Davis v R

[2015] NSWCCA 90

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Davis v R [2015] NSWCCA 90

Hearing dates:

14 April 2015

Decision date:

08 May 2015

Before:

Basten JA at [1]; Simpson J at [7]; Adamson J at [91]

Decision:

(1)  The time in which to file a notice of application for leave to appeal is extended to 28 June 2013;

(2)  Leave to appeal granted;

(3)  Appeal allowed; sentence imposed on 14 February 2008 set aside;

(4)  In lieu thereof, the applicant is sentenced to imprisonment commencing 8 November 2005, with a non-parole period of 16 years and 6 months which will expire on 7 May 2022, and a balance of term of 5 years and 6 months which will expire on 7 November 2027.

Catchwords:

APPEAL - sentencing - murder - “Muldrock error” - ground upheld - applicant re-sentenced

APPEAL - severity of sentence - victim’s underlying heart condition not a mitigating circumstance - R v Matthews [2013] NSWSC 659 - LAL v R; RPN v R [2007] NSWSC 445 - R v Todd Munter [2009] NSWSC 158 - objective criminality of the act causing death - ground rejected - Criminal Appeal Act 1912, s 6(3) - meaning of “some other sentence is warranted in law” - obligation of Court of Criminal Appeal re-sentencing after error found - relevance sentence imposed at first instance - Kentwell v The Queen [2014] HCA 37 - applicant re-sentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s3A, s 21A, s 54A, s 54B
Crimes Act 1900 (NSW), s 19A
Criminal Appeal Act 1912 (NSW), s 6(3), s 10(1)(a)
Criminal Appeal Rules, r 3B(1)(b)

Cases Cited:

Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
LAL v R; RPN v R [2007] NSWSC 445
Liles v R (Cth) [2014] NSWCCA 289
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Matthews [2013] NSWSC 659
R v Previtera (1997) 94 A Crim R 76
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Todd Munter [2009] NSWSC 158
R v Way [2004] NSWCCA 131; 60 NSWLR 168

Category:

Principal judgment

Parties:

Jason Russell Davis (Applicant)
Regina (Respondent)

Representation:

Counsel:
R Burgess (Applicant)
G O’Rourke (Respondent)

Solicitors:
S E O’Connor - Legal Aid NSW (Applicant)
C Hyland - Solicitor for Public Prosecutions (Respondent)

File Number(s):

2007/1315

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Citation:

R v Jason Russell DAVIS [2008] NSWSC 55

Date of Decision:

14 February 2008

Before:

Mathews AJ

File Number(s):

2007/1315

Judgment

1. BASTEN JA: This matter involves another challenge to a sentence imposed for an offence carrying a standard non-parole period at a time when sentencing judges approached the task in accordance with the principles explained by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168. Those principles having been exposed as erroneous in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, for the reasons given by Simpson J, the applicant should be permitted to appeal against the sentence and should be resentenced as proposed. Subject to one point of clarification, I gratefully adopt the reasoning of Simpson J, both with respect to the principles to be applied in approaching these cases and with respect to the application of those principles in the present case.

2. The point of clarification concerns the relevance, in the exercise of sentencing, of a susceptibility in the victim which was partly responsible for his death, in the sense that, absent that susceptibility he would have survived the attack. An offender whose action results in the death of the victim should not receive a lighter sentence than otherwise because the victim was elderly, frail or in bad health. In that sense, the value of all lives should be treated equally.

3. Sentencing for homicide will involve consideration of a range of factors, including the circumstances of the offending, the particular conduct of the offender causing death, the personal circumstances of the offender; any relevant conduct of the deceased and matters encompassed by the purposes of sentencing identified in s 3A, and the matters referred to in s 21A, of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. Any wound which causes serious internal bleeding is capable of causing death, even in a healthy adult, and its seriousness must be assessed accordingly. However none of the stab wounds inflicted in the present case directly caused the death of the deceased; death was the indirect consequence of the loss of blood triggering a cardiac arrest, to which the deceased was susceptible as a result of heart disease. The relevance of this circumstance is that the attack on the victim was not as serious as an attack where a victim is stabbed multiple times, with a ferocity almost inevitably leading to death.

5. In short, the fact that the cause of death was in part due to the ill health of the victim indicates that the conduct of the offender, whilst undoubtedly capable of causing death in anyone, was not so violent as necessarily to cause death in a healthy individual. The moral culpability of the offender is properly assessed by reference to the severity of the attack, amongst other factors.

6. The application of a principle thus expressed will vary from case to case. It is not necessary to seek to reconcile how the principle has been applied in other circumstances. It is a factor which mitigates the seriousness of the offending in the present case, to a limited degree, and only in the sense that it demonstrates why the moral culpability of the offender was not of the highest order.

