Vuni v Regina

Dinsdale (2000) 202 CLR 321 at 325 Markarian v The Queen [2005] HCA 25 R v Blacklidge (unreported, NSW CCA, 12 December 1995 R v Cioban [2003] NSWCCA 304 R v Dodd (1991) 57 A Crim R 349 CASES CITED: R v Forbes [2005] NSW CCA 377 R v Hill (1981) 3 A Crim R 397 at 402 R v Hoerler (2004) 147 A Crim R 520 R v Previtera (1997) 94 A Crim R 76 (R v Trevenna (2003) 149 A Crim R 505 R v Weinman (1987) 49 SASR 248 at 252 R v Wickham [2004] NSWCCA 193

PARTIES: Paonga Vuni - Applicant Regina - Respondent Crown

COUNSEL: Mr T Watts - Applicant Ms D Woodburne - Crown

SOLICITORS: SE O'Connor, Legal Aid Commission of NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown

IN THE COURT OF CRIMINAL APPEAL 2006/389

TOBIAS JA JAMES J HOEBEN J

Thursday, 1 June, 2006 Paonga VUNI v REGINA Judgment

1 TOBIAS JA: I agree with Hoeben J. 2 JAMES J: I agree with Hoeben J. 3 HOEBEN J: The applicant stood trial in the Supreme Court at Orange before Studdert J and a jury on an indictment containing two counts:

(i) Aggravated break, enter and steal on 29 January 2003 (premises occupied by Stephen and Debra Eslick. (ii) Murder of Stephen Eslick (the deceased) on 10 March 2003. 4 The trial commenced on 29 November 2004 and the jury retired to consider its verdict on 8 December 2004. On 14 December 2004 the jury returned with verdicts of not guilty to the first count and not guilty of murder, but guilty of manslaughter in relation to the second count. 5 On 11 March 2005 Studdert J sentenced the applicant to a term of imprisonment, with a non-parole period of 7 years and 6 months and a balance of term of 2 years and 6 months.

Factual background 6 There was no issue at the trial that the applicant deliberately shot the deceased in the head. The applicant made that admission shortly after the incident when interviewed by the police. The applicant shot the deceased by firing a single shot from a .357 Ruger Magnum pistol. The shooting occurred shortly after 2pm on 9 March 2003 at the applicant's unit at 158 McLachlan Street, Orange. 7 The background to the shooting is important. On 29 January 2003 the deceased's home had been broken into and weapons and other possessions of his had been taken. One of the weapons taken was the Ruger pistol which the applicant used to shoot the deceased. His Honour was not able to say how it was that the applicant came into possession of that pistol before the shooting. The two most likely scenarios were that he got it from the deceased or from one of the persons who had stolen it from the deceased. 8 At some time after 29 January 2003 the deceased approached the applicant for assistance in recovering the weapons. The applicant was offered money by the deceased to recover the weapons and to inflict harm on those responsible for taking them. His Honour was not able to say why such an approach was made by the deceased. 9 Some weeks before the shooting, the applicant and the deceased were talking in Mirrool Way when the deceased produced a pistol, took a bullet from his jeans and loaded the pistol in front of the applicant. During that conversation the deceased was heard to say to the applicant "I am losing patience". 10 Prior to the shooting, the applicant was aware that the deceased had arranged for persons whom the deceased believed were associated with the break in to be assaulted. On one occasion the applicant intervened to protect a Mr Roberts from such an attack. The applicant's de facto wife was so afraid when she saw the appearance of the deceased's car in the car park of their unit, that she left the premises and stayed away for one week. Following her return to the unit, the deceased had come looking for the applicant several times. 11 On the day of the shooting, the deceased came to the applicant's unit. At that time the applicant's partner was present, as was her daughter Kellie-Anne, with her infant daughter. An infant cousin was present as well. 12 The deceased came to the front door wanting to talk to the applicant. The conversation took place while the deceased stood at the front door and while the applicant remained seated on a stool beside a kitchen bench. The applicant and the deceased were arguing. The deceased said: "Where's my stuff". The applicant replied "What stuff? I don't know what you are talking about". The deceased said "You know what I'm talking about. Where's my stuff?" to which the applicant responded "No, I don't know what stuff you are talking about. How many times do I have to tell you not to come around here when my family's here?" As the conversation became heated, the two women left the unit through the back door taking the children with them. 13 Contrary to what the applicant had told the police (ie that the deceased had a hand in his pocket) his Honour found that throughout the conversation, until the fatal shot was fired, the deceased was standing at the doorway facing into the unit. He had his left hand against the door and that hand was placed half way up the door. The other hand was resting on the top of a child's stroller which was positioned along the front wall of the unit and outside it. It was while the deceased was standing in that position that he was shot and fell backwards away from the unit. The eyewitness, Mr Todd, observed that the deceased looked casual until he was shot and that the position of his hands did not change. No pistol was found on the deceased, although some bullets were found in the pocket of his jeans. 14 His Honour specifically rejected the version of events given by the applicant to the police that the deceased was shot as he was moving his hand from his pocket. His Honour also found that the applicant had fired a pistol on previous occasions, that the applicant had shot the deceased with intent to kill and that he aimed at the deceased's head. 15 His Honour found that the basis of the jury's verdict was that the applicant acted in excessive self-defence and/or defence of members of his family. In reaching that conclusion his Honour made the following specific findings:

