Attorney-General (Tas) v Wells

[2003] TASSC 78

[2003] TASSC 78

CITATION:              Attorney-General (Tas) v Wells [2003] TASSC 78

PARTIES:  ATTORNEY-GENERAL, Her Majesty's
  v
  WELLS, Reginald Michael
  ATTORNEY-GENERAL, Her Majesty's
  v
  WEST, Timothy John

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 60/2003

CCA 61/2003

DELIVERED ON:  28 August 2003
DELIVERED AT:  Hobart
HEARING DATE:  19 August 2003
JUDGMENT OF:  Crawford, Slicer and Blow JJ

CATCHWORDS:

Criminal Law – Particular offences – Offences against the person – Homicide – Manslaughter – Practice and procedure – Sentence – Householder left bound and gagged after aggravated burglary – Whether appropriate tariff – Whether four years' imprisonment manifestly inadequate.

Aust Dig Criminal Law [129]

REPRESENTATION:

Counsel:
             Appellant:  D G Coates SC
             Respondent - Wells:  G A Richardson
             Respondent - West:  M I Evans
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent - Wells:  G A Richardson
             Respondent – West:  Beeton & Mansell

Judgment  Number:  [2003] TASSC 78
Number of paragraphs:  29

Serial No 78/2003
File No CCA 60/2003

CCA 61/2003

HER MAJESTY'S ATTORNEY-GENERAL v REGINALD MICHAEL WELLS
HER MAJESTY'S ATTORNEY-GENERAL v TIMOTHY JOHN WEST

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
BLOW J
28 August 2003

Orders of the Court

1. Appeals upheld. 

2. In each appeal, the sentence is quashed.

3. In each appeal, in lieu, the respondent is convicted and sentenced to imprisonment for seven years to commence in the case of Reginald Michael Wells on 3 June 2003 and in the case of Timothy John West on 22 October 2002.

4. In each case, it is ordered that he not be eligible for parole until he has served four years of the sentence.

Serial No 78/2003
File No CCA 60/2003

CCA 61/2003

HER MAJESTY'S ATTORNEY-GENERAL v REGINALD MICHAEL WELLS
HER MAJESTY'S ATTORNEY-GENERAL v TIMOTHY JOHN WEST

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
SLICER J
BLOW J
28 August 2003

1. Both respondents pleaded guilty on an indictment that jointly charged them with aggravated burglary and manslaughter on or about 12 July 1997.  On 25 June 2003, they were convicted and sentenced on the indictment to four years' imprisonment, with a non-parole period of three years.  To take account of their respective times in custody prior to sentence, Wells' imprisonment was ordered to commence on 3 June 2003 and West's imprisonment was ordered to commence on 22 October 2002.  The Attorney-General has appealed against both sentences on the single ground that they were manifestly inadequate.  The factual basis for the sentence will first be stated. 

1. The respondents lived in Northern Tasmania.  Another man, Alan Jones, who lived at Kingston, told them, some weeks before the crimes, that Mr Wallace Millar, who lived alone at 55 Strickland Avenue, South Hobart, and who was 77 years of age, had a large amount of cash which he kept in a kerosene tin at his home.  It was resolved that Jones would tell the respondents when it was expected Mr Millar would be away from his home, whereupon they would break into it and steal the money. 

1. On Friday, 11 July 1997, Jones collected the respondents from their homes and drove them to Hobart, having told them that Mr Millar would be away that weekend.  They stayed at a motel that night.  On the night of Saturday, 12 July 1997, Jones drove them to Mr Millar's home.  He waited for them nearby in the car.  They went to the house wearing gloves and balaclavas and carrying a screwdriver.  The gloves and balaclavas were worn to prevent fingerprints and DNA evidence being left.  The screwdriver was a tool for breaking in.  At least one unsuccessful attempt was made to gain entry to the house. 

1. The sound of Mr Millar's television set could be heard, but there was no other sign of life inside and they still believed that he was away.  The front door of the house was then forced off its hinges.  They entered and commenced to search for the money.  To their surprise, Mr Millar was in the lounge. 