7. SIMPSON J: On 7 December 2007, after a jury trial in the Supreme Court, the applicant was convicted of the murder, in October 2005, of Vikila Avimeleki. Pursuant to s 19A of the Crimes Act 1900 (NSW), that conviction rendered the applicant liable to imprisonment for life. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), a standard non-parole period of imprisonment for 20 years is prescribed.

8. On 14 February 2008 Mathews AJ sentenced the applicant to imprisonment for 24 years, commencing 8 November 2005, with a non-parole period of 18 years which will expire on 7 November 2023.

9. By Notice filed in this Court on 28 June 2013 the applicant seeks leave to appeal against the severity of the sentence. In order to do so, by reason of the time limits imposed by s 10(1)(a) of the Criminal Appeal Act 1912 (NSW), and r 3B(1)(b) of the Criminal Appeal Rules, he seeks an extension of time in which to file that Notice. Although, up to the morning of the hearing, the Crown opposed the grant of an extension of time, it finally withdrew that opposition. Time should be extended to the date of filing the application.

The relevant facts

10. The following account of the relevant facts is drawn from the Remarks on Sentence of Mathews AJ.

11. On 27 October 2005, during daylight hours, the applicant broke into an apartment occupied by Mr Avimeleki, who was then 73 years of age. His intention was to steal property. He entered through a back door that opened into the kitchen of the apartment. Mr Avimeleki was not at home. The applicant armed himself with a kitchen knife. He took property, including Mr Avimeleki’s mobile telephone. While he was in the course of searching for items to steal, Mr Avimeleki returned home. The applicant attempted to escape through the front door, but the door was locked. A confrontation ensued. The applicant stabbed Mr Avimeleki three times with the knife, and made his escape through the back door.

12. Mr Avimeleki was seriously injured. He managed to get himself to the surgery of a local doctor, who administered first aid and had him transferred to a hospital by ambulance. On arrival at the hospital he was assessed by a specialist general surgeon, Dr Chu. Dr Chu arranged immediate surgery. That was because:

“If I didn’t he would’ve been dead in about an hour.”

Mr Avimeleki was bleeding internally, as a result of one of the stab wounds. Surgery was performed and Mr Avimeleki appeared to be making a good recovery - described by Dr Chu as “a fantastic recovery”. On the third day, however, Mr Avimeleki suffered cardiac arrest and died. It emerged that Mr Avimeleki had, for some time, been suffering from chronic heart disease of which he was unaware, and from which he had suffered no previous symptoms.

13. The cause of Mr Avimeleki’s death - whether it was the stab wounds inflicted by the applicant, or his pre-existing cardiac condition - was a significant issue in the trial. The verdict of the jury demonstrates that it found that the stabbing by the applicant was, at the least, a material contributing cause. No issue as to that arises in this application. It is relevant, however, to the second of two grounds of the proposed appeal, and for that reason it will be necessary to refer further to medical evidence given in the trial.

The applicant’s personal circumstances

14. The applicant is of Aboriginal heritage. He was born in June 1981, and was therefore 24 years of age at the time of the offence. He has a criminal history which began in 1997 (when he was 16 years of age) in the Children’s Court, with offences of maliciously destroy/damage property and two counts of common assault. There are on his record no fewer than 13 counts of assault, one of them assault with intent to rob, another occasioning actual bodily harm. Other such offences resulted in his being sentenced to the rising of the court (from which I take it that the offences were not regarded as of a serious kind). There is also an offence of armed robbery, one of malicious wounding with intent to resist apprehension, and one of using an offensive weapon to prevent lawful detention (no doubt part of the same episode).

15. At the time of the offending, the applicant was at liberty on bail in relation to another charge (which was subsequently dismissed).

16. The applicant’s early history was characterised by emotional and physical deprivation. His parents separated when he was a baby. For a time, he was cared for by his maternal grandparents, until his grandfather died when the applicant was 4 years of age. He was then placed in the care of an aunt and uncle, where he was subjected to very serious emotional and physical abuse. He then lived for a time with his father (with whom he had previously had no contact) until his father died when the applicant was 17.

17. He completed primary school, but, from the time he began secondary school, he spent periods in juvenile detention. He developed a serious drug and alcohol abuse problem. He may suffer from Attention Deficit Hyperactivity Disorder.

The Remarks on Sentence

18. Mathews AJ recounted all of the above objective and subjective circumstances. She noted that the standard non-parole period applicable to murder was 20 years, and further noted that that period could be extended or reduced on appropriate grounds. She then said:

“16  The starting point for determining whether the standard non-parole period should apply is assessing where the particular offence lies on the spectrum of offences of its kind, having regard to the objective features of the offence. If the particular offence falls above or below the middle range of seriousness for that offence, then this provides a good reason, at least in the first place, for reducing or increasing the non-parole period.”

