Collins v The Queen
[2012] VSCA 163
•30 July 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0169 | |
| RODNEY CHARLES COLLINS | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WARREN CJ, REDLICH and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 May 2012 | |
DATE OF JUDGMENT: | 30 July 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 163 | 1st revision 5 October 2012 |
JUDGMENT APPEALED FROM: | DPP v Collins [2010] VSC 209 (Curtain J) | |
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CRIMINAL LAW – Conviction – Two counts of murder – Admissibility of conversations covertly recorded in prison – Discretion to exclude evidence on basis of unfairness and/or public policy grounds – R v Swaffield (1998) 192 CLR 159; Tofilau v The Queen (2007) 231 CLR 396; Em v The Queen (2007) 232 CLR 67 referred to – Judge’s factual findings open – Evidence properly admitted – Appeal dismissed.
CRIMINAL LAW – Sentence – Two counts of murder – Life imprisonment with non-parole period of 32 years – Not manifestly excessive – Judge had proper regard to appellant’s age and principles relating to ‘crushing sentences’ – Offences correctly described as ‘worst category’ – Relevance of restrictive prison conditions – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | C D Traill Lawyers |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ
REDLICH JA:
We have had the advantage of reading in draft form the judgment of Hansen JA. We agree with his Honour, for the reasons that he gives, that the appeals against conviction and sentence should both be dismissed.
However, we would add that the condition in which the appellant is currently detained is troubling. In the course of submissions counsel for the appellant adverted, effectively in passing, that the appellant’s custodial arrangements were harsh. No separate argument was articulated in any precise manner. The Court took the matter up with the Crown. Ultimately, it was only through the questioning by the Court and the request for information that the Crown came to expose the circumstances of the appellant’s custody. Whilst the appellant’s counsel relied on the circumstances and burden of imprisonment as a particular of manifest excess, no evidence was given. Eventually, at the Court’s request, the Crown filed an affidavit sworn by Brendan Francis Money, the Director of the Sentence Management Branch of Corrections Victoria, describing the conditions of the appellant’s custody.
Mr Money deposes that in November 2011, whilst in custody, the appellant was observed to have a black eye. CCTV footage showed the appellant pushing and shoving with another prisoner ‘but it was not clear that there was any assault or how the incident started’. The appellant told the prison authorities that he got the black eye after slipping in the shower. It appears that the prison authorities did not accept this explanation and believed that the appellant was assaulted. Mr Money deposes that the prison authorities were concerned about the appellant ‘being unpopular with other prisoners’. He says that ‘[t]here has been considerable speculation amongst the prisoners in the Acacia, Melaleuca, and Banksia Unit at Barwon and the prison system generally, as to whether the [appellant] is providing information to the Police about his past crimes or his possible knowledge of other crimes’. The appellant himself denied being concerned about his safety.
Shortly following the black eye incident, the appellant was transferred to the Banksia high security unit within the Barwon Prison. There he is not allowed to mix physically with other prisoners and is isolated in his cell. Mr Money deposes that ‘[d]ue to the conflicting demand of other prisoners being given time out of cell, and the limited area availability’, the appellant’s exercise time in the Banksia Unit has been reduced to one hour and ten minutes per day. Mr Money further deposes that the appellant uses the telephone each day. To do so, he is locked in the prison telephone centre for 30 minutes per day. There he is able to talk to other prisoners, at least four in number, in the ‘day room’. In summary, therefore, the appellant is locked in his cell, alone, for almost 23 hours per day, seven days per week. These conditions can only be described as very difficult.
Mr Money deposes:
Conditions in a management unit are different from those in other prison units, and generally involve limited recreation time out of the prisoner’s cell, limited cell furnishings, and restrictions with whom the prisoner can associate. Management / high security units are physically designed to control how prisoners mix with other prisoners in those units and generally have a higher ratio of staff to prisoners than the other accommodation units in the prison.
Mr Money continues:
The basic principle of prisoner placement is to place the prisoner in the least restrictive environment, having regard to the prisoner’s sentence, the prisoner’s interaction with other prisoners, and the other factors described in regulation 26 of the Corrections Regulations 2009.
The apparent risk to the appellant may eventually pass so as to enable him to be detained in lower security conditions. But this may not happen for some years due to the sensitive nature of the matters in relation to which the appellant is speculated to have cooperated with the police. Mr Money deposes that while the appellant’s classification will be reviewed, ‘he is likely to remain as a high or maximum security prisoner for some time’. Given that the appellant is now nearly 66 years old, there is a possibility that he will have to spend the rest of his life detained in these conditions amounting to near solitary confinement. Whilst the Court is not responsible for custody arrangements, this is a matter of concern.
Of course, corrections authorities cannot be criticised for taking precautions to protect vulnerable prisoners. Other events illustrate the need for such precautions.[1]
[1]See, eg, R v Johnson [2011] VSC 633.
The appellant is to some extent responsible for his predicament. He did not cooperate with the prison authorities in helping them identify his assailant (assuming that he was assaulted) and other persons who may present a safety risk to him. But observing a code of a silence is to be expected from a career criminal like the appellant. The prison system ought be able to adequately cope with such persons.
