Colbran v Tasmania
[2020] TASCCA 14
•17 September 2020
[2020] TASCCA 14
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Colbran v Tasmania [2020] TASCCA 14
PARTIES: COLBRAN, Belinda Leone
v
STATE OF TASMANIA
FILE NO: CCA 52/2019
DELIVERED ON: 17 September 2020
DELIVERED AT: Hobart
HEARING DATE: 25 August 2020
JUDGMENT OF: Blow CJ, Estcourt J and Brett J
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between co-offenders – Murder – Killer and person who enabled or aided commission of the crime.
Lowe v The Queen (1984) 154 CLR 606; Green v The Queen [2011] HCA 49, 244 CLR 462, referred to.
Aust Dig Criminal Law [3522]
REPRESENTATION:
Counsel:
Appellant: A Hilly
Respondent: J Ransom
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASCCA 14
Number of paragraphs: 80
Serial No 14/2020
File No CCA 52/2019
BELINDA LEONE COLBRAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
ESTCOURT J
BRETT J
17 September 2020
Order of the Court
Appeal dismissed.
Serial No 14/2020
File No CCA 52/2019
BELINDA LEONE COLBRAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
17 September 2020
This is a sentencing appeal. The appellant, Belinda Colbran, was charged with murder and found guilty by a jury. Geason J sentenced her to 24 years' imprisonment, backdated to commence on the date when she was taken into custody, and ordered that she was not to be eligible for parole until she had served 13 years of that sentence.
I have read the judgments of Estcourt J and Brett J in draft form. I agree with them that this appeal should be dismissed. I agree with their reasons. There are comments that I would like to add.
Ground 2(c)
When the learned sentencing judge made findings of fact for the purpose of sentencing, one of those findings was that the appellant assisted Mr Smith – the man who killed the deceased – by "effectively restricting" the victim's movement. Addressing himself to Mr Smith, his Honour said, "I find that you used the knife which had been brought to Parua Road by Colbran, that she assisted you by giving you that knife and effectively restricting Mr Monaco's movement whereupon you were able to stab him." Ground 2(c) of the amended notice of appeal asserted that his Honour erred in finding that "Ms Colbran effectively restricted Mr Monaco's movement whereupon Mr Smith stabbed him." The fact that Mr Smith stabbed the deceased was uncontroversial. Ground 2(c) is concerned with the finding that the appellant "effectively restricted" the victim's movement. In my view the learned trial judge erred in making that finding, but his error was inconsequential, and should not result in the appeal succeeding.
There was no direct evidence as to the part played by the appellant in the hostilities that culminated in the fatal stabbing of Mr Monaco. Mr Smith, who had pleaded guilty, gave evidence that the appellant remained seated on a couch at all material times. There was evidence that warranted the findings made by the learned trial judge that the appellant had taken the knife used in the stabbing to the place where it occurred, and that she assisted Mr Smith by providing him with that knife. However the evidence as to what part she played in the confrontation with the murdered man consisted solely of the evidence from Mr Xing. According to the transcript, he said, "I hear there's a banging and man yelled to the – fuck off bitch, and pom pom pah."
It was open to the learned trial judge to infer that the victim said, "Fuck off bitch", and that those words were addressed to the appellant, who was the only female present. It was open to him to infer from that evidence that the appellant had taken some physical part in the fatal confrontation. However in my view it was not open to him to be satisfied beyond reasonable doubt that the appellant had participated in that confrontation in any particular way. It was therefore not open to him to infer that she had "effectively restricted" the victim's movement.
Section 402(1) of the Criminal Code provides as follows:
"(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."
Because of the wording of that subsection, an error in fact-finding by a sentencing judge cannot result in an appeal succeeding unless that error results in a miscarriage of justice. It is clear that a mistake in fact-finding can result in a discretionary judicial decision being set aside on appeal: House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 505. However, by virtue of s 402(1), that will be the result only if there has been a miscarriage of justice. A trivial or inconsequential error in fact-finding will not result in a miscarriage of justice.
I agree with the comment of Estcourt J at [33] below that "Mr Xing's evidence left it plainly open to the learned trial judge to find that the appellant somehow physically engaged with Mr Monaco at the time Smith stabbed him." I agree with the comment of Brett J at [58] below that the evidence of Mr Xing "strongly supported an inference that the appellant had been directly involved in the physical exchange during which the fatal blows were administered." His Honour clearly accepted Mr Xing's evidence. The inference of some sort of physical involvement by the appellant in the fatal confrontation was therefore practically inescapable. A finding that that participation took a particular form, without any finding as to her having used force or violence, even though not warranted by the evidence, cannot have resulted in an overestimation of her criminal culpability. It follows that no miscarriage of justice resulted.
Ground 1
Ground 1 asserted that the sentence "was manifestly excessive in the circumstances". The submissions of counsel for the appellant in relation to ground 1 were all directed to the issue of parity, as distinct from manifest excess. There should have been a separate ground of appeal relating to parity. In the circumstances, I think the assertion of manifest excess should be addressed, even though no submissions were directed to the question of whether the sentence was so heavy as to be unreasonable or plainly unjust.
