Stephens v R [2009] NSWCCA 240 | Case summary

16 September 2009 Trevor James STEPHENS v R Judgment 1 McCLELLAN CJ at CL: I agree with Grove J. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Latham J in the Supreme Court sitting at East Maitland on 1 July 2008. The applicant had pleaded guilty to manslaughter which plea was accepted by the Crown in discharge of an indictment charging murder. Her Honour sentenced the applicant to a total term of 10 years imprisonment with a non-parole period of 7 years. The basis of the reduced culpability of the applicant for the act of killing was, in brief, that he acted in excessive self defence. 3 There was no dispute about the facts which were put before the Court in an agreed statement together with a large bundle of documents which included reports from a psychiatrist, Dr Delaforce, and a psychologist, Mr Taylor. 4 The offence occurred on 12 January 2007. At that time the applicant was aged thirty four years and the victim was aged twenty seven years. They were acquainted and in the latter half of 2006, the victim had moved into a flat at Mayfield and invited the applicant, who was then homeless, to stay there for a time. Some disputation arose between them and the applicant was asked to leave and, although a precise date was not established, certainly by November, he had left the flat. 5 Subsequent to this departure, the victim had told two people (a friend of his and his father) that "a guy" (identifiable as the applicant) had forced his way back into the flat and there had been a fight. He expressed concern about the applicant stealing a small pair of hand scissors. 6 A Christian church operated a facility called the Soul Café in West Newcastle which provided breakfast on three days a week and provided lunch on some days to homeless and other disadvantaged people. Both the victim and the applicant frequented the café. On many occasions the victim was accompanied there by his friend, Barrie Cameron. 7 On 12 January, Mr Cameron had come to the Soul Café with his girlfriend Sherry Johnson and they joined the victim, David Willoughby at the breakfast table. At about 7.45 am David Willoughby went to the assistance of the minister, Reverend Wilcock to seat an intoxicated person who had come into the café. 8 At about this time Mr Cameron noticed the applicant who appeared to be mumbling to himself. Shortly thereafter David Willoughby came and said to Mr Cameron and Ms Johnson with reference to the applicant that he was going to "punch him out" and "have a blue with him" because he had allegedly "ripped him off" a couple of weeks previously. Mr Cameron in effect advised the victim not to do anything on the premises. He declined a suggestion that he might participate in whatever was anticipated to happen but, to the extent that he apprehended something physical might occur, he said he would stand by to ensure that there was no intervention by anyone else. 9 David Willoughby said he would go outside and wait, however, he was seen to walk around the dining room and speak to the applicant. He then went outside and was seen engaging in a form of shadow boxing. He then came in and out of the café several times and spoke to the applicant. Witnesses described him as looking agitated and aggressive and appearing to be spoiling for a fight. 10 Mr Cameron could see the victim apparently keeping watch from a side door and he noticed at one stage that he removed his shirt. The evidence also showed that David Willoughby asked another patron for a cigarette and commented to that patron that he was going to "get" someone when he came out because he had stolen "my missus' scissors". 11 Some ten minutes after this the applicant walked towards the door apparently intending to leave the café. Mr Cameron followed him. He later told police that it was his intention to make sure that no one would help the applicant and in that way cause Mr Willoughby to be outnumbered. 12 The sequence of events thereafter is of critical importance and I quote from her Honour's remarks on sentence: "As the offender was getting to the door Mr Cameron saw that he was reaching into his backpack. The victim was moving towards the door from the laneway at the same time as the offender was going to the door from inside the café. The victim and the offender met at the door where the victim pushed the doors open from the outside confronting the offender with 'I'm going to smash you'. As this was said the offender pulled a serrated kitchen knife out of his backpack and stabbed the victim in the chest just below the left nipple." 13 Although thus injured the victim was able to tell Mr Cameron that the applicant had stabbed him, however his condition rapidly deteriorated despite attempts by Mr Wilcock and a nurse who was present to render first aid. An ambulance was summoned and arrived promptly but resuscitation was not achieved and David Willoughby died at the scene. 14 Post-mortem examination established the cause of death to be a single stab wound which had a total track into the body measuring 11.3 cms, 5.5 cms of which was within the heart muscle. 