Dooley v The Queen - [2003] NTCCA 6

Dooley v The Queen [2003] NTCCA 6
PARTIES:MATTHEW GEORGE DOOLEY
v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 26 of 2001 (20014925)
DELIVERED:  22 July 2003
HEARING DATE:  19 May 2003
JUDGMENT OF:  ANGEL, MILDREN & RILEY JJ
REPRESENTATION:
Counsel:
Appellant:D. Grace QC
Respondent:  W.J. Karczewski QC
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  ril0318
Number of pages:  19

ril0318
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Dooley v The Queen [2003] NTCCA 6
No. CA 26 of 2001 (20014925)

BETWEEN:
MATTHEW GEORGE DOOLEY

Appellant
AND:
THE QUEEN

Respondent

CORAM: ANGEL, MILDREN & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 22 July 2003)
ANGEL J:

I would refuse the application to adduce fresh evidence and dismiss the appeal for the reasons given by Riley J.
MILDREN J:
I would also refuse the application to adduce fresh evidence and dismiss the appeal for the reasons given by Riley J.
RILEY J:

The appellant pleaded guilty to one count of committing a dangerous act and thereby causing the death of Peter Searle. It was an aggravating feature of the offence that, at the time of the offending, the appellant was under the influence of alcohol. The maximum penalty for the offence is imprisonment for 14 years. On 22 November 2001 he was sentenced to imprisonment for a period of 9 years with a non-parole period of 5 years.

