Barrett v The Queen
[2010] VSCA 133
•9 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 732 of 2008
| ROBERT CLIFFORD BARRETT |
| v |
| THE QUEEN |
---
| JUDGES | MAXWELL P, NETTLE and NEAVE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 13 May 2010 |
| DATE OF JUDGMENT | 9 June 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 133 |
| JUDGMENT APPEALED FROM | R v Barrett [2008] VSC 234 (Curtain J) |
---
CRIMINAL LAW – Sentence – Murder – Appellant pleaded guilty to reckless murder – Whether judge should have distinguished between reckless and intentional murder in determining moral culpability – Delay between arrest and imposition of sentence – R v MWH [2001] VSCA 196, applied – Effect of quashing of murder conviction – Whether declaration of pre-sentence detention incorrect – Effect of sections 16(3B) and 18(1) of the Sentencing Act 1991 – R v Broad [1999] 3 V3 31, applied – Director of Public Prosecutions v TY [2009] VSCA 226, applied – Appeal dismissed.
---
| Appearances: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr M J Croucher with Mr K J Dernelley | Victoria Legal Aid |
MAXWELL P
NEAVE JA:
On 23 February 2005, the appellant, Robert Clifford Barrett, was convicted by a jury of murdering Jenny Lorraine Brodhurst. The murder occurred between 7 and 11 June 2003. At that time the appellant was on parole for intentionally causing serious injury and aggravated burglary, for which he had been sentenced to 3 years’ imprisonment with a 12 month non-parole period by his Honour Judge Nixon (‘Judge Nixon’s sentence’). On 20 May 2005 he was sentenced by Whelan J to 25 years’ imprisonment, with a non-parole period of 20 years. His Honour sentenced the appellant on the basis that he had intended to inflict really serious injury on the victim.
On 17 May 2007, this Court allowed the appellant’s appeal against his conviction and ordered a retrial.[1] On 10 April 2008 he pleaded guilty to reckless murder and on 27 June 2008 was sentenced to 21 years’ imprisonment with a non-parole period of 17 years. He now appeals against that sentence.
[1][2007] VSCA 95.
Background to the offending and the offender
The victim had been in a de facto relationship with the appellant for about 12 years. The appellant was obsessively jealous of the victim and he had assaulted her many times during their relationship.
Between 1992 and 2003 Ms Brodhurst had been assaulted on 24 occasions and the frequency and severity of the attacks had escalated in the 12 months prior to her death. Ms Brodhurst had sought medical treatment on numerous occasions for her injuries, had sought crisis accommodation on nine occasions and had obtained an interim intervention order against the appellant which later lapsed.
The victim was not the only target of the appellant’s violence. The offences for which he was sentenced by Judge Nixon on 29 May 2001 were committed against a friend believed by the appellant to have had an intimate relationship with the victim.
At 2.17 am on 11 June 2003 the appellant rang 000 and informed the operator that a woman had suffered an assault and had stopped breathing. The paramedics who arrived shortly afterwards found the victim dead on a mattress on the floor. The appellant was arrested by police and taken to the offices of the Homicide Squad. Later that day he was seen by a forensic medical officer, Dr Michaela Marginean. The appellant told her that he
had suffered from a drug induced psychosis for 13 years, that [his] current medications were Xanax, Mogadon and Buprenorphine and that [he] had ceased taking Respiridone a fortnight beforehand. [He] reported that [he] had last taken amphetamines some time before the weekend and that [he] had had ‘a couple of caps of heroin yesterday’.[2]
[2]R v Barrett [2008] VSC 234 (‘Reasons’), [4].
Dr Marginean decided that the appellant was fit to be interviewed. In his record of interview the appellant denied causing the injuries that led to the victim’s death and explained that he and his mother had been attempting to nurse her for three or four days prior to her death. When asked why he had then called an ambulance he said ‘[b]ecause I kept asking Jenny … “should I call an ambulance” she wasn’t able to talk but she was able to nod and every time I asked her she said no’.
Later that morning, at approximately 9.30 am, a pathologist, Dr Matthew Lynch, went to the house to examine the victim. He concluded that the victim had been dead ‘more or less a day, probably around a day’. It followed, according to the judge, that the victim had last been alive about mid-morning the previous day.