I need not repeat all that has been said as to the circumstances of the killing and the appellant's involvement in it. There was little to be taken into account in her favour by way of mitigation, apart from the fact that she had no prior convictions. The learned trial judge took into account information that her personal history was "characterised by significant emotional hardship and family violence", that she was suffering from cirrhosis of the liver, and that her health was poor. He noted that there was nothing to see that evidenced her having taken significant steps in the direction of rehabilitation. Having regard to the all the circumstances of the crime and the offender, I am not persuaded that the sentence of 24 years' imprisonment with a non-parole period of 13 years was manifestly excessive.
File No CCA 52/2019
BELINDA LEONE COLBRAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
17 September 2020
The appeal
The appellant, Belinda Leone Colbran, has appealed against her sentence for the murder of Aaron Monaco.
On 11 December 2018 the appellant was found guilty by a jury of the murder of Mr Monaco at Parua Road in Launceston on the night of 4 November 2016.
On 13 December 2018 the appellant was sentenced by Geason J to a term of 24 years' imprisonment. His Honour ordered that she was not to be eligible for parole until she had served 13 years of that sentence.
On the same day the learned sentencing judge sentenced the appellant's co-accused, Nathan Thomas Smith, who had pleaded guilty to the murder of Mr Monaco.
Smith was also sentenced to a term of 24 years' imprisonment. His Honour ordered that he was not to be eligible for parole until he had served 14 years of that sentence.
The appellant's grounds of appeal are as follow:
"1 That the learned trial judge erred in law in that the sentence imposed was manifestly excessive in the circumstances.
2 That the learned trial judge erred in fact and law in finding that
a)Ms Colbran retrieved a knife and took it to the address where the murder occurred;
b)Ms Colbran assisted Mr Smith by providing him with the knife; and
c)Ms Colbran effectively restricted Mr Monaco's movements whereupon Mr Smith stabbed him."
Factual findings
The learned sentencing judge made the following findings of fact:
"The facts as I find them are these. On 4 November 2016 you travelled together to 38 Parua Road in Newnham. Smith, it was your evidence on Colbran's trial that you went there because you had been away for a few days, residing with her, and you wanted a change of clothes. It was very late in the day to be going there just for that reason. I am satisfied that each of you, after a long drinking session, went there at least in part, to confront Mr Monaco with whom you were both angry for out-staying his welcome and failing to look after your flat. Before you left, Colbran retrieved a knife belonging to Smith which was kept in a case in her address at Lambert Street. You purchased alcohol on the way, which I infer was intended to be consumed at Parua Road.
Smith your evidence at the trial was that upon your arrival at that address the deceased emerged from the bedroom area of the flat whereupon the assault that led to his death began. You said that the deceased emerged from the bedroom with a knife. I do not accept that version of events and I note that you do not maintain it in the sentencing submissions. I find that Mr Monaco showed no aggression towards you or Colbran. After a verbal exchange between you and the deceased, you attacked him inflicting a series of wounds which caused his death. To the extent that there is uncertainty as to who wielded the knife, based upon the dying declaration of the deceased, I am satisfied that it was you. I find that you used the knife which had been brought to Parua Road by Colbran, that she assisted you by giving you that knife and effectively restricting Mr Monaco's movement whereupon you were able to stab him. I observe that the only person to sustain injury during the course of this episode was the deceased and that is consistent with my findings as to the way events unfolded. I do not accept that Colbran remained on the couch as Smith claimed in his evidence at the trial. Colbran then removed the weapon from the scene. Colbran's admissions at interview with police were intended to protect Smith and were willingly made by her because of her own involvement in the violence which occurred. Mr Monaco stood no chance in the face of the wanton aggression which was exhibited by Smith, enabled and supported by Colbran."
The background
The background to the jury verdict and the subsequent findings of fact made by the learned sentencing judge are significant.
In her record of interview with police, the appellant confessed to taking the murder weapon from her home at Lambert Street in Launceston to the scene of the murder at Parua Road, and confessed to stabbing the deceased with it and then leaving the scene and taking the knife back to Lambert Street. She told police that she took the knife from a suitcase which belonged to Smith and which was stored under the appellant's bed. It was common ground that the suitcase was stored there and contained personal items of value to Smith.
In his record of interview with police, Smith made no admissions, answering "no comment" to almost every question, even when confronted with the appellant's confession to the stabbing of the deceased.
At the trial of the two accused, Smith pleaded guilty and was called as a witness by the Crown. The appellant pleaded not guilty and did not give or adduce evidence.