The appellant appeals against the sentence and was granted leave to appeal by a Judge of this Court on 18 January 2002.
There are three grounds of appeal, namely: that the sentence was manifestly excessive; that it was manifestly disparate to the general pattern of sentences; and, finally, that by reason of new or fresh evidence which has arisen since the imposition of the sentence, the sentence imposed on the appellant is manifestly excessive. The appellant sought leave to adduce further evidence in support of the final ground.
The circumstances of the offending were disturbing. The learned sentencing judge described those circumstances as placing the offending at the highest end of the range of seriousness for offences of its kind.
The deceased and the appellant knew each other. Some 3 to 4 weeks before the death of the deceased, his young daughters informed the appellant that the deceased had exposed himself to them. The appellant decided that informing the police would not achieve anything and he determined to deal with the issue himself. It took him some time to locate the address of the deceased who lived on a rural block south of Darwin. On 4 September 2000 the appellant, with two companions, Mark Anthony Milianos and another, whom the appellant declined to name at that time but who subsequently has been identified as David Anthony Rice, spent the afternoon drinking beer. Together they decided to drive to the area where the deceased lived in order to locate him and “teach him a lesson”. The men were substantially intoxicated when they put their plan into action.
They drove to the rural area and, in the process of finding the deceased, spoke with a number of people at different locations. Eventually they found the residence of the deceased at the Pel Airstrip Station. They forced the front gates of the area open by using the bullbar on the vehicle. They walked to the front of the residence and called for Mr Searle to come out. When Mr Searle saw who it was, he ran back inside. The appellant chased him and caught him and proceeded to punch and kick him. He was kicked to the head and body whilst he was on the floor. The appellant told the deceased: “You better leave the Territory. I’m coming back in one week and you better be gone”. At the time the appellant left, the deceased was conscious and sitting on the floor. He died a short time later.
The injuries suffered by the deceased were extensive, including fractures to the ribs, a hairline fracture of the roof of the orbit above the left eye and several major scalp, head and facial lacerations which were said to be consistent with the use of a weapon or falling repeatedly onto a sharp surface. He also suffered bruising to both lungs, bruising to the throat and thyroid area, bruising to the hyaloid bone, significant bruising to the heart muscle, a fractured left elbow, bruising and swelling to the back of the right hand and the back of the left forearm, severe bruising and effusion of the left knee and extensive lacerations and bruising to all limbs.
The deceased suffered from a severe long-standing cardiac disease and the evidence gathered after the event showed that he died of a coronary atheroma brought on by the stress of the severe and substantial assault.
The appellant was eventually identified by police and participated in a record of interview in which he made partial admissions. He told the police that he committed the assault by himself and he denied having any companions with him. At the time of the plea before the learned sentencing judge he acknowledged that Milianos was in the vehicle, but said that he was asleep in the backseat throughout the trip. He declined to identify Mr Rice as the front-seat passenger in the motor vehicle.
The Crown accepted a plea to the offence of committing a dangerous act causing death while intoxicated, on the basis that the appellant did not have actual foresight of death at the time of the beating, neither did he intend to kill or cause grievous harm when he inflicted the beating. The beating was such that, whilst it was severe and extensive, it would not have caused death or permanent injury to an otherwise healthy person.
The learned sentencing judge observed that the summary of the deceased’s injuries failed to convey “the full horror” of the assault. Photographs taken at the time and which were available to his Honour and to this Court dramatically demonstrate the violence inflicted upon the deceased. The sentencing judge described the beating as “vicious, deliberate and calculated to cause the deceased extreme pain”.
In determining the sentence to be imposed, the learned sentencing judge observed that the appellant’s failure to name his front-seat companion was “perverse” in light of his claim that he acted alone in assaulting the deceased. He noted that the appellant did not act in the heat of the moment and that he had thought about the allegations for a period of 3 or 4 weeks before acting. There was “a fair bit of premeditation and planning” and it was accepted that the deceased must have suffered “an agonising death”. However, it was also accepted that the deceased was conscious and seated on the floor as the appellant left the premises.
In sentencing the appellant it was noted by his Honour that he was a man of generally good character and that the offence was an aberration from his usual behaviour. He had sought to address his alcohol problem. He had entered an early plea of guilty and he had co-operated with police to a “limited extent”. The learned sentencing judge went on to observe:
“I accept he is remorseful that the deceased died but there is little to suggest that he has changed his mind about feeling justified in wanting to teach the deceased a lesson. Until he accepts that vigilante-type vengeance is wrong and gives full co-operation to the authorities in naming who went to the deceased’s home and what role they took, I consider his rehabilitation prospects will be limited”.