(i) That the deceased had approached the applicant offering him money to recover the stolen weapons and to assault the men responsible;

(ii) In the weeks following the initial approach the deceased repeatedly came to the applicant's home;

(iii) The deceased had threatened to kill the applicant if he did not do what he had been asked to do;

(iv) There was an incident at Mirrool Way when the deceased threatened the applicant by producing a gun and loading it in front of him;

(v) As at the time of the shooting, the applicant personally believed in the circumstances as he perceived them to be that it was necessary for him to do what he did to defend himself and/or his de facto wife and her daughter, but that what the applicant did was not a reasonable response in the circumstances as he perceived them.

Remarks on sentence 16 Against the background of those findings, His Honour made the following assessment of the objective seriousness of the offence: "The prisoner's response was plainly unreasonable. Indeed, I consider his response to have been extremely unreasonable. He chose deliberately to shoot the deceased intending to kill him and he gave no prior warning. Whilst I have to accept, because of the verdict of the jury, that the prisoner believed as he perceived the circumstances that it was necessary for him to do what he did, and further that he may have believed the deceased to have been armed, the position is that he shot the deceased when the deceased was holding no weapon, and when the deceased was standing at the front door with one hand resting on the door and the other resting on the child's stroller. He deliberately took a human life and I must, and I do, regard the objective features of his crime as serious indeed." (ROS 12-13) 17 In relation to subjective features, his Honour noted that the applicant was 50 years of age. He had been born in Tonga, had come to Australia at the age of 14 and had some schooling in Tonga and subsequently in Australia. He had been raised by his grandparents. Most of his work had comprised farming and labouring work in rural areas. His de facto relationship with Ms Parker had commenced 9 years before. 18 A report from a psychologist was tendered on behalf of the applicant. It referred to longstanding daily use of cannabis, to abuse the applicant had suffered as a child and that he had already served several sentences within the gaol system and ran a risk of becoming institutionalised. 19 The applicant had a poor criminal record. It included offences of assault occasioning actual bodily harm and an assault upon his de facto wife in December 2000. His Honour took account of the applicant's criminal record for the purposes of s21A of the Crimes (Sentencing Procedure) Act 1999 but noted that in accordance with R v Wickham [2004] NSWCCA 193 the applicant's criminal record was not to be treated as making the offence for which he was being sentenced more serious. 20 In relation to aggravating and mitigating features under s21A, his Honour took into account that the offence involved the use of a weapon, that the offence was not pre-planned and that the applicant had expressed remorse. Because of the applicant's previous criminal record, his Honour could not be confident that the applicant would be unlikely to re-offend and he did not think that his prospects of rehabilitation were favourable. His Honour declined to find special circumstances. 21 Although a victim impact statement was before his Honour, his Honour did not take it into account for the purposes of determining what sentence should be imposed on the applicant (R v Previtera (1997) 94 A Crim R 76). 22 On behalf of the applicant, a table of 53 cases involving sentences for manslaughter was placed before his Honour. Five of those involved "excessive self-defence" and the balance related to provocation. His Honour found those cases to be generally unhelpful because of the wide variation in relevant circumstances which of necessity arose in manslaughter cases. His Honour noted that the head sentence in those cases rarely exceeded 10 years and was frequently significantly lower. 23 His Honour did, however, take as a reference point the matter of R v Cioban [2003] NSWCCA 304. That matter concerned a manslaughter offence involving excessive self-defence. On appeal, a head sentence of 6 years and 6 months with a non-parole period of 4 years was imposed. His Honour considered that the objective features of this case were significantly more serious than those in Cioban. 24 Although a shooting was involved in both matters, in Cioban the death occurred in a struggle after the offender was pursued by the deceased. During the pursuit, the offender had fired a warning shot which the deceased did not heed and after the deceased caught up with the offender, they struggled and fell. It was in the course of that struggle that the shot was fired. The deceased posed a serious threat of physical harm to the offender, being of bigger build and being well affected by alcohol. In Cioban the offender had not been in custody before and his subjective features were assessed as "powerful". 25 Even though his Honour used Cioban as a reference point, he stressed that with the offence of manslaughter each case depended very much upon its own special facts and that his task was to impose a sentence which appropriately reflected the objective gravity of the particular offence, including the unreasonableness of the offender's response, but which also had due regard to the subjective features of the particular offender. His Honour took into account the purposes of sentencing expressed in s3A of the Crimes (Sentencing Procedure) Act.