In his evidence, Smith denied that the appellant took the murder weapon from Lambert Street, claiming that it was at Parua Road at all times. He claimed that he picked the knife up from near a computer on a desk in the apartment at Parua Road and stabbed the deceased, who then ran from the unit. And Smith claimed that the appellant remained seated on a couch at all times and did not assist him in any way. He accepted that, before he left the unit, the appellant took the murder weapon, minus its sheath, from the scene after the killing and carried it to Lambert Street, where it was found by police the following day.
The only witness to the event was Mr Yanhua Xing who was a tenant of the apartment upstairs from the unit in which the deceased was killed. Mr Xing said he was studying in his bedroom when, from underneath him, he heard "a banging" and a man yelled "fuck off bitch, and pom pom pah", a phrase that was not further, usefully explained. Within "half a minute" someone was banging on Mr Xing's door and he saw blood was running down the glass of the door.
About half an hour before he died, Mr Monaco was asked by, Senior Constable Woodgate as to who had done this to him. Mr Monaco answered her, "Nathan Smith".
Sentencing submissions
In submissions to the learned sentencing judge, counsel for the Crown, Mr Ransom, said:
"It's also the State's submission that you reject with respect the assertion by Mr Smith that Mrs Colbran remained on the couch for the entirety of the period where he was stabbing the deceased. It's our position that the evidence of Mr Zing, namely the words that he heard, 'fuck off bitch', pomp, pomp, pomp or thump, thump, thump, was consistent with Ms Colbran, at the least, being involved in some sort of physical confrontation with the deceased.
Of course, what your Honour does have from Ms Colbran is her own confession, that she applied the knife and it would be open in my submission for your Honour to be satisfied beyond reasonable doubt, which is the standard, that she be sentenced as a joint principal, but if your Honour isn't satisfied of that, in my submission, she can be sentenced on the basis, at the very least, that she was involved in the aiding by fighting with the deceased, and/or holding him whilst Mr Smith applied the knife …
It's also in my submission, relevant that your Honour, with respect, reject the assertion of Mr Smith, that the knife, namely the Wolf bladed knife, was simply sitting in the unit and he picked it up in a fit of anger. Our position as to that, is that your Honour can be satisfied beyond reasonable doubt, that Ms Colbran took the knife, namely the Wolf bladed knife, to the residence, that flows from her own admission about that."
To the contrary, counsel for the appellant at her trial, Mr Kovacic, submitted:
"Well your Honour, in relation to the submission by the state that they rely on Ms Colbran's record of interview to say that she is a principal because she said she had the knife, and as I – well your Honour, what I submit about that and what I said to the jury is that it is unlikely that she did so, if not improbable …
… we've got Ms Colbran whose the only person who said she took the knife there. We have the evidence of Mr Smith who said no it wasn't there, it was at his unit. Now, your Honour is perfectly entitled to reject what he said about just lying about it, but to say that – but to take that a step further and say well Ms Colbran took it there because she said so, in my submission would be erroneous."
Mr Kovacic made the point that in CCTV footage captured of a taxi in which the pair travelled to Parua Road, the appellant could not be seen holding the knife. However, the learned trial judge pointed out that the appellant's account given in her record of interview was that she had put the knife down her trousers in its sheath.
Essentially the submission put on behalf of the appellant was that, while the appellant's account to police was not inconsistent with the forensic evidence, the dying declaration of the deceased and the inherent unlikelihood of the two accused stabbing the deceased by sharing the one knife, meant that the appellant could not be believed as to her confession to the stabbing. The submission then went that, as a result, she should not be believed as to her confession to taking the knife to Parua Road.
As to Mr Xing's evidence, Mr Kovacic submitted:
"… but we can infer that 'Fuck off, bitch' was said in the context of some sort of confrontation happening in the unit but what or why without more I can't make any submissions as to that, your Honour. Your Honour, I would be urging you to find that it was as an aid or abet and not as a principal which would be consistent with the jury's verdict."
Discussion as to ground 2
In my view there is no substance in the assertion that the learned trial judge erred in the factual findings he made.
The appellant's confession to taking the knife to Parua Road was not inconsistent with the forensic evidence, and the fact that she plausibly described to police the location from where she obtained it and the means by which she transported it, meant that it was plainly open to the learned trial judge to find that she did so. Her confession was only contradicted by the evidence of Smith, whose own claim that the knife was conveniently located near the computer on the desk, out of its sheath, was itself implausible to my mind.
The factual finding that the appellant assisted Smith by "providing" the knife to him, is not of great moment as I apprehend it. If she took the knife to Parua Road, in its sheath, and it was subsequently taken up by Smith, out of its sheath, and wielded by him, then by some means it was undoubtedly transferred from the appellant's possession to that of Smith, and thus assisted or enabled him to commit the crime.
Finally, as to this ground, I am of the view that, notwithstanding Smith's assertion that the appellant remained at all times seated on the couch, Mr Xing's evidence left it plainly open to the learned trial judge to find that the appellant somehow physically engaged with Mr Monaco at the time Smith stabbed him. Such behaviour is also consistent with the appellant leaving the scene, before Smith left, and following the deceased out the door with the murder weapon, minus the sheath, in her possession. The words "fuck off bitch" were hardly likely to have been directed at Smith, and were hardly apt to be directed at the appellant passively sitting on the couch.
