Bufton v The Queen
[2021] VSCA 228
•23 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0061
S EAPCR 2020 0141
| JANICE JOY BUFTON | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KYROU and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 August 2021 |
| DATE OF JUDGMENT: | 23 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 228 |
| JUDGMENT APPEALED FROM: | R v Bufton [2019] VSC 621 (Tinney J) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Appellant struck victim with motor vehicle – Claimed accident – Whether causation wrongly withdrawn from jury’s consideration – Whether verdict unreasonable or unsupported having regard to the evidence – Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Murder – Appellant 70 years of age and in ill-health – Sentenced to 24 years’ imprisonment with 18 years non-parole – Whether sentence manifestly excessive – Whether sentence crushing – Appeal allowed – Resentenced to 20 years’ imprisonment with 14 years non-parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R Edney | Doogue and George |
| For the Respondent | Mr C B Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA
McLEISH JA:
Introduction
At about 12.50 pm on Monday, 30 October 2017, Janice Joy Bufton (for convenience, ‘the appellant’) was behind the wheel of a Holden utility motor vehicle when it ran over her paramour, Colin Snooks, causing him fatal injuries. Shortly before the vehicle struck him, Mr Snooks had been walking east towards the gate along the driveway of the appellant’s rural property situated at 221 Fyans Road, Fyans Creek.
An indictment filed in the Supreme Court charged the appellant with Mr Snooks’ murder. At trial, the prosecution case was that the appellant deliberately drove the utility at Mr Snooks intending either to kill him or to cause him really serious bodily injury. The appellant’s case was that Mr Snooks met his death by accident, he having moved into the path of the vehicle in circumstances in which a collision was unavoidable.
On 28 May 2019, a jury empanelled to try the appellant found her guilty of murder. Following a plea, on 13 September 2019 the trial judge sentenced the appellant to 24 years’ imprisonment, and fixed a non-parole period of 18 years.
Maxwell P granted the appellant leave to appeal against her conviction on ground 2, which contends that the verdict ‘is unsafe and unsatisfactory or cannot be supported having regard to the evidence’.[1] The appellant also renewed her application for leave to appeal on ground 1 upon which leave was refused.[2] Ground 1 is formulated as follows:
A substantial miscarriage of justice occurred because causation as an element of the offence that had to be proved by the prosecution beyond reasonable doubt to sustain a conviction for murder was withdrawn from the jury’s consideration by the [appellant’s] counsel.
[1]Bufton v The Queen (Unreported, Court of Appeal, Maxwell P, 22 March 2021).
[2]See Supreme Court (Criminal Procedure) Rules 2017, r 2.08.
Pursuant to leave, the appellant also appeals against her sentence on the sole ground that the sentence is manifestly excessive.
For the reasons that follow, we would refuse leave to appeal against conviction on ground 1, and dismiss the appeal on ground 2.
We would, however, allow the appeal against sentence, and resentence the appellant to 20 years’ imprisonment, with a non-parole period of 14 years.
Overview
As we have said, at about 12.50 pm on Monday, 30 October 2017, Colin Snooks suffered fatal injuries when run over by a Holden utility motor vehicle driven by the appellant. When struck, Mr Snooks was walking east along the driveway of the appellant’s property.
Benjamin Weston — who died on 8 October 2018, before a committal hearing was held — witnessed the collision. His ‘evidence’ consisted of representations contained in a statement that he made to police on the day of the fatal incident, and a video-recorded ‘walk-through’ interview with police at the scene conducted the following day.[3] At trial, his statement was read to the jury by a former detective with the Homicide Squad, Sergeant Lachlan Watson, and the video-recorded walk through was played. Since he had died prior to the committal, Mr Weston’s version of events was not tested by cross-examination.
[3]See Evidence Act 2008, s 65(2)(b) and (c). See also Bufton v The Queen [2019] VSCA 96.
Evidence at trial suggested that the appellant and Mr Snooks had a somewhat volatile relationship. Mr Snooks had complained to police on several occasions that the appellant had assaulted him.
Mr Snooks and Mr Weston became friends during the Christmas period in 2016. On the day of the fatal collision, the two drove together to the appellant’s property in Mr Snooks’ red dual cab Holden Colorado utility. Their purpose was to collect Mr Snooks’ caravan, parked in the driveway of the appellant’s property adjacent to her house.
In his statement — signed shortly after the collision, at 4.10 pm on 30 October 2017 — Mr Weston said they drove up the driveway to the house, and Mr Snooks turned the utility around and backed it up to the caravan. When they were getting out of the vehicle, the appellant came out of the house and yelled abuse at Mr Snooks, telling him he was not taking the caravan. Mr Snooks said that he was. During the argument that followed, the appellant accused Mr Snooks of infidelity to her with his wife (from whom he was separated) and berated him for the way he treated her. Meanwhile, Mr Weston tried to hitch the caravan to the vehicle, but could not do so.
According to Mr Weston’s account, the appellant then reached into the open driver’s door of the utility and removed the keys from the ignition. She then yelled abuse at Mr Weston, who decided to leave. He told Mr Snooks he was leaving, and started walking along the driveway towards Fyans Road. The statement, as read by Sergeant Watson, continued:
I had walked about 100 metres towards the gate away from the caravan when Colin has caught up to me and said, ‘Phone the Police, phone 000’. I said to him, ‘I can’t phone the police, I don’t know the address here’. I dialled triple 000 for him and gave him my phone. I stood still where I was and then I heard Jan get into the car and start it.
Colin was walking towards the gate, facing the gate and was on my phone to 000. I think he would have been 150 metres further down from where I was standing.
I then watched as Jan drove Colin’s ute around the back of the house, to the left of me. She was gunning the engine and revving hard at the back of the house.
It seemed like about 30 seconds passed before I saw the ute come back around the same way with Jan still driving it. I saw her pause momentarily where the ute had been parked in front of the caravan. She has then gunned the engine again. She seemed angry and then I watched her as she headed straight towards me. I would estimate that she was going at least 40 kilometres per hour. If I hadn’t of moved out of the way, she would have run straight over the top of me. I’ve jumped to my left off the driveway and watched as she kept going. Colin was on the phone and facing the gate. He was still in the middle of the driveway himself. I yelled out to him, ‘Watch out’. I did this as loudly as I could.