1. Most of the detail of what happened when they discovered him came from the respondents.  It was West who first came upon Mr Millar, who stood up, also surprised, whereupon he fell, hitting his nose on a chair.  That accounted for the fact that when the body was later found, a bleeding injury to the bridge of his nose was apparent.  Wells also entered the lounge room.  West then returned to the nearby car where Jones was waiting, obtained some plastic tape and returned to the house.  Using the tape, they bound Mr Millar's wrists and ankles together.  They applied a beanie over his mouth as a gag and taped it there.  West continued searching the house while Wells watched Mr Millar.  Their search for money was fruitless.  They pulled the cord from the telephone, rendering it inoperative.  They then sat the front door in its appropriate position and Jones drove them away. 

1. Mr Millar was left tied and gagged in the lounge room.  His brother discovered his dead body on the hall floor, about four days later, on 16 July.  He had managed to move from the lounge room into the hall.  He had freed his wrists.  The beanie was no longer over his mouth but below his chin, still held by the tape. 

1. Medical evidence established that Mr Millar had suffered a heart attack and died soon afterwards.  The cause of the heart attack was a combination of asphyxiation due to the gag and the physical stress of being tied up and having to untie himself, on top of a pre-existing ischaemic heart disease.  Having regard to the position in which he was found, it is likely that he suffered the heart attack soon after the respondents left the house.  The medical evidence was that what was done by the respondents would have been an inherently dangerous act with respect to a healthy person and of course, it was even more dangerous for a person in Mr Millar's condition.

1. It is plain that the respondents had little regard for Mr Millar's feelings, health and safety.  They were driven back to their motel by Jones.  The following day he drove them home to Northern Tasmania.  No effort had been made to inform any authority of Mr Millar's predicament when they left him in the house.  Three days later, the respondents and Jones discussed the fact that there had been no mention of what had happened in the media.  It was agreed that Jones would inform an authority.  He did not do so.  Mr Millar was of course, already dead. 

1. In June 2002, Jones went to the police and told them that the respondents had committed the burglary.  He did not then admit his own role.  In the course of an investigation, Wells' wife and West's de facto wife informed the police that in the discussion with Jones three days after the crimes, the respondents said that they took turns in trying to keep Mr Millar calm, that they had not tied him up tightly and that they were looking for a kerosene tin full of money.  They were concerned that they had heard nothing in the media about their crimes.  The women confirmed that Jones said that he would telephone 000. 

1. West was interviewed on 22 August 2002.  He stated that he had committed the burglary with Jones and not with Wells.  He said that he tied Mr Millar up and he and Jones searched the residence without success.  He untruthfully stated that he removed the gag from Mr Millar's mouth before leaving.  On his solicitor's advice, Wells declined to comment when the police sought to interview him on 22 August 2002. 

1. Jones was interviewed on 11 September 2002, when he admitted his role.  He was subsequently charged with aggravated burglary.  While in custody he received a number of letters from West asking him to change his story to say what West had maintained to the police on 22 August, that it was West and Jones who were involved in the burglary and not Wells. 

1. On 6 November 2002, West was interviewed again and for the first time he admitted that Wells had been with him in the house and not Jones.  He told the police that after they entered he came upon Mr Millar in the lounge room, Wells searched the bedroom and then entered the lounge room and West then obtained tape from the car and bound and gagged Mr Millar.  He repeated his untruthful claim that the gag was removed before they left the premises.  Subsequently, in a letter written to his son, Wells admitted his involvement. 

1. In summary, the Crown had available evidence that implicated both accused from Jones, Wells' wife and West's de facto wife.  Against West they also had his eventual confession and against Wells they had his admissions in his letter to his son. 

1. Wells was 32 years old at the time of the crimes and West was 27.  Both had extensive criminal records.  Wells had committed a great number of crimes and offences of dishonesty since he was 13 years of age and had served many sentences of imprisonment, twice for safe-breaking (one was in 1989 and the other in 1999, after these crimes).  His only offence of violence was one of assaulting police, associated with committing a nuisance, in 1996, for which he was fined.  West's record for crimes and offences of dishonesty was better than that of Wells, but his record for violence was a bad one and he had served several terms of imprisonment as a result.  One evening in 1989, when he was aged 20, he committed the crime of causing grievous bodily harm and later that evening, the crime of robbery.  For those crimes he was sentenced to four years' imprisonment.  He was sentenced to suspended imprisonment for assault in 1996 and since the present crimes, sentences of imprisonment have been imposed for assault, threaten police (seven charges), assault police (two charges) and resist police (three charges).