The conditions in the high security unit have been considered by the Trial Division on occasion,[2] even to the extent of a judge imposing conditions of incarceration in order to remove unfairness affecting a trial.[3] Further, it is not unusual for the burden of imprisonment to be relied on as a mitigating factor on the plea or as a particular of manifest excess in an appeal against sentence as here. Thus the corrections authorities have been on notice for a long time as to the courts’ concerns about the nature of the incarceration of the kind that the appellant faces. However, a differentiating factor is that the appellant presently faces a prospect that his current incarceration circumstances will prevail for the rest of his life unless the corrections authorities take appropriate steps to ameliorate those arrangements.
[2]Eg in R v Benbrika (Ruling No 20) [2008] VSC 80, [29]–[30], [32], [57], although that case was essentially concerned with the right to a fair trial and prisoners on remand.
[3]Ibid [100].
The circumstances do not presently constitute fresh evidence or a basis to demonstrate sentencing error. It remains that at this time the Court does not know how long the appellant will remain in his current arrangements — it may be a few months, some years or endure for all of the sentence. If the current arrangements continue for an unreasonable period it may be another, separate, matter for the appellant to pursue at a later time.
Finally, during the hearing, the Court asked the appellant’s counsel whether he was making any submissions based on the Charter of Human Rights and Responsibilities. Counsel expressly disavowed any reliance on the Charter. It is therefore unnecessary to consider whether the Charter has any effect on the legality of the continued detention of the appellant in the present conditions.
HANSEN JA:
Following a 46 day trial in the Supreme Court in 2009, the appellant was convicted of the murders of Raymond Abbey and Dorothy Abbey at their home at Heidelberg West in July 1987. The appellant, who is now aged 66, was sentenced to a term of life imprisonment on each count, to be served concurrently. The judge fixed a non-parole period of 32 years.
Pursuant to leave, the appellant appeals against conviction and, if the conviction is sustained, against sentence.
Despite the vast quantity of evidence adduced at the trial, the relevant background facts can be stated succinctly for present purposes.
The Crown alleged that the appellant and two other men were driven by a fourth man to the Abbeys’ house late on the night of 27 July 1987. The appellant believed that Abbey was a police informer. The appellant was also angry about Abbey’s failure to return a police badge, Abbey’s pulling out of an earlier planned armed robbery, and Abbey’s failure to give the appellant money received from the sale of the appellant’s car. The appellant and his two accomplices were dropped off at the house, wearing stolen police uniforms. They knocked on the door and were invited into the house by Mrs Abbey. They took Mr Abbey out to a shed at the back of the property where the appellant shot him in the head three times. The Crown alleged that Mrs Abbey overheard her husband calling out the appellant’s name and, in order to escape detection, the appellant shot Mrs Abbey in the head twice and cut her throat while she was seated on the couch inside the house. The couple’s three young children were in their bedrooms throughout the ordeal.
The Crown case comprised three broad categories of evidence, namely (a) circumstantial evidence, (b) admissions made by the appellant to fellow prison inmates as to killing the Abbeys, and (c) post-offence conduct falling short of direct admissions but evidencing a consciousness of guilt. As explained below, the appeal is concerned only with category (c).
Conviction
Leave to appeal was granted on three grounds but at the outset of the hearing the appellant’s counsel abandoned grounds 2 and 3. Accordingly, the sole ground relied on is ground 1, which alleges that ‘the learned trial judge erred by failing to exclude the evidence of the post-offence conversations engaged in by the appellant and relied upon by the Crown to prove consciousness of guilt’.
The relevant conversations occurred between the appellant and his de facto wife (‘H’) while the appellant was in custody on remand in the days and months following his arrest - on 6 June 2008 - for the murder of the Abbeys. The police recorded the conversations by covert listening devices placed, inter alia, in the visitor’s room at the prison where the appellant was being held. The context in which the conversations occurred was that H had been speaking to Detective Sergeant Solomon as to the possibility of the appellant providing information in relation to an ongoing investigation into the murder of a couple called the Hodsons. Detective Sergeant Solomon was attached to the Petra Task Force which was established in 2007 to investigate the murder of the Hodsons. He was not investigating the Abbey murders although he had some involvement in them from time to time.
The substance of the conversations is summarised in the appellant’s written case[4] and need not be restated in full. It is sufficient to note that the conversations included statements by the appellant to H that the police might have his DNA on a watch taken from Mr Abbey and how the appellant might explain that; that the clothes used in the killings were burnt; that he was prepared to lie to beat the Abbey charges, and in particular to say that he was at the house but did not go inside; and that he was prepared to kill the person who was going to testify as to driving the appellant to the house on the night of the killings.
[4]See paragraph 12.
At trial, defence counsel conceded that the recording of the conversations was not illegal and that the ‘admissions’ were voluntary. Nevertheless, counsel submitted that the evidence of the conversations ought be excluded on the basis that admission of the evidence would be unfair to the appellant and/or against public policy in the particular circumstances of the case, which included the following matters.
