Black v The Queen
[2012] VSCA 75
•26 April 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0100
| KAREN DIANNE BLACK | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN and BONGIORNO JJA and HOLLINGWORTH AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 February 2012 | |
DATE OF JUDGMENT: | 26 April 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 75 | |
JUDGMENT APPEALED FROM: | [2011] VSC 152 (Curtain J) | |
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CRIMINAL LAW – Sentencing – Defensive homicide – Offender stabbed de facto partner twice in chest with knife – Offending characterised as towards the middle of the range – Whether sentencing judge gave sufficient weight to impact of family violence on moral culpability – Sentence of 9 years’ imprisonment with non-parole period of 6 years not manifestly excessive – Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr L C Carter | Robert Stary Lawyers |
| For the Respondent | Mr J R Champion SC Mr P J Doyle | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Hollingworth AJA.
BONGIORNO JA:
I agree with Hollingworth AJA.
HOLLINGWORTH AJA:
On 28 February 2011, the appellant pleaded guilty to one charge of defensive homicide. The deceased was her de facto partner.
On 12 April 2011, the appellant was sentenced to a total effective sentence of 9 years’ imprisonment, with a non-parole period of 6 years.
On 19 August 2011, Redlich JA granted leave to appeal against the sentence, on the following grounds:
(a) The total effective sentence and non-parole period are manifestly excessive (ground 1).
(b) Inadequate weight was given to the impact of family violence on the appellant’s level of moral culpability (ground 2).
The offence and its background
The appellant and the deceased had been living together in a de facto relationship for several years. The appellant’s adult son, Clint, lived with them.
There was a long history of drunken verbal abuse by the deceased towards the appellant. On occasions, Clint intervened to try to stop that abuse.
The deceased would sometimes force himself sexually on the appellant when intoxicated, and she would give in to his demands.
About a year before the offence, there was an occasion when the appellant returned home from being out with a friend, and found a knife and gold coin had been placed on her bed by the deceased. The deceased would not explain this conduct.
After that incident, the deceased became more possessive of the appellant and she only went out socially when she was with the deceased. The appellant’s friends were not welcome at their house.
On the afternoon of 30 October 2009, the appellant and deceased returned home from an hotel, where they had both been drinking alcohol. The deceased had been drinking heavily; his blood alcohol reading was subsequently found to be 0.22 grams per 100 millilitres of blood.
They had an argument about the deceased not wanting to go to work that evening. During the course of the argument, which continued over a period of time, the deceased made some reference to the appellant’s children, in particular to Clint, which appears to have exacerbated the argument.
By this stage, the appellant had moved into the kitchen, and the deceased had followed her. The argument continued in the kitchen, with the deceased coming up to her and sticking his chest out. The appellant said in her record of interview that the deceased ‘liked to stick his chest out … cause he’s a lot taller than me.’ The appellant told him he was pushing it too far. The deceased had the appellant effectively pinned in the corner of the kitchen, and was sticking his chest out and jabbing her in her body with his finger. The appellant then grabbed a kitchen knife. The deceased continued to corner the appellant and ‘egg’ her on. The appellant stabbed the deceased twice to the left chest.
Earlier that day, when the deceased was very intoxicated, he had been niggling the appellant about the prospect of sexual intimacy that coming weekend. She feared, when he was pointing the finger at her, that he would probably try to force himself on her again. His conduct, and the situation in the kitchen, reminded her of previous sexual abuse, which she had suffered at the hands of her father.
After stabbing the deceased, the appellant went and woke Clint, who was sleeping in his bedroom. Clint tried to perform first aid, before driving the deceased towards a hospital. He called ‘000’, and an ambulance met him on route to the hospital. Subsequent attempts to resuscitate the deceased were unsuccessful, and he was declared dead at the hospital at 4.50 pm.
At 4.30 pm that afternoon, the appellant walked into the Geelong Police Station, and confessed that she had stabbed the deceased.
The plea and sentence
The appellant was initially charged with murder. However, the Crown accepted a plea to the charge of defensive homicide, on the basis that the appellant admitted that she killed the deceased in the belief that it was necessary to carry out that conduct in order to defend herself from the infliction of death or really serious injury, in circumstances where such belief was not based on reasonable grounds. The Crown did not dispute that the appellant had been subjected to ongoing harassment and intimidation, falling within the definition of ‘family violence’ under s 9AH of the Crimes Act 1958.
At the plea hearing, the prosecutor submitted that the offending lay in the middle of the spectrum of conduct constituting the offence of defensive homicide, by reason of the disproportionality between the threatened conduct and the appellant’s subjective belief. The prosecutor conceded that the family violence was relevant to the appellant’s subjective belief that what she did was necessary, and thereby reduced her moral culpability.
Defence counsel submitted that the offence of defensive homicide had attracted head sentences ranging between seven to twelve years, and non-parole periods between four to eight years. He helpfully drew the sentencing judge’s attention to each of 13 sentences which had been imposed to that date for the offence of defensive homicide. He argued that none of those cases involved persons without prior convictions, and only one had involved family violence. When regard was had to the spontaneity of the attack, the family violence, the absence of prior convictions, and the appellant’s immediate remorse, defence counsel submitted that this offending lay at the lower end of the range for this offence.
The sentencing judge accepted that the appellant’s actions were ‘spontaneous, unplanned and momentary, and committed in the belief that it was necessary to defend [herself] from the infliction of death or really serious injury, and that belief was informed by the family violence [she] had endured.’[1] Her Honour characterised that family violence as ‘limited to threats, intimidation, harassment, jabbing and prodding, as it was on this occasion.’[2]
[1]At [22].
