Diver v The Queen
[2010] VSCA 254
•23 September 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2008 0832
| GLEN DIVER | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY, NEAVE and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 September 2010 |
| DATE OF JUDGMENT | 23 September 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 254 |
| JUDGMENT APPEALED FROM | [2008] VSC 399 (Coghlan J) |
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Criminal law – Murder – Sentence of 17 years imprisonment with 14 year non-parole period – Whether sufficient discount for plea of guilty – Significance of voluntary disclosure of offence in the circumstances of the case – Whether sentence manifestly excessive – Whether unwarranted finding that appellant’s remorse arose partly from self-pity – Presence of appellant’s young son in house at time of murder – Whether judge treated son’s presence as circumstance of aggravation - Rejection of submission that a proportionately shorter than usual non-parole period should be set – Imposition of non-parole period in excess of 80 per cent of head sentence without explanation – Error demonstrated – Appellant re-sentenced to 17 years imprisonment with non-parole period of 13 years.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr G Hughan | Victoria Legal Aid |
| For the Crown | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
Glenn Diver, a man now aged nearly 44, pleaded guilty in the Supreme Court to the murder of Cheryl Haynes on 29 May 2007. On 24 September 2008 he was sentenced to 17 years’ imprisonment. The judge fixed a non-parole period of 14 years. He also made certain ancillary orders and an appropriate declaration in respect of pre-sentence detention.
Grounds of appeal
Now, by leave, Diver appeals. He relies upon the following grounds:
1.In all the circumstances the sentence and the non-parole period imposed were manifestly excessive.
2.The learned sentencing Judge erred in his findings about the background to the offence and the appellant’s motivation for it.
3.The learned sentencing Judge erred in finding that the Appellant’s remorse partly arose from self-pity.
4.The learned sentencing Judge erred:
(a)in rejecting the submission that he should impose a lower than usual non-parole period; and
(b)by imposing a non-parole period which was higher than usual in relation to the length of the head sentence.
5.The learned sentencing Judge gave insufficient weight to the Appellant’s plea of guilty.
6.The learned sentencing Judge erred in failing to extend to the Appellant a significant added element of leniency for his disclosure of the offence which was not then known to the police.
7.The learned sentencing Judge erred in concluding that it was only a matter of good luck that the Appellant’s son was not a witness to the offence.
The circumstances of the matter
The core facts of the matter are as follows: The appellant met Cheryl Haynes in 2005. She was a divorcee with two children – one of whom was disabled – and she was joint owner (with her former father-in-law) of a house at Croydon South. Shortly after they met, the appellant moved into the home. Some months later, they became engaged. But they never married.
In late 2005, the appellant’s two children by a previous relationship also moved into the home. That was unexpected. Apparently the children were, in effect, abandoned by their mother.
When the appellant met Mrs Haynes, he was in employment. But in September 2005 he suffered compensable injury, and began to receive WorkCover benefits. Then, in May 2006, he was made redundant by his former employer. He was not in employment thereafter until he committed the murder.
The relationship between the appellant and the deceased, initially harmonious, gradually deteriorated. The main problems, it seems, were lack of income and the introduction of the appellant’s two children into the household. The lack of income was accentuated by two circumstances: first, the appellant’s injury; and second, the fact that Mrs Haynes had purchased her former father-in-law’s interest in the property, and so became liable for higher repayments.
The appellant and the deceased quarrelled in the days preceding her death. The day before her death she informed a friend that she had told the appellant that she wanted to break up, and had asked him to leave with his children.
On the day of the murder, three of the children were out of the house. Only the appellant’s son, then aged 12, was at home.
The deceased telephoned her brother a little after 11.00am. She was crying. She told him that she wanted the appellant out of the house, but was frightened about what he might do. They arranged to meet later that day.
The appellant overheard the conversation. He then confronted her, in the garage of the premises. There was an argument. At one stage, Mrs Haynes poured some coffee over the appellant. The argument culminated in the appellant using his hands to choke her. To make sure that she was dead, he went to the bedroom, obtained a cord, and returned to the garage, where he tied it tightly around her neck. It was not apparent, on post mortem examination, whether her death had been caused by manual or ligature strangulation, or a combination of both.
Then the appellant took his son to the boy’s grandmother’s home.[1] Immediately thereafter, he drove to the Croydon police station to report that he had killed Mrs Haynes.
[1]He stopped and used a credit card of the deceased to obtain some money in the course of the trip. He gave the money to the grandmother.