19. She recorded the submissions of senior counsel who represented the applicant in the trial. She accepted (as the Crown conceded) that the applicant did not intend to kill Mr Avimeleki, but rather intended “to wound and incapacitate” him (that is, cause grievous bodily harm - see Crimes Act, s 18). She also accepted (with an important qualification) a Crown concession that the offence was not pre-meditated. The qualification was that, on entering Mr Avimeleki’s kitchen, the applicant armed himself with a knife, which was used in the attack. Her Honour treated this as an aggravating factor within the meaning of s 21A(2)(c) of the Sentencing Procedure Act.

20. Her Honour then dealt with a submission made on behalf the applicant, concerning the cause of death. This was that the stab wounds were not the sole cause of death; another cause of death was Mr Avimeleki’s unknown and unrecognised heart disease. She recorded the submission as follows:

“19  [Senior counsel for the applicant] also urged that I should take into account, as a mitigating feature, that the stab wound inflicted by the offender was not the sole cause of death. The deceased could have died at any time as a result of his underlying heart disease. The stab wound merely accelerated a process which was bound to occur in any event. It substantially

contributed to the death of the deceased, but it was not the sole cause of death.”

She rejected this submission, saying:

“20  I do not accept that this is a relevant consideration on sentence. An offender takes his victim as he finds him. In this case the principal stab wound was clearly a potentially fatal one. Indeed the evidence is that, absent surgical intervention, it would have killed the deceased within a very short time.”

21. Having reached these conclusions, Mathews AJ further concluded that the absence of intention to kill, combined with “the other circumstances mentioned by [senior counsel]”, brought the case “below the middle range for offences of this kind, albeit not by a great deal”.

22. She took into account as an aggravating factor under s 21A(2)(j) of the Sentencing Procedure Act that the applicant was on conditional liberty at the time, and further, what she described as the applicant’s “appalling record, which includes many crimes of violence”.

23. She concluded:

“24  It is clear law that considerations such as these cannot justify the imposition of a sentence which exceeds the upper boundary of that which is proportionate to the objective circumstances of the offence. These considerations will justify imposing a sentence in the higher range appropriate to the objective circumstances, which is what I propose to do. In the offender’s case, I consider that a non-parole period slightly below the standard one is appropriate in all the circumstances.”

The application for leave to appeal against sentence

24. Two grounds of appeal against sentence are proposed. They are pleaded as follows:

“1.  Her Honour erred in his [sic] approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [[2011] HCA 39;] 144 CLR 120 [sic].

2.  Her Honour erred in finding that the fact that the stab wound was not the sole cause of death was irrelevant to sentencing.”

Ground 1: “Muldrock error”

25. In 2002 (with effect from 1 February 2003) Div 1A was inserted into Pt 4 of the Sentencing Procedure Act. Sections 54A and 54B (part of Div 1A) relevantly provided as follows:

“54A(1)  For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.

(2)  For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.

54B(1)  This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.

(2)  When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

(4)  The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.

(5)  The failure of a court to comply with this section does not invalidate the sentence.”

The Table to Div 1 specified a standard non-parole period of 20 years as applicable to the offence of murder.

26. The interpretation and application of Pt 4 Div 1A was considered by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168 (a decision to which I, together with Spigelman CJ and Wood CJ at CL, was a party).

27. The following statements of law are to be found in that judgment:

“62 It can be seen that subsection (2) of s 54B is framed in mandatory terms, (subject to the finding of reasons falling within those identified in s 21A, for departing from the standard non-parole period). Neither s 54B, nor s 21A, nor any other provision in the Sentencing Procedure Act expressly identifies, as a reason for departing from the standard non-parole period, that the offence is one that falls outside the middle-range of objective seriousness.

…

(b)  What is Constituted by an Offence in the Middle of the Range of Objective Seriousness?

72  It is evident that the sentencing exercise which is now required for Table offences requires a critical focus, not only upon the objective seriousness of the particular offence before the Court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified.

73  …

74  It was urged upon this Court by counsel for the applicant and by the Crown that there is no need for a judge to determine, in any given case, what is an abstract offence in the middle of the range of objective seriousness. It was further submitted that, if any such exercise is required, then it should be approached intuitively and should be based upon the general experience of the courts in sentencing for the particular offence.

75  We do not have any difficulty with the second proposition, but we do not consider that the first proposition is correct.

76 Unless some understanding is reached as to what is a midrange offence, we are unable to see how any meaningful comparison can be made between the offence at hand, and the offence for which the standard non-parole period is prescribed. Difficult and imprecise it might be, but the reference point identified in s 54A has to be kept in mind if the sentencing exercise is to comply with the legislative intention expressed in the Division.

…

(f) The Approach to s 54B

117  In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: ‘are there reasons for not imposing the standard non-parole period?’