I saw Colin turn around and he had a pure look of horror on his face. He leapt off to the right-hand side of the driveway, on the other side of the driveway to where I was. At the same time, the ute has swung over to the right and Jan has driven straight over the top of him. The ute has hit him with the bonnet and Colin has gone straight under the wheels.
I saw no brake lights go on as she hit him. The car actually went up in the air; she was travelling so fast. It hit him with a good solid thump. The car has skidded then and Colin was jammed with the rear wheel butted against the back of his neck. Colin was lying on his right side, facing the front of the ute. He didn’t make any sound, he wasn't conscious at all.
I’ve yelled out to Jan, ‘You stupid bitch, you’ve killed him’. I’ve then run up to Colin and my primary concern was to get him out from under the car. My phone was lying on the ground about 3 or 4 metres behind the car. Jan got out of the ute and I told her to ‘get back in the car’. I had to tell her two or three times. I think she was in shock by then too, I think. Jan eventually got back in the car after telling me to do it.
She got back in and backed it up a couple of feet and I managed to pull him out the side of the car. She desperately wanted to do CPR on him. I don’t know CPR so I let her to do it. I picked up the phone and the 000 operator, a female, was still on the line. The operator instructed me to count the compressions that Jan was doing. Jan was getting all hot and sweaty after couple of minutes so I gave her my phone and took over doing compressions on Colin whilst she spoke to 000.
Jan obviously knew what she was doing and we swapped over again but she had my phone after I gave it to her the first time. That was the last I saw my phone. I think we were both trying CPR for about 15 minutes before the services got to the property and took over. Jan didn’t say anything during this time about what had happened.
The time stamp of the ‘000’ recording establishes that the fatal collision took place at 12.50 pm. Importantly, the recording includes the following dialogue:[4]
[4]Emphasis added.
TIME STAMP: Monday October 30 2017, 1249 and 32 seconds.
...
OPERATOR: Thank you, Telstra. Hello, what address do you need police?
MR SNOOKS: Yeah, I need the police. Yeah, I’m – I’m having a domestic dispute - - -
[Discussion about address]
OPERATOR: Who are you in a dispute with?
MR SNOOKS: My ex-partner. I’m trying to get my caravan back and she’s just driven off with my car.
OPERATOR: O.K. Give me one moment. And you don’t live at this address. Is that right?
[APPELLANT]: ..........
TIME STAMP: Monday October 30 2017 - - -
MR WESTON: He’s off the bloody road.
[APPELLANT]: .......... he ran in front of us.
TIME STAMP: - - - 1250 and 32 seconds.
MR WESTON: .......... this bloody woman.
OPERATOR: Sir, can you hear me?
[APPELLANT]: .......... oh - - -
MR WESTON: ..........
[APPELLANT]: Oh, my God.
MR WESTON: This is fuckin’ murder.
[APPELLANT]: Why’d he run in front of me?
MR WESTON: He didn’t run in front of ya. He was - - -
[APPELLANT]: He did. Help me – help me - - -
MR WESTON: ..........
[APPELLANT]: - - - please.
MR WESTON: Back – back the car up.
[APPELLANT]: You do it, please.
MR WESTON: No. You drove it down on him, you back it up.
[APPELLANT]: I can’t, Ben. I’ve got the front wheel over him.
MR WESTON: Bullshit.
[APPELLANT]: Help me pull him off.
MR WESTON: ..........
[APPELLANT]: Give me the phone, please.
MR WESTON: No, back the car up.
[APPELLANT]: I can’t. You .......... I ran over him.
MR WESTON: .......... already.
TIME STAMP: Monday October - - -
MR WESTON: ..........
TIME STAMP: - - - 30 2017, 1251 and 32 seconds.
[APPELLANT]: How can ..........
MR WESTON: ..........
[APPELLANT]: Say it’s 221 Fyans Creek Road. Just give it to me ..........
MR WESTON: You had the phone last, not me.
[APPELLANT]: Help me, please. Why did he run in front of us for?
MR WESTON: You had the phone. I didn’t have it.
[APPELLANT]: Yeah, that was ..........
OPERATOR: Sir, can you hear me?
[APPELLANT]: Drag him out.
MR WESTON: I can’t drag him out. He’s fuckin’ stuck under the thing.
[APPELLANT]: ..........
TIME STAMP: Monday October - - -
MR WESTON: You go back up to the house.
TIME STAMP: - - - 30 2017 - - -
MR WESTON: ..........
[APPELLANT]: .......... ambulance, all right.
TIME STAMP: - - - 1252 and 32 seconds.
[APPELLANT]: ..........
MR WESTON: ..........
[APPELLANT]: I want to - - -
MR WESTON: Fuck, this is fuckin’ murder.
[APPELLANT]: I didn’t know he ran in front of us.
MR WESTON: Bullshit, he was off the road.
[APPELLANT]: Here’s ya phone.
[APPELLANT]: I tried to avoid him. That’s why I kept on the - - -
OPERATOR: Are you there?
…
Police investigation
When police arrived at 1.13 pm, Mr Snooks was dead. The appellant told police, ‘He jumped out in front of me. I couldn’t get out of the way’.
Police from the Collision Reconstruction Unit, the Major Collision Investigation Unit (‘MCIU’) and the Homicide Squad carried out a comprehensive examination of the scene.
Detective Leading Senior Constable Michael Hardiman from the Collision Reconstruction Unit carried out a reconstruction of the collision and reached a number of conclusions. Given its importance, we will return to his evidence below. At this juncture it is enough to note that he concluded that the area of impact was on the southern grass verge of the driveway, approximately 93 metres from the front gate. The area of impact was approximately one metre after the commencement of skid marks on the grass caused by braking, which in total were 22.2 metres in length. At the commencement of the skid marks, the utility was travelling at a minimum speed of 45 kilometres per hour. After the track of the driver’s side wheels left the gravel driveway for the grass verge on the southern side, the vehicle’s tyre marks showed three distinct changes in direction over the next 53 metres to the point of impact, including: first, a right hand steering manoeuvre from the driveway onto the southern grass; secondly, a movement left slightly back towards the driveway; and, thirdly, a right steering manoeuvre towards the southern grass away from the driveway.
