Creamer v The Queen
[2012] VSCA 182
•16 August 2012
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 with his former wife, became jealous and angry. As a result, she decided to kill him, and did so in a premeditated way. Given that the jury acquitted the appellant of murder, they must have rejected that particular allegation.
The sentencing judge, in his sentencing remarks, found that the appellant had come to regard her position as extremely unsatisfactory, and had concluded that her relationship had no future. That finding, which of course did not go nearly as far as the Crown’s central thesis, was not challenged before this Court.
The circumstances surrounding the offence
On Saturday 2 February 2008, the day before the deceased was killed, the appellant returned home to Moe at about lunchtime. She had spent the previous night in Melbourne with her lover. The deceased was present at the house. This surprised her as he was usually away on weekends. The appellant and the deceased were, by that stage, occupying separate bedrooms.
The appellant claimed that a bitter argument ensued. She said that the deceased had ‘repeatedly questioned, harassed and intimidated [her] about why [she] had not returned home on Friday evening’. She further said that the deceased had been talking to two men at the house, and that she had gained the impression that he was attempting to arrange for her to have sex with them, in his presence. The sentencing judge rejected this account.[1]
[1]R v Creamer [2011] VSC 196, [16] (‘Sentencing Remarks’).
According to the appellant, the deceased accused her of having had sex with his brother. She said that she had dozed off and had been awakened by the deceased attacking her with a stick. Although she failed to mention any such attack when initially examined by a doctor at the Moe Police Station, she did have some linear bruising on her body consistent with having been struck in that way. The sentencing judge rejected this account, finding that it was more likely that the injuries to her body had been inflicted in the course of the struggle that led to her husband’s death.
The appellant claimed that after she was attacked, the deceased left the house. She assumed that he had brought people back to the house because she saw several wine glasses in the lounge room the following morning. Because he considered it to be inconsequential, the sentencing judge made no finding regarding that claim.
According to the appellant, the deceased was at first apologetic towards her for having assaulted her the previous day. However, his mood soon changed. He became offensive towards her by forcing her to smell his semen-stained sheets which he placed next to her face. The deceased then left and went to his own bedroom.
The appellant said that she later went into the deceased’s bedroom. She saw the stick with which she claimed to have been beaten on the previous day. She described it as a ‘knobkerrie’. This was said to be a South African club with a knob at the end of it. That particular item was never found. The Crown, though doubting that there had ever been a weapon that precisely met that description, accepted the possibility that the appellant may have used a weapon of similar size and weight to batter the deceased to death.
According to the appellant, the deceased said something to her that led her to believe he was about to attack her. She said that she grabbed the stick ‘and started hitting him’. She said that as she was doing so, he responded by abusing her in strong terms. She said that after she had struck him several times with the stick, she ran out of his bedroom and went outside the house. She claimed that the deceased somehow caught up with her and dragged her back inside the house. She said that he took possession of a knife from the kitchen. She said that the two of them then struggled. The deceased smacked her repeatedly to the face. By this stage, they were in one of the bedrooms. The knife was adjacent on the bedside table. She described the deceased as ‘extremely angry’. She claimed that he attempted to rape her by putting his penis in her mouth. She further claimed that he then urinated on her. She said that she managed somehow to strike the deceased in the genitals and push him onto the floor. She said that it must have been at that stage that she stabbed him. She told the jury that he had said to her that he was going to ‘finish her off’.
The sentencing judge rejected that entire account, noting in particular that the appellant had never previously told the police that her husband had threatened her in that way, or behaved towards her as she had described in her evidence.
According to the appellant, after she stabbed the deceased she ran across the road to dispose of the stick in the grounds of a nearby school. She said that she then realised that she had left the knife behind, in the house. She said that as she returned home, her husband came out of the house and called out to her. She avoided him, and went inside. She heard the shower running, meaning that the deceased, after being stabbed, must have sought to wash the blood away. She then collected the knife and disposed of it. She later returned to the house and washed her clothes. She secreted them in a cupboard.
On the following morning, the appellant woke to find her husband dead. She at once sought the assistance of neighbours. When questioned by police, the appellant at first denied any involvement in her husband’s death. She was, however, prepared to tell the police something of the history of their relationship.