1. At the time of the sentencing order on 23 June 2003, Wells had been in custody since 4 March 2002 for a burglary and stealing committed in 1999, for which he had been sentenced to 18 months' imprisonment from 4 March 2002, with no eligibility for parole.  The learned judge took into account the likely three month remission period for good behaviour and ordered that the imprisonment for these crimes commence on 3 June 2003.  West had been in custody since 22 August 2002 for the present crimes, except for a period of two months during that period when he was serving a sentence of imprisonment for an assault.  Accordingly, the learned judge backdated his imprisonment to commence on 22 October 2002. 

1. The learned judge described Wells and Jones as professional criminals.  Jones pleaded guilty to the aggravated burglary and on 4 March 2002, he was sentenced to 12 months' imprisonment, of which six months and one week were suspended.  He had a relevant record but had not been in prison for over six years before these crimes.  The learned judge who sentenced him dealt with him upon the basis that he had been very cooperative with the police in relation to this case and an unrelated murder case and that he had been assaulted while in custody and feared for his safety.  Jones was not charged with the manslaughter and was not sentenced having regard to the assault on Mr Millar or its consequences. 

1. In respect of the burglary, it was submitted for the Crown that aggravating factors were that the respondents knew that an elderly man occupied the house and there was a risk that he might be home; the crime was premeditated and professional; gloves and balaclavas were worn; and they did not immediately retreat upon learning that Mr Millar was home.  In respect of the manslaughter, it was submitted for the Crown that aggravating factors were that the assault on Mr Millar was committed to allow them to continue with the dishonest purpose of the burglary and to prevent their detection; the pulling of the telephone cord was calculated to prevent a person who was distressed from obtaining help; and even if the respondents did not intend serious physical harm, they were aware at the very least that their actions would have been considerably distressing to an elderly man. 

1. For the respondents it was emphasised that they entered the house believing that the occupant was away.  It was submitted that upon finding Mr Millar they panicked.  That cannot be accepted.  They did not flee.  Instead one of them guarded Mr Millar while the other returned to the car for tape to tie him up and gag him, so that they could continue with their search for his money.  What they did was cold-blooded. 

1. It was accepted by the learned judge that they did not intend that Mr Millar would suffer more than transient discomfort and of course, great fear and apprehension.  They had expected that he would free himself from the tape.  He had freed his wrists by the time of his death.

1. It was also submitted for the respondents that they demonstrated remorse arising out of Mr Millar's death.  Wells' counsel said that he began drinking heavily, suffered bouts of depression and had not recovered from the personal consequences of what he did.  Every day he thought about what had happened.  In support of the submission, his counsel read from a letter written by Wells' wife, in which she said that his personality and outlook had changed for the worse.  She added:

"Reg began drinking heavier than ever and abused drugs, and later became a scared and paranoid man.  At times he would cry uncontrollably, trying to understand how it all happened, and how ashamed he was of himself."

In a letter sent by Wells from prison to his 14-year-old son, at a time when the charge was murder, he said:

"You don't know what I go through every day, thinking about that night.  I wish it was just a bad dream or headache that would go away.  But unfortunately it's not going to."

Not long before he wrote that letter, Wells attempted suicide by slashing his wrists, as a result of which he was in the prison hospital for over four weeks.  His counsel said that one of the factors that caused him to attempt suicide "was his depression arising out of what had happened". 

1. West's counsel said:

"He instructs me that he has been very deeply affected emotionally. … He's felt very uneasy and restless.  He's had flushes and palpitations when he thinks of the matter.  And he has been unable to come to terms with the death.  In order to try and cope he took very much more for drinking at night to help himself sleep. … In short, he's had great trouble in reconciling himself to the results of the activities that took place in July of 1997."

A psychiatrist reported on West for the purpose of the sentencing hearing:

"Mr West has shown a good deal of remorse in his writings and he believes that he deserves punishment.  Although there is no evidence of mental illness I believe that his flashbacks and sleep problems, are due to anxiety and guilt associated with Mr Millar's death."