As we have indicated, the day after the collision, 31 October 2017, commencing at 11.10 am and continuing until 11.27 am, Mr Weston took part in a ‘walk-through’ of the scene with Detective Sergeant Sol Solomon from the Homicide Squad, during which he elaborated on the account contained in the statement. Once more, we will return to this evidence below.
Police interviewed the appellant on 30 and 31 October 2017. She asserted that she had intended to drive past Mr Snooks so as to close the front gate and try to make him speak to her about their relationship. On legal advice, however, she declined to provide comment to questions concerning the circumstances of the collision, although she did claim that the collision was not her fault.
A post mortem examination revealed that Mr Snooks had suffered multiple fractures and internal injuries which caused his death.
The ‘walk through’
As we have mentioned, on 31 October 2017, commencing at 11.10 am and continuing until 11.27 am — that is, fewer than 24 hours after the fatal incident — Detective Solomon conducted a ‘walk through’ of the scene with Mr Weston, which was the subject of video and audio recording (‘the video’).
The video commences with Detective Solomon and Mr Weston standing in front of Mr Snooks’ caravan, which is located in front of a twin garage and adjacent to the appellant’s house at the end of the driveway. Detective Solomon asks Mr Weston to ‘talk us through the whole incident again, and … walk us through the areas where you, Mr Snooks and Janice Bufton were … at various times leading up to the … actual … incident where the car struck Mr Snooks’. The purpose is to ‘clarify [Mr Weston’s] statement’ made the previous day.
Mr Weston explains that he and Mr Snooks had come to the property at about 12.30 pm the previous day to take possession of the caravan and take it to ‘Ararat camp’, where Mr Weston was currently camped. He indicates how Mr Snooks had backed his utility up to the trailer — he points to tyre marks in the gravel — in order to hitch it up. In the process of doing so, ‘a woman’ (the appellant) came out of the house. He tells Detective Solomon:
And she was, she was breathing fire. She was angry, very, very angry, and she started yelling and screaming at him. She came right out here [indicating], and she started yelling at him and accusing him of all sorts of things – objectionable things like he wasn’t fucking her enough or he was, he, he, he was neglecting her and he was off fucking other women and, and all this sort of garbage. But it wasn’t an argument. She was just yelling and yelling and yelling, and he wasn’t saying anything, and as she was doing this to him, she was stepping forward into his face and he was slowly backpedalling until he got down to where the front of the car was.
Mr Weston relates that the appellant reached into the open front door of the utility and grabbed the ignition keys. He states that after she accused him of ganging up on her, he said, ‘Bugger this, I’m going’, and started walking towards the road.
The video then shows Detective Solomon and Mr Weston commencing to walk along the driveway towards Fyans Road, while Mr Weston points out certain things. He states that Mr Snooks came up behind him and said, ‘Get your phone and call the cops’. Mr Weston says that, having dialled ‘000’, he gave his telephone to Mr Snooks. They were walking while they were talking, and Mr Snooks went ahead. Mr Weston says that he ‘was wondering what the hell was going on back here’, and states:
She [the appellant] got into the car. … And she drove the car around the back of the house. … She was around there maybe for half a minute, maybe a minute. The car was revving back there. … And then she came back out and parked back there [indicating]. … Right. Then she gunned it, and by the time that happened I was down here [indicating].
Mr Weston points out where he had gotten to, and to where Mr Snooks was. He then tells Detective Solomon:
And she gunned it down here [indicating], and I was here in the road [indicating] and I seen [sic] her coming, and I, I, I jumped over to this side of the track. Now, I felt trapped. Look at it. It’s like a tunnel. … You know, you can’t escape beyond the fence. … And I jumped off, and she proceeded down there [indicating].
The video then continues:
MR WESTON: And I jumped off, and she proceeded down there [indicating]. It was him - - -
MR SOLOMON: Did she, did she come close to hitting you?
MR WESTON: No. No. I got off the road - - -
MR SOLOMON: Yeah.
MR WESTON: - - - and she kept going.
Detective Solomon and Mr Weston then walk further along the driveway to where Mr Weston indicates Mr Snooks was situated. The video continues, Mr Weston indicating various positions:[5]
[5]Emphasis added to this and following passages.
MR WESTON: Now, he was here. He might have been a few metres up further. I’m not exactly sure now.
MR SOLOMON: Yeah.
MR WESTON: But he was in this area.
MR SOLOMON: Yep.
MR WESTON: And she came down, and I was up there, and I yelled out, ‘Watch out, Col. She’s coming’, and he turned around, and a look of pure horror came across his face. He was standing like I am now.
MR SOLOMON: Yeah.
MR WESTON: He had the phone in his ear. ‘Oh’, and he ran this way.
MR SOLOMON: Onto the grass?
MR WESTON: Onto the grass.
MR SOLOMON: Okay.
MR WESTON: And she came down in pursuit.
MR SOLOMON: So she, she drove - - -
MR WESTON: She drove the vehicle straight onto the grass and - - -
MR SOLOMON: She was – was she on the gravel first?
MR WESTON: Yeah, she came down the gravel.
MR SOLOMON: And then she went onto the grass.
MR WESTON: But when he, when he leapt out here onto the grass - - -
MR SOLOMON: Yeah.
MR WESTON: - - - she followed him out here.
MR SOLOMON: Okay.
MR WESTON: Now, she hit him, she hit him front and centre, bang.
MR SOLOMON: Now, can you remember – if you can’t, don’t guess, but do your best to remember – do you remember where he was standing when he was actually hit? I know it might be hard, but - - -
MR WESTON: He was in, he was in this area somewhere.
MR SOLOMON: Yeah, Standing in the middle of the grass, the grass and dirt.
MR WESTON: He was in the grassed area.
MR SOLOMON: Was he looking in her direction or - - -
MR WESTON: He was, he was, he was trying to get away.
MR SOLOMON: Yeah.
MR WESTON: He was trying to get [sic] her. He was going like hell for the fence, but the car was over this sort of area when it hit him.
MR SOLOMON: Yeah.
MR WESTON: And not on the side, but right in the centre she got him.
MR SOLOMON: Right in the centre of the - - -
MR WESTON: Of the vehicle.
MR SOLOMON: - - - vehicle, yeah.