The sentencing judge concluded that the appellant’s account of the circumstances surrounding the death of her husband did not ‘much accord with the known facts’.[2] The objective evidence was that she had struck her husband repeatedly to the head with a blunt object. The location of the bloodstains meant that the blows must have been inflicted both inside and outside the house, to the front and to the rear. None of that was at all consistent with the appellant’s version of events, as recounted to the jury.
[2]Sentencing Remarks [24].
The sentencing judge described the appellant as an unsophisticated witness who, in his Honour’s opinion, had said a number of things which she thought would assist her case, but which were demonstrably untrue.
Professor Stephen Cordner, the pathologist who gave evidence at the trial, said that the deceased had ‘sustained numerous blunt injuries to the head’. Having regard to the injuries sustained, the blows must have been extremely severe. The appearance of the deceased’s hands suggested that he had attempted to cushion the blows to his head.
There was a single stab wound to the upper abdomen which had penetrated the stomach and liver causing substantial internal bleeding. There were also defensive wounds to the hands suggesting that the deceased had sought to ward off an attack with a knife. According to Professor Cordner, the deceased might have been able to move about for a ‘couple of minutes’ after being stabbed, but no longer than that. The loss of blood was so great that he would soon have been feeling faint and unable to move about.
The sentencing remarks
On the basis of Professor Cordner’s evidence, the sentencing judge concluded that the deceased had been disabled from almost the moment that he was stabbed. Self-evidently, the pathologist’s evidence was entirely inconsistent with the appellant’s account of how the deceased had met his death. He could not have come after her, when she left the house, having previously been stabbed. Nor could he, having sustained that wound, washed himself in the shower.
His Honour found that the sheer number, and viciousness of, the blows struck to the deceased’s head and body meant that it was highly probable that the appellant had been totally ‘out of control’ at the time. That, in turn, meant that she was probably unable to recall, with any accuracy, the details of what had occurred.
His Honour concluded that, despite the appellant’s denial of any knowledge that the deceased intended to go back to his former wife, she was in fact fully aware that that was his plan.
Although his Honour readily accepted, in accordance with the jury’s verdict, that the appellant’s actions were not premeditated, he nonetheless characterised this offence as a serious example of defensive homicide.
His Honour noted that the appellant had no prior convictions. He concluded that her prospects of rehabilitation were good, and found that she was unlikely to reoffend. He referred to her history of depression, and the fact that she had taken advantage of her time in prison to engage in various rehabilitation programs. He also took into account, in her favour, her willingness, throughout the trial, to concede that she had to be guilty of at least one or other of the offences of manslaughter or defensive homicide. He accepted that this demonstrated remorse on her part.
However, his Honour noted that these mitigating factors had to be balanced against the objective gravity of this offence. In particular, any sentence imposed had to denounce the appellant’s conduct, and ensure that she was adequately punished for what she had done. General deterrence was also an important consideration, and specific deterrence, though of less significance, could not entirely be ignored.
The sentencing judge understood that the appellant would serve her sentence in relative isolation. He said that he would take that into account, and that he would impose ‘a lower than usual non-parole period because of it.’[3]
[3]Sentencing Remarks [48].
The appellant’s submissions
Before this Court, the appellant relied upon one ground only, that of manifest excess. That ground was particularised in the following terms:
Ground 1: The head sentence and the non-parole period are manifestly excessive, particularly in view of:
a) the background of domestic violence or abuse the applicant suffered at the hands of the deceased;
b) the applicant’s offer to plead guilty to defensive homicide prior to trial and the fact that the trial was conducted on the basis that she was guilty of either defensive homicide or manslaughter despite her evidence disclosing a complete defence to those offences;
c) her genuine remorse;
d) her good character and the absence of prior convictions;
e) her prospects of rehabilitation;
f) the judge’s finding that the applicant was unlikely to reoffend such that specific deterrence was of only muted weight;
g) the particularly burdensome nature of imprisonment for the applicant given the isolation she would suffer;
h) the maximum penalty and current sentencing practices.