First, on the day of his arrest, apart from proclaiming his innocence the appellant gave a no comment interview. The police were thus aware that the appellant wished to exercise the right to silence, yet proceeded to install listening devices in areas in the prison where they knew the appellant would be. They had installed such devices even before the time of the interview. In effect, it was submitted, by subterfuge and impropriety the police circumvented the appellant’s right to silence.
Secondly, the police exploited the close relationship between the appellant and H, knowing that in order to maintain any future relationship with H, the appellant would be under great psychological pressure to answer questions posed by H, and that he would confide in H and might make admissions as to the Abbey murders. In effect, the police used H as their agent to elicit admissions relating to the Abbey murders. It was said that the transcripts showed that H had descended to cross-examination of the appellant. And although the police had ostensibly been dealing with H as a go-between seeking the appellant’s cooperation in relation to the Hodson murders (rather than the Abbey murders), in a context where H was desperate to get the appellant home and knew that cooperation from the appellant was needed in relation to the Abbeys too in order for him to be released, the police knew that it was likely that H would ask the appellant about the Abbey murders and that the appellant would talk about them.
Thirdly, if the police had only been interested in the Hodson murders, they should have used the procedure in s 464B of the Crimes Act 1958 to enable the questioning of the appellant.[5] That provision contained safeguards, effectively requiring the appellant to be cautioned that he was not obliged to say anything. By proceeding otherwise, the police denied the appellant his rights.
[5]Section 464B(1) relevantly provides that:
464B Questioning or investigation of person already held for another matter
(1)An investigating official may apply to the Magistrates' Court … for an order that a person—
(a)who is—
(i)held in a prison or police gaol;
…
and
(b)reasonably suspected of having committed an offence … other than the offence for which he or she is being held—
be delivered into the custody of the investigating official for the purpose of questioning or investigation in respect of the first-mentioned offence.
For the purpose of determining the objection, a voir dire was conducted at which Detective Sergeant Solomon and H gave evidence as to the circumstances of their interaction leading up to the relevant conversations between H and the appellant.
Having heard the evidence and the submissions of counsel, the judge ruled that the evidence be admitted.
It is convenient to refer to the ruling. The judge stated that the evidence of Detective Sergeant Solomon and H was essentially not at variance. Putting aside an issue as to whom of Detective Sergeant Solomon and H first contacted the other on 11 June 2008, the judge noted that on 17 June they met prior to Detective Sergeant Solomon meeting the appellant that afternoon. Detective Sergeant Solomon said that he and H met on six occasions and spoke by telephone on other occasions. The judge noted Detective Sergeant Solomon’s evidence that on 11 June H indicated to him that she had spoken with the appellant and that:
… he [the appellant] was interested in co-operating and that she was to pass that information on to Mr Solomon. He discussed that with her and assumed she would visit the [appellant] and discuss the matter with him. Mr Solomon stated that her only role was passing on information or requests from the [appellant] to Mr Solomon, and then Mr Solomon asking her to arrange for [the appellant’s] approval for him to visit from time to time. It was easier, Mr Solomon said, to arrange this through [H] because she was either visiting [the appellant] or contacting him every day. Mr Solomon stated that there was a conversation between them about the cooperation that [the appellant] may provide and [H] was very keen to know what [the appellant] would get in return for that cooperation. He made it clear that he was not in a position to make any promises until he knew exactly what [the appellant] was going to say. There was a discussion concerning the million dollar reward, but Mr Solomon denied that there were discussions concerning bail and indemnities.
Detective Sergeant Solomon maintained throughout his evidence that the purpose of meeting with [H] was threefold. 1, to see if the [appellant] was prepared to meet with the police; 2, to find out what he would say about the Hodson murders; and 3, discuss what benefits he might receive if he co-operated. [H] in her evidence confirmed this. She stated that the police were only interested in the Hodsons. [H] said that the discussions with Mr Solomon were about speaking to [the appellant] about the reward money and the people who may be involved in the Hodson murders. [H] frankly stated: ‘He raised the Abbeys, but it wasn’t specifically about going in to talk about the Abbeys’. And she confirmed in cross-examination that that was the truth.
At the time, Detective Sergeant Solomon was team leader with the Petra Taskforce. He was involved in the investigation of the Hodson murders. He was not investigating the Abbey murders, although it appears he had some involvement in them from time to time. [The appellant] at the time was a suspect in the Hodson murders, but he was not charged with those offences until March 2009.
Mr Solomon gave evidence that he was concerned to speak with [the appellant] about the Hodson murders and, if possible, to see if the police could do a deal with him. It was to this end that he engaged in discussions with [H]. Mr Solomon stated that the taskforce managers made a decision to pursue a practical course in endeavouring to speak with [the appellant], rather than make a s 464B application and, indeed, at that state of the investigation, it was not the strategy of the taskforce to interview [the appellant] about the Hodson murders.