The learned sentencing judge noted that the matter was at the highest end of the range of seriousness for such offences. He said that the starting point for sentencing was a period of imprisonment of 13 years, which he reduced by approximately 30 per cent to reflect the mitigating factors including the prisoner’s early plea and his former good character. His Honour noted that “the resulting figure of 9 years is barely adequate punishment to meet the circumstances of this case”, but went on to impose that sentence.
Manifestly excessive
The characterisation by the learned sentencing judge of this offence as being at the highest end of the range of seriousness was, in my view, justified. The offence involved a vicious beating of the victim in vigilante fashion. There was limited remorse and there was a failure to co-operate with authorities by identifying others present, even though it was clear that others were present. The assault involved premeditation and planning. The appellant was persistent in his efforts to track down the deceased and did so over a period of time. The attack occurred without the deceased having any opportunity to defend or explain himself. It was not a case where the appellant sought to bring the deceased to justice, but rather one where he sought to inflict vigilante-type vengeance upon him. In my view, his Honour correctly characterised the facts as being such as to bring the matter within the worst category of offending of its kind. Both general deterrence and specific deterrence were significant matters for consideration in the sentencing process.
In support of the submission that the sentence was manifestly excessive, the appellant submitted that the learned sentencing judge failed to take into account or give sufficient weight to various matters. Reference to the sentencing remarks reveals that specific reference was made to each of the matters identified by the appellant. The real issue must be whether sufficient weight was accorded to those matters.
The first group of matters identified included the good character of the appellant, his long and productive work history and the absence of prior convictions for offences of violence. His Honour noted that the appellant is “not a man with any history of criminal violence”, had never been to prison before and “up to the time of the offence, was a man of generally good character”. The offence was described as “an aberration from his usual behaviour.” His Honour also noted that the appellant had worked “all his adult life in transport and construction”.
Other matters said to have been ignored or not accorded sufficient weight included his admissions to police and his plea of guilty. As I have noted, his Honour reduced the head sentence by approximately 30 per cent to take into account mitigatory factors, including the early plea of guilty. In relation to co-operation with police, his Honour noted that this was “considerably less than full” and made reference to his failure at that time to identify Mr Rice as a participant in the offending.
It was submitted that his Honour failed to give sufficient weight to the emotive circumstances leading to the incident. It was said that the appellant was unable to deal with the revelations of his daughters and, as a consequence, drank heavily, stopped eating, lost 10 kilograms in weight and dwelt upon the matter. The appellant was concerned that his daughters had not told him the full story. These are all factors that underlay the conduct of the appellant. They were addressed by his Honour. Whilst they serve to explain why the appellant may have acted as he did, they do not provide mitigation for his conduct. Indeed, the vigilante nature of the conduct of the appellant is more likely to be an aggravating rather than a mitigating factor: Whiteside & Dieber (2000) 114 A Crim R 234 at 243. Such activity must be suppressed and calls for “a serious reaction from any court anxious to preserve the rule of law” (ibid). As to the suggestion that his Honour did not accord appropriate weight to the fact that the appellant was substantially intoxicated during the course of the evening and had smoked cannabis which impaired his judgment, it is to be said that under s 154 of the Criminal Code the intoxicated state of an accused can not be relied upon as a mitigating circumstances whether or not it is charged in the indictment as a circumstance of aggravation: Namandali (1994) 97 NTR 1. Since the offending the appellant has sought assistance with a view to changing his alcohol intake. The information provided to his Honour was that the appellant had reduced his alcohol intake quite significantly, but that he continued to consume alcohol. Those factors were noted by the learned sentencing judge in the course of his sentencing remarks.
The appellant submitted that notwithstanding the fact that the matters addressed were specifically mentioned by his Honour, those matters could not have been sufficiently taken into account. In the absence of identified error an appellant seeking to establish that a sentence was manifestly excessive must show that the sentence was not just arguably excessive but that it was so “very obviously” excessive that it was “unreasonable or plainly unjust”: Raggett, Douglas & Miller (1990) 50 A Crim R 41 at 47; Salmon v Chute & Another (1994) 94 NTR 1. There must be some reason for regarding the sentencing discretion as having been improperly exercised: Cranssen v The King (1936) 55 CLR 509 at 519–520.
Having considered all the matters referred to by the appellant, in my view the sentence imposed on the appellant in this matter was appropriate in all the circumstances.