It was submitted that the appellant’s offer, before the trial, to plead guilty to either manslaughter or defensive homicide ought to have carried great weight, and significantly more than it appeared to have done. That was particularly so given that the appellant, by pleading guilty to one or other of those offences, would have foregone her chances of a complete acquittal.
I have difficulty with that particular submission. The evidence given by the appellant in the course of the trial was palpably at odds with the objective facts, and would almost certainly have been rejected by the jury. Precisely why, in those circumstances, the appellant should be given credit for having foregone the ‘possibility’ of an acquittal (which prospect was certainly remote, in the particular circumstances of this case) is something of a mystery.
It was next submitted that the sentence of 11 years was so far out of kilter with current sentencing practices as to demonstrate, in and of itself, manifest excess. That submission, too, has its difficulties. Defensive homicide has only been in existence for a relatively short time. There are not, as yet, many sentences for this offence from which current sentencing practices can be distilled. Nonetheless, it was submitted
that, by any fair measure, a comparison with those few cases which have dealt with this offence, the present sentence could be seen to be outside the range.
Counsel for the appellant drew attention to the following cases (which are tabulated from the highest to the lowest sentences):[4]
[4]To this list may be added my own sentence in R v Edwards [2012] VSC 138 where, in circumstances very different from those in the present case, I imposed a sentence of seven years’ imprisonment with a non-parole period of four years and nine months. That was a case involving a genuinely battered woman who was facing the imminent threat of, at least, significant injury. She elected to plead guilty to defensive homicide, and there were a number of additional mitigating factors present.
Case Salient features Sentence imposed R v Middendorp
[2010] VSC 202; [2012] VSCA 47Plea of not guilty; armed with a knife; relevant prior convictions; aggravated by offending in breach of bail and intervention order; in breach of bond; aggravated by words uttered as deceased died; described by trial judge as amongst more serious of cases; appeal dismissed 12 years with non-parole period of eight years R v Svetina [2011] VSC 392 Plea of not guilty, offender killed elderly father in father’s own home with a tomahawk 11 years with non-parole period of seven years R v Ghazlan [2011] VSC 178 Guilty plea; psychiatric illness; community protection therefore relevant; very relevant prior convictions 10 and a half years with non-parole period of seven and a half years R v Edwards [2008] VSC 297; DPP v Edwards [2009] VSCA 232 DPP appeal dismissed in exercise of discretion; after victim threatened offender with leg of coffee table, offender severely bashed victim and continued bashing after unconscious; described as near the worst case; aggravated by relevant prior convictions and presence of others 10 years with non-parole period of eight years R v Parr [2009] VSC 468 Plea of not guilty, though offer to plead to defensive homicide prior to trial; 17 stab wounds in context of home invasion; relevant prior convictions 10 years with non-parole period of eight years
Case Salient features Sentence imposed R v Wilson [2009] VSC 431; Wilson v The Queen [2011] VSCA 12 Guilty plea; relevant prior convictions; offender had returned to boarding house angry and drunk and intent on confrontation; offender grabbed knife produced by victim and stabbed victim seven times; appeal dismissed 10 years with a non-parole period of seven years R v Evans [2009] VSC 593 Guilty plea; relevant prior convictions; went to victim’s room armed with a knife; produced knife in response to blow by victim; lied about producing knife; described by King J at [44] as ‘mid-range’offence 10 years with a non-parole period of seven years R v Taiba [2008] VSC 589 Guilty plea; offender went to home of deceased armed with a knife, having heard of threat by deceased to kill; relevant prior convictions Nine years with a non-parole period of seven years R v Black [2011] VSC 152; [2012] VSCA 75 Guilty plea; domestic violence; good character and no prior convictions; section 6AAA statement of 11 years with a non-parole period of 8 years; appeal dismissed Nine years with a non-parole period of six years. R v Croxford & Doubleday [2009] VSC 516 Trial; jury verdict interpreted as jury not being satisfied that accused did not have required subjective belief Nine years with a non-parole period of six years R v Giammona [2008] VSC 376 Guilty plea; 16 stab wounds inflicted at Port Phillip Prison; accepted that actions spontaneous; relevant prior convictions Eight years with a non-parole period of six years R v Baxter [2009] VSC 178 Stabbing at house where offender equipped self with knife; stabbing disproportionate response to being punched; relevant prior convictions Eight and a half years with non-parole period of five and a half years R v Martin [2011] VSC 217 Offender king hit and kicked deceased after unwanted sexual advance; plea of guilty; low IQ Eight years with a non-parole period of five years
It was submitted that several observations could be made about that list. Counsel submitted that:
First, in only one case (Middendorp) did the sentence exceed the [appellant’s], and that was imposed following a trial in circumstances where there were several aggravating features and relevant prior convictions. Secondly, most of the sentences in the upper range involved relevant prior convictions or some other feature that placed them in the more serious category. Thirdly, in the only other case where a woman had killed her male partner against a background of domestic violence (Black), a sentence of nine years’ imprisonment with a non-parole period of six years was imposed. Fourthly, had Ms Black pleaded not guilty, the sentencing judge in that case would have imposed a sentence of 11 years’ imprisonment with a non-parole period of eight years.[5]
[5]Applicant’s Written Case dated 19 December 2011, page 9.
