DPP v Browning
[2016] VSCA 153
•4 July 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0214
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| BRIAN ROBERT BROWNING | Respondent |
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| JUDGES: | WEINBERG, WHELAN and KAYE JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 21 June 2016 | |
| DATE OF JUDGMENT: | 4 July 2016 | |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 153 | 1st Revision: 5 July 2016 para [93] |
| JUDGMENT APPEALED FROM: | R v Browning [2015] VSC 556 (Lasry J) | |
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CRIMINAL LAW – Crown appeal – Sentence – Murder by husband of wife – Marriage breakdown –Victim asleep in own home – Multiple stab wounds to upper body – Respondent had consumed sleeping tablets containing doxylamine – Effect upon mental state – Adjustment disorder – Post-traumatic stress disorder – No history of violence – Remorse not ‘of significant level’ – Plea of not guilty – Sentence of 18 years’ imprisonment with 14 year non-parole period manifestly inadequate – Re-sentenced to 21 years’ imprisonment with non-parole period of 16 years
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr G A Georgiou SC with Mr P Doyle | James Dowsley & Associates |
WEINBERG JA
WHELAN JA:
In the early hours of Thursday, 19 December 2013, the respondent, Brian Robert Browning, entered the bedroom normally occupied by one of his daughters at the home he shared with his wife of 23 years, Catherine Elizabeth Browning. Mrs Browning was asleep in that room.
The respondent, in a frenzied attack, stabbed his wife repeatedly to the chest, neck and throat. He inflicted some 15 separate stab wounds. It seems that she attempted to resist him, but to no avail. She died almost immediately from her injuries.
After a trial lasting some 13 days, the respondent was convicted of his wife’s murder. He was sentenced to a term of 18 years’ imprisonment, with a non-parole period of 14 years.
The Director of Public Prosecutions has appealed against that sentence, alleging that it is manifestly inadequate. As is invariably the case, the Director has provided detailed particulars of that ground.
Putting to one side the usual ‘boilerplate’ particulars, the Director contends that the sentencing judge failed to have sufficient regard to features of the offending that made this a particularly serious offence. The Director focussed, in particular, upon the fact that this was a brutal and wholly unprovoked attack upon a defenceless woman. It was said to involve a gross breach of trust. The murder itself was premeditated to some degree because the respondent had armed himself with a large knife that he had obtained from the kitchen shortly before carrying out the attack. The respondent chose to plead not guilty, as was his right. However, that meant that he could receive no benefit from the utilitarian value ordinarily associated with a plea of guilty. In addition, the sentencing judge was unpersuaded that his remorse was ‘of a significant level’.[1]
[1]R v Browning [2015] VSC 55, [30] (‘Reasons’).
In addition, the Director submitted that the sentencing judge gave too much weight to such mitigating factors as were present. He argued that even if the principles stated in R vVerdins[2] had been properly invoked, they were of limited significance in the particular circumstances of this case.
[2](2007) 16 VR 269 (‘Verdins’).
The Director submitted that even if he could not make good his primary contention that the sentencing judge had erred by giving too much weight to the various mitigating factors upon which the respondent relied, nonetheless both the sentence of 18 years and non-parole period of 14 years were so far out of kilter with current sentencing practices for the offence of murder as to warrant the intervention of this Court.
Background facts
The respondent and his then future wife met in 1988. They were married some four years later, in 1992. The marriage was generally harmonious, although there was occasional friction between them. Importantly, there was no suggestion that, prior to the commission of this offence, the respondent had ever exhibited any violence towards his wife.
In the latter part of 2013, the marriage broke down. It appears that there had been issues between the respondent and his wife concerning drinking, gambling, and financial problems.
The result was that, a week or so before the tragic events surrounding the commission of the offence, it was agreed (at the wife’s suggestion) that they should separate and eventually divorce. In the meantime, although the deceased left the marital bedroom, they continued to live under the same roof.
On 13 December 2013, the respondent’s elder daughter, Amy, returned from a holiday in Thailand. The respondent told her that he and her mother were getting a divorce.
She noticed that her father seemed different. She described him as upset, depressed, moping around and not being himself. Although he had given up smoking a year before, he had resumed that habit.
Amy said that the respondent’s mental health appeared to her to be deteriorating. He seemed not to be sleeping. She raised with him the possibility of seeing a doctor in order to obtain sleeping tablets. He told her that he would, instead, get some from the pharmacist. He did, indeed, acquire a non-prescription medication called ‘Restavit’. That product has as its main ingredient a substance known as ‘doxylamine’.