MR WESTON: The front of the vehicle went up. There was a hell of a bang and it went up and it came down, and I ran down here, and he was jammed under the car.
Mr Weston and Detective Solomon then discuss the attempts made to revive Mr Snooks, and the arrival of emergency services, before the video continues:
MR SOLOMON: All right. So when, when, um, when she drove onto the grassy area, were you, were you watching the car as it progressed?
MR WESTON: I, I seen [sic] the whole thing,
MR SOLOMON: Yeah. Did it, did it look as if she was trying to avoid him or the, or - - -
MR WESTON: It was the opposite.
MR SOLOMON: Was he trying to avoid the car?
MR WESTON: He was definitely trying to get away here, but you see, there, there’s limited space, there’s a fence to stop you.
MR SOLOMON: Yeah.
MR WESTON: You know, and, and – nah, nah, she was out to get him.
MR SOLOMON: She – was she – did it look to you as if she was steering the car intentionally at him?
MR WESTON: Well, she veered straight out here, and there were tracks on the grass.
MR SOLOMON: Yeah.
MR WESTON: They were dead straight tracks.
MR SOLOMON: Yeah.
MR WESTON: There was no wobbliness about them. She was – you know, she had him in her sights and she went for him.
MR SOLOMON: Yeah. Did she apply the brakes at any stage?
MR WESTON: Not that I saw. She hit him with a good solid bump.
MR SOLOMON: How fast do you think she was going if you are able to estimate speeds.
MR WESTON: I don’t know, 40, 50 K’s an hour.
MR SOLOMON: Mm.
MR WESTON: You know, she certainly didn't slow down when she went past me.
MR SOLOMON: Yeah. So you say initially she was starting to – she started the drive on the gravel part of the road.
MR WESTON: Yeah.
MR SOLOMON: But then when he moved onto the grass - - -
MR WESTON: When he leapt, he leapt onto the right-hand side here, she followed him.
MR SOLOMON: She followed him, yeah.
The video then concludes.
Ground 1: Was causation withdrawn from the jury?
In responding to the prosecutor’s opening, counsel for the appellant told the jury that ‘the deliberateness of the driving that caused this unfortunate accident’ —‘whether that was due to Mr Snooks’ manoeuvres or whether it was caused by Ms Bufton’s manoeuvres’ — was ‘very much in issue’. Thus, the appellant’s ‘defence’ was accident. She did not deliberately collide with Mr Snooks. Rather, he placed himself in the vehicle’s path, so as to make a collision unavoidable.
At the close of the prosecution opening, there was the following discussion as contemplated by s 12 of the Jury Directions Act 2015:
HIS HONOUR: ... [Defence counsel], first of all, in respect of the elements of murder. And the first element is, did the accused carry out an act that caused the deceased’s death, Mr Snooks’ death? And the act there is the driving of the motor vehicle into Mr Snooks. Is that element in dispute or not?
[DEFENCE COUNSEL]: I can’t dispute that, Your Honour.
HIS HONOUR: All right. Has the prosecution proved that the accused’s act that caused the deceased’s death was conscious, voluntary and deliberate? It is the ‘deliberate’ that’s the pertinent part there, is it not?
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: So there’s no dispute that these acts were conscious and voluntary, in the sense she’s driving along, these are willed acts and she’s certainly not asleep or unconscious or anything like that, but it’s whether or not she deliberately drove that vehicle into him rather than him jumping in front?
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: All right, thank you. The third element is has the prosecution proved that the time the accused carried out the act caused the deceased’s death, she intended to kill or to cause really serious injury to the deceased; I take it that issue is - that element is in dispute?
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: And then the fourth element of has the prosecution proved that the accused acted without lawful justification or excuse, there is - that element is not in dispute, assuming the jury are satisfied of a deliberate running down; is that right?
[DEFENCE COUNSEL]: Hard to argue self-defence.
HIS HONOUR: All right, so it’s elements 2 and 3, the third part of element 2 and all of element 3 - - -
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: - - - for murder.
Counsel for the appellant in this Court submitted that trial counsel was wrong to concede that causation was not in issue. He submitted that, as a result of the wrongly made concession, the appellant’s trial became unfair and a substantial miscarriage of justice has occurred.
We reject these submissions. In our opinion, a fair reading of the judge’s charge reveals that the central issue in the case was adequately exposed for the jury’s determination.
In his charge to the jury, the judge gave a number of directions which bear on the present ground. For ease of reference, we have numbered the relevant paragraphs. The judge said:[6]
[6]Emphasis added.
[1] So to prove the crime of murder, the prosecution must prove the following four elements beyond reasonable doubt and do not worry about writing them down, you are going to have the checklist in a minute: (1), the accused carried out an act that caused the death of Colin Snooks; (2), this act was carried out consciously, voluntary and deliberately; (3), that at the time the accused carried out the act that caused Mr Snooks’ death, she intended to kill or cause really serious injury to Mr Snooks; and (4), the accused killed Mr Snooks without lawful justification or excuse.
[2] So there are four elements there and each one of them has to be proved.
[3] So the first element relates to the cause of death. The prosecution must prove that an act of the accused caused Mr Snooks’ death. Now, in this case it is not disputed that the accused drove a motor vehicle along the grass verge of the driveway to her property and that she struck Mr Snooks and that that event caused his death. You should therefore have no difficulty finding this element proven and I can tell you that this element is not in dispute, that first element of causation.
[4] The second element that the prosecution must prove is that the accused causal act, that is the act that caused the death, which was that act of running over Mr Snooks, was conscious, voluntary and deliberate. So those words each have a special meaning in law, which I will briefly explain. Conscious excludes the acts of an unconscious person such as a sleepwalker or a person rolling over in bed. Voluntary, that term directs you to the requirement that the act which killed the deceased, must be a willed act. That is, one resulting from the control by the accused of her own actions.
[5] So that excludes the acts of a person operating in one of a number of rare mental states where the mind loses control of the body’s actions and I think you have probably heard of the concept of an automaton or that sort of unwilled behaviour by a person.
[6] The term ‘deliberate’ excludes accidental acts such as the consequences of falling over or fumbling an item or bumping into someone in the street. If you bump into someone by mistake in the street and knock them into the path of an oncoming car that would be a tragic and unfortunate accident but not a deliberate act.