Dr Lynch conducted an autopsy on the victim later that day. The judge summarised Dr Lynch’s observations as follows:
He established that she weighed 47 kilograms with a height of 147 centimetres. Dr Lynch observed evidence of acute left-sided subdural haematoma, numerous injuries to the body of varying appearances which could be seen both with the naked eye and microscopically and some of these injuries showed early healing changes and some had the appearance suggestive of superimposed infection. The subdural haematoma showed no evidence of healing and thus represented an injury sustained in the period shortly before death.
There were injuries on the scalp which appeared both recent and of a slightly older age, he opined of some days. It was not possible to determine specifically which of the more recent injuries were associated with the subdural haematoma.
There were injuries to the forehead, neck, both cheeks and chin, two of which were covered with a dressing. There were injuries to the chest. There were injuries to the forearms comprising bruises and abrasions. There were two bite marks.
There were recent healing fractures of the right and left fourth ribs, a recent fracture of the left index finger and a healed fracture of the left little finger. The two rib fractures he opined would have required significant compressive force to produce those injuries and they appeared to have different healing times.
There was a haemorrhage to the pancreas which could be related to the injury to the abdomen and could be produced by punching. The intracranial haemorrhage, he opined, would have been caused by blows to the left handed side of the head which he said would have occurred about a day from when the deceased had died, and would have been occasioned by a significant blow.
He looked at 22 different injuries, three to four of which had the appearance of being present for a few days, but most of the injuries he observed had occurred within one or two days of death. Kidney analysis indicated kidney failure possibly caused by dehydration and/or muscle damage as a result of injury, and toxicological analysis detected the stimulants methylamphetamine and amphetamine which he said had the potential to cause cardiac arrhythmia. The narcotic analgesic, Tramadol, which was seen in levels which exceeded the normal therapeutic use; the toxic side effects of which included respiratory depression and the sedative, Oxazepam.
Dr Lynch opined that the ultimate cause of death was problematic. Ms Brodhurst had evidence of multiple injuries, including a significant head injury, and there were also significant results as disclosed by toxicological and biochemical analysis. The cause of death he determined should properly be attributed to a combination of factors and that death in these circumstances would have been protracted.[3]
[3]Ibid [7]-[13].
Blood samples were taken from a number of rooms and items found in the house, including two pieces of blood stained timber and a blood stained knife. A clump of hair that had been pulled out was found attached to the handle of a wardrobe. Cleaning products and equipment, later found to have been purchased at 2.35 pm on 9 June 2003, were also found. The observations and conclusions of the forensic scientist who attended the house in the morning of 11 June 2003 were summarised by the judge as follows:
His examination suggested that Ms Brodhurst was repeatedly struck and, in one area of the main bedroom, forcefully so. The place where the deceased was found lying had bloodstains surrounding her and blood on the ceiling, indicating that something had been wielded in a fashion that had caused blood to cast off it and strike the ceiling, indicating forceful blows. He observed also bloodstains adjacent to the cupboard door and on the wall above and beyond the mattress where she lay … In his opinion, the presence of discrete areas of blood spatter-staining, together with what appeared to be cast off bloodstains, indicated that repeated blows may have occurred in at least two different areas within the bedroom.
The possibility of some bloodstains having an aged appearance was suggestive of at least two events, separated by a considerable length of time and the presence of what appeared to be diluted blood deposits, suggested the possibility of attempts at removing the bloodstains. Further, deposits on the surfaces underneath the mattress and behind the wardrobe door suggested forceful events involving injury to Ms Brodhurst prior to the positioning of her body on the mattress. DNA analysis of the knife and the two broken parts of timber and a motorbike helmet determined that they were each stained with blood, likely to have been sourced from [the appellant] and the deceased.[4]
[4]Ibid [18]-[19].
The precise nature of the injuries inflicted on the victim that led to her death was unknown. The appellant told a forensic psychiatrist, Dr Alan Jager, that he had argued with the victim, she had lunged at him with a knife and he had then hit her with a motorcycle helmet and she hit her head on the bed. He said he had hit her on the legs with the blunt edge of a knife and then stopped.