15 Not only was the wound deep but, contrary to a written submission on behalf of the applicant that it was not clear how much force the applicant used, her Honour found that a hilt mark detected by the forensic pathologist indicated that there had been an application for heavy force. 16 The applicant advanced two express grounds of appeal. Ground 1 contended that the learned sentencing judge erred in failing to give sufficient weight to the applicant's mental illness in mitigation of penalty. 17 There are inherent problems in such a ground succeeding. Although it was said in the context of a Crown appeal, the observation of Spigelman CJ in R v Baker [2000] NSWCCA 85 should be borne in mind: "The use of terminology such as 'sufficient weight' highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined." 18 As is obvious, a ground expressed in that fashion tacitly concedes that some weight had been placed by the sentencing judge upon the factor. In this case her Honour did place weight upon the applicant's mental illness and the implicit concession is demonstrably correct as her Honour had stated: "The offender's conflicts with the victim in the past, the offender's long standing mental illness and abuse of alcohol and other substances and the obvious aggression exhibited by the victim towards him on that morning all combined to engender a heightened and exaggerated sense of danger which he sought to meet by the use of a knife." 19 However, her Honour also said: "Notwithstanding the efforts of various public mental health facilities to assist the offender there are numerous references with in the records to his non compliance with treatment regimes and his failure to undergo rehabilitation programs aimed at curbing his alcohol and substance abuse. In these circumstances the extent to which the offender's illness ought mitigate the penalty that is otherwise appropriate to the objective gravity of the offence is minimal. There is no suggestion that the offender lacks the cognitive or intellectual capacity to appreciate the consequences of his behaviour. He has chosen, for much of his life, to dull the pain of his existence with alcohol and drugs, thus inducing and exacerbating his schizophrenia." 20 Her Honour's assessment was in harmony with the opinion of Dr Delaforce that he could not account for the applicant's behaviour leading to the death as resulting by or from schizophrenia. Inter alia, he noted that the applicant's telephone talk and presentation later in the day when arrested at work did not in his view manifest schizophrenia. 21 There were two versions of the applicant's telephone contact with a Mr Callaghan. One was that the applicant had rung him and told him what happened but Mr Callaghan told him to forget about it. The other was a version which the applicant gave to Dr Delaforce that it was Mr Callaghan who rang him and told him of the killing and that he, Mr Callaghan, would ring the police. Whichever be accurate, Dr Delaforce could find no reports of the applicant showing what he assessed as psychotic symptoms or significantly abnormal mental functioning, such as might emerge from substance abuse. It was also significant that, not knowing what to do with it, the applicant had disposed of the knife into the garden of a car wash as he passed it. 22 Nothing in the opinion of the psychologist, Mr Taylor, contradicted Dr Delaforce's view which was, in essence, that there was no causal link between the applicant's schizophrenia and his carrying out of the killing. 23 Counsel for the applicant appearing at first instance (who did not appear in the appeal) correctly recognized the situation and stated in the course of his submissions, "Well of course we have the schizophrenia which is there as a peripheral matter". 24 I would accept the submission by senior counsel to this Court that the circumstance that a person affected by a mental illness does not have a defence or a partial defence by reason of substantial impairment, does not mean that the illness is an irrelevant sentencing factor. However, it was not the case, as was submitted, that the applicant simply made a criminally wrong decision in response to an emergency. There was no emergency. The behaviour of Mr Willoughby had given the applicant considerable opportunity to appreciate his likely intentions. The applicant made no attempt to draw anyone's attention to his perceived predicament. It was his choice to seek to leave the café and inevitably thereby to encounter Mr Willoughby. The applicant had to be aware that he was safe as long as he remained inside the café and in fact he told Dr Delaforce that he did not expect David Willoughby to come inside as he would not want a physical fight in the café premises. 25 Importantly there has been no challenge to her Honour's findings that "as the offender was getting to the door" he was seen to be reaching into his backpack and, taking and arming himself with the knife, he "did not hesitate to use it". Although her Honour accepted that he was responding to a perceived threat as he approached the exit to the café, it could not be denied that there was a pre-emptive quality to the applicant's striking of the victim with the knife. 