118  That question will be answered by considering:

(i)  the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;

(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).” (italics in original)

28. That decision governed the approach to sentencing offenders in NSW for offences to which a standard non-parole period applied until, in 2011, the High Court declared Way to have been wrongly decided: Muldrock v The Queen [2011] HCA 39; 244 CLR 120. Relevantly, in Muldrock, the High Court said:

“24 The appellant’s submission, that the standard non-parole period has no role in sentencing for an offence in the low (or high) range for offences, assumes that s 54B(2) ‘prima facie mandates’ the specification of the standard non-parole period for a midrange offence. The respondent correctly submits that there is nothing in the scheme of Div 1A to suggest that the provisions respecting standard non-parole periods apply only to a particular category of offending, whether low, middle or high range. The respondent [Crown] submits that:

‘Section 54B(2) has been said to be ‘mandatory’ because it is in terms that ‘the court is to set the standard non-parole period’ [respondent’s emphasis] but the effect of the section is not to mandate a particular [non-parole period] for a particular category of offence rather it preserves the full scope of the judicial discretion to impose a non-parole period longer or shorter than the [standard non-parole period]. This is especially evident when read in the context of s 54C where the provisions contemplate that the court may impose no custodial sentence at all: s 54C(1).’

25  The respondent’s submission should be accepted. It follows from that acceptance that Way was wrongly decided. As will appear, it was an error to characterise s 54B(2) as framed in mandatory terms. The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness.

…

28 Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.

…

31  The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence … The standard non-parole period represents the non-parole period for an hypothetical offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case. It may be, as the Court of Criminal Appeal observed in Way, that for some Div 1A offences there will be a move upwards in the length of the non-parole period as a result of the introduction of the standard non-parole period … This is the likely outcome of adding the court’s awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence. It is not because the standard non-parole period is the starting point in sentencing for a midrange offence after conviction.

32  An offence of sexual intercourse with a child aged under 10 years falling within the middle of the range of objective seriousness has a standard non-parole period of 15 years. That circumstance says little about the appropriate sentence for this mentally retarded offender and this offence. The Court of Criminal Appeal [R v Muldrock; Muldrock v R [2010] NSWCCA 106] erred by treating the provision of the standard non-parole period as having determinative significance in sentencing the appellant. That error necessarily affected the Court’s determination of the appellant’s application for leave to appeal against the severity of the sentence …” (italics and bold in original)

29. In written submissions filed on behalf of the applicant on 28 June 2013, it was argued that the sentencing discretion miscarried because the sentencing judge:

• adopted a two-stage approach to sentencing (contrary to [28] of Muldrock);

• gave determinative significance to the standard non-parole period (contrary to [25] and [32] of Muldrock); and

• failed to make proper allowance for the applicant’s subjective case on sentence.

30. On 12 February 2014 written submissions in response were filed on behalf of the Crown. The Crown argued that no error in the application of the standard non-parole period legislation, of the kind identified in Muldrock, had occurred, and accordingly opposed a grant of extension of time. On 30 March 2015, on behalf of the Crown, an “updated” written submission was filed. The Crown continued to contend that no error of the kind asserted in Ground 1 had occurred, and continued to oppose the grant of an extension of time.

31. It was only at the commencement of the hearing of the application that counsel appearing for the Crown (appropriately, if somewhat belatedly) conceded that the error asserted in Ground 1 had been established, and that, therefore, an extension of time ought to be granted. That concession was limited to Ground 1. The Crown maintained its opposition to an extension of time in which to pursue an application based on Ground 2. As I have said, the concession as to error was appropriately made. It is clear that Mathews AJ, in sentencing the applicant, faithfully adhered to the principles of law as they were understood at that time. In [16] she nominated as the starting point for determining whether the standard non-parole period should apply the identification of the place of the offence on the spectrum of offences of its kind. She concluded her Remarks (at [24]) by fixing a sentence by reference to the standard non-parole period. In doing so, she gave “determinative” significance to the standard non-parole period.

32. While the Crown concession is welcome, the following observations are apposite. Way was a decision that was well-known and fundamental to the practice in NSW of sentencing for offences to which a standard non-parole period applied. It definitively stated the law for NSW sentencing judges.

33. It is not lightly to be concluded that a sentencing judge during that period departed from the principles stated in Way. That is particularly so where the conviction is after trial (because Way held that standard non-parole periods did not apply to conviction following pleas of guilty, but stood as “a reference point, or benchmark, or sounding board, or guidepost” (at [122]). Even if the language of Way is not reproduced in the Remarks on Sentence, thus clearly identifying “Muldrock error” (probably more correctly called “Way error”), the strong likelihood is that the Way approach governed the sentencing. If that were not so, it would have to be concluded that the sentencing judge failed to apply the law as it was then understood and widely known. To contend otherwise, in respect of a sentence imposed for an offence to which a standard non-parole period applied between 2006 (Way) and 2011 (Muldrock) is to contend that the sentencing process miscarried and the sentencing judge failed to sentence in accordance with then established principle. As I have said above, such a conclusion is not to be lightly drawn.