Post mortem examination, apart from evidencing strangulation, showed some injuries to the deceased’s jaw, right upper arm, left flank and hands.
Examination of the appellant showed injuries to his right hand. He did not really explain them.
The aftermath of the murder
The appellant made substantial admissions on the day of the killing.
He pleaded guilty at the first available opportunity.
He had prior convictions by reason of court appearances between 1985 and 2001. They did not include any offence involving violence.
Victim impact statements were made by Mrs Haynes’ brother, two sisters and then 16 year old son. Each of them explained the burden placed upon them by Mrs Haynes’ murder.
Sentencing remarks
The factual findings upon which the learned judge below sentenced the appellant for the most part corresponded with the circumstances which I have already outlined. Other than that, I note that his Honour made the following findings, and made the following observations:
· The injury to the appellant’s right hand probably occurred as a result of him striking the deceased.[2]
[2]Sentencing Remarks [6].
· The fact that Mrs Haynes wanted the appellant out of the home was much more serious, from the appellant’s perspective, than the subject-matter of their previous arguments. It would have brought the relationship to an end. [3]
[3]Sentencing Remarks [34], [35].
·I cannot avoid the conclusion that your view of those matters was self-centred and narrow. I am, however, prepared to accept the proposition that your response was sudden and unplanned.
·Even in your analysis of consequences when speaking to the police, you were more concerned about the fate of your own children than Ms Haynes’ children, although you did acknowledge responsibility for killing Ms Haynes.
· The appellant had been an average student who had left school in year 10. He had been in many employments over the years – though mostly in work – until his shoulder injury in 2005. As a youth, he had drunk too much and had got into fights. But that behaviour was behind him. He was, however, a regular cannabis user at the time of the instant offence. His relationship with the mother of his children had been difficult, and he had been left with responsibility for those children.[4]
[4]Sentencing Remarks [42], [43], [44].
· The appellant’s ‘general psychiatric background’ – he had been diagnosed as suffering from dysthymia, which the judge described as ‘an ongoing minor depressive disorder’, and which the psychologist, Pamela Matthews stated in a report dated 27 April 2008 was ‘characterised by anger’ – helped explain, but not excuse, the killing. It assisted to a conclusion that the killing was spontaneous, not done in a calculated way. The appellant had ‘just lost it’, the whole incident occurring ‘relatively quickly’.[5]
[5]Sentencing Remarks [14], [50],[61].
· The appellant’s psychiatric condition was not called in aid of submissions that his moral culpability was reduced, or that he was an inappropriate vehicle for considerations of general or specific deterrence.[6] The condition did assist a conclusion that the appellant had ‘reasonable prospects of rehabilitation.[7]
[6]Sentencing Remarks [62].
[7]Sentencing Remarks [63].
· The appellant’s plea of guilty was ‘very important’. It went, inter alia, to his remorse.[8] Even so, there was ‘a mixture of true remorse for [the killing of Mrs Haynes] and regret for [his] own predicament and that of [his] children.’[9]
[8]Sentencing Remarks [51].
[9]Sentencing Remarks [51], [50].
· The killing involved a breach of trust, Mrs Haynes being murdered by her de facto partner.[10]
[10]Sentencing Remarks [54].
· Murders committed in a domestic setting are no less serious than other murders.[11]
[11]Sentencing Remarks [65].
· When regard was had ‘to the seriousness of this offending and the sentence which [he] had formed’, the submission for the appellant that the non-parole period should be ‘reduced’ should not be accepted. That would be inappropriate, having regard to the purposes of a non-parole period.[12]
· ‘In general terms’, three years would have been added to the head sentence and the non-parole period if the appellant had not pleaded guilty.[13]
[12]Sentencing Remarks [67].
[13]Sentencing Remarks [67]. Section 6AAA of the Sentencing Act 1991 did not apply. So his Honour’s statement was a voluntary indication of what he would have done in the postulated circumstances of a plea of not guilty and a finding of guilt.
His Honour was referred to a number of sentences for murder. He stated in his sentencing remarks that he had had regard to them.
An individual sentence has no precedent value. At most, sentences passed in cases bearing some factual similarity to the circumstances of the instant case could give modest guidance to the appropriate range by which the objective of consistency in sentences might be facilitated.
I should add that I have read the sentencing remarks in the cases to which his Honour was referred.[14] The differences, rather than the similarities, in the circumstances of the various offences and the offenders are striking.