The appellant also complains that the sentence imposed by the learned sentencing judge was manifestly disparate to the general pattern of sentences imposed for the same offence. The appellant provided a schedule of what were said to be comparative sentences in support of this argument. This Court has previously observed that an offence against s 154 of the Criminal Code covers a wide range of conduct and, like manslaughter, allows no statistical range. Comparative cases are of little assistance because there are rarely similar cases which are truly comparative: R v Bloomfield (1999) NTCCA 137 at para 19. The cases referred to by the appellant are not truly comparative. None is as serious as this matter and none involves vigilante vengeance. The appellant has not demonstrated that the sentence imposed was manifestly disparate to the general pattern for sentences imposed in relation to s 154(4) of the Criminal Code.
Fresh evidence
The appellant made application for the Court to receive fresh evidence, the consideration of which, he submits, would lead to a conclusion that the sentence imposed was manifestly excessive. The respondent opposed the application.
To determine the matter it is necessary to identify the evidence the appellant seeks to introduce. As has been observed, at the time of sentencing the appellant declined to identify Mr Rice as a person present at the time of offending. The appellant maintained that he was the only person to assault the deceased. The learned sentencing judge described the appellant’s failure to identify Mr Rice as “perverse” and made the observations set out at paragraph 13 above.
Sentencing of the appellant took place on 22 November 2001. On 12 July 2002 the appellant participated in a tape-recorded conversation with police officers and provided the identity of Mr Rice. He also described the role that Mr Rice had played in the assault. On 24 July 2002 he provided a signed statutory declaration to police containing further inculpatory information in relation to Mr Rice. Mr Rice was subsequently charged and brought to trial. The charges he faced were manslaughter, dangerous act, causing bodily harm with intention of causing grievous harm and committing a dangerous act whilst under the influence of alcohol. He pleaded not guilty to all charges and, after a trial before a jury, was convicted of committing a dangerous act whilst under the influence of alcohol. He was sentenced to 2 years imprisonment, 18 months of which was suspended for 2 years. The appellant co-operated with the authorities in the proceedings. He testified on behalf of the prosecution at a voir dire hearing and a Basha inquiry in respect of the charges. He was a prosecution witness at the trial. It was the submission of the appellant that the assistance he provided shed new light upon matters considered by the sentencing judge in mitigation of penalty, namely that his prospects for rehabilitation were limited as were his feelings of remorse and his acceptance of moral culpability.
There is a line of cases in which courts have permitted fresh evidence of ill health to be led on appeal in circumstances where there was no error by the sentencing judge when determining the appropriate sentence. In Eliasen (1991) 53 A Crim R 391 the Victorian Court of Criminal Appeal received evidence in relation to an appellant who, at the time of sentencing, had returned a positive result to an HIV test and then, after sentence had been imposed, learned that he was suffering from Acquired Immune Deficiency Syndrome. That disease had been present but undetected in his body at the time the sentence was imposed. In that case Crockett J (with whom McGarvie and Phillips JJ agreed) observed that the court accedes “very sparingly” to such applications. However, in an appropriate case, the court may permit evidence of matters or events that have occurred since the date of the passing of the sentence to be placed before the court with a view to reconsidering the matter in light of the additional evidence.
Once the evidence is admitted, the question becomes whether, on the material then before the court, a different and, if so, what sentence should be substituted for that imposed by the sentencing judge. This is so even though the sentencing judge has not erred in the exercise of the sentencing discretion. As Crockett J observed in Eliasen (394):
“It must follow that, if the Court does think that the additional evidence should lead to an imposition of a sentence different from that imposed by the Judge, then even where the Judge’s sentencing discretion has not miscarried, the case must be treated as one calling for appellate intervention.”
The case of Eliasen (supra) was followed in R v WEF (1998) 2 VR 385. In that case Winneke P (with whom Charles JA and Hampel AJA agreed) said (at 388-9):
“In normal circumstances, if it is suggested that subsequent events have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative of mercy and not a matter for an appellate court. The authorities for this proposition have been collected and explained by this court recently in the case of R v Babic (1998) 2 VR 79 per Brooking JA at 80–1.
However, this court has recognised that there is a rare exception to this otherwise fundamental rule. The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence.”
See also R v Norman and Briggs (Court of Criminal Appeal Victoria, unreported, 17 April 1998).
The basis for receiving the new evidence is to be found in demonstrating the true significance of facts in existence at the time of sentence: R v Rostom (1996) 2 VR 97; Babic v R (1998) 2 VR 79 at 80–81 and 82.
In Anderson (1997) 92 A Crim R 348, the Western Australian Court of Criminal Appeal considered a case in which the applicant for leave to appeal sought to introduce evidence that, whilst at the time of sentencing there were concerns for the health of one of his children who suffered leukemia, it was not until some two months after sentence was imposed that the seriousness of the child's condition was diagnosed. The evidence was to the effect that the presence of the applicant with his young son was important to the welfare of the child who was about to undergo a bone marrow transplant. At the hearing of the application the Crown conceded that the new evidence shed light on matters considered by the sentencing judge in mitigation and also that, had that information been available, it would very probably have altered the sentence imposed.