Ground 1
The frequently stated legal principles applicable to appeals against sentence on the ground of manifest excess are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 at [8], per Pearce J.
In accordance with the traditional formula as set out in House v The King (1936) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust, so as to give rise to the inference that there has been a failure to properly exercise the discretion.
As Kourakis J (as he then was) said in A, MC v Police [2008] SASC 279, 102 SASR 151 at [88], "[a]n appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust."
The appellant's submissions
The appellant's counsel, Mr Hilly, submits that the appellant has no prior convictions for violence and that the law is clear that sentencing courts should make due allowance between co-offenders when, as was the case here, they have significantly different records of prior convictions.
The appellant submits that had the learned sentencing judge given appropriate weight to the appellant's lack of relevant prior convictions, it would have justified her receiving a lesser head sentence than that of Smith.
The appellant asserts that even if the Court rules against her in relation to ground 2 of the notice of appeal, then on his Honour's own factual findings there were sufficient differences in the circumstances of the two defendants and their roles in the offence, as to warrant different treatment in sentencing.
In particular, Mr Hilly submits, his Honour should have taken into account that the appellant's animosity toward the deceased was coincidental to her relationship with Smith and that it was Smith who had a motive to have the deceased removed from the Parua Road apartment.
At the time of the offence, the deceased was residing in Smith's unit and Smith had formed the view that the deceased had overstayed his welcome. The appellant submits that there was no evidence before the court at the trial supporting the notion that the deceased residing at Parua Road in any way negatively affected the appellant. She did not reside there, she had no proprietary interest in the property, and she did not stand to gain anything from having the deceased removed.
The appellant asserts that Smith was the primary offender in that his resentment towards the deceased put in motion the circumstances which brought about the deceased's death, and that Smith was also the "primary" offender in that he alone inflicted the wounds which caused the deceased's death.
The respondent's submissions
Counsel for the Crown, Mr Ransom, submits:
"His Honour applied 'the law as it is summarised in Dobson v Tasmania'. Significantly His Honour also stated:
'This is a particularly serious example of the crime of murder. It was utterly senseless and an act of selfishness, a total disregard for another human being. It is quite inexplicable. In my view the difference between you are so marginal, almost to be insignificant. Sentencing is not a mathematical exercise. It is one that involves instinctive synthesis of relevant considerations. Approaching the matter in this way, I can find no basis for any differentiation in the head sentence which is appropriate'."
The Crown submits that the learned sentencing judge was correct in his finding that the appellant's conduct was "inextricably related" to that of Smith in a serious case of murder, involving the intent prescribed in s 157(1)(b), and that he took into account the appellant's lack of relevant prior matters as is reflected in the respective non-parole periods imposed.
Smith's prior convictions
On the sentencing hearing following the jury verdict in respect of the appellant, who had no relevant prior convictions, Mr Ransom informed the learned sentencing judge of Smith's prior record as follows:
"MR RANSOM: If it please your Honour. I move now to prior matters and begin with those of Prisoner Smith. They are contained in volume 5 of the Crown papers from page 86 through to 110. I would respectfully refer you to page 86 which is the Tasmanian prior matters. Your Honour will see there that there was a conviction for assault, two charges in the Supreme Court, of which there was a sentence of five months' imprisonment backdated to 24th February 2016 and a subsequent conviction on 20th June 2016 for breaching of an interim family order which was a 28-day term of imprisonment partially suspended.
Your Honour, as to the conviction for assault two I tender the comments on passing sentence in relation to that of his Honour Porter J dated 12th May 2016.
HIS HONOUR: Thank you.
MR RANSOM: Your Honour, it would be evident that the prisoner Smith would have only been out of gaol for a matter of months prior to this matter. Moving, your Honour, to the balance of the prior matters my overarching submission is that Prisoner Smith has a significant record for conviction in relation to matters containing an element of violence. Typically these prior convictions are somewhat hard to interpret but I will take your Honour to those that in my submission are of particular moment.
Beginning at page 88 and moving through to pages 89 and 90 your Honour will see that there's convictions for matters involving dishonesty. Moving to page 95 there's a number of entries on 23rd of the 9th 2001 at a time where it appears Mr Smith was in the Children's Court, the charge being use of an offensive weapon to commit an indictable offence and a number of associated charges and he received there a period of 18 months with a non-parole period it appears 12 months with various conditions.
Moving to page 99 there is a conviction towards the bottom of the page in the New South Wales Local Court on 25th June 2004 in relation to common assault and he was placed on a bond. Moving to page 102 there was a conviction for what is referred to at the bottom of the page in the Wyong Local Court on 6th June 2013 for an offence referred to as stalking or intimidating in fear of physical harm for which he also received the bond and moving through to page 104, there's an entry on the 5th of January 2016 in the Gosford Local Court for a number of matters that have occurred on the 16th of December 2015, and there was reference to these in the trial namely intentionally choke a person with recklessness, stalk, intimidate, fear physical harm and assault occasioning bodily harm and it's unclear what penalty was imposed for that given that the entry indicates a warrant was issued on page 105, that warrant was executed but there's certainly nothing to indicate what penalty was received.