[7] So in this case, members of the jury, there is no suggestion that the act of the accused in driving into Mr Snooks, and that is the act that killed him, was not conscious and voluntary. Those aspects are not challenged on behalf of Ms Bufton.
[8] But the third part of the requirement of the element is in stronger dispute. The defence argue that the prosecution has failed to prove that the accused’s act in running over Mr Snooks was deliberate rather than accidental.
[9] It was asserted on behalf of the accused that she was endeavouring to drive past Mr Snooks in order to head towards the front gate, that he jumped in front of her and that she could not avoid hitting him and that it was an accident.
[10] So on her case her act in running over the deceased was not deliberate, rather it was an accident. The prosecution on the other hand asserted that this was a simple case of an angry and emotional woman deliberately running over her former partner as he walked away from her.
[11] It is for the prosecution to prove beyond reasonable doubt that the accused was acting consciously, voluntarily and deliberately when she committed the act that you find caused the deceased’s death. If you are not satisfied that this was the case then you must find the accused not guilty of murder.
[12] You know that this element is in dispute. So the first element is not in dispute, second element [is?] in dispute. The third element which to repeat it to you, that at the time the accused carried out the act that caused Mr Snook’s death she intended to kill or cause really serious injury to Mr Snooks.
In our view, aspects of the directions in paragraphs [3], [4], [5] and [7] were dubious. They cannot, however, have resulted in a substantial miscarriage of justice.
Strictly, the issue for the jury’s determination, touched upon by the judge in his directions at [3] above, was whether the appellant’s driving caused the death of Mr Snooks in that it was a substantial and operative cause of his death.[7]
[7]Arpaci v The Queen (2020) 91 MVR 414, 449 [137] (Kaye JA); R v Dunkley-Price (2015) 73 MVR 450, 458–9 [38]–[40] (Kaye JA, Redlich JA and Ginnane AJA agreeing); R v Evans & Gardiner (No 2) [1976] VR 523, 528–9 (Young CJ, Gillard and Anderson JJ); R v Heron (2003) 39 MVR 117, 121–2 [20], 122 [23] (Buchanan JA, Charles and Vincent JJA, agreeing); R v Rudebeck [1999] VSCA 155, [66] (Ormiston JA, Tadgell and Chernov JJA, agreeing); Royall v The Queen (1991) 172 CLR 378, 411 (Deane and Dawson JJ); Swan v The Queen (2020) 376 ALR 466, 472–3 [24] (Bell, Keane, Nettle, Gordon and Edelman JJ).
The appellant’s essential ‘defence’ was that no act of hers caused death. She may have been behind the wheel of the utility when the vehicle collided with Mr Snooks, but that collision was the result of his act of jumping in front of the vehicle. Hence, it was his act in jumping in front of the vehicle that was the substantial and operative cause of his death, not the appellant’s driving. That was not, however, how the judge left the matter to the jury.
We consider that the judge’s directions conflated two concepts. It was not disputed that the appellant’s driving generally was conscious, voluntary and deliberate. It was vigorously disputed, however, that the collision with Mr Snooks resulted from a particular act that was conscious, voluntary and deliberate. The appellant’s case was that she did not consciously, voluntarily and deliberately manoeuvre the utility so as to collide with Mr Snooks. Thus, the judge’s direction that the element of causation ‘is not in dispute’ was not strictly correct.
Despite the judge incorrectly telling the jury that the element of causation element was not in dispute, and they ‘should therefore have no difficulty finding this element proven’, however, we are unable to conclude that any substantial miscarriage of justice has resulted.
The judge made clear to the jury that the appellant’s case was that ‘her act in running over the deceased was not deliberate, rather it was an accident’, and ‘she could not avoid hitting him and that it was an accident’. Further, the judge made it clear that the prosecution had to disprove accident. He told the jury that it was for the prosecution ‘to prove beyond reasonable doubt that the [appellant] was acting consciously, voluntarily and deliberately when she committed the act that you find caused the deceased’s death’, and that ‘the term deliberate excludes accidental acts’.
On a fair reading of the judge’s directions, we consider that the jury would have understood that the essential issue for their determination was whether the appellant drove in such a way as to deliberately collide with Mr Snooks, or whether the collision was accidental, in the sense that by his own actions Mr Snooks placed himself in the path of the vehicle. The jury would also have understood that the appellant did not have to prove that the collision was accidental, and that the burden rested on the prosecution to prove beyond reasonable doubt that the collision was the result of a deliberate act of driving the vehicle into Mr Snooks. There was no dispute that the collision — whether deliberate or accidental — caused Mr Snooks’ death.
In these circumstances, the judge’s incorrect directions on causation can have had no effect on the verdict. This is not a case where, had there been no error, the jury may have entertained a reasonable doubt as to the appellant’s guilt.[8] It certainly cannot be concluded that the appellant was deprived of a fair chance of acquittal by the directions.
[8]Baini v The Queen (2012) 246 CLR 469, 479–82 [26]–[33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
We would refuse leave to appeal on this ground.
Accident reconstruction
Before turning to ground 2, which contends that the verdict ‘is unsafe and unsatisfactory or cannot be supported having regard to the evidence’, it is convenient to summarise the evidence of Detective Leading Senior Constable Michael Hardiman, who carried out a reconstruction of the collision.
Detective Hardiman gave evidence that he was attached to the Collision Reconstruction Unit, which is part of the Crime Scene Group of the Victoria Police Forensic Science Centre. He has a Bachelor of Applied Science degree from RMIT University, and has completed a number of courses in crash investigation, notably at North Western University in Illinois, USA. He also lectures in collision investigation and reconstruction for the Victoria Police Road Policing investigators’ course.
Detective Hardiman’s evidence was that, on Monday, 30 October 2017, he was contacted by Detective Sergeant Lawrence of the MCIU and asked to attend at a location at 221 Fyans Creek Road, Fyans Creek, for the purposes of providing an analysis and reconstruction of a collision at that location. He arrived there at approximately 6.30 pm.