[14]R v Goodall [2000] VSCA 106; R v Doherty [2001] VSC 474; R v Gojanovic [2005] VSC 97; R v Davey [2006] VSC 173; R v Leggett [2006] VSC 522; and R v Butler [2007] VSC 185.
Resolution of the appeal
Counsel for the appellant in written submissions first addressed ground 5 and I shall deal with it first today. He submitted that the plea of guilty should have been given very significant weight, both as to the head sentence and the non-parole period. It had been made very early, was a plea to a most serious offence, and together with other evidence it showed remorse, acceptance of responsibility and reasonable prospects of rehabilitation. As well, it had facilitated the course of justice.
Counsel for the Crown pointed out that the judge had specifically accepted the importance of the appellant’s plea.
His Honour was not constrained by s 6AAA of the Sentencing Act 1991 to state what sentence he would have passed if the appellant had pleaded not guilty and had been convicted after trial.[15] But he did state, as I have already said, that in the postulated circumstances he would have imposed a head sentence and a non-parole period each of which was three years’ heavier than the sentence which he in fact imposed.
[15]The plea was heard before 1 July 2008.
I agree with the submission of appellant’s counsel that the plea, made at the time when it was made, and reflecting admissions made on the day of the killing, merited a substantial discount. Just as might be done where s 6AAA applies,[16] I consider that it is permissible to consider the nominal discount allowed by the learned judge in the present case.
[16]R v Howard [2009] VSCA 281.
His Honour accepted the significance of the plea. The only question is whether that acceptance was adequately reflected in the sentence which he imposed. There is no arithmetically correct discount. The discount allowed in any particular case is a part of the overall sentencing synthesis. Here, the discount allowed was not as great as other judges might have allowed. But I cannot say that it reveals error.
Counsel next submitted, in support of ground 6, that voluntary disclosure of an offence merits, as a general proposition, ‘a significant added element of leniency in sentence’, its extent ‘varying with the circumstances’. In the present case, counsel submitted, the learned judge referred to the fact of voluntary disclosure, but did not consider its significance for sentencing purposes. The probability of imminent discovery of the offence and the possibility of the appellant being convicted did not gainsay the significance of the voluntary disclosure, which also bore upon remorse.
According to the submission for the Crown, the learned judge was well aware of the circumstances, which included the fact of voluntary disclosure of the offence. His Honour had found that the appellant was remorseful, and that he had co-operated with the authorities.
Voluntary disclosure, particularly of an offence which may remain concealed if not disclosed, is apt to constitute a circumstance of mitigation. I accept that disclosure was apt to have that effect in this case, notwithstanding that the offence must soon have come to light and that the appellant was very likely to have been implicated. I do not consider, however, that it should have been accorded any great intrinsic importance. By that I mean that it was part of a body of material otherwise bearing upon acceptance of responsibility and remorse. I agree with the submission for the Crown that the learned judge must be taken to have accorded the circumstance appropriate weight, particularly in that context. There is nothing in the sentence, see later, which excites doubt about that conclusion.
Appellant’s counsel, in addressing ground 4, submitted that the appellant’s disclosure of the offence, early plea, remorse, personal circumstances, prospect of rehabilitation and lack of relevant prior convictions suggested the need for a longer than usual proportionate period of potential parole. But not only had the learned judge rejected the submission made below to that effect, he had in fact fixed, without explanation, a very high proportionate non-parole period.
Counsel for the Crown responded in written submissions that the judge had taken all relevant matters into account, and that, there being no ‘normal or usual’ period of parole, it could not be said that the discretion had miscarried.
It is true that there is no ‘normal or usual’ period of parole. Even so, this Court has on occasions been prepared to conclude that a non-parole period is proportionately so great – and in that sense ‘unusual’ – as to indicate, particularly in the absence of judicial explanation, that something went wrong in the sentencing exercise. The general principle, and its application to particular circumstances, can be seen in Krasnov and Shlakht,[17] R v Bolton and Barker,[18] R v Detenamo,[19] R v Koumis,[20]R v Merritt,[21] R v Bertrand[22]and Ashe v R.[23]
[17](1995) 82 A Crim R 92, 99 (Hayne JA, Crockett and Southwell AJJA).
[18][1998] 1 VR 692, 699 (Callaway JA).
[19][2007] VSCA 160, [24]-[27] (Redlich JA).
[20][2008] VSCA 84 [31].
[21](2008) 191 A Crim R 272, [16]-[23] (Kellam JA, for the Court).