34. I make these observations, notwithstanding the welcome, if belated, concession by the Crown because, as a result of the decision in Muldrock, this Court is confronted with a succession of applications for leave to appeal against sentence, and extensions of time in which to do so. To date the Crown has persisted in routinely opposing both, on the basis that “Muldrock error” has not been shown. In my opinion, the Crown ought to give careful consideration to the position it adopts on both of these issues. It is not helpful to the administration of criminal justice for this Court’s time to be taken on frivolous opposition to reasonable applications. The fact is that the High Court has declared the sentencing practice of NSW courts in this respect to have been fundamentally wrong. The interests of justice are not served by the Crown standing in the way of correction of the errors in sentencing that followed.

35. It is clear that Mathews AJ approached the sentencing of the applicant in accordance with the approach to Pt 4 Div 1A that was stated in Way. It is now known that this was an erroneous approach. This ground must be upheld.

Ground 2: the relevance of the fact that the stab wound was not the sole cause of death

36. It was again submitted in this Court that the fact that Mr Avimeleki probably would not have died from the injury inflicted but for his underlying heart disease is a relevant, and mitigating, factor.

37. In support of this contention, counsel for the applicant drew support from a later decision of the same sentencing judge: R v Matthews [2013] NSWSC 659. Although it was acknowledged on behalf of the applicant that there are distinguishing features between the two cases, I have difficulty in identifying any that are material.

38. In Matthews, the offender and the victim became involved in a fight. The offender punched the victim, who fell back, first hitting his head on an iron railing fence, and then falling to the ground. One of the impacts (probably the first) caused an aneurism in the victim’s brain to burst, which in turn caused an immediate and severe brain haemorrhage. Three days later the victim died. The existence of the aneurism had not previously been known.

39. In sentencing the offender, Mathews AJ said:

“17  … It is apparent from the evidence of Dr Wills that the punch which caused the fatal injury would not have killed [the victim] had it not been for the aneurism, which nobody, including [the victim], knew about. The offender bears legal responsibility for the death which followed, but it is a highly significant mitigating feature that, without that peculiar vulnerability, it is probable that [the victim] would have suffered no permanent injuries at all as a result of the offender’s actions at that stage. In this regard, the post mortem examination showed that, apart from the effects of the brain haemorrhage, the injuries suffered by [the victim] consisted of three areas of facial bruising, consistent with the application of blunt force, as well as bruising on the upper limbs, particularly the hands and fingers. This latter finding was, of course, consistent with punches having been inflicted by [the victim].”

40. In that case, the Crown prosecutor conceded that the offence was in the lower range of objective seriousness. Her Honour considered this to be “an entirely appropriate concession”. She held that the offence was completely spontaneous, fuelled by alcohol; she found that the offender did not intend to kill, but intended to do grievous bodily harm, and found - again - that without the concealed aneurism, the victim almost certainly would not have died.

41. She said:

“21  … In other words, the existence of the aneurism almost certainly made the difference between a murder and what might have been, at worst, an assault occasioning grievous bodily harm.”

42. Notwithstanding the combined attitude taken on behalf of the applicant and the Crown, I find it impossible to reconcile the approach taken to the pre-existing condition in these two decisions. Neither the offender in Matthews, nor the applicant, had an intention to kill; and in each case the offence was spontaneous. In each case the victim was an apparently fit and healthy man, who suffered an undiagnosed and asymptomatic but life threatening medical condition. In Matthews, but for the brain aneurism, the victim would not have died; in the present case, Mr Avimeleki was making a “fantastic” recovery from surgery following the stabbing, and almost certainly would, but for the heart condition, not have died.

43. In each case, it was the criminal act of the offender that activated the underlying condition that was the immediate cause of death.

44. It is necessary to have regard to the medical evidence in the trial.

45. Dr Chu said that without immediate surgery, Mr Avimeleki would have been dead in about an hour. He said that at that time the major problem was blood loss caused by the stabbing.

46. Dr Paul Morrow was a forensic pathologist who conducted a port-mortem examination on Mr Avimeleki. His opinion was that the direct cause of death was “acute subendocardial myocardial infarct”, “due to the combined effects of multiple stab wounds and coronary atherosclerosis”. He said:

“… the precipitating factor for [the acute myocardial infarct] was the stab wound to the liver which occurred in the context of his severe heart disease … because of that chronic heart disease he was vulnerable to any condition which would lower his blood pressure or cause increased stress to him … The events that occurred around that stab wound occurred or time of event that would precipitate this kind of damage to his heart muscle, of his severe heart disease so that in my opinion that death, myocardial infarct, that is the heart attack, was due to a combination of the stab wound to his liver and his ongoing heart disease.”

47. It can be seen that Dr Morrow, in particular, was clear that the death was caused by a combination of the two circumstances, the heart disease, and the stabbing.

