Director of Public Prosecutions v Christie & Rogers
[1999] VSCA 151
•1 September 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL
Not Restricted
No. 88 of 1999
No. 89 of 1999
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN PETER CHRISTIE AND SELENA LEE ROGERS |
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JUDGES: | Phillips, C.J., Phillips and Buchanan, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 August 1999 | |
DATE OF JUDGMENT: | 1 September 1999 | |
MEDIA NEUTRAL CITATION: | [1999] VSCA 151 | |
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Criminal law – Sentencing – Crown appeal – Murder and manslaughter – Sentences of 18 years and 6 years respectively not manifestly inadequate – Principle to be applied on Crown appeal from a discretionary judgment – Trial judge giving detailed reasons for extending leniency.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J.D. McArdle, Q.C. and Mr. J.D. Ellwood | P C. Wood, Solicitor for Public Prosecutions. |
| For the Respondent Christie For the Respondent | Mr. P .G. Priest, Q.C. and Mr. M.J. Croucher Ms. F. Hampel, Q.C. and Mr. M. Rush | Leanne Warren & Associates Vadarlis & Associates |
PHILLIPS, C.J.:
I shall ask my brother Buchanan to give the first judgment in this matter.
BUCHANAN, J.A.:
On 17 March 1999, upon arraignment in the Supreme Court, the respondent Christie pleaded guilty to one count of murder and the respondent Rogers pleaded guilty to one count of manslaughter. On 29 March 1999 Christie was sentenced to a term of 18 years' imprisonment. The sentencing judge directed that he serve 15 years' imprisonment before he was to be eligible for parole. Rogers was sentenced to a term of 6 years' imprisonment, and it was directed that she serve a period of 3 years' imprisonment before becoming eligible for parole.
The Director of Public Prosecutions now appeals against the sentences on the grounds that the head sentences and non-parole periods were manifestly inadequate in that the punishment failed to adequately reflect the gravity of the offences and the maximum penalties for the offences and the sentencing judge failed to take into account or adequately take into account the considerations of specific and general deterrence, gave too much weight to factors of mitigation and failed to give sufficient weight to the need to protect the community.
Christie is now 25 years old. He was 23 years old when the offence was committed. His parents moved from place to place during his childhood. When he was 11 years old he and his siblings were placed in State care. The respondent then went to live with his father, who had undergone a sex change operation, and was living as a woman with a man who was a violent alcoholic. The respondent said he was raped by the companion of the person whom he now calls his mother. When his so-called mother was depressed she threatened the respondent and his brothers with knives; when she felt more cheerful she left her children in pinball parlours while she performed a striptease act at a hotel in Fitzroy Street, St Kilda. Not surprisingly the respondent left home at the age of 14 years to live on the streets. Apart from a period of youth training he lived a peripatetic existence. He underwent treatment at Parkville Adolescent Psychiatric Unit, was assessed as a paranoid schizophrenic and was placed on a disability pension.
From an early age Christie drank heavily, smoked cannabis and abused prescription drugs. Then he moved on to amphetamines and finally heroin, to which he became addicted. He has 41 previous convictions from 16 court appearances mainly for offences such as theft and burglary and street offences. He also has convictions for assault, assault with a weapon, recklessly causing serious injury and making threats to kill. Mr Healey, a psychologist who examined and tested the respondent, found him to have a low IQ and said:
"[T]he profile endorsed the presence of marked paranoia, a significant schizophrenia scale, with responses reflected bizarre sensory experiences, phases of thought disorder with visual and auditory intrusions, and a significant level of depression."
The respondent Rogers is now 21 years old and was 19 years old at the time of the offences. Her parents separated when Rogers was five years of age as a consequence of the violence of her father. Her mother has been described as an ex-alcoholic, who moved the respondent from school to school as she changed addresses. The respondent's mother formed a relationship with another violent man, whom she eventually left. Rogers left school at the age of 15 years. At the age of 14 years the respondent left her mother's house and in another year was living on the streets and squatting in other people's houses. Since the age of 14 years she has been a heavy drinker. At 17 years of age she began using heroin, and became addicted to it. She has hepatitis C. Rogers has 13 prior convictions, generally for minor offences. The most serious offence was a conviction of a charge of armed robbery for which the respondent was placed on probation for 12 months.
