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Creamer v The Queen

Creamer v The Queen

Case [2012] VSCA 182 16 August 2012

Criminal Liability

Sentencing

Defensive Homicide

Proportionality of Sentence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2011 0220

EILEEN MARY CREAMER	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG and BONGIORNO JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	25 July 2012
DATE OF JUDGMENT	16 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 182
JUDGMENT APPEALED FROM	R v Creamer [2011] VSC 196 (Coghlan J)

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CRIMINAL LAW — Appeal against sentence — Appellant charged with murder of husband — Convicted instead, after trial, of defensive homicide — Sentence of 11 years’ imprisonment with non-parole period of seven years — Background of difficult relationship — Husband repeatedly sought to have appellant engage in group sex — Appellant refused to do so — Breakdown of marriage — Husband killed by being battered to the head by blunt instrument and stabbed to the abdomen— No reasonable grounds for appellant’s belief that self-defence warranted to protect against ‘death or really serious injury’ — Belief wholly unjustifiable — Whether sentence manifestly excessive — Serious example of defensive homicide—Grossly disproportionate force used by appellant — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Morrissey SC	Robert Stary Lawyers
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

The appellant was arraigned in the Supreme Court at Melbourne on a charge of having murdered her husband in February 2008. She was acquitted of that charge but convicted instead of the lesser offence of defensive homicide, contrary to s 9AD of the Crimes Act 1958. The maximum penalty for that offence is 20 years’ imprisonment.

After a plea in mitigation, the appellant was sentenced on 20 April 2011 to 11 years’ imprisonment with a non-parole period of seven years. She now appeals against that sentence upon a single ground, that of manifest excess.

Background to the offending

The appellant and the deceased were married in South Africa in 1997. Both had children from earlier marriages. In early 2000, the deceased moved to New Zealand. The appellant joined him there some eight months later. In April 2006, the deceased left New Zealand for Australia. The appellant joined him here in May 2007. During the appellant’s time in New Zealand, both she and the deceased engaged in extra-marital affairs.

The appellant’s relationship with the deceased was, throughout, a difficult one. Nonetheless, they stayed together. The appellant claimed that the deceased had asked her repeatedly to take part in group sex, but that she had always refused to do so. The evidence was that no such activity ever actually took place. Somehow, the appellant would always find a means of avoiding it.

In December 2007, the appellant travelled to South Africa with the deceased to attend her son’s wedding. She returned to Australia but the deceased stayed on in South Africa for several weeks longer. Whilst there, he became reunited with his ex-wife and his two sons.

The Crown case was that the appellant, having learned of her husband’s renewed relationship…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Creamer v The Queen

Details

AGLC: Creamer v The Queen [2012] VSCA 182
Case: [2012] VSCA 182
Decision Date: 16 August 2012

CaseChat Overview and Summary

Creamer was convicted by a jury in the Supreme Court of Victoria of the manslaughter of her husband, with whom she had a turbulent relationship, by battering him to the head and stabbing him in the abdomen. She was sentenced to 11 years’ imprisonment with a non-parole period of seven years. The central issue in this appeal was whether the sentence was manifestly excessive. The appellant argued that the sentence was excessive in light of the difficult relationship, her state of mind at the time of the incident, and the fact that the jury acquitted her of murder.

The High Court considered the circumstances leading to the offence, including the appellant's refusal to participate in group sex, which precipitated a breakdown in the marriage. Despite these factors, the court found that the appellant's belief in the need for self-defence was wholly unjustifiable and that the force used was grossly disproportionate. The Court emphasised that the appellant had no reasonable grounds to believe that she was in imminent danger of death or serious injury. The Court held that the sentence, while severe, was not manifestly excessive and reflected the gravity of the crime.

Given the serious nature of the crime and the disproportionate force used, the Court dismissed the appeal. The sentence was appropriate to reflect the seriousness of the crime, and the appellant's background did not warrant a significantly reduced sentence. The court's decision underscored the importance of proportionality in sentencing and the need to balance the circumstances of the crime with the severity of the punishment.

Orders