At about 6:00 am on the day in question, the respondent got out of bed and went to the kitchen. He took possession of a large kitchen knife from a knife block. That knife had an 18 centimetre blade. The respondent then entered his daughter’s bedroom where he saw his wife sleeping. It seems that she had, on the previous evening, gone to a Christmas party and had returned home at about 11.15 pm.
The evidence was that the respondent tapped his wife on the shoulder and then, without more, attacked her with the knife. She must have resisted him, as there were a number of defensive wounds later found on her body. As previously, indicated, the respondent stabbed her 15 times to the upper body, mainly around her chest, throat and neck area.
Amy woke when she heard her mother scream. She went to investigate. As she approached the bedroom, the respondent emerged holding a knife that was covered in blood. He flung the knife to the floor and exclaimed, ‘Bitch’. He then walked away. When Amy screamed, ‘What have you done?’, he did not respond.
Shortly afterwards, police and ambulance officers attended. When they arrived, the respondent was sitting at a garden setting in the backyard. He told police, ‘I’ve killed my wife’.
When police spoke to the respondent, there was an empty packet of Restavit on the table, in the garden setting in front of him. When asked what this packet was for, he replied that it was to help him sleep. He told police that he had taken four tablets before he killed his wife, and had consumed the rest after he had committed the offence. It could reasonably be inferred that he had tried to kill himself.
The primary defence at trial was that the respondent had not acted with murderous intent. There were always difficulties associated with that defence, having regard to the nature and gravity of the wounds inflicted.
A further and alternative defence was also put forward. It was contended that the respondent’s actions were neither conscious nor voluntary, effectively a defence of automatism. Presumably, this was based around the notion of dissociation. However, in the face of medical evidence that overwhelmingly contradicted that defence, it was sensibly abandoned in running.
Returning, then, to the defence of lack of murderous intent, it was submitted at trial that the respondent had been profoundly distressed in the week leading up to the killing of his wife, and was not functioning normally. It was said, in effect, that he had suffered a complete mental breakdown, resulting largely from the separation from his wife. His distress was exacerbated by his inability to sleep, and various other matters to which we shall return.
It seems that the respondent was told by the pharmacist from whom he acquired the Restavit that he should take half a tablet at night in order to see how that affected him. He was told that he could increase the dose to one tablet, with a maximum of two, if necessary.
Although it was never made clear exactly how many tablets the respondent took on the night in question, it seems to have been accepted that it was significantly more than just one or two.
Dr Lester Walton gave evidence during the course of the trial. He said that Restavit contained doxylamine, which he described as a sedative that could have adverse side effects. He added, however, that he had never, in his many years of practice as a forensic psychiatrist, seen a doxylamine-induced psychosis.
The sentencing judge’s reasons
The sentencing judge accepted that the respondent’s offending was wholly out of character. He concluded that the most likely explanation for the respondent’s aberrant behaviour was what Dr Walton had referred to as the ‘pressure cooker’ effect.
As to that, Dr Walton had said:
Sometimes you’ll find people who are passive by nature, not given to violence or using angry words, they can soak up conflict and criticism and difficulties, cumulating over years, and then finally the pressure cooker explodes, if you like, they can’t contain it any longer.[3]
[3]Reasons [14].
However, the sentencing judge considered in that regard that, whatever may have actuated the respondent, the community expected that domestic violence against vulnerable women had to be denounced in the strongest possible terms.
The sentencing judge noted the respondent’s age, 54 at the date of sentencing. His father was now deceased. However, the respondent’s mother was still alive. The respondent was the oldest of five children.
The sentencing judge took into account, by way of mitigation, a series of matters personal to the respondent.
It seems that the respondent’s father was prone to violence when drunk, and that the respondent had been the main target of that violence. This was said to have had lasting effects upon him.
The respondent had been employed as a baker for most of his adult life.[4] The sentencing judge noted that, in 2007, the respondent sustained an injury to his right shoulder which required several surgical procedures.[5] He had been unable to work since 2009. It seems that that injury contributed significantly to the family’s financial difficulties.
[4]It was said on the plea that the respondent had attended school in the Frankston area until age 16. He then secured an apprenticeship as a baker and, save for one or two relatively minor interruptions, he worked as a baker after that time. His employment record was impressive.
[5]On the plea, counsel for the respondent indicated that the respondent had continued to suffer restricted movement in that shoulder, and in his right arm.
As the sentencing judge observed, the respondent has two daughters (aged 19 and 21 at the time of the plea). Perhaps unusually, having regard to the jury’s verdict in this case, they continued to visit their father on a regular basis in prison. Their evidence was significant as far as the sentence was concerned. We propose, therefore, to summarise it in some detail.