[22](2008) 20 VR 222, 248-249 [158]-[160] (Vincent, Redlich and Weinberg JJA).
[23][2010] VSCA 119, [33]-[34] (Neave and Redlich JJA, Coghlan AJA).
In the present case, the matters which had to be considered in fixing a non-parole period, which included the appellant’s ‘reasonable prospects of rehabilitation’,[24] suggested at least that a non-parole period should not be fixed which exceeded, in common experience, the upper reaches of a non-parole period expressed as a proportion of the head sentence. Here the non-parole period exceeded 80 per cent of the head sentence. It was, I consider, proportionately very high in the circumstances of the case. Contrary to the submission made orally for the Crown today, I consider that the learned judge did not explain it, a matter which assumes particular significance where appellant’s counsel had argued for a proportionately lower than usual non-parole period, and that submission had been fairly shortly dismissed.
[24]See, conveniently, R v VZ (1998) 7 VR 693, 697-698 [12]-[15] (Callaway JA).
In all the circumstances, I consider that the non-parole period which the learned judge fixed bespeaks error. I should add that I reject the submission of counsel for the Crown that consideration of a synopsis of sentences passed for murder which he provided to us shows that the head sentence and the proportionate non-parole period was of a standard or usual kind. The synopsis, revealing as it does wide divergence in the circumstances of the offence and of the offender, and as well the conduct of the prosecution, does not give support to the proposition contended for.
I add two matters. First, I have wondered whether an explanation for the high proportionate non-parole period might lie the observation attributed to Coghlan AJA (the sentencing judge in this case) in argument in Ashe that ‘the longer the head sentence may be, the shorter the non-parole period might be as a proportion of the head sentence’.[25] But on reflection, if the recorded observation accords with what his Honour said, it would seem to indicate a contrary outcome to that achieved by the present sentence.
[25]Ashe v R [2010] VSCA 119 [34]; see also the observation in Bertrand that ‘there is no fixed rule as to the ratio that should exist between a head sentence and a non-parole period. Much will depend upon the length of the head sentence. (my emphasis).
Second, almost all the authorities to which I have referred show that complaints about the proportionate extent of a non-parole period have been addressed through the prism of manifest excess. That is one way, in my view, in which the present complaint might be addressed. But I think that it is open, depending upon the circumstances, to treat the complaint as one of specific error. That is what this Court did in Bertrand,[26] and in my opinion it is what should be done in the instant case.
[26]R v Bertrand (2008) 20 VR 222, 248-249 [160].
Ground 2 contends, as I noted earlier, that the judge erred in the findings which he made as to the background of the offending and the appellant’s motivation. Counsel submitted that his Honour had erred in concluding that the offending involved a breach of trust.[27] Counsel submitted that in arriving at that conclusion the judge had placed weight upon conclusions which were erroneous: that the appellant had made little or no contribution to the household, that the appellant’s view of the financial and other problems was ‘narrow and self-centred’, and that Mrs Haynes was frightened of the appellant. Counsel finally submitted that the appellant’s inability to form and maintain a relationship was impacted upon by his psychiatric and psychological difficulties, this reducing the significance of the breach of trust identified by the learned judge.
[27]That submissions was made in writing. Counsel retreated from it in his oral submissions, rather arguing that the breach of trust should not have been accorded much weight.
Concerning this ground, counsel for the Crown submitted that the judge had well-understood that the appellant had been working when he went to live in her home; and he had noted that the appellant had guaranteed Mrs Haynes’ mortgage loan. The judge’s assessment that the appellant’s view of the situation was ‘narrow and self-centred’ was demonstrated by a passage in the record of interview which was reproduced in the sentencing remarks. Mrs Haynes had been put in fear by the appellant in her own home just before she was killed. The offending did involve a breach of trust.
In my opinion, this ground lacks merit. It is the fact that Mrs Haynes was killed in her own home by her de facto partner. It was not inappropriate for the judge to describe the offending as involving a breach of trust.
Further, I do not accept the argument for the appellant that his Honour’s description was founded on one or more factual errors. In my opinion, none of the errors alleged were errors at all. First, it is the fact that the appellant’s ability to contribute to the family purse was reduced. Second, in his record of interview the appellant did reveal, in my opinion, a way of thinking about the household’s financial and domestic circumstances which could be described as ‘narrow and self-centred’. Third, there was evidence that, at least shortly before she was killed, Mrs Haynes was in fear of the appellant. Fourth, the killing of Mrs Haynes by a domestic partner who had been invited, with his children, into her home was no less a breach of trust only because, let it be assumed, the appellant for psychiatric reasons found it difficult to maintain a relationship.