Her Honour was satisfied beyond reasonable doubt that the appellant’s assaults on the victim were not as limited as the appellant claimed.[5] Her Honour found that:
the evidence of the various sites and nature of bloodstains and the nature, number, age and location of the injuries sustained by [the victim] satisfy me that she was the victim of a savage assault on more than one occasion prior to her death, although it cannot be established how the head injury was caused, and that she was struck with the knife, bike helmet and piece of timber.[6]
[5]It was also conceded by the appellant’s counsel that this was not a full account.
[6]Reasons, [22].
The appellant was aged 31 at the date of offending and 36 at the date of sentence. He admitted 19 prior convictions from 10 court appearances.[7] None of these were offences against the victim, who declined to identify him as the offender on some occasions and who, after he was charged with assaulting her on one occasion, later withdrew a complaint against him. Four of the convictions were for violent offences, including the offence for which he was sentenced by Judge Nixon.
[7]It appears that 3 of the 22 prior convictions referred to by the judge were counts on which the appellant was presented but on which convictions were not ultimately recorded.
The appellant was born in England and migrated to Australia with his family when he was very young. He had a loving relationship with his mother but difficulties with his father, who paid him little attention. Both were alcoholics and domestic violence occurred constantly during his upbringing. He left school at 15 to begin an apprenticeship in cabinet making, but left after two years due to his amphetamine use.
A report prepared by Dr Grant Lester, a consultant psychiatrist who had seen the appellant on 2 September 2002, eight months before the victim’s murder, was tendered at the plea hearing. Dr Lester described the appellant’s history of drug and alcohol abuse, which moderated for a time when he was 21 and his son was born, but then continued. Dr Lester said that the appellant had previously been diagnosed as having a form of drug induced psychosis at the Heatherton Psychiatric Hospital.
The appellant admitted to Dr Lester that he had ‘assaulted [the victim] many times, sometimes sufficiently to put her into hospital’ and that the root of this violence was his ongoing suspicion of the victim’s infidelity. His feelings of jealousy and mistrust increased with his use of amphetamines. Dr Lester said that the appellant also said that ‘he is now even more aware of his potential for harm to his partner and to others and that he actually wanted psychological help to change’. Dr Lester concluded that the appellant’s limited insight into the damage that his mistrust was causing to himself and to his partner did not ‘carry much power’ and that he represented a ‘significant risk of physical harm to his partner’. The sentencing judge relied on Dr Lester’s report in finding that the appellant was
well aware that [he] had a propensity of violence towards Ms Brodhurst, borne of what Dr Lester described as [your] morbid jealousy and that this was increased markedly when using amphetamines and that this was the situation [he] placed [himself] in some time after 4.30 on Saturday 7 June 2003.[8]
[8]Ibid [31]-[32].
Dr Lester Walton, another consultant psychiatrist, prepared two reports and gave evidence during the plea hearing.[9] The judge accepted his opinion that the appellant was psychotic at the time he assaulted the victim, but that it was very difficult to determine whether the psychosis was drug induced or arose from underlying schizophrenia, or both.[10]
[9]Ibid [35]-[36].
[10]Ibid [38].
Grounds of appeal 2 and 3
Grounds 2 and 3 were as follows:
2The Learned Sentencing Judge erred in misapprehending the basis of the plea, causing Her Honour to sentence the Appellant on the basis that he foresaw his actions would cause ‘really serious injury causing death’.
3The Learned Sentencing Judge erred in finding that the offence for which she was sentencing the Appellant was ‘no less serious than’ the offence for which he was sentenced by Justice Whelan.
The passage in her Honour’s reasons giving rise to these grounds of appeal was as follows:
The case against you is put on the basis of reckless murder, that is, you knew by reason of the repeated and forceful nature of the injuries you inflicted on Ms Brodhurst that it was probable that your actions would result in really serious injury causing death, and yet you continued to assault her. It is not put that you had the specific intention to kill or cause really serious injury, and in this way the case is different, but in my view no less serious than that which Whelan J dealt with when he sentenced you after jury verdict to 25 years imprisonment with a non-parole period of 20 years.[11]
[11]Ibid [32].