26 It has not been shown that her Honour's sentencing discretion miscarried in her assessment that the applicant's mental condition at the relevant time was a mitigating factor of minimal weight and I would reject ground 1. 27 Ground 2 asserted that the sentence imposed was, in the circumstances, manifestly excessive. Her Honour found that the objective gravity of the offence was considerable and that the applicant's resort to stabbing with the knife which he was carrying in his possession was a grossly disproportionate response to the perceived threat of physical assault. 28 In support of argument on this ground counsel provided the Court with a table of sentencing outcomes together with copies of various judgments and remarks on sentence pertaining thereto. In R v Trevenna (2004) 149 A Crim R 505, where an extensive examination of manslaughter sentences was undertaken Barr J commented that "so variable is the crime of manslaughter both in its legal formulation and range of culpability which it contemplates, that the identification of the available range of sentence in any case is notoriously difficult." That difficulty does not disappear by seeking to collect cases where liability is incurred in a particular fashion. In Ward v R (2006) 166 A Crim R 273 the Court (Tobias JA, Howie and Rothman JJ) stated the position to be (at pars 70-74): "….the position is this. First, the offence of manslaughter is almost unique in its protean character as an offence and consequently, the identification of an available range of sentences in any individual case is notoriously difficult, if not impossible. It is thus rare for there to be any real comparison between facts. Second, matters of fact and degree arise in all categories of manslaughter with the consequence that it is impossible to establish a pattern or tariff. This applies not only to manslaughter generally, but also to cases of manslaughter by reason of excessive self-defence. Third, in order for an appellate court to intervene with respect to a sentence imposed upon the ground that it is manifestly excessive, it is necessary for an appellant to establish that the sentencing judge's discretion has miscarried in the House v The King sense and, relevantly to a case such as the present, that the sentence imposed was so disproportionate to the circumstances in which the offence occurred as to afford the foundation for concluding that the sentencing judge's exercise of his sentencing discretion had miscarried. Fourth, such disproportion must result in the sentence imposed being unreasonable or plainly unjust. Fifth, such a result cannot follow merely because a member of the appellate court may have exercised their discretion, had they been the first instance judge in a manner different from that of the sentencing judge." 29 Similar consideration was articulated by Spigelman CJ in R v Forbes (2005) 160 A Crim R 1 (pars 133-134): "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, NSW, No 60510 of 1995, 12 December 1995), esp at 2-3). 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 at [39]). 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." 30 Examination of individual cases should not cause sight to be lost of the guidepost provided by Parliament in prescribing an available maximum penalty of imprisonment for twenty five years. It is not suggested that the present case approached a worst case category nor that the applicant is in the worst category of offenders so as to consider imposition of that maximum but it is a guide to any assessment and, where manifest excess is asserted comparison of the actual sentence and the parliamentary prescription can assist in revealing whether or not error is demonstrated. 31 The Crown Prosecutor drew attention to the recent decision in Stewart v R [2009] NSWCCA 5 where the circumstances might be considered to portray a culpability of the offender with some parallels to those of the applicant. Again, a comparative exercise does not necessarily provoke a conclusion and the error of such an approach was remarked upon by Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar offences. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range." 32 The applicant points to no specific error by the learned sentencing judge. As was observed in the joint judgment, (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen (2006) 228 CLR 357 (at par 27) it should be remembered: "As has been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." 33 I am unpersuaded that the assessment of sentence by her Honour was excessive and in my opinion the imposition lay comfortably within the range of sound exercise of discretion. 34 I would grant leave to appeal against sentence but dismiss the appeal. 35 R A HULME J: I agree with Grove J.

Stephens v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Cases Cited (5)

Cited By (16)