Amy and Rhiannon Browning
Amy Browning was born in 1993. At the time of her mother’s death, she was 20 years of age. Her younger sister, Rhiannon, was aged 18.
Amy said that after her father was injured at work, her mother obtained full time employment as a receptionist. She was asked how she would describe her parents’ marriage. She said, ‘Really good, they never really fought or anything and they always got along’.[6] She acknowledged that, in recent months, they had had ‘a few little arguments, but nothing major, nothing physical or anything’.[7]
[6]Transcript of Proceedings, R v Browning, Supreme Court of Victoria, S CR 2014 0111, Lasry J, 13 April 2015, 61. (‘Trial Transcript’)
[7]Ibid.
Amy was then asked about her observations of her father after her return from Thailand. She said, ‘He seemed different, like there was something wrong but he was still happy and stuff’.[8] Shortly after, her parents told her that they had some bad news and were getting a divorce. Both parents had tried to reassure her.
[8]Ibid 62.
Amy said that, the following day, her father appeared to her to be ‘very upset, depressed, moping around the house, [and] just not himself’.[9] That night, and thereafter, her mother slept in Rhiannon’s bedroom.
[9]Ibid 64.
Amy said that her father had begun smoking again. He continued to mope around the house. She had never seen him so upset before. Throughout that week, she said her father was depressed and not eating properly. He barely slept. He told Amy that he had only had an hour or two of sleep on the previous evening. She suggested he go to the doctor, in order to obtain some sleeping tablets. He told her that he would obtain them from the pharmacist.
On the day her mother was murdered, Amy slept in Rhiannon’s bedroom and her mother slept in Amy’s bedroom. She was woken by her mother screaming. The screaming stopped for a moment and then resumed. Amy walked towards her bedroom and, as she was about to enter, her father emerged. She said that ‘[i]t was like [she] was a ghost and [she] wasn’t there to him, like he couldn’t see [her]’.[10] She described his having thrown the blood-stained knife to the ground.
[10]Ibid 68.
In her initial statement to the police, Amy said that her father had uttered the expletive, ‘bitch’, at that moment. In her evidence before the jury, however, she claimed that she could not recall her father having used that term.
Amy said that when she entered the bedroom her mother was still breathing. However, she died only moments later.
Rhiannon Browning gave evidence to the effect that she learned a week or so before her mother’s death that her parents were going to separate. Thereafter, her mother and father slept in different bedrooms, but that was the only difference that she noticed in their relationship.
The transcript of Rhiannon’s evidence regarding her father’s appearance during that week is illuminating:
What about in your dad's ‑ once you were told that your parents were separating, did you notice any change in your dad's mood or behaviour?‑‑‑Yes.
In what way?‑‑‑Well, when they told me like my dad started crying and I don't think I've ever seen my dad cry, and then he was just acting really strange and pacing around the house and just saying odd things that didn't really make sense.
Is that at the time that you were told or is this over the period you were told that he was doing that?‑‑‑At the ‑ no, after they told me they were getting a divorce.
When you say he was pacing the house and you said he was saying odd things, what like?‑‑‑Just like he doesn't know what to do and like he's just stressing and stuff like that.
From the time that they told you, did he stay like that or did he get better or worse?‑‑‑He got worse.
When you say he got worse, in what way? Are you able to sort of describe his mood or behaviour, say, on the Wednesday or the Tuesday before?‑‑‑So on the Wednesday when I got home from my placement he was just sitting on the edge of the couch sort of, like rocking in a way, and it just didn't look right to me because he was just looking really sort of like run down and like he had really big bags under his eyes and stuff like that.
Sorry, I just missed the last portion?‑‑‑He had bags under his eyes.
Did he say anything about his ability to sleep?‑‑‑Not directly to me.
What about eating, did you notice anything about his eating habits or did he say anything about his eating habits?‑‑‑Not really, I wasn't home, so.
Were you spending a bit of time at your boyfriend's house at this time?‑‑‑Yes, so I would go to placement all day and then of a night‑time I was going to stay at my boyfriend's house.
Did you have any conversation with him about his inability to sleep?‑‑‑He had told me that he hasn't been sleeping and that he was going to go to the doctors to get sleeping tablets and I told him that he could just get them at the pharmacy.[11]
[11]Ibid 120–1.
Janette Browning
We consider that the evidence of the respondent’s mother, Janette Browning, as to her son’s mental state at about the time of the commission of the offence is also important.
The transcript reads as follows:
I want to take you to 18 December 2013?‑‑‑Yes.
That morning did you attend a Christmas morning tea?‑‑‑For volunteers, yes.
And you returned home shortly before midday?‑‑‑Yes.
When you got home did you have any missed calls?‑‑‑There were two missed calls.