Further, according to Detective Sergeant Solomon, this was the way [the appellant] had wanted to proceed and at the time it seemed that he genuinely had something to offer.[6]
[6]T825-7.
It is convenient to interpolate that it is evident that the judge accepted Detective Sergeant Solomon’s evidence. Following the above passages, the judge made the following findings.
First, the purpose of the police speaking with H was to ascertain if the appellant would speak to them and, if so, whether a deal could be done concerning the Hodson murders. That was confirmed by the reference in the conversations to full and frank disclosure being required of the appellant, to the necessity of a statement, the possibility of being taken to a motel to make a statement, and reference to the benefits of pleading guilty. Further, H said that the police did not specifically talk about the Abbeys.
Secondly, there was no evidence that H was acting as the agent of the police or that the purpose of her speaking to the appellant was to elicit admissions or incriminating evidence.
Thirdly, the principal concern of the police (meaning Detective Sergeant Solomon) was the Hodson investigation.
Fourthly, H was not asked to ask questions about the Hodson or Abbey murders. To the extent that she did in relation to the Abbey murders, it appeared to arise from her own concerns.
Fifthly, the placing of the listening devices did not amount to trickery or subterfuge. This was a covert operation and the police were not obliged to disclose the presence of the listening devices.
Sixthly, nothing turned on whether the police had exploited the relationship between H and the appellant or that H felt pressured. The police were entitled to place the listening devices, and what H and the appellant spoke about was up to them. Further, the transcript showed that the appellant was in control of the conversations. As to this, the judge noted that H:
… was very concerned that he speak with the police and at times [the appellant] was telling her what to say to the police. That is not to say that [H] did not express her concerns to [the appellant] or at times pressed him on them, but it could not be said that [H] was cross-examining [the appellant], importuning him, or seeking to elicit or otherwise induce admissions or incriminating material from him such as might be expected if she were acting as an agent for the police for that purpose.[7]
[7]T829.
Then, as to H being ‘pressured’, the judge found that ‘any pressure [H] felt was not because of duress from the police, but because of the circumstances she found herself in, that is grieving about the unexpected incarceration of her husband and her anxiety that the future of a life together may now be lost.’[8]
[8]T830.
Seventhly, in the circumstances the matter of s 464B had not arisen. That was because the police ‘were looking to deal with [the appellant] as an informer, not as a suspect.’[9] In short, the judge said, the purpose of the discussions with H, and of her speaking to the appellant, was to see if the appellant would speak to the police. If he wished to do so, the police could have proceeded under s 464B or taken the motel room option, but that consideration had not arisen.
[9]T830.
It was thus that her Honour was ‘satisfied that no occasion arose [for] the exercise of the discretion to exclude the taped material in the exercise of either the unfairness discretion or the public policy discretion’.[10] It is to be noted that these discretions arose at common law, as described in R v Swaffield,[11] as the Evidence Act 2008 was not in force at the relevant time.
[10]T830-1.
[11](1998) 192 CLR 159 (‘Swaffield’).
Submissions on appeal
In attacking the ruling and submitting that the proper exercise of the discretion required that the impugned evidence be, and should have been, excluded, counsel[12] relied on the submissions made to her Honour, and the following supplementary submissions.
[12]Who did not appear at the trial.
Counsel submitted that H was, and should be found by this Court to have been, an agent of the police to secure evidence contrary to the appellant having exercised his right to say nothing. In using H as an unwitting agent and placing listening devices in the prison, the police subverted the protection of s 464B of the Crimes Act 1958 by secretly recording the appellant on the topic of the Abbeys. That was done when they had given the appellant to believe, through H, that they were open to a ‘deal’ that would, at least in part, involve the Abbey charges. Hence, the recorded discussions concerning the Abbeys could not be said to have been simply fortuitous or coincidental.
As part of this submission, counsel challenged Detective Sergeant Solomon’s evidence concerning s 464B,[13] and the judge’s finding that ‘at the time [it] was not the strategy of the [Petra] taskforce’ to utilise s 464B to interview the appellant about the Hodson murders.[14] In so submitting, counsel referred to the course of the conversations between Detective Sergeant Solomon and H and that, as counsel submitted, H was desperate to get the appellant home to resume their life together. Counsel submitted that the police must be taken to have known that the prospect of the appellant entering into a ‘deal’ would involve him discussing the Abbey murders, in aid of his earlier release home. As to that, counsel referred to H’s evidence that the police said they were only interested in the Hodsons, they did not specifically talk to her about the Abbeys, that they spoke about assisting in relation to the Hodsons and, as to the Abbeys, that he would have to plead to that, and that representations could be made as to a lighter sentence on account of assistance for the Hodsons. Counsel accepted that the police had not asked H to speak to the appellant about the Abbey matter, but submitted that it was plain there would be discussion about the strength of that case. Counsel submitted that for these reasons, and the reasons advanced at trial, the evidence should have been excluded. He referred without further elaboration to Tofilau v The Queen,[15] Em v The Queen,[16] and R v Swaffield.[17]
[13]T827, referred to at [27] above.