At the time of the offences the respondents were living together in a Housing Commission flat in Collingwood and had been cohabiting for about two years. They met the deceased, a 26-year-old student, in Brunswick Street, Fitzroy. The deceased and the respondents drank with others in Brunswick Street and at about midnight the deceased, a male friend of the deceased, the respondents and another man went to the respondents' flat. The deceased and the respondents had been drinking heavily for hours. The blood alcohol content of the deceased measured after her death was .24. Christie hit the deceased's friend, and he left. The deceased also left the flat, but returned when she could not find her friend.
Christie obtained the deceased's credit card and PIN number. Rogers was sent off with these to purchase drugs and a knife. She returned only with a knife, to find Christie naked and the deceased naked from the waist down with a rope around her neck. Rogers gave the knife to Christie, who used it to cut the deceased's throat and repeatedly stab her, killing her. The respondents left the flat and sought help from Christie's biological father, who informed the police of the murder. The respondents were soon arrested.
The murder appears to have been motiveless. In his record of interview Christie said only: "We were drunk. She wrestled me. I stabbed her and I killed her." The sentencing judge concluded that the murder was not planned or premeditated before the deceased returned to the flat. His Honour did say that there was evidence of remorse on the part of Christie. He said that he reduced the sentence he would otherwise have imposed because Christie co-operated with the police and pleaded guilty.
As to Rogers, the sentencing judge said that she had a significant degree of moral guilt because she could have helped the victim but did not. The manslaughter to which she pleaded guilty was constituted by giving Christie the knife. His Honour said:
"You provided the knife believing it was to be used further to threaten the deceased. You did not believe or expect the knife would be used to inflict injury on the deceased."
The sentencing judge explained Rogers' inaction during the slaying of the deceased in the following terms:
"[I]t was a function of your immaturity and your dominance by Christie that caused you to return with the knife and to remain inactive during the terrible ordeal that the victim suffered. I have studied your interview at the Homicide Squad on more than one occasion. I am satisfied it was a sincere interview by you. You said at question 697 that it was the most full-on thing that had ever happened to you before. The psychiatrist, whose report was tendered on your behalf and who was in court, able to give evidence, ... said that: 'Your conduct was classically one of derealisation. You were unable to respond to the enormity of what was occurring before you.' I accept that explanation."
His Honour went on to say that Rogers was immature and was dominated by Christie, a stronger, more experienced personality. He said she was at a low point in her life, maltreated by Christie but unable to leave him.
At the forefront of his argument counsel for the Director relied on the murder itself. The sentencing judge described the deceased as undergoing a "terrible ordeal" before her death. Counsel sought to flesh out the details of the ordeal in order to demonstrate that this murder was a grave example of the crime. Unfortunately the materials with which he had to work were sparse, consisting only of the records of interview of the respondents, the condition of the flat, the post mortem examination of the deceased and the surveillance camera records of people coming and going from the flat. And of course each record of interview could only be used against the respondent who gave the interview. On occasion counsel for the Director used Rogers' record of interview to describe Christie's crime. Counsel dwelt at length upon the photographs of the principal wounds to the deceased's body.
Because of the paucity of available information, there must be a large element of speculation in any reconstruction of the events in the flat. It is unknown to what extent the deceased co-operated in those events before Rogers appeared with the knife and the deceased was killed. The length of the ordeal may have been short or long. At least it can be said that it could not be proven against Christie that it was prolonged. It is not known at what point Christie struck the blow that caused death. Ultimately I think the horror of the crime lies in its lack of any motive and the infliction of multiple wounds. Those facts suggest mental or psychological disorder perhaps exacerbated by alcohol.
The sole ground of appeal in both cases is that each sentence was manifestly inadequate. It is not said that any specific error of principle was made. All that is said is that the sentencing judge gave too much weight to mitigating factors and insufficient weight to factors such as deterrence and the protection of the community.
Thus in the case of Christie, counsel for the Director contended that the plea of guilty was of no great significance because it was made shortly before the trial was to commence. It was also said that although Christie admitted the murder to the police, he was not completely frank about the circumstances attending the crime. It could not be denied that the sentencing judge was entitled to take into account the pleas of guilty and the respondents' co-operation with the police. He was also entitled to and apparently did take into account the deprivation and disadvantage that attended the respondents' upbringing, their youth and Christie's mental and psychological condition.