In support of ground 2 counsel for the appellant submitted that his client had pleaded guilty on the basis that he knew that the victim ‘was probably going to suffer a serious injury if he kept going’ and not on the basis that he foresaw that his acts would result in really serious injury causing death. Her Honour had therefore sentenced the appellant on the wrong basis.
In support of ground 3 counsel for the appellant submitted that her Honour should have sentenced the appellant on the basis that he pleaded guilty to a murder which was less serious than the murder for which he was sentenced by Whelan J. Whelan J sentenced the appellant on the basis that he was guilty of intentional murder, because he had intended to cause the victim really serious injury, whilst the second sentence for murder was imposed on the basis that he had pleaded guilty to reckless murder. In support of the claim that reckless murder necessarily reflects a lower degree of culpability, counsel referred to jurisdictions in which recklessness as to the probability of causing really serious injury to another person amounts to manslaughter rather than murder.[12] Counsel also relied by analogy on the higher maximum penalty which applied in Victoria to the offence of intentionally causing serious injury than the maximum penalty for the offence of recklessly causing serious injury.[13]
[12]Criminal Code (NT), s 156; R v Moloney [1985] AC 905; R v Hancock [1986] AC 455, 471 (Lord Scarman).
[13]Crimes Act 1958, ss 16 and 17.
Counsel submitted that the appellant had not received any significant benefit from pleading guilty to reckless murder. The sentence indicated that the judge could not have given proper weight to the appellant’s lesser culpability for reckless murder or to the mitigating factors she had found to exist, including the appellant’s guilty plea and remorse, which were not relevant to the sentence imposed by Whelan J. Her Honour had imposed a head sentence which was only four years shorter than the 25 year head sentence imposed by Whelan J and a non-parole period which was only three years shorter. Having regard to all relevant sentencing considerations, much more significant reductions in the maximum sentence and the non-parole period were warranted.
Counsel for the Crown relied on authorities which have held that an intentional murder does not necessarily involve a higher degree of culpability than a reckless murder, and that each case must be assessed on its own facts.[14] He submitted that her Honour’s statement that the case she had to deal with was ‘no less serious than that which Whelan J dealt with’ was a reference to the overall circumstances in which the murder occurred. The fact that the sentence imposed by her Honour was significantly less than the sentence imposed by Whelan J showed that the judge had given adequate weight to the different basis on which the appellant fell to be sentenced by her Honour and to the appellant’s guilty plea, remorse and other mitigating factors.
[14]R v Crabbe (1895) 156 CLR 464, 469 (Gibbs CJ, Wilson, Brennan, Deane, Dawson JJ); R v Aiton (1993) 68 A Crim R 578 (‘Aiton’), 597-8 (Phillips CJ, Crockett and Vincent JJ); R v Lindrea (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Crockett and Nathan JJ, 4 August 1994), 7-8 (Crockett J); R v Ainsworth (1994) 76 A Crim R 127, 139 (Gleeson CJ); R v Grant (2002) 55 NSWLR 80, 97 (Wood CJ at CL).
Conclusion on grounds 2 and 3
As counsel for the Crown submitted, an offender who intends to kill or cause really serious injury is not necessarily to be regarded as more culpable than an offender who foresees the probability that his acts will seriously injure or kill the victim.
In Aiton,[15] the applicant claimed that the sentencing judge had erred by ‘equating for sentencing purposes a reckless murder with an intentional murder’[16] and that the judge should have sentenced him on the basis that the murder was reckless rather than intentional.
[15](1993) 68 A Crim R 578. See also R v Lindrea (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Crockett and Nathan JJ, 4 August 1994), 7-8 (Crockett J); R v Ainsworth (1994) 76 A Crim R 127.
[16]This was a particular of a ground of appeal based on manifest excess.