[14]T830.
[15](2007) 231 CLR 396 (‘Tofilau’).
[16](2007) 232 CLR 67 (‘Em’).
[17](1998) 192 CLR 159 (‘Swaffield’).
Counsel submitted finally that the impugned evidence was of such importance that if it was wrongly admitted, its admission had occasioned a substantial miscarriage of justice and that in consequence the verdicts should be set aside.
Conclusion on conviction
It is important to appreciate that the appellant’s submissions involve an attack on the judge’s findings of fact. Counsel effectively submitted that the findings were not reasonably open to be made on the evidence.
With respect, the judge’s findings referred to above were all open on the evidence. Rather than H being the agent of the police, the police were reacting to the appellant’s approach to them, made through H, to provide information as to the Hodson murders with a view to a possible ‘deal’. The appellant’s submission seeks to turn the position of the parties upside down and to have him in the capacity of a suspect, and the police desiring to interview him as distinct from being in the character of an informer making contact with the police for his own possible advantage in relation to the Hodson murders, and, in turn, hopefully for advantage on sentence for the Abbey murders. Furthermore, the appellant did not wish to be removed from prison, but rather while there to deal with the police through H as his intermediary. The appellant submitted further that the police deliberately chose to use the listening devices to obtain evidence about the Abbey killings knowing that such evidence would not be forthcoming from the appellant if he were re-interviewed by the police. But this submission too is contrary to the facts found by the judge and the true position of the parties in the circumstances.
Having made findings of fact which were open, and indeed correct, her Honour was correct to rule as she did. That is, it followed from the findings that there was no factual basis for the submission that the admission of the evidence was unfair to the appellant or offended any public policy consideration, in the sense in which those concepts are referred to in Swaffield.[18] As that case makes clear, the court has a broad discretion to exclude evidence whose admission would be unfair to an accused, or against public policy. The discretion is to be exercised having regard to all relevant circumstances.[19] Whilst it is neither possible nor desirable to exhaustively state the matters which inform a court’s assessment of whether the admission of evidence is unfair to an accused or against public policy, an important factor is often the extent to which an accused’s freedom to choose to speak (or not to speak) to the police has been impugned.
[18](1998) 192 CLR 159, 189-91 [53]-[61].
[19]Ibid 202 [91].
In the present case, although the appellant was in prison, he was plainly free to cease talking to H at any time, or to limit the topics of their conversation. The appellant was effectively in control of the conversation and demonstrated an awareness of his right to say nothing. Further, far from being overbearing, H’s questioning was not directed to the Abbey matter. In the circumstances, it cannot be said that admission of the evidence was unfair to the appellant.
As to the public policy discretion, counsel conceded that there was no illegality but rather relied on ‘subterfuge’ and a denial of the right to a caution under s 464B. The difficulty is that the alleged ‘subterfuge’ went no further than that inherent in any covert recording. And for the reasons stated earlier, the police were not obliged to proceed under s 464B. In short, there was no police impropriety or any other public policy reason why the discretion ought to have been exercised to exclude the evidence.
It remains to note that the authorities of Em and Tofilau referred to by counsel do not assist the appellant.
The decision in Em concerned the operation of s 90 of the Evidence Act 1995 (NSW) which relevantly provided that a court may refuse to admit evidence of an admission if, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. The High Court held[20] that it was not unfair to use admissions obtained from a suspect through a covert recording of conversations between the suspect and detectives in a local park, in circumstances where the detectives knew that the accused held a mistaken belief that if the conversations were not recorded, any admissions he made could not be used against him. Gleeson CJ and Heydon J concluded that in all the circumstances the accused’s freedom to speak (or not to speak) was not impugned because, inter alia, the accused was free to leave at any time, the questioning was not overbearing, there was no suggestion that he spoke because of any threat of violence, or any illegality, or any impropriety, nor was it contended that the circumstances were likely to affect the truth of the admissions.[21] Hayne and Gummow JJ observed that even if the police had tricked the accused into making admissions, it did not necessarily follow that use of the evidence would be unfair.[22] It is sufficient to note that the circumstances said to involve unfairness in Em were far more apparent than the circumstances in the present case.
[20]By 4-1 majority.
[21](2007) 232 CLR 67, 95-6 [78].
[22]Ibid 105 [116].
The decision in Tofilau does not assist the appellant either, as the appeal to the High Court concerned only the mandatory exclusion of involuntary confessions. In contrast, in the present case it was accepted that the relevant admissions were voluntary.
For these reasons, the judge was correct to rule that the evidence ought be admitted. It follows that the appeal against conviction must fail. In these circumstances, it is unnecessary to consider whether, if the evidence should have been excluded, a substantial miscarriage of justice resulted. Nor, in that regard, is it necessary to consider the Crown’s submission that the remaining evidence was well sufficient to warrant the verdicts such that a substantial miscarriage was not occasioned.