It was that record which moved his Honour to comment on passing sentence:
"Smith, you present with a poor record of prior convictions including offences involving violence. Your prior convictions are relevant to sentence though the gravity of this offending overwhelms those matters in its own right to a significant extent."
Discussion as to ground 1
I accept the force of Mr Hilly's submissions, subject to one qualification.
The appellant had been in a long-standing violent relationship with Smith, but clearly was not prepared to or able to leave, despite being injured on a number of occasions. The evidence established that she knew of Smith's anger towards the deceased, and shared it. And at the very least she intended that the pair would travel to Parua Road to threaten the deceased with the knife. So whilst it might be said that her anger was derivative, she did stand to gain in the sense that she wished to see the man she loved vindicated.
In Dobson v Tasmania [2017] TASCCA 19 the Court said at [27]:
"We respectfully agree with the principles enunciated in the authorities referred to. As a matter of principle, cases not involving an intention to kill are not to be regarded as necessarily less serious, thereby attracting a lighter sentence than that which is appropriate for other categories of murder".
That edict does not however require that co-offenders be treated alike where one does an act for the purpose of enabling or aiding another person to commit the crime.
The learned sentencing judge said in his comments on passing sentence:
"I conclude that I should sentence you on the basis that you are both guilty of murder under s 157(1)(b) of the Criminal Code as I note all counsel have submitted to me in sentencing submissions. In my view, there is not basis on the facts as I find them, for differentiating the degree of culpability attaching to the conduct of either of you. Your actions are inextricably related, one of you performing the act of stabbing the deceased, the other enabling it. I recognise that an intention to kill is a material consideration in the sentencing exercise for murder, and that murder under s 157(1)(b) of the Criminal Code does not require such an intention, only that there is an intention to cause bodily harm which you knew to be likely to cause death. But, murder committed on that basis is not necessarily less grave than an intentional murder. I apply the law as summarised in Dobson v Tasmania [2017] TASCCA 19. I consider this to be a very serious example of the crime of murder. It was callous and brutal, with nothing to mitigate it. No submission advanced to the Court has suggested otherwise."
However, this Court has no licence to "tinker" with sentences. In particular, as to parity, the Victorian Court of Appeal said in Chamma v The Queen [2020] VSCA 232:
"Parity is an aspect of equal justice that requires like to be alike. What will constitute 'like' as between co-offenders will ultimately require an evaluation based on impression. What will constitute a departure from like and the extent of that departure will require a similarly impressionistic evaluation. Reasonable minds will inevitably differ on these sorts of evaluations. On appeal, disparity in treatment of co-offenders, or its unwarranted absence, is treated within the same analytical framework as manifest excess. An appellate court will rarely resentence based on disparity (or impugned parity) because sentencing, by nature, is imprecise and involves an exercise of judicial discretion. The disparity (or lack of it) must be so 'marked' or 'manifest' as to not be reasonably open to the sentencing judge." (Footnotes omitted.)
Thus while, with respect, I do see a basis for differentiation between the appellant and Smith on the grounds outlined by Mr Hilly, particularly as to the respective roles of the co-offenders and their disparate prior records, it cannot be said that the appellant's sentence was not reasonably open to the learned sentencing judge.
Disposition
I would dismiss the appeal.
File No CCA 52/2019
BELINDA LEONE COLBRAN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
17 September 2020
I have had the benefit of reading in draft the reasons of Estcourt J. I gratefully adopt his Honour's summation of the facts of this matter. I agree with his Honour's conclusion that the appeal should be dismissed. In expressing my reasons for this view, I will proceed, as his Honour did, to first consider ground 2.
Ground 2
This ground challenges the findings of fact made by the trial judge for the purpose of determining sentence. The argument, as I understand it, is that it was not open to the trial judge to make the particularised findings on the basis of the evidence at the trial. It is correctly asserted by the appellant, and uncontroversial, that, as there were less serious bases for criminal responsibility asserted in the alternative by the prosecution, which were consistent with the jury's verdict, his Honour could only make the impugned findings if satisfied of those facts beyond reasonable doubt.