That fourth point was said to add force to the submission that insufficient weight had been given to the appellant’s offer to plead guilty in the present case, and to the manner in which she had conducted the trial.
The Crown’s response
The Crown noted firstly that this had been a ‘hotly contested trial’. Its case, all along, had been that the appellant had murdered her husband when she became aware that he had ‘reconciled with his first wife’ and that he intended to leave her.
The Crown submitted that the defence had contested the charge of murder on two quite separate bases. First, it had contended that the appellant could not be shown to have acted with murderous intent. Accordingly, she could not be guilty of anything more than manslaughter. Secondly, if murderous intent could be established, the domestic violence provisions of the Crimes Act applied so as to reduce the charge to, at most, one of defensive homicide. The appellant, through her counsel, had frankly acknowledged, in the presence of the jury, that she had no reasonable grounds for believing that what she did was necessary in order to defend herself from the infliction of death or really serious injury.
The Crown observed that the appellant had given evidence and been cross-examined. She had not been a credible witness. She regularly introduced new evidence of an exculpatory nature that she had never previously mentioned. As the sentencing judge found, much of her evidence was entirely inconsistent with the demonstrably proven facts.
The Crown noted that during the course of the plea, counsel for the appellant had specifically disavowed reliance on much of her evidence. Moreover, the sentencing judge, having conducted the trial, ‘enjoyed a significant advantage over this Court in determining the seriousness of this offence and the moral culpability of the appellant, both of which required an assessment of her evidence’.
To support the Crown’s contention that the sentencing judge gave due weight to the circumstances mitigating this offence, the Crown referred to his Honour’s statement that he would sentence the appellant
on the basis that [she] had been overwhelmed by the whole of the circumstances as they surrounded [her], and in particular, by [her] concern that [she was] being forced into a sexual scenario which [she] did not want.[6]
[6]Sentencing Remarks [38].
The Crown noted that, on the issue of domestic violence, the sentencing judge said that it was difficult to determine a scale by which to measure family violence. In substance, however, his Honour had largely disregarded any physical violence perpetrated by the deceased towards the appellant, but treated this case rather as one where she was simply overwhelmed by the events surrounding her and her husband. The Crown submitted that this placed the extent of domestic violence in this case at the ‘lowest end of the spectrum’.[7] So much so that the defence, in this trial, ‘did not even try to convince the jury’ that the appellant might reasonably have believed that she needed to do what she did because she was at risk of being seriously injured or worse.
[7]Response to Applicant’s Written case dated 23 February 2012, page 10.
With regard to the appellant’s offer to plead guilty to defensive homicide, the Crown submitted that the sentencing judge had given due weight to that factor on ‘the basis of the way the trial was conducted’. The Crown argued that, in the circumstances of this case, this was the appropriate way to deal with this factor.
The Crown took issue with the appellant’s submission that this sentence was significantly at odds with current sentencing practices. It noted that the defence, quite properly, had placed little reliance on comparable cases during the course of the plea. That was because counsel recognised that these were of limited utility. There were no direct comparators.