Sentence
The appellant’s grounds of appeal contend that:
1.The learned sentencing judge erred by finding that the murder of Ray Abbey fell into the ‘worst category of murder, that is a cold-blooded execution’;
2.The learned sentencing judge erred by finding that the appellant was the actual killer of Dorothy Abbey;
3.The learned sentencing judge erred by imposing a sentence that breached the principle of parity;
4.The learned sentencing judge erred (a) by failing properly to take into account the appellant’s advanced age and (b) by rejecting the Crown submission that there should be imposed a life sentence without parole but imposing a sentence that would vindicate the Crown position as a matter of practical reality;
5. The non-parole period is manifestly excessive.
It is convenient to deal with each ground in turn.
Ground 1
The judge described the appellant as having murdered Mr Abbey ‘as a result of your animosity towards him’ and as having murdered Mrs Abbey solely to avoid being identified.[23] Her Honour said ‘so stated, your conduct places these two murders in the worst category of murder, that is cold-blooded executions’.[24] Her Honour later referred to the appellant’s animosity to Mr Abbey arising from a number of matters, and observed that he was ‘prepared to act upon it, even if it be in the context of an aggravated burglary as distinct from going to the house with the intention of murdering him’.[25]
[23]DPP v Collins [2010] VSC 209, [27].
[24]Ibid.
[25]Ibid [28].
Counsel submitted that whatever might be said of the killing of Mrs Abbey, it was not open to find that the killing of Mr Abbey fell into the worst category, namely a cold-blooded execution. That was because one could not exclude the real possibility on the evidence that the appellant did not go to the house intending to murder Mr Abbey, but rather to seek the return of the police badge, and that it was only when Mr Abbey refused to meet the appellant’s demands, and in the context of ongoing animosity, that he finally decided to kill him in the heat of the moment. This was especially so given that the judge appeared unprepared to find beyond reasonable doubt that the attendance at the Abbey house was in order to commit murder.
The submission ought be rejected. Read in isolation, the judge’s observations do appear to recognise that the appellant might not have attended the house intending to murder Mr Abbey, but rather decided to murder him in the course of an aggravated burglary. However, reading the sentencing remarks as a whole, the observations do no more than recognise that however the shooting ultimately occurred, it demonstrated that the appellant was willing to act to the maximum extent upon his animosity towards Mr Abbey. Further, the sentencing remarks refer to evidence to the effect that the appellant had said beforehand that he planned to ‘fix up’ or ‘knock’ Mr Abbey.[26] There was also evidence that the appellant admitted shooting Mr Abbey in the back of the head because ‘dead men tell no tales’.[27] There was also the evidence of the manner of the shooting itself, namely three shots to the side of the head through a towel. These matters bespoke a killing in the nature of a cold-blooded execution rather than an aggravated burglary that went wrong in the heat of the moment. In the circumstances, it was open to the judge to find beyond reasonable doubt that the killing of Mr Abbey was a cold blooded execution. And even if it be assumed that the appellant was motivated by rage in the heat of the moment, the fact remains that the killing was a brutal and callous execution which could in any event be correctly described as belonging to the worst category of murder. The ground fails.
[26]Ibid [8].
[27]Ibid [12].
Ground 2
There was ample evidence – set out at [26] of the sentencing remarks - to support the finding that the appellant was the person who actually killed Mrs Abbey. Her Honour stated:
26I am satisfied also that you were the person that shot Dorothy Abbey and cut her throat, thereby killing her. This is so because the evidence establishes (1) the bullets that killed both Mr and Mrs Abbey came from the same gun; (2) the gun held six cartridges - all six were fired; three into Mr Abbey, two into Mrs Abbey, and the sixth hit the fireplace in the lounge room where Mrs Abbey was found dead, thus the cartridges were fully expelled; (3) both Mr and Mrs Abbey were shot in the head; (4) [The man who drove the appellant to the house] saw a gun in your possession when you returned to the car from the Abbey house; (5) he saw a gun only in your possession and not in the possession of anyone else. [The man who drove the appellant to the house] did not see you in the possession of two guns; (6) you were known to Mr and Mrs Abbey, you had been to their house previously; (7) there was no evidence that either [of the two co-offenders] knew either Mr or Mrs Abbey; (8) [A former inmate’s] evidence that you said in his presence words to the effect ‘she shouldn't have said my name.’ The inference to be drawn from that is that Mrs Abbey recognised you and you knew that she had. (9) Thus you had a motive for killing Mrs Abbey and there was no evidence that any of the other two persons present had a motive to kill her. (10) You admitted to [another former inmate] that you killed her. (11) Although in speaking with [a further former inmate] you attributed the killing of Mrs Abbey to [the co-offender M], there are good reasons, given the notoriety of the murders and what appears to be the breach of the Criminal Code in killing Mrs Abbey with her children nearby, as to why you would attribute responsibility for this killing to another. (12) In your evidence and in your notice of alibi and in a conversation which was covertly recorded, you admitted having guns in your possession although in evidence you said that they were not .38 calibres.