The Court of Criminal Appeal said that:
There is no basis, of which we are aware, in the practice of the Court for the acceptance of the view that any such distinction exists, and none in principle why it should. As earlier pointed out, the High Court in Crabbe’s case made it clear that no assessment can be made of the level of moral culpability attached to a person who commits the crime of murder by reference simply to the category of malice involved. Obviously each case must be considered in the light of its own particular relevant facts.[17]
[17](1993) 68 A Crim R 578, 598.
The moral culpability of two different offenders does not turn solely on the category of mens rea which gave rise to their respective murder convictions. For example an offender who deliberately kills a victim with a single gunshot is not necessarily to be regarded as more morally culpable than a person who seriously assaults a victim and leaves them in an isolated place without medical help, being reckless as to the probability that they may suffer lasting incapacity or die. It follows from Aiton[18] that an offender who is guilty of reckless murder on the basis of foresight of the probability that the relevant acts will cause really serious injury is not necessarily less culpable than an offender who foresees the probability that the acts will cause the victim’s death.
[18](1993) 68 A Crim R 578.
This case does not involve comparing the moral culpability of two different offenders. Rather, her Honour had to sentence this particular offender on the basis that he pleaded guilty to reckless, rather than intentional, murder. Despite the remarks on which counsel for the appellant relied, we consider that her Honour did so. This was reflected in her acknowledgement that ‘the case is different’ from the case dealt with by Whelan J.
In our view her Honour’s reference to the appellant’s foresight of serious injury causing death was simply an allusion to the fact that the victim did in fact die. However even if that was not what her Honour meant, in the circumstances of this case we do not consider that there was any significant distinction in moral culpability between the appellant foreseeing the probability that he would cause really serious injury to the victim and foreseeing the probability that if he continued to assault her, she would die. When the victim became so ill that she was no longer able to speak, the appellant did not seek medical help until it was too late to save her life. In these circumstances, his level of moral culpability was no less than if he had foreseen the possibility of her death.
Nor do we consider that her Honour erred by saying that the offence for which the appellant was to be sentenced was ‘no less serious than’ the offence for which he was sentenced by Whelan J. In our opinion, her Honour was there referring to the constellation of matters which must be taken into account in assessing the gravity of the offence. These included the sustained nature of the assault; the fact that it was not an isolated incident but part of a pattern of violent behaviour; the vulnerability of the victim; the fact that the appellant was on parole for a violent offence when he murdered the victim; and his awareness that he was more likely to assault her when his jealousy escalated because of his use of amphetamines. Having regard to those matters and to her Honour’s finding that this was ‘a serious example of reckless murder’, her Honour correctly found that the offence was ‘no less serious’ than the offence for which the appellant was sentenced by Whelan J. The fact that her Honour imposed a total effective sentence and a non-parole period which were four years shorter and three years shorter, respectively, than those imposed by Whelan J clearly shows that her Honour took account of the different bases on which she was required to sentence the appellant.
Accordingly grounds 2 and 3 fail.
Ground of appeal 4
Ground 4 was that:
The Learned Sentencing Judge erred in failing to take into account in mitigation the lengthy delay between the Appellant’s arrest and his ultimate sentence.
The appellant’s counsel submitted that her Honour had failed to give any weight to the delay of almost five years between the appellant’s arrest for murder and the imposition of his sentence, although counsel conceded that the issue of delay had not been raised by counsel who represented the appellant at the plea hearing.
Although her Honour did not explicitly state that she had taken account of the effects of the delay, her sentencing reasons indicate that she was aware of the long history of the proceedings and the significant time lag between the commission of the offence and the sentencing of the offender.
In R v MWH[19] Callaway JA said that:
It is the effects of delay that are important for sentencing. As in R v Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment.[20]
[19][2001] VSCA 196 (‘MWH’).
[20]Ibid [18]. See also R v R v Nikodjevic [2004] VSCA 222, [21]-[22].
We accept that the appellant must have suffered anxiety as a result of having the outcome of his murder charge hanging over his head for five years. However he must have been aware of the likelihood that he would be convicted of a serious offence and would have to serve a considerable term of imprisonment. Further, since his imprisonment in 11 July 2003 the appellant had served nearly four years[21] in custody. As we explain below, almost all of this period will be recognised in the declaration of pre-sentence detention (‘PSD’).[22]
[21]The correctness of the period declared by her Honour is discussed below.