Finally, the Crown submitted that both the head sentence and the non-parole period were clearly within range. Indeed, the Crown went further and submitted that the non-parole period could fairly be regarded as lenient. That non-parole period had obviously been tailored to allow for factors such as the appellant’s good prospects of rehabilitation, and the extent of personal hardship associated with a lengthy custodial term, to be given full expression.
Conclusion
I should say that, in my opinion, this was a stern sentence. It is, of course, a far cry from that observation to the conclusion that it was manifestly excessive.
When considering whether a sentence can be described as manifestly excessive, it must be remembered that this expression is, in truth, nothing more than a statement of a conclusion. A ‘sentence is, or is not, unreasonable or plainly unjust’. Excess ‘is, or is not, plainly apparent’.[8] As has been said repeatedly, the ground of manifest error does not admit of much argument. As history has shown, this has not dissuaded counsel seeking to argue the point from doing so in the most elaborate detail.
[8]R vDinsdale (2000) 202 CLR 321, 325 (Gleeson CJ and Hayne J).
The test for manifest excess was recently restated by this Court in DPP v Karazisis where it was said:
Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[9]
[9](2010) 206 A Crim R 14, 44 (Ashley, Redlich and Weinberg JJA).
In my opinion, the sentencing judge was entitled to characterise this as a serious example of defensive homicide. Insofar as it fell outside the parameters of murder, it did so only by a narrow margin. There was very little, in the objective evidence, and particularly in the judge’s findings, to support the appellant’s claim that she believed that she was under threat of ‘death or really serious injury’ within the meaning of that expression in s 9AC of the Crimes Act 1958. That is so even when one has regard to the broader family violence provisions contained in s 9AH.
The gravity of this offence must depend, to a considerable degree, upon the strength of the circumstances said to give rise to the belief that self-defence was warranted. Of course, in any case where the verdict is one of defensive homicide, the offender’s belief must have been unreasonable. Otherwise, the jury would have acquitted entirely, on the basis of self-defence.
However, there are degrees by which a belief may be said to have been unreasonable. In some cases, the line is just barely crossed. In others, the belief is wholly unjustifiable, almost to the point of being fanciful. The present case strikes me as falling within the latter category. The appellant had to be sentenced on the basis that she believed she was threatened with death or really serious injury. However, given the unchallenged findings by the sentencing judge, rejecting much of the appellant’s account of what took place, she clearly had no basis whatever for that belief.
In addition, it must not be forgotten that the appellant acted upon that belief by viciously bludgeoning the deceased to the head and body, and stabbing him to the upper abdomen. This was grossly disproportionate, as well as being objectively unnecessary in order to defend herself.
Having regard to his Honour’s finding that the appellant’s claim that her husband had threatened to ‘finish her off’ was fabricated, any threat that she believed confronted her most certainly was not immediate. While s 9AH of the Crimes Act 1958 provides that, in a case of family violence, this does not, of itself,
disentitle a person from relying upon self-defence,[10] it is nonetheless a factor that is relevant when assessing the moral culpability of the offender.
[10]In light of the trial judge’s findings, including the finding that the deceased had not expressly threatened the appellant, s 9AH could only have been invoked on the basis that the deceased’s repeated demands for the appellant to engage in group sex amounted to ‘psychological abuse’ so as to constitute ‘violence’ under that section. In the particular circumstances of this case, that form of abuse could hardly be given great weight.
The appellant was given credit for remorse. However, that must, in my view, be qualified by the fact that she gave false evidence regarding the circumstances surrounding the death of her husband in what amounted to an unsuccessful attempt to reduce her moral culpability.
The non-parole period of seven years was, if anything, significantly lower than what might have been expected given the head sentence of 11 years. There is nothing to indicate that his Honour failed to give adequate weight to all of the mitigating factors that were present. There is no justification, in my opinion, for interfering with this sentence.
The appeal should be dismissed.
BONGIORNO JA:
I agree with Weinberg JA.
T FORREST AJA:
I also agree with Weinberg JA.
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