48. This Court was not referred to any evidence that postulated the likely, probable, or even possible cause of the heart disease, or if, and if so when, it might have been expected to cause Mr Avimeleki’s death (absent the stabbing).

Ground 2 - resolution

49. The argument advanced on behalf of the applicant must be seen in that light.

50. If Matthews were a decision by which the sentencing judge was bound, then error would be established. It could not be, if only because it post-dates the sentencing decision in the present case. In any event, Mathews AJ is not bound by her own decisions. The question is which of the two decisions accurately states the law. In my opinion, it is the decision in the present case.

51. The approach taken in Matthews may be seen as consistent with brief remarks made by McClellan CJ at CL in LAL v R; RPN v R [2007] NSWSC 445 and by Howie J in R v Todd Munter [2009] NSWSC 158. That appearance may be deceptive.

52. In LAL; RPN, two young teenage girls assaulted a taxi driver who suffered from significant coronary heart disease, and had a paralysed left arm the result of an earlier stroke. The assault consisted of kicking and punching the taxi driver as a result of which he died. The offenders were charged with murder, but the Crown accepted pleas of guilty to manslaughter.

53. The direct cause of the taxi driver’s death was acute myocardial ischaemia. The antecedent cause was “coronary atherosclerosis”. Other conditions possibly contributing to the death were noted as “hypertensive heart disease” and “recent blunt force head trauma”. A medical report in evidence contained the following:

“Death was due to acute heart failure. This was brought on by the effects of narrowing of the coronary arteries on heart muscle. Additionally the heart was enlarged, possibly as a result of high blood pressure and this would have increased the susceptibility of the heart to irregular rhythm brought on by the lack of sufficient coronary artery blood flow. There was evidence of blunt force trauma to the head. It is not possible to exclude this trauma from having contributed to death by precipitation [sic - as appears in the Remarks on Sentence] acute heart failure and/or dysrhythmia in a diseased heart.”

Another report said:

“[The victim] had severe coronary disease. He was therefore at risk of cardiac arrest due to either cardiac arrhythmia or myocardial infarction, with or without external provocation. I am informed that the death occurred soon after his assault. There is medical literature indicating that the risk of cardiac arrest is increased by acute physical and or emotional stress. As [the victim’s] assault is likely to have caused such stress, it is my opinion that the assault is likely to have increased his acute risk of suffering a cardiac arrest.”

54. In sentencing, McClellan CJ at CL said:

“84  The present offences were serious and a custodial sentence is inevitable. However, the sentences should reflect the fact that they were committed by young people whose judgment was impaired by alcohol and drugs. Although the injuries inflicted upon the deceased were sufficient to bring upon a heart attack they probably would not have led to the death of a person whose health was not already seriously compromised. The crime is more significant because the girls attacked a taxi driver who was driving them late at night and was vulnerable to attack. The courts are particularly concerned to deter others from committing similar crimes.” (italics added)

55. In Munter, a heated exchange took place between the offender and the victim, a man of 66 years, who was watering the lawn, contrary to what the offender believed were water restrictions. The offender entered the victim’s property and approached him in a threatening manner, yelling abuse. He struck the victim with a closed fist jolting his head back and causing him to stumble. He then pushed the victim with both hands causing him to fall backwards forcibly to the ground. The offender then kicked the victim to the mid-section with moderate force.

56. The victim became physically distressed and suffered a cardiac arrest. He had severe and potentially fatal heart disease and had suffered a previous heart attack. Death was found to have been caused by cardiac arrest due primarily to the existing heart disease. Death could have occurred at any time, but it was highly likely that the death was brought on by the altercation with the offender shortly before the victim died.

57. The offender was charged with manslaughter.

58. In sentencing the offender, Howie J said:

“17  … An assault upon a 66 year old man with sufficient force to knock him off his feet and including a kick to his midsection is a dangerous act within the scope of the offence [of manslaughter]. It was a nasty assault and totally unwarranted, yet the force used was apparently not great. The injuries inflicted upon the deceased by the assault were relatively minor. If the deceased had not suffered from a very diseased heart, he would not have been seriously injured. If that had been the case, it is likely that the offence would have been no more serious that [sic] an assault. In any event had the deceased not died, the offender would not have gone to gaol for what he did.”

59. The Crown sought to distinguish LAL; RPN, and Munter by noting that, in each case, the offence for which the offenders stood to be sentenced was manslaughter and not murder, in relation to a death which had been “inadvertently caused”. In my opinion that is an immaterial consideration in the context of this ground of appeal.

60. It seems to me that what McClellan CJ at CL in LAL; RPN, and Howie J in Munter were commenting on was the objective gravity of the conduct of the offenders. In Munter, Howie J said that the force used was not great. In LAL; RPN, McClellan CJ at CL said that the injuries inflicted upon the victim would probably not have led to the death of a person whose health was not already seriously compromised. That is quite different from taking into account that factors other than the conduct the subject of the conviction were partial causes of death.