1. The respondents pleaded not guilty to the original charge of murder.  They were prepared to plead guilty to manslaughter but their lawyers wished to make sure before they did so, that there was sufficient evidence to establish that their actions caused the death of Mr Millar.  A committal hearing was conducted, but it was confined to medical evidence about the cause of death.  At the conclusion of that evidence on 9 May 2003, their lawyers were satisfied on the issue of causation and the respondents immediately offered to plead guilty to manslaughter.  The Crown agreed to accept such a plea.

1. It was submitted to the learned sentencing judge by counsel for the Crown, that the mitigatory value of the pleas was reduced because, by the Crown's acceptance of them, the respondents avoided the risk of being convicted of murder.  The learned judge accepted the submission to some extent, but said that the mitigatory value of the pleas "should not be too heavily discounted by reason of this as it seems to me that a conviction for murder was not at any stage a very likely prospect".  However, it is pointed out that the Crown had a strong case for manslaughter against both of the respondents. 

1. The case against the respondents for manslaughter was under the Criminal Code, s156(2)(c), upon the basis that by an unlawful act, they killed Mr Millar. The unlawful act alleged was the crime of assault committed when they tied up and gagged the deceased.

1. At no stage of the proceedings has it been suggested that the respondents should not have received the same sentence.

1. There is no identifiable sentencing tariff for manslaughter.  It encompasses a wide range of situations, varying in their degree of heinousness, to the extent that it has been said that "there is no offence in which the permissible degrees of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty".  R v Withers (1925) 25 SR (NSW) 382 at 394 – 395. See also R v Williscroft [1975] VR 292 at 299; Davey (1980) 2 A Crim R 254; Hill (1981) 3 A Crim R 397 at 402; and Lyons (1993) 69 A Crim R 307 at 311, 313 and 316. Before the learned sentencing judge, counsel contrasted the case with that of Hyland v R unreported A82/1996, which concerned sentences of six years' imprisonment for rape and 10 years' imprisonment for a manslaughter committed immediately following the rape, when the victim was pushed into river shallows and left, as a result of which she drowned.  The learning sentencing judge did not believe that the criminal conduct of the respondents was as heinous as that of Hyland and there is no doubt that is correct.  There are very few recorded cases in this State that bear comparison with this case. 

1. With respect to the learned judge, the sentences of four years' imprisonment for the aggravated burglary and manslaughter were manifestly inadequate.  Sentences of three to four years' imprisonment would have been appropriate for the aggravated burglary and the assault on Mr Millar.  The additional factor of his death and the consequence that the respondents were liable to be sentenced for manslaughter and not merely assault, demanded a sentence of imprisonment substantially greater than that.  By way of example, a comparison can be made with a recent case before this Court, Devine v R [2003] TASSC 51. In that case three men forced their way into a residence, bound and blind-folded the elderly female resident and stole from her $18,000 in cash together with firearms and other items. Her psychological response was disastrous for her and included a severe post-traumatic stress disorder. A sentence of seven years' imprisonment, with a non-parole period of 5½ half years, for Devine, who had an appalling record, withstood appeal. He had pleaded not guilty. One of the other offenders, Pyke, whose record was not comparable and who was entitled to the benefit of pleading guilty, was sentenced to four years' imprisonment, although that sentence must be understood in the light that it was cumulative to another sentence of four years' imprisonment for similar crimes.

1. Cases such as the present demand prison sentences in the high range for manslaughter.  Culpable homicide of a householder demands such a sentence, when it results from the aggravated burglary of his or her home and an assault once inside, committed to facilitate the purpose of the criminal enterprise and to prevent detection.  Four years' imprisonment was a manifestly inadequate response by way of punishment and condemnation, even having regard to the mitigatory factors to which reference has been made. 

1. Accordingly, the sentences will be quashed.  When considering the sentence that should be imposed in its place, we have had regard to the fact that it is a Crown appeal and that the double jeopardy involved in standing twice for sentence should be taken into account.  See Hayes (1987) 29 A Crim R 452 at 469; R v Clarke [1996] 2 VR 520 at 522; R v Harland-White 23/1997; Attorney-General (Tas) v McDonald [2002] TASSC 120. In place of the quashed sentences, each of the respondents will be convicted and sentenced to imprisonment for seven years, in the case of Wells to commence on 3 June 2003 and in the case of West on 22 October 2002. In both cases it will be ordered that they not be eligible for parole until they have served four years of the sentence. That is the minimum period they should spend in prison having regard to their criminality and its consequences.