There is another reason for rejecting the appellant’s submissions. In my view, the judge’s conclusion that the killing involved a breach of trust did not depend upon the circumstances identified by appellant’s counsel. It depended simply upon a de facto spouse killing his partner in the latter’s home, when, as the prosecutor put it, the victim could legitimately have expected the offender to be her protector, not the perpetrator of the violence.
Finally, the highest at which the appellant pitched the alleged error was that ‘the breach of trust relied upon by his Honour was not as pronounced as [he] characterised it’. But that makes too much of what was in any event an unexceptional observation by the learned judge.
I turn to ground 3. Counsel for the appellant submitted that the judge erred in finding that the appellant’s remorse involved a mixture of true remorse together with regret for his own predicament and that of his children. It was not open, he contended, to conclude that the appellant was ‘anything other than genuinely remorseful’.
The reply by counsel for the Crown was this: the judge did find that the appellant was remorseful. It was stating the obvious to say that the remorse had the two components mentioned.
In my opinion, the sentencing remarks leave no room for doubt that the judge sentenced the appellant on the footing that he was genuinely remorseful for what he had done. As the appellant’s counsel submitted, the circumstances commanded that his Honour so approach the matter. The only question is whether his Honour impermissibly reduced the significance of the accepted remorse, for sentencing purposes, by his reference to the appellant’s concern for his own predicament and that of his sons.
In my opinion, his Honour did not do so. His conclusion was the logical extension of his conclusions that the appellant’s approach to the financial and other domestic problems was self-centred and narrow; and that the appellant’s analysis of the consequences of his act – when speaking to the police, focused more on the fate of his own children than upon the consequences for the children, one of them disabled, of the murdered woman.
But even if the judge’s conclusion had not been justified, I am not persuaded that on that account a different sentence should have been passed.
I go to ground 7, which complains about the judge’s observation that it was only a matter of good luck that the appellant’s 12 year old son did not witness the killing.
The Crown had argued on the plea that the son’s presence in the house, without more, was a circumstance of aggravation. The first thing to consider is whether the judge accepted the submission. It is not clear to me, from the pertinent remark made by his Honour, that he did so. It may be that, by the remark, his Honour was implicitly drawing a distinction, on the one hand, between the circumstance – which did not occur – of the child witnessing the killing or its aftermath and, on the other hand, the child simply being in the home. If that was the import of his Honour’s remark, it may be that he was rejecting the latter situation as a circumstance of aggravation.
But if the judge should be taken as having accepted the Crown’s submission, I consider that such a finding could have been made to the criminal standard. The fact that the appellant’s son was playing in one area of the home before the killing did not exclude the prospect that he might have come looking for his father for some reason or another, and so come upon the killing or its aftermath. The appellant’s act, whilst his son was in the home, exposed the boy to the risk of such an eventuality.
Further, and in any event, again I am not persuaded, even if the judge did make an unsupportable finding, that on that account any different sentence should have been passed.
There remains ground 1, a complaint of manifest excess with respect to both the head sentence and the non-parole period.
The ground of manifest excess is not easily established, and I am quite unpersuaded that it has any merit in this case so far as the head sentence is concerned. It is unnecessary for me to consider whether the non-parole period was manifestly too great a proportion of the head sentence because I have already concluded that ground 4 has been made out.
I would allow the appeal and re-sentence the appellant to a term of 17 years’ imprisonment. I would fix a non-parole period of 13 years’ imprisonment. I would
confirm the other orders made below, and I would make an appropriate declaration in respect of pre-sentence detention.
The non-parole period which I propose is a year less than that which the judge fixed. It might be characterised as a ‘common’, if not an ‘ordinary’ or ‘usual’ proportion of the head sentence. To my mind, it would properly meet the purposes for which a non-parole period is set in all the circumstances of the case. It needs to be understood that it is not only the gross length of the non-parole period, but its relationship to the head sentence, which falls for consideration.
NEAVE JA:
I agree.
WEINBERG JA:
I also agree.
ASHLEY JA:
The orders that the Court will make are these:
1. The appeal is allowed.
2. The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a period of 17 years.
3. A minimum term of 13 years' imprisonment is fixed before the appellant is to be eligible for parole.
4. The other orders made by the Court below are confirmed.
It is declared that the period of 1213 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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