In Director of Public Prosecutions v Harwood (No 2) [2019] TASCCA 13, the Court, in its joint judgment, said:
"[14] An appellate court should be slow to disturb a finding of fact made by a trial judge, particularly where that judge has had the advantage of observing the relevant witnesses. In Bresnehan v The Queen (1992) 1 Tas R 234 (26 October 1992), Underwood J (as he then was) said the following in respect of this question:
'[23] Finally, there is the question of appellate review of findings of fact made for the purpose of imposing sentence. In R v Parker (1984) Crim LR 763, the Court of Appeal concluded that, provided the trial judge directed himself in accordance with correct principle, the Court of Appeal would be slow to disturb any finding of fact as the trial judge had had the advantage of seeing and hearing the witnesses. This approach was applied in R v Ahmed (1985) Crim LR 250. In Halden (supra) at 35-36 Lush J said:
"Turning to the Crown argument concerning the role of an appellate court in reviewing findings of fact relevant to sentence, I would reject the argument that the appellate court cannot depart from the finding if there is some evidence to support it. The finding must be subject to review upon the same basis as a finding of a judge sitting without a jury. Where the judge has seen and heard the witnesses, the appellate court will be conscious of the fact that it has not had that advantage. If the judge was working from the same papers as the appellate court has before it, the appellate court can substitute its own finding in accordance with the principles expounded in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, and Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212 at 219-224."
[24] In R v Gandy (1989) 11 Cr App R (S) 564 the court said at 569 that it was only in "the most exceptional case that this Court will differ from the findings of fact made by a judge at a Newton-type hearing (taking evidence upon a plea of guilty) because this Court does not have the advantage of seeing and hearing the witnesses who have given evidence"'."
In this case, as Estcourt J has pointed out, the trial judge's findings concerning the respective roles of Mr Smith and the appellant in the infliction of the fatal blow or blows, were informed by the evidence of the representation made by the deceased to Constable Woodgate, and the testimony of Mr Xing. The trial judge also had the benefit of seeing and hearing Mr Smith give evidence, and had available to him, as this Court does, the record of interview of the appellant.
I am satisfied that the impugned findings were open to the learned trial judge on the evidence. I agree with Estcourt J that Mr Xing's evidence carried significant weight in respect of the physical role of the appellant in the delivery of the fatal blows. The video record of the evidence of Mr Xing was played to the Court during the hearing of the appeal. It is clear from the body movements which accompanied his use of the words "pom, pom, pah", that he was intending to convey sounds consistent with a physical disturbance or exchange. The temporal connection between Mr Xing hearing those sounds at the same time as a man yells, "Fuck off bitch", and then seeing blood running down the glass of his door, which he estimated to be "half a minute" later, strongly supported an inference that the appellant had been directly involved in the physical exchange during which the fatal blows were administered. Further, the trial judge was entitled to reject Mr Smith's evidence that the appellant had remained seated on the couch during those events. In this respect, the trial judge's advantage in seeing and hearing Mr Smith's testimony is of particular importance.
In respect of the appellant's role in bringing the knife to the deceased's residence and providing it to Mr Smith, the learned trial judge was again entitled to reject Mr Smith's evidence that the knife was already in the apartment when he arrived there. The appellant had made admissions during her interview with police which provided a clear basis for his Honour's findings concerning this question. The appellant made detailed admissions concerning her joint decision with Mr Smith to go to the unit, and the fact that she took the knife to the unit with the intention of threatening the deceased with it. She described in some detail the basis of her anger, which motivated her to join in the decision to travel with Mr Smith to confront the deceased. She admitted that she had retrieved the knife from a blue suitcase under her bed in her residence at Lambert Street. She said that Mr Smith kept valuables there, which included the knife. Finally, the appellant admitted, and the evidence supported, the fact that she had been the one to remove the knife from the apartment when she left after the knife had been used to stab the deceased. Although his Honour did not accept the truth of the appellant's admission that she had actually stabbed the deceased, he was entitled to accept the truth of her admissions concerning the knife.
There is no merit in ground 2. The findings were clearly open to the learned trial judge.
Ground 1 – manifest excess
Although the ground is framed as a complaint about the manifest excess of the sentence imposed on the appellant, the argument, as I understand it, is confined to an assertion that the sentence is inconsistent with the parity principle. In particular, it is asserted that there are significant differences between the sentencing considerations relevant to each offender, and that the effect of those differences is that a lower sentence should have been imposed on the appellant than that imposed on Mr Smith. In particular, it is argued that because the non-parole period contained in the appellant's sentence was only one year greater than the statutory minimum, the proper application of the parity principle should have resulted in a shorter head sentence.
The philosophical basis of the parity principle is the requirement of equal justice before the law Green v The Queen [2011] HCA 49, 244 CLR 462. The principle requires persons who commit the same crime to receive the same sentence, provided that there are no relevant differences between them. An important aspect of the principle is that relevant differences in conduct or antecedents should be reflected in different sentences: Wong v The Queen [2001] HCA 64, 207 CLR 584; Green v The Queen (above).
It is well established that a failure to give appropriate effect to parity or disparity can amount to appealable error, and constitute a "ground of intervention in itself": Lowe v the Queen (1984) 154 CLR 606; Green v The Queen. However, I accept that the appellant's argument can comfortably sit within the ground asserting manifest excess. An appeal based on parity ultimately seeks to impugn the discretion of the sentencing judge. This point was made by the majority in Green:
"A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error."