When the known, rather than guessed at, circumstances of the murder are considered together with these matters personal to Christie, I am of the opinion that it cannot be said that the sentence imposed upon him reveals such manifest inadequacy in sentencing standards as to constitute error in principle. In considering the range available to the sentencing judge the factor of leniency should not be forgotten. As King, C.J. said in R. v. Osenkowski (1982) 30 S.A.S.R. 212 at 212-3:
"[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders of bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
I do not mean that in the present case the sentence is only to be explained on the basis of the extension of mercy to Christie, but rather that leniency can play a part in the intuitive synthesis of factors producing a sentence, and must be considered in determining where the bottom of the range of sentences available to the sentencing judge lies.
An appeal by the Director of Public Prosecutions "should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": Griffiths v. R. (1977) 137 C.L.R. 293. See also Everett v. R. (1994) 181 C.L.R. 295; Malvoso v. R. (1989) 168 C.L.R. 227, at 234; D.P.P. v. Carter [1998] V.R. 601 at 604-5 per Winneke, P. It is now accepted that "matters of principle" include the range within which a sentencing discretion is to be exercised. Nevertheless it remains the position that Crown sentence appeals should be rare occurrences, and where the only ground is that the sentence is manifestly inadequate, that must be readily apparent. In the present case it is far from apparent that the sentencing judge erred in an unidentifiable matter of principle so as to produce an indefensible sentence.
In my opinion the sentence imposed upon Rogers was also well within the range available to his Honour.
The Crown was limited at the outset by the charge of manslaughter which consisted of supplying to Christie the knife that was used to kill the deceased. Rogers played no part at all in Christie's subsequent actions.
Counsel for the Director attempted to turn this circumstance to his advantage by contending that the sentencing judge erred in relying upon an exculpatory explanation for Rogers' role as a passive bystander to the murder as a mitigating factor. Counsel said that the actus reus of her crime was complete when she gave the knife to Christie, and thus to have regard to a factor that could be used to reduce the sentence which was in fact irrelevant was an error.
In my opinion his Honour was entitled to have regard to Rogers' reaction to the murder itself as a matter that was necessarily bound up with her previous actions. It would have been entirely artificial for the judge to have drawn a veil over the reaction of Rogers to the consequences of her actions. In any event his Honour's explanation of her passivity was to a large extent based upon the relationship between Rogers and Christie, and that was surely to be considered in determining the appropriate sentence to be imposed upon Rogers, for it was a relevant part of the context within which she performed the acts which constituted manslaughter.
In my opinion the youth of Rogers, the fact that she was in thrall to Christie, her limited role, her difficult, disadvantaged upbringing and life with Christie, her plea of guilty and co-operation with the police were all significant factors that support the sentence imposed upon her. I do not regard the sentence as disclosing error of principle.
I would dismiss both appeals.
PHILLIPS, C.J.:
I agree with the conclusions of Buchanan, J.A. in both of these appeals. I shall add the following.
In the case of Lowndes v. R. (1999) 73 A.L.J.R. 1007, six Justices of the High Court (Gleeson, C.J., Gaudron, McHugh, Gummow, Hayne and Callinan, JJ.) had this to say of the principles according to which an appellate court might interfere with a discretionary judgment by a sentencing judge upon a Crown appeal:
"Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic."
In the case of the respondents, the learned sentencing judge in the exercise of his discretion extended some leniency to them. His Honour gave detailed reasons for so doing. I would, myself, have sentenced each of them to a more severe term of imprisonment, but, as the High Court has made clear, in this proceeding that is not to the point, for I am not satisfied that the sentences actually imposed fell altogether outside the range of sentences properly available to the learned judge.
Accordingly, in my opinion, these appeals should be dismissed.
PHILLIPS, J.A.:
I agree that the appeals should be dismissed for the reasons given by Buchanan, J.A.
PHILLIPS, C.J.:
The orders of the Court are that these appeals by the Director of Public Prosecutions for the State of Victoria stand dismissed.
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