[22]Similar factors were regarded as relevant by Ormiston JA in R v Nikodjevic [2004] VSCA 222, [23].
The delay between arrest and the imposition of sentence gave the appellant the opportunity to gain insight into the consequences of his offending, to express remorse and to acknowledge the harm caused to him and others by his drug addiction. These factors were taken into account in mitigation by her Honour, who said:
You are now remorseful for your conduct, which in my view stands in contrast to the belligerent and uncaring attitude you adopted at times throughout your interview with the police. Doctor Walton, in his report of 2005, recounted your expressions of remorse such as they were then but in evidence before me on the plea, he stated that over the seven years he has known you he has observed that you have matured psychologically and that you are now capable of making a clear expression of remorse such as is reflected in your plea of guilty. You are remorseful not only for what you have done but that by your actions you have robbed your son of his mother and yourself of the woman you professed to love. Your remorse is also evident in your written statement to the court, tendered as Exhibit 1. I accept also that your plea of guilty entered despite obtaining a retrial upon a successful appeal is also indicative of your remorse and that you are entitled to have the discount for your plea of guilty placed in that context.
In your written statement to the court, you expressed the hope that you can be rehabilitated and become a better person. You acknowledge that your drug use has, in your words, ‘Caused a huge trail of destruction’ in your life and those around you and that you would never go back to using drugs.
The delay gave the appellant the opportunity to rely on mitigating factors which did not apply when he was sentenced by Whelan J. Her Honour is an experienced sentencing judge, who will have weighed both the negative and positive effects of the delay on the appellant. In these circumstances, this ground of appeal is not made out.
Ground of appeal 5
Ground 5 was as follows:
The Learned Sentencing Judge erred in failing to make an adequate ‘Renzella’[23] adjustment to the sentence.
[23]R v Renzella [1997] 2 VR 88 (‘Renzella’).
A particularly complicated aspect of the sentencing task concerned the appropriate treatment of time which the appellant had already served. The complexity arose, first, because the appellant had previously been sentenced for murder, before he successfully appealed his conviction. As a result, Curtain J had to take account of both PSD and time served referable to the original sentence for murder imposed by Whelan J on 20 May 2005.[24] The second complication related to Judge Nixon’s sentence, referred to earlier,[25] which had been imposed for an unrelated offence. The appellant having committed the murder while on parole under Judge Nixon’s sentence, his parole was revoked and he therefore had to serve the balance of Judge Nixon’s sentence, which we will refer to as ‘the parole sentence’.
[24]See Director of Public Prosecutions v TY [2009] VSCA 226.
[25][1] above.
There were three relevant periods to be considered, as to which the following matters were not in dispute:
·Period 1: the period between his arrest on the charge of murder (11 June 2003) and Whelan J’s sentence (20 May 2005) was PSD in respect of the Whelan J sentence;
·Period 2: the period between the date of sentence by Whelan J and the date on which the murder conviction was quashed by this Court (17 May 2007) was time served under the Whelan J sentence;
·Period 3: the period between the quashing of the murder conviction (17 May 2007) and the date of sentencing by Curtain J (27 June 2008) was time served under the parole sentence.
The first question to which attention was directed on the appeal was whether Period 3 should also have been treated by the sentencing judge as PSD referable to the sentence for murder which she imposed on 27 June 2008. It was submitted for the appellant that, on the plain language of s 18(1) of the Sentencing Act1991 (the ‘Act’), this was a period during which the appellant ‘was held in custody in relation to proceedings for the offence’ of murder. This must be so, it was argued, because following the quashing of his conviction by this Court in May 2007, the appellant had been remanded in custody to await his re-trial. It was said that the decision of this Court in Director of Public Prosecutions v TY[26] also supported that conclusion.
[26][2009] VSCA 226 (‘TY’).
The argument for the Crown, on the other hand, was that this approach would subvert the requirement of s 16(3B) of the Act. Under that subsection, the term of imprisonment imposed on the appellant for the offence of murder which he committed while he was released on parole
must, unless otherwise directed by the Court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he … may be required to serve in custody in a prison on cancellation of the parole order.