Counsel accepted that these matters ‘speak for themselves’, but submitted that while those facts taken together ‘may permit the conclusion that it is more probable than not that the appellant killed Mrs Abbey’ they did not permit a finding beyond reasonable doubt. I disagree. The combined force of the matters referred to by her Honour was compelling. The suggestion that one of the appellant’s accomplices killed Mrs Abbey was pure speculation rather than a reasonable hypothesis available on the evidence. The ground fails.
Ground 3
The appellant’s complaint about parity relates to the sentence imposed on one of his accomplices, M. In 1988 M was arrested, convicted of the murders of both Mr and Mrs Abbey, and sentenced to life imprisonment with a minimum term of 20 years and 8 months. As the judge had already deducted 16 months for time served, his effective minimum term was 22 years. By comparison, the appellant received a non-parole period of 32 years.
In short, the appellant submitted that the difference of 10 years between the respective minimum terms left him with a justifiable sense of grievance.
It is to be noted from the outset that there is a certain artificiality in this complaint, given that M successfully appealed against conviction and was acquitted at his retrial, thus serving only a small part of his sentence before ultimately dying in 2004. In other words, one might wonder how the appellant could have a justifiable sense of grievance based on a sentence that was set aside. Further, the appellant cited no authority for the proposition that such a sentence would be relevant. Nevertheless, the Crown not having taken any point, it is appropriate to deal with the issue on the merits.
The parity principle is an aspect of equal justice, which requires that like offending be treated alike. Conversely, relevant differences between offending and offenders will justify different outcomes. The question is whether the disparity between the two sentences is such as to give rise to a justifiable sense of grievance on the appellant’s part.[28]
[28]Nguyen v The Queen [2012] VSCA 119, [21].
There are several significant differences between the respective offenders’ circumstances.
First, M was aged 25 at the time of offending whereas the appellant was aged 41 with an extensive criminal history and, by the time of sentence, a large number of subsequent offences. Secondly, the appellant fell to be sentenced as a serious violent offender on the basis of a prior conviction for wounding with intent to do grievous bodily harm, hence community protection was the primary purpose for which he was sentenced. In contrast, the relative youth of M meant that considerations of rehabilitation were of greater significance in his case. Thirdly, and most importantly, the appellant was the instigator and person who played the major role in the offending. He was the person who actually killed the Abbeys whereas M was merely complicit in the killings.
These differences between the respective roles of the appellant and M readily explain the difference of 10 years in the minimum term. The ground fails.
Grounds 4 and 5
It is convenient to deal with these grounds together as they essentially amount to a complaint that the non-parole period of 32 years exceeded the range open to the judge in the circumstances.
The appellant submitted that in circumstances where the judge rejected the Crown’s submission that the sentence ought be life without parole, and accepted that the sentence should not be crushing and should allow for life beyond a non-parole period, her Honour ought to have fixed a shorter non-parole period. That was because the practical effect of the non-parole period imposed is that the appellant will die in prison. The complaint about the judge’s failure to properly take into account the appellant’s age was to be seen in this context.
As to that complaint, the relevance of advanced age to the sentencing process is explained in cases such as R v RLP[29] and R v Saw.[30] It is unnecessary to essay those principles here, save to note that it was plainly a relevant sentencing consideration that the appellant’s age meant that there was a real possibility that he would die in prison. It is evident from the sentencing remarks that her Honour was aware of that possibility. Indeed, her Honour specifically stated that she took into account the appellant’s age and his (very limited) prospects of rehabilitation. After referring to the objective gravity of the offending, and noting that other multiple murderers, including killers of police officers, had secured non-parole periods even in the absence of guilty pleas, her Honour concluded that:
Life without parole is a sentence of the utmost severity and I can see no reason why a non-parole period should not be fixed here, particularly when one has regard to the considerations that a sentence should not be crushing and should allow for life beyond a non-parole period.[31]
[29][2009] VSCA 271.
[30][2004] VSC 117.
[31]DPP v Collins [2010] VSC 209, [41].
And whilst her Honour did not specifically refer to the prison sentence weighing more heavily on the appellant because of the high proportion of his limited time left that it represented, such a fact was obvious and would have been plain to her Honour.
Read literally and in isolation, the above passage suggests that her Honour considered that the sentence should allow for life outside prison. Thus, the appellant’s complaint is effectively that the non-parole period failed to reflect the judge’s stated intention.
As the appellant’s earliest release date is June 2040 (three months before his 95th birthday), it may readily be accepted that the sentence imposed makes it likely that the appellant will die before being eligible for parole. However, that outcome cannot be assumed, especially in the absence of any particular medical conditions identified as shortening the appellant’s life expectancy. Moreover, the mere fact that her Honour determined to fix a non-parole period, and referred to the sentence allowing for life beyond prison, does not mean that her Honour should be taken as having intended to pass a sentence that ensured such an outcome. Indeed, if her Honour had proceeded on the basis that she was bound to fix a non-parole period which enabled the appellant to be released at some time within a person’s nominal life expectancy, she would have been in error. But I do not consider that her Honour approached the matter in that way.