As with a ground which complains generally about the severity of the sentence, error will only be demonstrated, in the absence of specific error, if the failure to give effect to the parity principle is marked or manifest. In Lowe, Dawson J said this:
"The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are 'most exceptional'. The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of the court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice."
In the same case, Gibbs J stated that the rationale for appellate intervention based on disparity is because it is "such as to give rise to a justifiable sense of grievance" on the part of the offender challenging the sentence. This expression has often been adopted as the test for such intervention. However, as Porter AJ demonstrates in his analysis in Jenkins v Tasmania [2019] TASCCA 12, this expression encapsulates the real question for the appeal court, which is "whether the sentencing relativity was outside the range reasonably open to the sentencing judge in the circumstances": R v Lewis [2008] VSCA 202 per Maxwell P, as quoted by Porter AJ in Jenkins at [72].
These judicial comments, although concerned with a complaint based on inappropriate disparity, apply with equal force to an appeal based on a lack of sufficient disparity.
In this case, the appellant relies on the following differences between her case and that of Mr Smith:
(a)the difference in culpability reflected by their respective roles in the administration of the fatal blow or blows; and
(b)differences in their respective criminal histories.
In relation to their conduct, his Honour found that that he could not differentiate between their moral culpability. Although each offender played a different part in the commission of the crime, the trial judge found that their actions were "inextricably related, one of you performing the act of stabbing the deceased, the other enabling it". His Honour was satisfied that Mr Smith had delivered the fatal blows with the knife. In respect of the appellant, although the criminal responsibility of the appellant had been asserted on a number of different alternative bases under ss 3 and 4 of the Criminal Code, his Honour's findings indicate that he was satisfied that the basis of the appellant's criminal responsibility arose from s 3(1)(b) of the Code, that is she had committed acts "for the purpose of enabling or aiding" Mr Smith to commit the crime. The relevant acts, in accordance with his Honour's findings were as follows:
(a)she had assisted him by giving him the knife, which she had brought to the premises;
(b)she had "effectively" restricted the deceased's movements so that Mr Smith was able to stab him.
An assessment of the appellant's moral culpability for these acts requires consideration of her state of mind in performing them. Although the trial judge did not specifically address this question, the appellant's criminal state of mind is implicit in the finding that both the appellant and Mr Smith were "guilty of murder under s 157(1)(b) of the Criminal Code". That finding is not challenged by the appellant in this appeal. Criminal responsibility for murder under that provision requires proof of an intention to cause bodily harm "which the offender knew to be likely to cause death in the circumstances" although there is no wish to cause death. The requirement of knowledge concerning the consequences of the bodily harm which it is intended to inflict have important implications for the assessment of the appellant's moral culpability in this case. It is settled law that this element requires proof of the following:
· that the intended bodily harm was likely to cause death, in that there was a substantial or real chance that death will result from the bodily harm Boughey v The Queen (1986) 161 CLR 10; and
· that the offender had actual (subjective) knowledge that the intended bodily harm was likely to cause death.
In Boughey, Brennan J said, in respect of subjective knowledge of the likelihood of death:
"Although we have accepted in this country that an intention to kill is not necessarily the same mental state as knowledge that death will probably result, we have regarded the two mental states as comparable in heinousness.
...
But the notion which underlies both the judgment of this Court in Crabbe and the speeches in Moloney and Hancock is that the mental state which is necessary to establish the crime of murder when the accused does not actually wish that death should result from what he does is knowledge (or foresight) that that result is so probable or likely that the doing of the fatal act is as heinous as if the accused had wished that result. In either case the accused compasses the death of the person killed or of some other person."
With respect, these comments are clearly correct, and pertinent to this case. The degree of moral culpability involved in carrying out an act intending to cause bodily harm, with actual knowledge that the act is likely to cause death, is very high indeed and capable of being regarded as heinous as a murder where death is the intended consequence of the act.
It is also relevant to consider the mental element required to establish criminal responsibility on the basis of enabling or aiding the commission of a crime under s 3(1)(b), and its interaction with the mental element applicable under s 157(1)(b). To be guilty as a party to a crime under s 3(1)(b), it must be proved that the person did the act intending that it should aid the commission of the relevant crime. This means that the person must know the facts which are necessary to establish that crime: see R v Arnol [1980] Tas R 222.
It follows that the combined effect of ss 3(1)(b) and 157(1)(b), is that the mental element relevant to the criminal responsibility of the appellant, having regard to the factual findings of the trial judge, was an intention that Mr Smith would cause bodily harm to the deceased, which she knew to be likely to cause death in the circumstances. In the particular circumstances of this case, the only possible conclusion is that the appellant must have intended Mr Smith to cause bodily harm by use of the knife, that is to stab the deceased with it in a way that would be likely to result in his death. It is difficult to understand how any other form of bodily harm which could have been intended or anticipated by her, would satisfy the requirement of subjective knowledge that the said harm was likely to cause death. The need to be satisfied of this subjective intention was in accordance with the directions given by the trial judge to the jury.