Malcolm CJ noted that as a matter of general policy there is much to be said for the proposition that the review of a sentence in the light of subsequent events is a matter for the Executive Government and the exercise of the Royal Prerogative rather than for the Court of Appeal. In relation to the matter then before the court, he observed that it was convenient for the court to hear and determine it as the court could do so with much greater expedition than would have been possible had the matter been dealt with by the Executive. Malcolm CJ noted that the Court of Criminal Appeal should quash a verdict of guilt if material presented to it shows the applicant to be innocent or raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand. He said that he could see no reason why “the basic principle applicable to the admission of and acting upon fresh or new evidence should be any different on an application for leave to appeal against sentence than that which is applicable to an appeal against conviction”. He went on to say (349):
“The primary consideration in an appeal against conviction is to rectify a miscarriage of justice. This should also be the primary consideration in an appeal against sentence, although there are considerations applicable in the case of sentencing which may justify restricting the admissibility of new evidence of events subsequent to the passing of sentence”.
His Honour referred to various decisions including Eliasen (supra) and noted that the courts had received fresh or new evidence which cast new light on facts as they existed at the time the sentence was imposed. This occurred even though there was no error in the exercise of the sentencing discretion. He noted the limitation suggested in Smith (1987) 44 SASR 587 where King CJ (with whom Cox and O’Loughlin JJ were in agreement) said that a distinction should be drawn between cases in which fresh evidence was given of facts which were in existence at the time of sentencing or which put facts which were before the sentencing judge in a new light on the one hand, and fresh evidence of subsequent events on the other. Evidence of the latter was not receivable. Malcolm CJ went on to say, in relation to the particular provision of the Criminal Code of Western Australia (350):
“It is plain that the power should be used only to rectify a miscarriage of justice and that, save in the most exceptional cases, any question of the review of a sentence in the light of subsequent events or changed circumstances which go beyond casting new light on the facts as they were before the sentencing Judge should be a matter for the Executive”.
In Anderson Steytler J was of the view that it is normally appropriate that the review of a sentence in light of subsequent events is a matter for the Executive Government and not for the Court of Criminal Appeal. However, in light of the Crown concession in that case and in view of the extraordinary circumstances, he thought it appropriate for the court to deal with the matter by allowing the appeal. He did so specifically on the basis that the fresh evidence shed new light on the matters considered by the learned sentencing judge in mitigation of penalty and which would “very probably have altered the sentence imposed” had that information been then available. Steytler J observed that the court may have regard to events which have subsequently happened, insofar as those events do no more than reveal or explain the full significance, and any necessary consequences, of something which had already happened at the time of sentencing, but the significance or necessary consequences of which had not then been known to the sentencing judge.
In Smith (supra at 588) King CJ observed:
“The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence … and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.”
In Goodwin (1990) 51 A Crim R 328 the Court of Criminal Appeal in New South Wales dealt with the issue and appears to have taken a more restricted view. In that case Hunt J (with whom Grove J agreed) said (at 330) that in order for fresh evidence to be received in a sentencing appeal it must be established:
“(1)   that the additional material sought to be put before this court        is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision;
(2) that, although its existence may have been known to the       appellant, its significance was not realised by him at the time;     and
(3) that its existence was not made known to the applicant’s      advisers at the time of those sentencing proceedings.”
Hunt J went on to observe (at 330):
“In so far as any of the additional material may relate to the applicant’s circumstances since she was sentenced, it should be placed before the Executive Government, whose proper province is to review the sentence imposed in light of such material: Munday (1981) 2 NSWLR 177 at 178.”
See also R v Frederick Glen Many (Court of Criminal Appeal NSW, Unreported, 11 December 1990)
In the present case, the evidence upon which the appellant seeks to rely is his post-sentencing decision to assist the prosecuting authorities. At the time of sentencing he knew the identity of his co-offender, Mr Rice, and refused to disclose that identity or the part Mr Rice took in the event. At that time he was represented by experienced counsel. It was acknowledged that he had been informed that he would be better off assisting the police. He declined to do so because he said that he was to blame. The sentencing judge was told that “it may be that after his matter has been dealt with, he will assist but he doesn’t want to be seen – he tells me – to be getting benefit for himself in relation to it”. He made a deliberate and informed choice not to co-operate with the authorities. It is difficult to see how the fact that he changed his mind and co-operated with authorities after sentence can be characterised as relevant fresh evidence. What he did on the later occasion does not show the true significance of facts which were in existence at the time of sentence. The new material does not throw new light upon his involvement in the offence, nor does it minimise his involvement in the offence.
In the submission of the appellant, the evidence sought to be led shed new light on his prospects for rehabilitation, his remorse and also cast new light upon his moral culpability in respect of the role he played in the assault upon the victim. In my view, in the circumstances of this case, the fact that the appellant, after having been sentenced, has had a change of heart and has provided evidence against a co-offender does not shed light upon the extent of his remorse or his prospects for rehabilitation at the time of sentencing. The fact that he chose a different path after sentencing demonstrates only that he has changed his mind in light of what occurred in the sentencing process or, possibly, thereafter. This is not evidence of the kind that has been admitted in other proceedings such as Anderson or Eliasen.
Further, I do not accept the submission made on behalf of the appellant that the information sought to be introduced impacts upon the observation of the learned sentencing judge that the appellant “endeavored to minimise the ferocity of his attack on the deceased while he was being interviewed by the police.” Reference to the record of interview and to the later statement supports the observation. At the time of interview the appellant said only that he “punched him and kicked him a few times and then I left.” He said he did not know where he had kicked the deceased. In his subsequent statement he agreed that he “punched him a few times in the head” and then, whilst the deceased was on the ground, “I kicked him in the face about five times” and then “I punched him more times in the head and body”.
It is acknowledged that it is in the public interest that offenders should be encouraged to supply information which will assist the authorities to bring other offenders to justice. If known at the time of sentence, that fact should be given appropriate weight: s 5(2)(h) Sentencing Act; R v Cartwright (1989) 17 NSWLR 243. However, if that assistance is provided after the sentencing exercise is complete and does not throw light upon circumstances which existed at the time of sentence, then it is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court: Babic (supra at 80–81). As the appellant acknowledges, such evidence should only be received in circumstances that are “rare and exceptional”. In my view, any reconsideration of the sentence of the appellant in the circumstances of this matter should be a matter for the Executive and not for a Court of Criminal Appeal.
The affidavits should not be received into evidence and the application should be dismissed.
In my opinion the appeal should be dismissed.

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