Rather, her Honour correctly recognised that she was required to fix the non-parole period which she considered justice required having regard to all the relevant circumstances. In doing so, her Honour correctly had regard to the objective gravity of the offending, which was of the highest order, and the fact that, as a serious violent offender, s 6D of the Sentencing Act 1991 required that the protection of the community from the appellant be the principal purpose for which the sentence was imposed. Her Honour properly recognised the significant role of specific and general deterrence. As against that, her Honour had regard to the age of the appellant, such slim prospects of rehabilitation as he may have, and the desirability of avoiding a crushing sentence, in the sense of destroying any reasonable expectation of useful life after release. But these latter matters did not mandate a non-parole period which guaranteed the appellant life after prison.
As the Appeal Division observed in Bazley v The Queen:[32]
The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.
[32](1993) 65 A Crim R 154, 158.
The Court in Bazley further observed that ‘it would be wrong to approach the question as to the selection of an appropriate minimum term on the basis that there was a need to ‘guarantee’, as it were, some measure of life after release.’[33] That is because such an approach may lead to an impermissible disregarding of relevant factors such as general deterrence and retribution. Similarly, the avoidance of a crushing sentence is not an absolute requirement but rather a matter to be achieved if it is possible to so without undercutting the minimum term which justice requires in the circumstances.[34]
[33]Ibid 159.
[34]See Brazel v The Queen (2005) 153 A Crim R 152, 160-1 [25], [29], [33].
Her Honour was faced with a difficult sentencing exercise. The offending was horrendous and the mitigating factors few, yet the prospect of sending a person to prison for what was most likely the rest of his life was plainly not a proposition taken lightly by her Honour. I consider that her Honour dealt with the matter in a carefully balanced and appropriate way. I do not consider that her Honour failed to properly have regard to the appellant’s age, nor that the non-parole period failed to reflect the judge’s stated intention or was manifestly excessive.
Finally, it remains to note that in the course of his submissions counsel relied on the fact that the appellant is presently serving his sentence in conditions which, he submitted, amount to solitary confinement. That is, whilst he can see and speak to other prisoners, he cannot mingle with them for security reasons. He is only allowed outside his cell for one hour per day, and that is likely to continue indefinitely. In effect, counsel submitted that the harshness of the appellant’s prison conditions was to be taken into account in assessing the appropriateness of the non-parole period. For the purpose of ascertaining the position on this matter, the Court requested that the Crown provide evidence as to the appellant’s prison arrangements.
In response, the Crown filed an affidavit sworn by Brendan Francis Money, Director of the Sentence Management Branch at Corrections Victoria. He deposed that while the appellant was previously allowed to be out of his cell for 6 hours each day, the position changed following an incident in November 2011 where the appellant received a black eye and concerns arose about his safety in the context of speculation among inmates that the appellant was a police informer. Mr Money further deposed that while the appellant was not concerned about his safety and stated that his injury was caused by falling over, prison management considered there were reasons to be cautious about whom he can mix with. In circumstances where the appellant has been unwilling or unable to identify prisoners who may have threatened him, management have not been able to identify suitable prisoners that he could mix with. And whilst the appellant’s classification will be reviewed, he is likely to remain as a high or maximum security prisoner for some time, given his ‘significant criminal associations, and the issue of him being a person of significant interest in other murder offences’. Being in a management unit, the appellant is not allowed to mix with other prisoners, although he has up to 30 minutes in the telephone centre, from where he can talk to other prisoners in the day room. He talks to four other prisoners during that time, in addition to people he calls on the telephone. Mr Money deposed that he considers the appellant is appropriately accommodated, given the current threats to his safety.
It is to be noted that counsel did not rely on the hardship of the appellant’s prison conditions as a stand alone ground of appeal but rather as a particular in aid of the contention that the non-parole period was manifestly excessive. The evidence makes clear that the appellant is presently serving his sentence in circumstances of significant confinement which - one may observe without being critical of the prison authorities - do not seem justly sustainable over time. Mr Money’s affidavit addresses the past and present situation which may, in the course of things, change in the future with relevant changes in the circumstances. For the present, there appears justification for the prison authorities’ view that the appellant may be at risk if he mixes with other prisoners. That is particularly so given that the safe mixing of prisoners is a matter which depends largely on the appellant’s cooperation, which has not been forthcoming. In these circumstances, it seems that little can be done at present to integrate the appellant with other prisoners, and particularly bearing in mind that the authorities – and not this Court – bear the legal responsibility for the safety and welfare of the appellant. Nevertheless, while management in the prison system is a matter for the authorities, there is no reason to suppose the appellant will not be moved to more appropriate accommodation as soon as that is possible. In the circumstances, I am not persuaded that the hardship inherent in the appellant’s present arrangements lead to the conclusion that the sentence is manifestly excessive, or otherwise warrants appellate intervention to reduce what is an appropriate sentence.[35] It follows that grounds 4 and 5 fail.
[35]See Bekink v The Queen (1999) 107 A Crim R 415, 421-3 [29]-[31] (Court of Criminal Appeal, Western Australia).
I would dismiss the appeal against sentence.
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