61. The argument is reminiscent of that considered by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76, a decision concerned with the use to be made of victim impact statements in cases of homicide. Hunt CJ at CL said:

“The law already recognizes, without specific evidence, the value which the community places upon human life, that is why unlawfiul homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar. It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another. It would therefore be wholly inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in the one case than it is in the other.”

62. The remarks in LAL; RPN and Munter are a reminder that focus must be placed upon the objective criminality of the act that caused death. In this case, the act was triple stabbing (recognising that two of the wounds seem not to have been life-threatening). The third wound was itself sufficient to cause death, and would have done so but for the quick treatment afforded to Mr Avimeleki.

63. The fact that some other circumstance contributed to the death is not, in the circumstances of this case, a mitigating circumstance.

62. I would reject Ground 2 of the appeal.

63. The consequences of the conclusion that Ground 1 is made out must now be considered.

Extension of time

66. Having regard to the Crown’s second concession, it is now unnecessary to decide whether an extension of time ought to be granted in relation to Ground 1. However, the following is worth recording.

67. The decision in Muldrock was delivered on 5 October 2011. The applicant’s application for leave to appeal was filed on 28 June 2013.

68. Initially, the Crown opposed the grant of an extension of time, on a number of bases. They were:

• that, because of its contention that there was no “Muldrock error”, the application was unmeritorious;

• that, because of its contention that “no lesser sentence was warranted”, the application was unmeritorious;

• that there was no explanation for the delay in bringing Ground 2, which is not affected by the decision in Muldrock.

The Crown maintains its opposition to the grant of an extension of time in relation to Ground 2.

69. In the applicant’s notice of application, some explanation for the delay is given. That document set out a history of the applicant’s attempts to pursue his application. Relevantly for present purposes, it stated that the applicant initially sought legal aid to challenge the sentence in March 2008, but was refused on the basis of insufficient prospects of success.

70. An affidavit of Madeleine Schneider, a solicitor employed by Legal Aid NSW, affirmed 23 January 2014, detailed the processes undertaken by Legal Aid following delivery of the judgment in Muldrock.

71. The aim of Legal Aid was to resolve the issues as efficiently, economically, and expeditiously as possible. To that end, meetings took place between representatives of Legal Aid, Crown prosecutors, the Office of the Director of Public Prosecutions, the Chief Judge at Common Law and Registrar of the Court of Criminal Appeal. It is unnecessary to go further into the detail. Ms Schneider’s affidavit makes it patently clear that Legal Aid has assiduously attempted to deal with the logistical issues posed as a result of the decision in Muldrock. The Crown has been well aware of those attempts on the part of Legal Aid, having been involved in the meetings. Ms Schneider’s affidavit made a compelling case for extension of time in relation to Ground 1 of this application.

72. In my opinion, the resistance on the part of the Crown to the grant of an extension of time bordered on obstruction. It sits uneasily with the Crown’s duty to be a model litigant, a duty that appertains as much in criminal proceedings as in civil, perhaps more so. It is difficult to see why the opposition was ever mounted. Moreover, although I am of the view that Ground 2 ought to fail, the Crown reasons for opposition to that extension were also unsatisfactory. Legal aid had been refused to the applicant. While it may be inferred (as the Crown submits) that refusal was based on an assessment of the merit of the application (the evidence does not disclose what grounds were considered in any merit assessment), the conclusion of those making the assessment is not determinative of whether an extension of time ought to be granted.

73. If there were any utility in doing so, I would grant an extension of time in relation to Ground 2. However, having regard to the view I have taken as to the fate of that ground, it is unnecessary to propose any order.

74. I would grant the extension of time sought.

The consequence of the conclusion that error has been established: Criminal Appeal Act, s 6(3).

75. The consequence of the conclusion that error has been established is that this Court must proceed to exercise the sentencing discretion afresh: Kentwell v The Queen [2014] HCA 37; 313 ALR 451 at [42]. Section 6(3) of the Criminal Appeal Act provides:

“(3)  On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

Much has been written about s 6(3), and I have no wish to add to the volume. However, it appears to me that the issues are now resolved, or at least greatly clarified.

76. In R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, Spigelman CJ (with whom Mason P, Grove and Sully JJ and Newman AJ agreed) said:

“79 Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: ‘If it is of the opinion that error has occurred in the sentencing process’. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that ‘some other sentence ... is warranted in law and should have been passed’. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to ‘quash the sentence and pass such other sentence in substitution therefore’ is not satisfied.”

77. Simpson, it seems, was misunderstood. It became common place - indeed routine - in applications for leave to appeal against sentence for the Crown to urge that “no lesser sentence is warranted in law”, as though the task of this Court (having found error in the sentencing process) was to consider whether the sentence imposed, notwithstanding the error found, lay within the available sentencing range. If it did, the argument ran, no lesser sentence was warranted in law.

