Borthwick v The Queen
[2012] VSCA 180
•8 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2011 0013
| LEON BORTHWICK | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | WEINBERG and BONGIORNO JJA and T FORREST AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 July 2012 |
| DATE OF JUDGMENT | 8 August 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 180 |
| JUDGMENT APPEALED FROM | DPP v Borthwick [2010] VSC 613 (Williams J) |
---
CRIMINAL LAW – Sentence – Manslaughter – 7 years 6 months’ imprisonment with a minimum non-parole period of 5 years – Whether sentencing judge failed to achieve her stated objective of “a shorter than usual” minimum non-parole period – Wallace v The Queen [2012] VSCA 114 – No manifest failure to give effect to objective – Appeal dismissed
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr L C Carter | Revill & Papa Lawyers |
| For the Crown | Ms M M Williams SC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I agree with T Forrest AJA.
BONGIORNO JA:
I also agree with T Forrest AJA.
T FORREST AJA:
Background
Early in the morning of 16 November 2008, the appellant was the driver of a van which struck and killed Mark Zimmer. This incident occurred in Ormond Road, Narre Warren. The appellant was then aged 18 years and Mr Zimmer was 19.
There had been a history of hostility between the two young men over a period of months. The applicant was presented for trial on a charge of murder, but after a 6 week trial was convicted of manslaughter as an alternative to murder.
Circumstances of the offence
The objective facts leading up to Mr Zimmer’s death can be stated shortly. They are found in more fulsome form in her Honour’s sentence[1] from paragraphs [7] to [21]. The hostility between the two stemmed from a perception held by the appellant that Mr Zimmer was intruding on his relationship with his girlfriend. On 15 November 2008, the appellant’s girlfriend advised him that their relationship was over. The appellant telephoned Mr Zimmer and threatened to come to his house and kill him. Threatening telephone calls were then exchanged over the course of the evening. Mr Zimmer rang the police. He gathered friends and weapons to defend himself. The appellant telephoned Mr Zimmer and said that he was not coming to Mr Zimmer’s house. Mr Zimmer and his friends then went to the appellant’s house.
[1]R v Borthwick [2010] VSC 613.
The appellant, who was not at home, was told that there were 20 to 30 young men armed with weapons outside his house. He drove his mother’s Tarago van to his house. Two friends were passengers in the van. The appellant’s older brother drove ahead of him with some friends in his car.
In fact, Mark Zimmer was accompanied by eight friends. He was standing near a parked car. Whilst travelling at about 45 kilometres per hour, the appellant swerved his van onto the incorrect side of the road and towards the parked car. His brother’s vehicle continued in its correct lane.
There were other young men on the road near Mr Zimmer. The appellant did not pull back, slow down or take any evasive action. The right front corner of the van struck Mark Zimmer, who was apparently trying himself to take evasive action. Immediately before the impact, the appellant’s vehicle was to the right of the centre of the carriageway and Mr Zimmer was about half a metre from the area where cars were parked. Mr Zimmer suffered massive injuries and died shortly after the impact.
This appeal
The issue in this appeal is very narrow. The sentence imposed on the appellant was seven years, six months’ imprisonment. The minimum non-parole period was five years’ imprisonment.[2] The appellant contends that the learned sentencing judge failed to achieve her stated objective of ‘a shorter than usual’ minimum term by imposing a term that was 66% of the head sentence. At paragraphs [57] and [58] of the sentence, her Honour said this:
… I sentence you to imprisonment for seven years and six months with a non-parole period of five years.
This shorter than usual non-parole period is warranted, given your youth and your good prospects of rehabilitation. …
[2]For convenience I shall refer to this minimum non-parole period as ‘the minimum term’.
The principles governing appellate review of a non-parole period are well established and were recently re-stated by this Court in Wallace v The Queen.[3] They can be summarised as follows:
(1)The non-parole period is the minimum term which justice requires to be served.[4]
(2)There is no ‘usual’ standard, or normal non-parole period expressed as a proportion of the head sentence.[5]
(3)The question to be determined is whether it was reasonably open to the sentencing judge to fix the non-parole period actually fixed in the case under consideration.[6]
(4)Exceptionally, the Court may be persuaded that the non-parole period manifestly failed to give effect to the sentencing judge’s stated intention, in which case error is established and the sentencing discretion re-opened.[7]
[3][2012] VSCA 114 (‘Wallace’).
[4]Power v The Queen [1974] 131 CLR 623, 629; Bugmy v The Queen (1990) 169 CLR 525, 538-9; I R J v The Queen [2011] VSCA 376, [52]; Singh v The Queen [2011] VSCA 333, [27], as cited in Wallace [2012] VSCA 114, [2].
[5]Hili v The Queen [2010] 242 CLR 520, [36]-[45]; Muldrock v R (2011) 244 CLR 120, [26]-[32]; Wallace v The Queen [2012] VSCA 114, [2].