Accordingly, the moral culpability of the appellant is to be assessed on the basis of the following facts, all of which were expressly or implicitly found by the trial judge:
· After a long drinking session, she and Mr Smith travelled to the Parua Road unit to confront the deceased. They were both angry with him because he had outstayed his welcome and failed to look after the unit, which was leased by Mr Smith.
· Before they left, the appellant retrieved the knife from its location in the suitcase under her bed and took it with her to the unit for the purpose of the confrontation.
· She gave it to Mr Smith before he used it to stab the deceased.
· She engaged in the physical encounter with the deceased during which Mr Smith administered the fatal blows. Her involvement was to restrict the deceased's movements so that Mr Smith was able to stab him.
· She provided the knife to Mr Smith and restricted the deceased's movements during the physical encounter, with the intention that Mr Smith would use the knife to cause bodily harm to the deceased, which she actually knew would be likely to cause his death, although she had no wish for death to be the result. In other words, she helped Mr Smith with the intention and knowledge that he would stab the deceased with the knife, and she actually knew that this stabbing would be likely to cause death.
Having regard to those facts, it is difficult to see that there is any significant distinction between the moral culpability of the appellant and that of Mr Smith in respect of the murder. As the trial judge correctly observed, the actions of the appellant and Mr Smith were "inextricably related", in an endeavour to cause bodily harm with the knife which each of them knew would be likely to cause the death of the deceased. In those circumstances, I am satisfied that the trial judge correctly concluded that there was no meaningful distinction in their moral culpability for this crime. In particular, I am not persuaded that the fact that their joint anger arose from the deceased's treatment of Mr Smith's unit provides a basis for such distinction. It is clear from the appellant's record of interview that the appellant's motive for taking the knife, intending a confrontation, was because she was personally angry with the deceased. It does not seem to me to be of any meaningful significance that her anger related to grievances concerning the property of Mr Smith. What is important is that she in fact formed the requisite criminal intention, that is to administer bodily harm by use of the knife, in the subjective knowledge that it would be likely to cause death. The appellant's moral culpability is to be assessed on the basis of that state of mind.
The other asserted basis for distinction between Mr Smith and the appellant, concerns their respective criminal histories. The appellant has criminal history but it does not include offences involving violence. Mr Smith's criminal history does include offences of violence. In particular:
· In 2001, at 17 years of age, he was dealt with in the Children's Court in New South Wales for offences which included the use of an offensive weapon.
· In 2004, he was dealt with by the New South Wales Local Court for one count of common assault.
· In 2013, he was sentenced in New South Wales for an offence described as "stalk-intimidate intend fear physical harm".
· On 16 January 2016, he was charged in New South Wales with a number of offences involving violence. The record shows that a warrant was issued but there is no record of finalisation. It can be inferred that he moved to Tasmania from New South Wales before the conclusion of these proceedings
· On 12 May 2016, he was sentenced to imprisonment by this Court for two counts of assault contrary to the Code.
· On 20 June 2016, he received a partially suspended sentence of imprisonment for two counts of breaching an interim family violence order.
It was asserted to the trial judge that Mr Smith had been released from prison "a matter of months" before committing this crime.
The learned trial judge correctly identified the differences between the personal circumstances of the appellant and Mr Smith. However, his Honour commented that the primary sentencing consideration was the gravity of the offending and the need for "condemnation, prevention, punishment and deterrence". In particular, his Honour acknowledged Mr Smith's more serious criminal history but, commented that "the gravity of this offending overwhelms those matters in its own right to a significant extent". I agree with these comments. Mr Smith's prior offending was relevant to the question of personal deterrence and a consideration of his prospects of rehabilitation, but it could not be said that it was of a nature which justified a markedly disparate sentence from that imposed on the appellant, particularly when weighed against the gravity of their joint crime. This was not a case, for example, in which Mr Smith's criminal history warranted a particular emphasis on a consideration such as community protection.
In my view, given the absence of any cogent basis for distinction between the accused in respect of the objective seriousness of the crime or their respective moral culpability, the difference in their criminal histories did not warrant different head sentences. In relation to the non-parole periods, it is true that the difference was only one year, and it could also be argued that a non-parole period longer than 14 years would have been justified for Mr Smith, having regard to his criminal history. Of course, the trial judge commented that he took Mr Smith's plea of guilty into account in determining the length of the non-parole period relevant to his sentence, although he found that the plea deserved little weight and the "barest concession" from the court. The appellant, of course, was not entitled to any concession at all in that regard. In any event, the minimum non-parole period applicable to the appellant's sentence was 12 years. In my opinion, given the seriousness of her crime, a term of imprisonment of 24 years, with a non-parole of 13 years, did not constitute a sentence which was unreasonable or plainly unjust, nor is error demonstrated by the relativity between her sentence and that imposed on Mr Smith.
I would dismiss the appeal.
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