78. In Baxter v R [2007] NSWCCA 237; 173 A Crim R 284, Spigelman CJ put the lie to that interpretation. He said:

“19  The import of par [79] of Simpson was to ensure that submissions in the Court of Criminal Appeal did not proceed as if the identification of error created an entitlement on the part of an Applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified. That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the Court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides.” (italics added for emphasis)

79. In Kentwell, the High Court confirmed that that was the correct approach (at [42]). Any sentence that falls within the available range may be said to be “warranted in law”. However, a sentence imposed following a legally flawed sentencing exercise is not “warranted in law” - unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that that is the appropriate sentence for the offence and the offender.

80. Reliance by the Crown on a contention that “no lesser sentence is warranted in law” is apt to mislead. Unless the contention is that the sentence imposed lay at the bottom of the available range, then the submission is simply wrong. Where the sentence imposed is other than at the very bottom of the available range, some lesser sentence is, as Kentwell makes plain, “warranted in law”. That does not mean that it must be imposed. But the fact (if it be the fact) that the sentence imposed lies within the available range also does not relieve this Court of its obligation to exercise its own sentencing discretion, independently of the sentences selected at first instance.

81. Once error has been identified and this Court is required to re-sentence, a proposition that no lesser sentence is warranted in law is largely irrelevant, and, as I have suggested, apt to mislead. It is apt to mislead because it has the capacity to suggest that this Court ought not to exercise its own independent sentencing discretion, but to take its guidance from the sentence imposed at first instance - a sentence which is, ex hypothesi, legally flawed (even if it is “within range”). To accord primacy to the sentence selected by the sentencing judge, a selection that was based on an understanding of the law now shown to be erroneous, is to deflect this Court from the task it has to perform - which is “a genuine re-exercise of the discretion which extends to all matters relevant to sentencing”: Liles v R (Cth) [2014] NSWCCA 289.

82. The sentence imposed by the sentencing judge continues to have relevance for two purposes. First, should the sentence selected by this Court be more severe than that imposed at first instance, it must inform the applicant that it is giving consideration to increasing the sentence: Kentwell at [43]; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 290.

83. Secondly, the original sentence is relevant to the order the Court makes. Where the sentence the Court would impose is the same as that imposed at first instance, the correct course is, notwithstanding that error is found and leave granted, to dismiss the appeal: Criminal Appeal Act, s 6(3).

84. In my opinion, the practice of the Crown relying on those words in s 6(3) (“no lesser sentence is warranted in law”) ought to cease. The task of this Court, once error is established, is to exercise its own sentencing discretion. Its task is not to ask whether the sentence imposed at first instance as “within range” and, if it is, to re-impose that sentence. That would be an abdication of the responsibility to exercise afresh the sentencing discretion. In the exercise of that discretion, it may or may not come to the conclusion that the appropriate sentence for the offence and the offender is that which was imposed at first instance. That is not the result of concluding that “no lesser sentence is warranted in law”, but the result of an independent consideration of all relevant sentencing factors.

85. Against the possibility of re-sentencing, the Court received additional evidence, which included an affidavit affirmed by the applicant, and another filed on behalf of the Crown. Both are directed to the applicant’s conduct while in custody. It is now 7 years since the applicant was sentenced, and more than 9 years since the murder and the applicant’s apprehension.

86. The evidence shows that initially, the applicant’s adjustment to custodial conditions left something to be desired, and he incurred a number of disciplinary orders. His anger management, on his own account, was poor. However, he has been transferred to another prison, and has become involved in Aboriginal culture and affairs; while it could not yet be said that his prospects of rehabilitation are good, they are certainly more promising than previously was the case.

Re-sentencing

87. The relevant sentencing considerations are:

• the relative youth of the applicant at the time of the offence;

• that the offence was essentially unplanned and opportunistic;

• that the applicant did not intend to kill; his intention was to cause grievous bodily harm;

• the applicant’s significantly disadvantaged background;

• his adverse criminal record;

• that the offence was committed in the course of the commission of another (less serious) offence;

• that the offence was committed in the home of the victim; and

• that the applicant was on bail at the time of the offence.

88. The standard non-parole period of 20 years remains a “statutory guidepost”, although it is not be treated as of primary or determinative significance.

89. In all of the circumstances, I am of the view that a sentence of 22 years with a non-parole period of 16 years and 6 months is appropriate.

90. I propose the following orders:

1. The time in which to file a notice of application for leave to appeal is extended to 28 June 2013;

2. Leave to appeal granted;

3. Appeal allowed; sentence imposed on 14 February 2008 set aside;

4. In lieu thereof, the applicant is sentenced to imprisonment commencing 8 November 2005, with a non-parole period of 16 years and 6 months which will expire on 7 May 2022, and a balance of term of 5 years and 6 months which will expire on 7 November 2027.

91. ADAMSON J: I agree with Simpson J.

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Decision last updated: 08 May 2015