[6]R v Merritt (2008) 191 ACrimR 272, 277–8 [24]; R v Sotto [2009] VSCA 70, [27]–[28] as cited in Wallace v The Queen [2012] VSCA 114, [2].
[7]R v Hill [2004] VSCA 116, [29] as cited in Wallace v The Queen [2012] VSCA 114, [2].
In her reasons for sentence, a number of findings both favourable and adverse to the appellant were made. Inter alia, they are:
(i)This was a serious example of the crime of manslaughter by criminal negligence. Her Honour found that the offending was not an example of manslaughter by unlawful and dangerous act.
(ii)Her Honour was not satisfied that the appellant deliberately drove into the deceased.
(iii)The failure by the appellant to stop and render assistance was understandable in the circumstances and not an aggravating feature.
(iv)The appellant called evidence of prior exemplary character, although the threats he made towards the deceased and others tended to limit somewhat the impact of the character evidence called.
(v)Mr Zimmer’s death had caused debilitating grief and trauma to his family, particularly to his parents.
(vi)The appellant had limited insight into his offending and limited remorse.
(vii)His prospects for rehabilitation were very good with maturity and if he took advantage of psychological treatment to develop insight into his offending.
(viii)The appellant was very young.
(ix)Prison will be more onerous on the appellant because of his youth.
(x)The appellant’s moral culpability was high because he knew that there were people in the vicinity of the road, but despite this, drove at an excessive speed in the circumstances and took no evasive action.
(xi)Denunciation and general deterrence were important sentencing considerations. Less weight was given to the appellant’s youth than otherwise might have been the case because of the need to deter other young people from using vehicles in a criminally negligent way.
(xii)The appellant made offers to plead guilty to culpable driving (before the committal) and manslaughter by unlawful and dangerous act, although her Honour doubted the genuineness of the manslaughter offer, which was accompanied by a proposed set of agreed facts that were fanciful.[8]
[8]Plea transcript pp 250 – 253.
I consider that it was certainly open to her Honour to impose a non-parole period that was shorter than would otherwise be appropriate in this case. The appellant’s youth and prospects for rehabilitation would justify such a course. His offer to plead guilty to causing death by culpable driving was also a significant factor weighing in his favour. That offer, made before the committal, amounted to an offer to plead guilty to an equivalent offence to that of which he was ultimately convicted. Culpable driving causing death is a species of involuntary manslaughter and the gross negligence required for a conviction for same is the same standard of negligence as required for manslaughter. [9]
[9]R v De’Zilwa (2002) 5 VR 408, [42]-[46].
The appellant’s contention is not that her Honour failed to have regard to these factors – she clearly did – but that in fixing the minimum term, she failed to achieve the objective of imposing a ‘shorter than usual’ non-parole period. The appellant contended that a “shorter than usual” minimum term would be in the range ‘of 50%- 60 % of the head sentence’,[10] and that a minimum term of 67% of the head sentence could not be so characterised.
[10]Revised Grounds of Appeal and Written Case for the Appellant, para [20].
The respondent’s reply is equally succinct. The law does not recognise the concept of a ‘usual non-parole period’, thus there cannot be a ‘shorter than usual non-parole period’. Alternatively, if there is such a thing as ‘usual non-parole period’, it is necessarily an imprecise concept and the appellant has failed to demonstrate that her Honour manifestly failed to give effect to this stated objective.
The appellant’s submission proceeds on the basis that her Honour’s reference to a ‘shorter than usual non-parole period was a reference to the relationship that was said normally to exist between a head sentence and a minimum term. For my part I consider it to be equally open to conclude that her Honour was referring to the minimum term that she would normally impose in this case absent the applicant’s youth and prospects for rehabilitation. Such an approach would be more in line with recent authority.[11]
[11]Wallace [2012] VSCA 114, [16].
Ultimately the disposition of this appeal can only be resolved in the appellant’s favour if he is able to demonstrate that her Honour manifestly failed to give effect to her stated intention of imposing a ‘shorter than usual non-parole period’. I am not satisfied that this has been demonstrated, even if her Honour were referring to broader sentencing practices.
The appellant has not taken issue with any of the findings made by her Honour and set out in paragraph 9 above. The appellant therefore accepts her Honour’s conclusions as to the objective gravity of his offending, the enduring grief he has caused, his limited insight and remorse and the need to deter other young offenders from the criminally negligent use of vehicles. The minimum term imposed by her Honour is within 7% of the range proposed by the appellant as “shorter than usual”. This is not a ground of appeal that can be made out with subtle argument. The non-parole period must manifestly fail to give effect to the sentencing judge’s stated intention. In this case I am unable to conclude that it does. I would dismiss the appeal.
- - - - -
6
2
0