Appeal The sentence imposed is manifestly excessive. 26 That was the only ground of appeal. It was submitted that his Honour fell into error by characterising the objective features of the present case as "significantly more serious than those in Cioban". The fact that in Cioban the offender did not believe that the deceased had a weapon, had not been threatened with death by the deceased and that there was no pre-existing threat, were relied upon as indicating the objective seriousness of the offence in that case. It was sought to contrast those facts with the repeated visits by the deceased to the applicant's home and the ongoing threats made by the deceased who was known to possess a pistol. 27 There are a number of difficulties with that submission. The most obvious is the level of unreasonableness involving in the response. As his Honour pointed out, the applicant's response was "extremely unreasonable". In the passage quoted [16] his Honour set out the basis for that conclusion. In essence what the applicant had done was to launch a pre-emptive strike against the deceased to prevent his threats ever becoming a reality. As his Honour appreciated, that was a significantly more serious circumstance that that which arose in Cioban. There the threat had become a reality and the offender was locked in what he believed to be a life and death struggle at the time of the shooting. It follows that I am not persuaded that his Honour was wrong to characterise the objective seriousness of this offence as greater than that in Cioban. 28 Another difficulty, which is fundamental to the submission, is that it assumes that the appropriateness of a sentence for the offence of manslaughter can in part be assessed by reference to a detailed comparison of sentences imposed in other reasonably similar cases. That might be so if the cases were in fact similar and if there were a sufficient number of them to establish a clear sentencing trend. 29 Unfortunately the offence of manslaughter of its nature covers a wide spectrum of factual circumstances. It is rare for there to be any real comparability in facts. The observation of Gleeson CJ in R v Blacklidge (unreported, NSW CCA, 12 December 1995) remains valid. "The crime of manslaughter comprehends all forms of punishable homicide other than murder ( Crimes Act 1900 (NSW) s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involved conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as "involuntary", do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range and degree of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case ( R v Dodd (1991) 57 A Crim R 349, R v Hill (1981) 3 A Crim R 397 at 402)." 30 More recently Spigelman CJ in R v Forbes [2005] NSW CCA 377 commented to similar effect: "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 ). 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 ( R v Trevenna (2003) 149 A Crim R 505). 136 The test established by s148 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." 31 His Honour was referred to five cases involving excessive self-defence. Even when this application was heard, the Court was referred to only a further five cases involving excessive self-defence. It is also noteworthy that the sentences imposed in most of those cases followed upon a plea of guilty, whereas the present matter had proceeded to verdict as a result of a trial. It seems clear that apart from the fundamental problem referred to in Blacklidge and Forbes that the statistical sample of sentences for the offence of manslaughter where excessive defence is involved, is too small to be of any real practical value. 32 What his Honour was required to do and in fact did was to accurately review the facts and assess the objective seriousness of the offence by reference to the particular circumstances associated with it. Those which his Honour specifically identified were that the applicant had chosen deliberately to shoot the deceased intending to kill him without any prior warning. Although the applicant may have believed the deceased to be armed, the shooting took place at a time when the deceased was holding no weapon and was standing in such a way as to not present any immediate threat. It was against that background that his Honour passed the sentence which he did. 33 To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was "unreasonable or plainly unjust" (Dinsdale (2000) 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. (Markarian v The Queen [2005] HCA 25 at [26] - [28]). 34 In the present case Studdert J had a substantial discretion in sentencing the applicant for the offence of manslaughter and it has not been shown that the sentence which he imposed fell outside the range of a proper exercise of his Honour's sentencing discretion. A conclusion that the sentence fell outside the range of a proper exercise of his Honour's sentencing discretion cannot be demonstrated by a comparison with or by reference to the very few other cases in which sentences have so far been imposed for "excessive self-defence" manslaughter offences. 35 I propose that leave to appeal be granted but that the appeal be dismissed. **********

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