If Period 3 were treated as time in custody (i.e. PSD) for murder, as well as being treated as service of the parole sentence, this would have the result that the two sentences were served concurrently, rather than cumulatively as required by s 16(3B).
Counsel for the Crown submitted that TY[27] did not require the Court to treat the whole of the period spent by the appellant on remand for murder as PSD. In TY [28] the appellant was sentenced for murder (the ‘first murder sentence’). After his murder conviction was quashed he was again convicted of and re-sentenced for murder. After he began serving the first murder sentence he was sentenced for other offences (the ‘Children’s Court sentence’) to 12 months detention, which was ordered to be served concurrently with the first murder sentence. This Court held that:
·the six weeks between the quashing of the first murder sentence and the expiry of the Children’s Court sentence did not count as PSD on the murder charge under s 18(1) of the Act, but the sentencing judge had correctly taken it into account under the Renzella principle;[29]
·the whole period served by TY in custody from his arrest for murder until the imposition of the second sentence, was to be declared as PSD, except the six weeks balance of the Children’s Court sentence, which was served after the first murder sentence was quashed.
[27]Ibid.
[28]Ibid.
[29]R v Broad [1999] 3 VR 31 (‘Broad’).
Counsel for the Crown contended that in TY, unlike the situation in this case, the Children’s Court sentence was ordered to be served concurrently with the first murder sentence, so that it was not inappropriate to treat the period when TY was serving both the first murder sentence and the Children’s Court sentence as PSD.
Uninstructed by authority, we would have concluded that Period 3 should have been treated as PSD for the offence of murder, notwithstanding that it was also time served under the parole sentence. This would follow by application of the general principle of statutory interpretation that a general provision (like s 16(3B)) must give way to a specific provision (like s 18(1)) where they would otherwise conflict.[30] But there is established authority of this Court, in R v Broad,[31] that time spent on remand for one offence does not count as PSD in relation to that offence if the offender was at that time serving sentence for another offence. Period 3 has precisely those characteristics. That is, the appellant was on remand for murder during that period but – because his parole had already been revoked – he was serving sentence (under the parole sentence) for another offence. It follows that Period 3 was not a period of PSD for the offence of murder. In TY[32] this Court said that ‘we think it improbable … that a defendant convicted on a second trial would not be entitled to have time served after the first trial as PSD’; but did not overrule R v Broad.[33]
[30]See D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006), [4.32].
[31][1999] 3 VR 31.
[32][2009] VSCA 226.
[33][1999] 3 VR 31.
Accordingly, the PSD to be declared at the time Curtain J sentenced him was the aggregate of Period 1 (710 days) and Period 2 (726 days). This was a total of 1436 days. The period which her Honour declared was only 1124 days. The application by the Director under s 18(7) of the Act, for a correction of the PSD declaration, should therefore be granted. The correct figure for the PSD declaration is 1436 days.
The remaining issue concerned the parole sentence. The sentencing judge specifically said in her reasons that she had taken account of the period which the appellant had spent in custody under the parole sentence. This matter had been discussed on the plea and her Honour referred specifically to the applicability of the Renzella principle. There can, in our view, be no complaint about her Honour’s approach.
Indeed, because of an error by the prosecutor, the judge wrongly assumed – in the appellant’s favour – that the time he had served under the parole sentence was almost two years. (In fact, it was just over a year: Period 3). The prosecutor told the judge that service of the parole sentence had begun on 3 August 2005, the date on which parole was cancelled, when it had not in fact commenced until the end of Period 2 (17 May 2007) when the murder conviction was quashed.
Her Honour was not told that the appellant might be required to serve the balance of the parole sentence – 323 days – after completing the non-parole period of the sentence imposed for murder. This was also the result of prosecutor error. Senior counsel for the Crown had told her Honour that the parole sentence had been fully served.
As counsel for the appellant rightly pointed out in this Court, the prospect of his having to serve the balance of the parole sentence was a factor relevant to totality.[34] In the circumstances, however, we consider that the error was immaterial, given that her Honour gave the appellant an unduly favourable Renzella allowance, by treating him as having already served a period almost twice as long under the parole sentence as the period he had in fact served.