The gravel driveway of the property is approximately 214 metres in length and runs from east to west, the gate opening onto Fyans Creek Road being at the eastern end, and the appellant’s house being at the western end. Either side of the driveway were two grassed shoulders. The collision occurred on the southern grass shoulder. Tyre marks from the driver’s side of Mr Snooks’ 2013 Holden Colorado dual cab utility commenced on the gravel ‘and went off onto the grass and continued down to the rest position of the vehicle and slightly past where it had come to rest’. The utility was at rest on the southern grass area facing towards Fyans Creek Road to the east, approximately 93 metres back from the road.
Detective Hardiman said that tyre prints from the utility commenced 25.6 metres east of two ‘horsehead stakes’ (also referred to as ‘horsehead gates’), close to the house. The first tyre print left by the utility was a ‘rolling print’ which continued for 19 metres on the gravel driveway ‘before it crossed over onto the grass shoulder on the southern side of the road’. Once it crossed onto the southern grass area, it continued as a rolling print for ‘around 53 metres’. In all, the rolling tyre print was 72 metres in length until the commencement of a visible ‘skid mark’, otherwise referred to as an ‘ABS braking mark’.[9] The skid mark itself was approximately 22.2 metres in length. Since the vehicle had been reversed to free Mr Snooks, the skid marks finished about a half a metre in front of where the utility was at rest. Tyre marks from the passenger side of the utility commenced on the grass, around 13.7 metres prior to the commencement of becoming a skid mark.
[9]Detective Hardiman explained that ‘nowadays most modern vehicles are equipped with an antilock braking system [for] safety reasons. [B]efore about 2005, when a driver pressed their foot onto the brake in an emergency situation, the wheel would get to a point where it would just lock and then slide along the top of the road ... With ABS braking, or ABS braking systems, they are designed to not let a wheel come to a complete lock. ... So the idea of the anti-lock braking system, is to keep your wheel rotating and to increase your braking efficiency in an emergency braking situation. ... With ABS, as the wheel is still rotating, if you turn the wheel, you have some steering in that circumstance... And in this case, the Holden Colorado was fitted with ABS braking and [the] tyre mark changed to indicate that that ABS emergency braking was occurring at that point’.
Other ‘scuff marks’, which Detective Hardiman described — but which it is unnecessary to set out — indicated that Mr Snooks had ‘tumbled’ whilst under the vehicle.
Detective Hardiman told the jury that, following the course of the two tyre marks, he observed three changes in the direction of the utility. He said
the first change in direction occurs to take the vehicle off the driveway onto the grass. So if, for example, the driver had just followed the path of the driveway, it would’ve stayed, obviously, on the driveway, but there had [to] be some form of steering to take the vehicle from the, from the driveway off onto the grass area.
The first change of direction, ‘so as to head towards the grass’, occurred after coming through the horsehead gates. As to the second change of direction, Detective Hardiman said
the tyre mark changes from heading towards the right to going towards the fence to back towards the driveway slightly and it’s at around mark C [on the scale plan, Exhibit L] where that tyre mark really starts to change direction from going towards the fence to back towards the driveway.
Detective Hardiman said that the second change in direction did not involve a ‘sudden steering input’, because that would have been likely to induce a loss of control, and ‘at no point prior to the skid marks is there an indication that this vehicle was out of control’.
The third and final change of direction involved the utility change from heading back towards the driveway to starting to move back towards the fence on the southern side of the driveway.
Detective Hardiman explained the method by which he arrived at the speed of the utility — which it is unnecessary to recount — and gave evidence that at the commencement of the skid marks the vehicle was travelling at a minimum speed of ‘approximately 45 kph’. Ultimately, he expressed the following opinions:[10]
So my assessment of this scene is based purely on the physical evidence which are [scil, is] located at the collision scene. [B]ased on my assessment of the scene, the vehicle has been driven along the gravel driveway [in] an easterly directions towards Fyans Creek Road away from the house. It’s been driven onto the southern grass shoulder area. [T]here’s been three distinct changes in direction of the vehicle, so one to take it off the road, one to move back to the left back towards the driveway, and then the final [change] back away from the driveway. [T]here’s been an emergency braking event by the driver which has caused ABS skidding after the vehicle has left the gravel roadway [and gone onto the grass]. The vehicle skidded for approximately 22.2 metres. In that time, Mr Snooks has been struck by the vehicle, in my opinion [by] the driver side of the vehicle, where that scuff is, and rather than being thrown over the top of the vehicle, he’s gone underneath the vehicle, which is the cause of those scuff marks …
[10]Original punctuation edited.
Ground 2: Is the verdict unsafe and unsatisfactory?
Under cover of ground 2, counsel for the appellant submitted that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.[11] He argued that the prosecution could not have excluded the reasonable possibility that the death of the deceased was an accident.
[11]Criminal Procedure Act 2009, s 276(1)(a).
Acknowledging that the evidence in a circumstantial case cannot be considered piecemeal, counsel for the appellant nonetheless contended that all of the individual items of evidence relied upon by the prosecution suffered from various infirmities that prevented individual items of evidence adding to the strength of the circumstantial case against the appellant.
Among other aspects of the evidence, counsel for the appellant attacked the relationship evidence and evidence of motive as being weak. We need not set out his criticisms, however, since the evidence concerning relationship and motive were not pivotal.
It seems to us that the following four areas constituted the more significant aspects of the attack by the appellant’s counsel on the ‘safety’ of the conviction:
· first, the contents of the 000 call were apt to raise a reasonable hypothesis consistent with innocence; that is, that the collision ‘was no more, and no less, than a tragic accident’;
· secondly, the appellant’s statements to police were consistent with her stated intention to drive safely past Mr Snooks on the southern grass shoulder and thereby pass him and to meet him at the gates to speak to him;
· thirdly, Mr Weston was not a credible or reliable witness; and
· fourthly, the expert evidence of Detective Hardiman was much more consistent with the appellant’s version of events and ‘highlighted the objective improbabilities’ of Mr Weston’s account.
Section 276(1)(a) of the Criminal Procedure Act 2009 requires this Court to allow an appeal against conviction if it considers that the jury’s verdict is ‘unreasonable or cannot be supported having regard to the evidence.’ The applicable test when dealing with this ground is as set out by the High Court in M.[12] The question which the members of this Court must ask themselves is whether they think ‘that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[13]
[12]M v The Queen (1994) 181 CLR 487 (‘M’).
[13]Ibid 493.
