The terminology considered by Hunt CJ at CL in Previtera which confers a discretion on the Court to consider the contents of the victim impact statement, which was present in the legislation then under consideration, is still contained in the reference to "if it considers it appropriate to do so" in s 28 of the Crimes (Sentencing Procedure) Act 1999. Whether of not Previtera needs to be re-visited in terms of its specific reasoning on the role of the victim impact statement, and more generally on the apparent application of s 21A(2)(g) to the injury, emotional harm, loss or damage caused by the offence to third parties, need not be determined on this occasion. There is no victim impact statement in this case. Nor, for the reasons given by Howie J, was there evidence capable of satisfying the particular statutory test in this case."
The applicant identified another common law principle to the effect that the Court is only to have regard to the consequences of an offence that were intended or could have been reasonably foreseen (Josefski v R [2010] NSWCCA 41; 217 A Crim R 183 (per Howie and Davies JJ; James J finding it unnecessary to determine the point).
In the applicant's analysis of the law, the Court was referred to the observations of Howie J in both R v Wickham and Josefski v R as follows.
In R v Wickham, Howie J said at [25] (Bell & Hislop JJ agreeing) that s 21A(4) can impose a limitation on the use to be made of a particular factor not otherwise apparent in the provisions in s 21A(2): "25 Similarly the aggravating factor in s 21A(2)(g): The injury, emotional harm, loss or damage caused by the offence was substantial would be limited by the rule that the effect upon persons of the death of the victim is not an aggravating feature of an offence such as murder: R v Previtera (1997) 94 A Crim R 76. It would also be limited by the common law rule that the court is only to have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Wise v R [1965] Tas SR 196; R v Boyd [1975] Vic Rp 16; [1975] VR 168."
In Josefski v R, Howie J said: "36 The Crown, however, relied upon s 3A of the Crimes (Sentencing Procedure) Act 1999 particularly having regard to what the Chief Justice said in R v Berg [2004] NSWCCA 300; (2004) 41 MVR 399 as to the implications of that section upon the continued application of the principle enunciated in R v Previtera (1997) 94 A Crim R 76. That decision held that a court could not take into account the effects of the death of the deceased upon family or others when sentencing for murder. 37 The particular part of s 3A relied upon is 3A(g) which in effect states that one of the purposes of punishment is "to recognise the harm done to the victim and the community". Reliance is also placed upon s 21 A(2)(g) of the Act that in effect provides that it is an aggravating factor for the purpose of sentencing that "the injury, emotional harm, loss or damage caused by the offence was substantial". In Berg the Chief Justice questioned whether the existence of s 3A(g), s 21A(2)(g), and the introduction of victim impact statements into sentencing proceedings might result in a need to revisit Previtera. In R v Tzanis [2005] NSWCCA 274 a specially constituted Court of five judges was convened to reconsider Previtera but, after hearing argument in the matter, the Court determined that it was not a suitable vehicle for that purpose. This Court has continued to apply Previtera and the obiter of the Chief Justice in Berg has never again been considered in that regard. 38 In my opinion neither the existence of s 3A(g) or s 21A(2)(g) leads to a conclusion that the common law of this State has been altered by the introduction of those provisions. Neither was intended to alter the law that existed prior to their introduction. Section 3A generally has been regarded as a codification of the common law principles of sentencing: see R v MA [2004] NSWCCA 92; 145 A Crim R 434 at [23]. It has been held that the purposes of punishment stated in the section are constrained by other sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [11]. Wickham is itself authority for the proposition that nothing in s 21A was intended to alter the common law principles of sentencing and see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]-[57]. 39 It seems, therefore, that the statement made in Wickham and quoted above does still represent the common law of this State. It is unnecessary to ultimately decide the issue but, in the absence of any clear legislative statement to the contrary, it seems that this Court should as a matter of comity apply the common law as pronounced in South Australia and Victoria."
In relation to victim impact statements, the applicant summarised the relevant legal principles. The applicant submitted that a victim impact statement given by a family victim may, on the application of the prosecutor if the court thinks it appropriate to do so, be taken into account in determining the punishment for the offence on the basis that the harmful impact on the immediate family is an aspect of harm done to the community (s 28(4) of the Sentencing Act). This section was introduced in its present form in 2014.
The applicant noted that in R v Ronald Edward Medich (No 43) [2018] NSWSC 886 Bellew J, on the application of the prosecutor, and after reviewing relevant authorities on s 28(4) said at [25]: "25 I am unable to accept the submission advanced by senior counsel for the offender as to the operation of s 28(4). The authorities I have cited support the general proposition that although the nature and degree of harm may vary, any case of murder is harmful to the community. In the present case, the harm done to Mrs McGurk and her family has been immeasurable. I am therefore satisfied that the victim impact statements in the present case should be taken into account in the manner for which s 28(4) provides, and for which the Crown contended."
It was common ground that no application was made by the prosecutor pursuant to s 28(4) in this case.
I do not understand the Crown to take issue with the above analysis of the law and the statements of principle therein set out. The Crown's submission, however, was that the statements of principle were not complete and that there is another line of authority which had not been specifically dealt with by the applicant.