[2]At [8].
The sentencing judge said that she accepted that the appellant’s moral culpability was reduced by the family violence she had endured, and by the spontaneous nature of the stabbings.
Her Honour found that the offending was towards the middle of the sentencing range, having regard to the circumstances of the offence:
That is so because it involves the unlawful killing of the deceased with the requisite intent in his own home when, on this occasion, he was verbally intimidating you and poking you with his finger, but he was not armed, yet you responded by picking up a kitchen knife and stabbing him not once, but twice and stabbing him to the chest. That these facts are different from those of other defensive homicide cases does not make it less serious.
The appellant sought leave to appeal against her Honour’s characterisation of the offending as ‘towards the middle of the range’, but Redlich JA refused leave to appeal against that finding.
Her Honour also noted the following other matters, which were relevant to sentencing:
(a) The appellant was 53 at the time of the offence, and 55 at the time of sentencing. This would be her first sentence of imprisonment, and a substantial one;
(b) The appellant came from a very dysfunctional family. Her father, and at least one of her brothers, were physically and emotionally abusive alcoholics; the appellant was one of the victims of their violence. She was also the victim of sexual abuse in her childhood;
(c) The appellant left school at 14, married at 18, and had three sons. Her husband was an alcoholic, and the marriage ended when the appellant was in her late 20s;
(d) Although the appellant would meet the diagnosis of a binge drinker, she had managed to remain in gainful employment throughout her working life;
(e) The appellant had no prior convictions and was a person of good character;
(f) The appellant was of normal, slightly below average intelligence, moderately depressed and mildly anxious;
(g) The appellant was entitled to a discount for pleading guilty early, and was genuinely remorseful for what she had done. She had also surrendered herself to police, and made full admissions;
(h) Given her good character, remorse, strong work ethic and family support, the appellant had excellent prospects of rehabilitation, particularly if she received counselling to help her deal with her childhood experiences;
(i) Given the circumstances of the case, little weight needed to be given to specific deterrence; and
(j) General deterrence, denunciation and punishment were still relevant sentencing considerations.
Grounds of appeal
The appellant contends that inadequate weight was given to the impact of family violence on her level of moral culpability. Although this is said to be a separate ground of appeal, it is really no more than a particular of the manifest excess ground. [3] The proposition that too much or too little weight has been given to a particular sentencing factor is almost always untestable, because quantitative significance is not to be assigned to individual considerations.
[3]DPP v Terrick (2009) 24 VR 457.
The question on such an appeal is not whether this Court would have imposed the same head sentence and non-parole period as the sentencing judge did, but whether they were open to the judge in the exercise of sound discretionary judgment. A sentence cannot be said to be manifestly excessive unless it is clearly outside the range reasonably open to the sentencing court. To succeed, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakeable.’[4]
[4]Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA).
The maximum penalty for defensive homicide is 20 years’ imprisonment. The circumstances in which defensive homicide may be committed are infinitely variable, and each case must be considered having regard to the particular circumstances.
In her thorough and careful sentencing remarks, the sentencing judge fairly and accurately noted all the mitigating factors which had been relied upon by the appellant in the course of the plea. In particular, her Honour fairly characterised the nature and extent of past family violence, and accepted that the appellant’s moral culpability was reduced by that family violence, as well as by the spontaneous nature of the stabbings.
Her Honour was justified in making the observation that the level of violence which confronted the appellant that day (and to which she responded by killing the deceased) was not as serious as in many of the other cases, even when regard was had to the past family violence.
The appellant’s counsel referred us to the 13 cases to which the sentencing judge had been referred, as well as to a handful of more recent ones, including R v Svetina.[5] In Svetina, Nettle JA discussed current sentencing practice in defensive homicide cases, which he acknowledged may still be regarded ‘as being in its infancy’, given the relatively small number of sentencing decisions.[6]
[5][2011] VSC 392.
[6]At [47].
The appellant’s counsel repeatedly sought to distinguish the facts of this case from the facts of previous cases, on two primary bases: first, the appellant has no prior convictions; secondly, this case involves family violence. It was argued that these two features justified a significantly lighter sentence than in many of the other defensive homicide cases.
However, one of the cases to which Nettle JA referred in Svetina was R v Creamer[7], a case which involved those very two features which the appellant says are so distinguishing. In Creamer, a 53 year old female offender was acquitted of murder but convicted of defensive homicide (to which she had offered to plead guilty), for stabbing her husband to death with a knife in the course of a fight because, she said, she feared that, in light of a history of family violence, he was going to kill her. She had no prior convictions, suffered from a major depressive disorder, and had good prospects of rehabilitation. Coghlan J nevertheless characterised the offence as a serious example of defensive homicide, and imposed a head sentence of 11 years’ imprisonment, with a non-parole period of 7 years.
[7][2011] VSC 196.
Obviously, each case must be determined on its own facts. Here, her Honour characterised the offending as towards the middle of the range, a characterisation with which I agree. Her sentencing reasons demonstrate a careful consideration of all matters put to her at the plea, including the nature and extent of past family violence (which she accepted reduced the appellant’s moral culpability). The fact that some judges might have placed greater or lesser weight on the impact of the family violence on the appellant’s moral culpability does not of itself bespeak error.
Having regard to the facts of this case, and to current sentencing practice for domestic homicide (limited as it is), it cannot be said that a sentence of 9 years’ imprisonment, with a non-parole period of 6 years, was not open to the sentencing judge in the exercise of sound discretionary judgment. Neither the head sentence nor the non-parole period can be said to be clearly outside the range reasonably open to her Honour.
For these reasons, I would dismiss the appeal.
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