M requires each member of this Court to make his or her own ‘independent assessment’ of whether, on the evidence as a whole, there is a reasonable doubt as to the guilt of the appellant. As is made clear in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ:[14]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
[14]Ibid 494 (citation omitted).
In our opinion, it was well open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of Mr Snooks’ murder.
Taking the 000 call first of all, we consider that there was nothing in the circumstances of the call — whether viewed alone or in combination with the other evidence — which must have compelled the jury to have a reasonable doubt on the issue of accident. Admittedly the appellant can be heard on the call’s recording asserting in effect that Mr Snooks ran in front of the vehicle and that she could not avoid him. The jury may well have entertained a degree of scepticism about her assertions, however, particularly in view of the fact that an eyewitness to the event, Mr Weston, immediately challenged her, saying, ‘He didn’t run in front of ya’, ‘He was off the road’, and ‘This is fuckin’ murder’.
Similarly, there was nothing in the appellant’s assertions to the police that must have compelled the jury to have a reasonable doubt about the issue of accident. Indeed, the physical evidence, coupled with the account of the eyewitness, may well have led the jury to reject her denials outright. As to that, we note that counsel for the respondent submitted that when the ‘scientific evidence’ of Detective Hardiman is considered with ‘Mr Weston’s representation evidence’, ‘the case against the appellant for murder, becomes an overwhelming one’.
Counsel for the appellant submitted that the expert evidence of Detective Hardiman ‘was much more consistent with the account of [the appellant] and highlighted the objective improbabilities of the account of [Mr Weston]’. First, he had examined the scene and observed that the southern grass shoulder area, where the vehicle and the deceased had come to rest was wider than the other side, suggesting that it was the appellant’s intention to drive around the deceased. Secondly, he observed tyre marks leave the driveway and go onto the southern grass verge at approximately 45 metres from the house. Thirdly, he had observed ‘rolling tyre prints’ on the southern grass shoulder area for a distance of 53 metres. Fourthly, at the time of collision the vehicle was travelling at about 45 kilometres per hour. Fifthly, he concluded that there was emergency braking (Mr Weston claiming, however, that he saw no brake lights). Sixthly, he accepted in cross-examination that, had Mr Snooks remained on the gravel, and the utility remained on the grass, there would have been no collision. Seventhly, he observed three changes of direction once the vehicle was on the southern grass shoulder.
Sadly, as was revealed in oral argument, a major plank in the appellant’s argument concerning Mr Weston’s credibility and reliability was based on a misconception and misstatement of a key piece of evidence. Although we are of the view that counsel for the appellant did not deliberately misstate the evidence and was himself simply mistaken, the unhappy fact is that he attributed to Mr Weston a statement relating to an important aspect of the case that Mr Weston simply did not make. Unfortunately, the statement wrongly attributed to Mr Weston was then used in an attempt to undermine his credibility and reliability. Hence, in the written case, on the topic of causation, counsel advanced the following submissions:
38. Fourth, Detective Hardiman, the accident reconstruction expert, gave evidence that [the appellant’s] movement onto the southern grass verge from the gravel driveway consisted of ‘gradual movements’ and, once on the grass verge there were only relatively small changes of direction by [the appellant] before the incident. This supported [the appellant’s] account.
39. Fifth – and in stark contrast — the claim by [Mr Weston] that [the appellant] had made a ‘sudden swing’ towards the direction of [Mr Snooks] was inconsistent with the evidence from the accident reconstruction expert.
The following passage of discussion in this Court reveals the misconception:
[JUDGE]:Well might I ask you just one thing that … concerns a submission in your written case.
[COUNSEL]:Yes.
[JUDGE]:Let me just find it. At paragraph 39, page 9, you said this:
Fifth, and in stark contrast, the claim by Mr Weston that Ms Bufton had made a sudden swing towards the direction of Colin Snooks was inconsistent with the evidence…
and you put the words, ‘Sudden swing’, in quotation marks and you’ve referred to … page 434 of the transcript by way of footnote.
[COUNSEL]:Yes.
[JUDGE]:I wasn’t able to locate that in our copy of the transcript.
[COUNSEL]:[When I] look at that your Honours, as I see it now, that appears to be a misdescription by me.
[JUDGE]:Because if you look at Mr Watson’s evidence where he’s reading the statement [of Mr Weston]:
I saw Colin turn around and he had a pure look of horror on his face. He leapt off to the right-hand side of the driveway and the other side of the driveway, to where I was. At the same time, the ute has swung over to the right and Jan has driven straight over the top of him.
Was that the part you were referring to?
[COUNSEL]:Yes, and I misdescribed it by including the adjective - - -
[JUDGE]:‘Sudden’.
[COUNSEL]:- - - ‘sudden’.
[JUDGE]:Yes, all right. Thank you.
[COUNSEL]:I apologise for that. I should’ve — but I suppose - - -
[JUDGE]:That’s all right, I just wanted to make sure that we’re referring to the same thing, that’s all.
In our view, the jury would have had little difficulty in finding that, when she got behind the wheel of the appellant’s vehicle, the appellant was ‘breathing fire … very angry’. We have no reason to think that the jury would have rejected Mr Weston’s account that the appellant drove the utility around the back of the house before coming back around to the driveway where she ‘gunned it’.
On Mr Weston’s account, after the vehicle passed him, he yelled, ‘Watch out, Col. She’s coming’. We consider that the jury would likely have concluded that when Mr Snooks turned around ‘a look of pure horror came across his face’ because he could see that the appellant was targeting him with the vehicle. We consider that the jury would also readily have accepted that Mr Snooks then ‘ran this way [as indicated by Mr Weston] … onto the grass’ on the southern side of the driveway.
In our opinion, it is likely that the jury would have accepted that the appellant first ‘came down on the gravel’ in the vehicle, then ‘went onto the grass’ following Mr Snooks who had ‘leapt out here [as indicated] onto the grass … trying to get away’. The jury would also likely have accepted that Mr Snooks ‘was going like hell for the fence’ when he was struck by the utility, which had ‘veered’ from the gravel to the grass shoulder following Mr Snooks’ movements.
In our opinion, the jury would have found Mr Weston’s account generally to be remarkably consistent with the empirical evidence gathered by Detective Hardiman. Indeed, on a proper analysis, we consider it to be so.