The Crown accepted that by referring to R v Previtera and not s 28 of the Sentencing Act, Button J made clear that the victim impact statements were not to be taken into account in aggravating the seriousness of the offence (R v Previtera; R v Bollen (1998) 99 A Crim R 510; R v Dang [1999] NSWCCA 42 at [15]; SBF v The Queen [2009] NSWCCA 23; 198 A Crim R 219 at [86]).
The Crown submitted, however, that there was another way in which the effect the deceased's death had on his family could be taken into account by the sentencing judge. The Crown relied on R v Lewis [2001] NSWCCA 448 where the same point arose in that the applicant argued that the sentencing judge had erred in taking into account as an aggravating feature, that the victim's death would deprive her children of a mother. Hodgson JA (Barr and Greg James JJ agreeing) said: "63 Mr Boulten submitted that the sentencing judge was in error in two respects: first, in taking into account as an aggravating feature that the victim's death would deprive her five children of the care and comfort of a mother: see R v Previtera (1997) 94 A Crim R 76; and second, in rejecting the submission that the volatility of the domestic relationship in this case lessened the degree of criminality. 64 As regards the former, Mr. Boulten submitted that the fact that a victim has dependants could be relevant to the level of culpability only if the offender knew of this; and if that affected the level of culpability, it would be capricious in its application, because it would mean that a person is less culpable when killing strangers about whom the person knew nothing than when killing a person of whom the offender had knowledge. … 67 I accept that Previtera is authority for the proposition that the effect of a death upon the victim's family, of itself, is not relevant to the culpability of the offender. However, that is not to say that the degree of harm which the offender knows will be caused by the offence is likewise not relevant: on the contrary, in my opinion the degree of harm which the offender knows will be caused by the offence is highly relevant to the culpability of the offender. In this case, quite plainly the applicant knew that the death of Ms Pang would deprive five children of their mother, and prima facie that is serious harm, in addition to the death of Ms Pang, which the applicant knew would be caused by his offence. This is not to say that the crime is more serious because Ms Pang was in some way more worthy than other possible victims, merely to recognise the harm caused to children by the loss of their mother; and to recognise that where the offender knows that this harm will be caused, that can be relevant to the offender's culpability. In my opinion, the sentencing judge made no error in this respect."
The Crown noted that R v Lewis was applied by sentencing judges in R v Aytugrul [2009] NSWSC 275, R v Naden [2013] NSWSC 759 and more recently in R v Droudis (No 16) [2017] NSWSC 20.
In those judgments the sentencing judges stated the principle as follows. R v Aytugrul, R A Hulme J when sentencing the offender included the following at [23]: "23 … Another relevant matter is that the offender was well aware of Ms Bayrak being a single mother. I am satisfied that he knew that killing Ms Bayrak would cause ancillary harm to an eight year old girl in depriving her of her mother, but he went ahead and killed nonetheless: see R v Lewis [2001] NSWCCA 448 at [67]; Aslett v R [2006] NSWCCA 360 at [37].
In R v Naden Price J citing R v Lewis said at [26]: "26 Ms Nolan was the mother of four children aged 5, 4, 3 and 1 at the time of the offence. The offender was aware that she had young children. Indeed, in his handwritten statement he ruminates about the child seats in Ms Nolan's vehicle. It is plainly the case that the offender knew that Ms Nolan's death would deprive these young children of their mother. This is a matter that increases the objective seriousness of the offence."
In R v Droudis Johnson J said: "60 The Offender knew that the killing of Helen Lee would deprive two young boys of their mother and Helen Lee's parents of their only child. The degree of harm which the Offender knew would be caused by the offence is relevant to her culpability and the Offender knew that Helen Lee's death would deprive two children of their mother and two parents of their daughter in a manner which constituted serious harm flowing from the offence."
The Crown acknowledged that R v Lewis, R v Aytugrul, R v Naden and R v Droudis were all cases of murder where the offender had an intention to kill. The Crown submitted that even though the applicant had an intention to inflict grievous bodily harm and was found to have acted in excessive self-defence, she nonetheless was not only aware that the deceased had dependants but the evidence at trial made it clear that she knew the impact that the injury to the deceased would have on his sick wife and ultimately his daughter. The Crown submitted that the sentencing judge's comments at SJ [48], [49] and [51] involved a recognition of the impact on the deceased's family and as such were relevant to the applicant's culpability on the basis identified by Hodgson JA in R v Lewis. The using of that evidence in that way was not contrary to the principles set out in R v Previtera.
Senior counsel for the applicant accepted that the principle in R v Lewis was good law and could have application to this case. He submitted that it did not in fact apply because there was no finding of an intent to kill. The intent found was to inflict grievous bodily harm.
Senior counsel for the applicant made two further related points in his submissions. The first was that in this case the consequences for others of itself did not and could not increase the objective seriousness of the offence. There was no consideration given as to how, as a matter of law, it could do so in the sentence proceedings. Senior counsel for the applicant noted that R v Lewis was never raised in the sentence proceedings and the offender was not cross-examined in the sentence proceedings to establish the R v Lewis criteria.
The second point made was that for R v Lewis to apply, it would have to be established that it was reasonably foreseeable that at the time the single stab wound was inflicted, that death might result and if so, there would be a consequence for the deceased's sick wife and ultimately his daughter. Senior counsel for the applicant submitted that such a finding was not open when the sentencing judge was not satisfied beyond reasonable doubt as to there being an intention to kill.

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