[34]DPP (Vic) v Rongonui [2007] VSCA 274, [15]–[19] and the cases there cited.
In passing we note that the combination of principles in Broad[35] and TY[36] and the interaction between ss 15, 16(3B) and 18(1) of the Act have made the law so complex that it is likely to contribute to sentencing error in the future. Legislative reform would be desirable to clarify the relationship between the sections and the meaning of s 18(1). One way of reconciling ss 18(1) and 16(3B) would be to make it clear that the discretion in s 18 to declare a lesser number of days of PSD should be exercised in circumstances where s 16(3B) would otherwise apply.
[35][1999] 3 VR 31.
[36][2009] VSCA 226.
For the above reasons ground 5 fails.
Ground of appeal 1
Ground 1 claims that the sentence was manifestly excessive.
The submissions made by the appellant’s counsel in relation to grounds 2 and 3 also apply to this ground and have already been discussed. Counsel for the Crown submitted that her Honour had taken account of all relevant mitigating factors and that the term of imprisonment imposed did not lie outside the range of sentences which were available in the exercise of the sentencing judge’s discretion.
That submission should be accepted. The appellant had previously been convicted of a number of violent offences and fell to be sentenced as a serious violent offender. The appellant was on parole for a violent offence at the time the murder occurred and he pleaded guilty at a very late stage in the proceedings.
When sentencing the offender Whelan J said that he accepted on the balance of probabilities that the offender suffered from a serious psychiatric condition caused by and precipitated by his drug use, and that his mental disorder and drug use played a direct role in his violent and sustained attack on the deceased, but that he was ‘not in a psychotic or significantly disturbed state throughout the period’ when his attacks took place.[37] His psychiatric condition required some moderation of the principle of general deterrence, and somewhat reduced his moral culpability. However Whelan J held that the appellant’s psychiatric condition made him a greater danger to the public than if he had not suffered from the condition.[38] He also found that the appellant had not proved on the balance of probabilities that he was genuinely remorseful.
[37]R v Barrett [2005] VSC 176, [29].
[38]Ibid [30].
Her Honour found that the offender was suffering a psychosis at the time of the offence but said that it could not be determined whether this was drug induced or arose from underlying schizophrenia or both. She accepted that the principles in R v Tsiaras[39] and R v Verdins[40] were relevant in sentencing the appellant, though she said that these principles were to be qualified in their application. As the appellant had previously admitted to Dr Lester, he was well aware that amphetamine use increased his jealousy of the victim and the likelihood that he would assault her. Her
Honour found that by the time of sentence the appellant had developed the capacity to feel genuine remorse and said that this was reflected in his guilty plea.
[39][1996] 1 VR 398.
[40][2006] 16 VR 269.
Counsel for the appellant submitted that her Honour’s finding that the applicant was psychotic at the time of the offence required her to impose a significantly lower sentence than Whelan J, who found that the appellant was not psychotic when the offence occurred. In our opinion the sentencing judge dealt appropriately with the appellant’s mental disorder. Both judges accepted that the applicant’s moral culpability was reduced to some extent by his psychiatric problems, and that sensible moderation of general deterrence was justified. The significantly lower sentence imposed by her Honour indicates that she gave proper weight to the appellant’s psychotic condition and to the other mitigating factors which were not relevant to Whelan J’s sentence, including the appellant’s very late guilty plea and his remorse.[41]
[41]The effect of the corrected PSD declaration is that the appellant’s earliest effective release date, 10 June 2022, is about 3 years earlier than his earliest effective release date had Whelan J’s sentence not been quashed. His current earliest effective release date is calculated as being the sum of the 17 year non-parole period and the 323 days left to serve of Judge Nixon’s sentence, minus the 1436 days of PSD. His earliest effective release date under Whelan J’s sentence is calculated as being the sum of the 20 year non-parole period and the 2 years left to serve of Judge Nixon’s sentence, minus the 710 days of PSD he had declared.
In our view the ground of manifest excess is not made out. For these reasons we would dismiss the appeal against sentence.
NETTLE JA:
I agree.
14
8
0