It will be remembered that, from the evidence located at the scene, Detective Hardiman was able to conclude that the vehicle driven by the appellant struck Mr Snooks on the southern grass shoulder of the driveway, approximately 93 metres from the front gate. The area of impact was approximately one metre after the commencement of skid marks on the grass, 22.2 metres in length, caused by braking. At the commencement of the skid marks, the utility was travelling at a minimum speed of 45 kilometres per hour (mirroring Mr Weston’s estimate that the vehicle was travelling at 40 or 50 kilometres per hour). After the track of the driver’s side wheels left the gravel driveway for the grass shoulder on the southern side, the vehicle’s tyre marks showed three distinct changes in direction over the next 53 metres to the point of impact, including: first, a right hand steering manoeuvre from the driveway onto the southern grass; secondly, a movement left slightly back towards the driveway; and, thirdly, a right steering manoeuvre towards the southern grass away from the driveway. Given that a vehicle travelling at 45 kilometres per hour covers a distance of 12.5 metres per second, the three distinct changes in direction to the point of impact must have occurred in the course of only a few seconds.
In our view, Detective Hardiman’s evidence is consistent with Mr Weston’s account that the vehicle left the gravel and followed Mr Snooks onto the grass shoulder as he attempted to avoid it. In so saying, we have not ignored the criticism made of Mr Weston’s account by the appellant’s counsel to the effect that Mr Weston did not see brake lights, in circumstances where it is clear that the brakes had been applied. We do not regard that to be of much significance, however, given the horror of what had unfolded before Mr Weston’s eyes. A failure to register brake lights coming on is not surprising given the emergency of the situation that confronted him.
Nothing in the evidence leads us to think that the jury should have had a reasonable doubt as to the appellant’s guilt. Rather, Mr Weston’s and Detective Hardiman’s evidence in combination paints a compelling picture of guilt.
The complaint that the jury’s verdict is unreasonable or cannot be supported having regard to the evidence cannot be upheld.
Conclusions regarding conviction
Leave to appeal against conviction should be refused on ground 1 and the appeal dismissed on ground 2.
Sentence
The appellant is now aged 70 years.[15] She was 68 at the time of sentence.
[15]Her date of birth is 21 April 1951.
Significantly, in May 2017, the appellant was diagnosed with advanced endometrial cancer. Her prognosis is uncertain, with an overall survival rate at her stage of the disease of less than 30 per cent at five years. Medical opinion is that she will likely develop symptoms related to her cancer again within the next few years and may require further treatment with chemotherapy. The judge accepted that imprisonment would be more burdensome for the appellant than for someone without her medical condition.
In his sentencing remarks, the judge said that he would sentence the appellant on the basis that she intended to cause Mr Snooks really serious injury, rather than kill him. The prosecution had submitted that the offence was not premeditated, but represented a one-off occasion of frustration. There had been a build-up of escalating anger and jealousy towards Mr Snooks, which had led the appellant to act in the way that she did. Ultimately, the judge categorised the offending as ‘a serious example of the always-serious crime of murder’, and stated that the appellant’s moral culpability was ‘very high’.
The appellant has no prior criminal history. She had been married for 25 years prior to divorcing her husband. They had been farmers and trained racehorses, and have one son. The appellant’s relationship with Mr Snooks commenced in January 2016, after they met through a land care group.
Various offers to plead guilty to lesser offences had been made by the appellant. The prosecution submitted, however, that these offers did not indicate contrition or remorse. Ultimately, the judge concluded that these offers were ‘not mitigatory in the circumstances’. They could not be said to reflect a willingness on the appellant’s part to acknowledge the criminality of her conduct. There was ‘no evidence of remorse’.
The judge stated that the most important considerations in fixing sentence were punishment, denunciation and general deterrence. Specific deterrence was also significant, but would be reduced due to the appellant’s age. Her prospects of rehabilitation were considered to be good.
Counsel for the appellant in this Court submitted that the sentence imposed upon the appellant was wholly outside the range of sentences that could legitimately have been imposed. The appellant’s sentence exceeds sentences that other offenders who have killed an intimate partner — and pleaded not guilty — have received.[16] Further, the appellant has led a blameless life. She has not previously committed a criminal offence. The sentence imposed in her case is ‘crushing’ — especially given her age and her limited likely life expectancy — and is disproportionate and wholly outside the available range.
[16]Counsel cited DPP v Azizi [2013] VSC 16 (20/16); R v Browning [2015] VSC 556 (18/14); R v Davsanoglu [2019] VSC 332 (23/18); Chalmers v The Queen (2011) 37 VR 464 (22/18); and R v Mocenigo [2012] VSC 599 (22/18).
The respondent’s counsel submitted that, notwithstanding the appellant’s state of compromised health and the lack of criminal history, the reality of the situation here was that any appropriate sentence imposed would give rise to at least a real chance that the appellant — given her age — would have to spend the rest of her days in custody. Although a fact of some moment, it appears to be unavoidable. Counsel submitted further that it is not readily apparent that the present sentence stands in some manner contrary to current sentencing practices. Current sentencing practices do not indicate that this sentence lies wholly outside the range of sentences that were reasonably open to be imposed in this case.
As has been said many times, manifest excess is a conclusion which does not depend upon the attribution of specific error, and is a conclusion that ordinarily does not admit of much in the way of elaboration or sustained argument.[17] Synthesising for ourselves all relevant considerations bearing on the imposition of sentence — in particular, the appellant’s age and the state of her health — we consider that the sentence imposed upon the appellant is wholly outside the range of those open in the sound exercise of discretion.[18] It is, we consider, manifestly too long;[19] and, given that it destroys the reasonable expectation of useful life after release — should that ever occur — we consider it to be crushing.[20]
[17]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52] (Priest JA).
[18]Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).
[19]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[20]R v Yates [1985] VR 41, 48 (Young CJ, Starke, Crockett and Hampel JJ). Compare R v Crowley (1991) 55 A Crim R 201, 206 (Crockett J, Southwell and Ashley JJ agreeing).
In the circumstances, we would allow the appeal against sentence and set aside the sentence fixed by the trial judge. In lieu, we would sentence the appellant to 20 years’ imprisonment, and fix a non-parole period of 14 years.
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