Was there any messages?‑‑‑One was, “Ring me mum, it’s urgent”. I think the other one was another, “Ring me mum” and then the next one was, “Ring me mum, it’s urgent.”
And after you retrieved those messages, did you ring your son?‑‑‑Yes.
And you got on to him?‑‑‑Yes.
And did he tell you something?‑‑‑Yes, he said, “Me and Cath are splitting up”.
What was your response to that?‑‑‑Well, I was surprised, really surprised. I said, “That’s a shock, Rick. What’s gone wrong?”
Did he tell you what had brought it on?‑‑‑He did say — but he didn’t say who it was, which partner, which one it was, he just said drinking and gambling.
Did he mention anything about money to you?‑‑‑Well ‑ ‑ ‑
In that telephone conversation?‑‑‑I just knew he had been granted a lot of money so there was no money problems, was there?
Did you suggest that he do anything in relation ‑ ‑ ‑ ?‑‑‑I suggested that he come up to me, to catch the bus with his sister.
That's his sister Mandy?‑‑‑That’s right.
And when you suggested that he do that, what was his response?‑‑‑He said he had no money and I said, “What do you mean, Rick, you've got no money? You’ve always got money”, and he said, “Well, I’ll see, I’ll see”, and then I went, went out again in the afternoon and ‑ ‑ ‑
Perhaps before we get to that, Mrs Browning, just in relation to that first telephone conversation, how would you describe your son’s mood?‑‑‑Oh, he was, you could tell he was very upset and disorientated. I felt something was definitely wrong. And that’s why I suggested he come up to me.
And then you said that you went out, after that telephone call you ‑ ‑ ‑ ?‑‑‑Yes, I had another ‑ well, I go out in the afternoon.
You went out to play cards?‑‑‑Yes.
And returned home at about 3.15?‑‑‑Yes.
And when you returned home did you notice any messages?‑‑‑There was another message.
From whom?‑‑‑From Rick.
And can you remember ‑ ‑ ‑?‑‑‑Said, “Mum, mum ring me”, and then I heard the phone fall on the ground. It sort of fell and I’m sure he was crying.
From that short message?‑‑‑I could hear it, m’mm. The phone, like he hadn’t hung up, the phone had dropped.
And once you got that message did you call him back?‑‑‑Yes, and he said, “Mum, I can’t come up on the bus”, he said, “I can’t stand still”. He said “I” ‑ he said, “I’m shaking, I, um, I don’t know what’s wrong”. He said, “I can’t even go to the shops”. And I said ‑ and somewhere along the way there was a mention of a doctor. I said, “Go and see a doctor”, and he said he was going to a doctor that afternoon.
Did you mention about coming up on the bus?‑‑‑Yes.
What did he say about that?‑‑‑He said, “Mum, I couldn’t sit on a bus. I can’t, I can’t stand still and I can’t sit still.”
Did he say anything about any concerns that he had that Catherine might do if he did come up and see you?‑‑‑Well, he did say she might change the locks.
And did you ask him how he was?‑‑‑I did. I was very worried about him. I said to my girlfriend, “I’m very worried about Rick”. If I could have caught a bus I would have come down.
And how would you describe his mood during that second conversation that you had with him?‑‑‑He was still terribly upset.
Is that the last time you spoke to Rick that day?‑‑‑That’s right.[12]
[12]Ibid 148–51.
The evidence as to doxylamine
In order to understand how the sentencing judge arrived at his disposition of this matter, it is necessary to have regard to evidence given during the trial by Dr Morris Odell, a senior forensic physician.[13]
[13]See also [24] of these reasons for judgment regarding Dr Lester Walton’s evidence.
On the plea, counsel for the defence referred to the evidence of Dr Odell, who had said that doxylamine could cause a person to do things that were otherwise completely out of character. He had also remarked upon a matter that would, in any event, be obvious; namely that a lack of sleep could impair sound judgment and can cause various disturbances in mental function.
Verdins and Professor Carroll’s report
On the plea, the defence relied heavily upon a report dated 24 May 2015 by Associate Professor Andrew Carroll, an experienced consultant psychiatrist.
Professor Carroll’s opinion was that, following the respondent’s separation from his wife, he had developed ‘an acute adjustment disorder with mixed anxiety and depressed mood’. He was of the view that the respondent’s attempt to quell his emotional upheaval through the use of sleeping tablets, and his reversion to smoking, appeared to have had the reverse effect from that intended. This had resulted in an ‘acutely over-aroused state at the time of the offence’ leading the respondent to engage in ‘severely violent behaviour’ that was grossly, and tragically, out of character for him.
Professor Carroll identified three distinct mental health issues which he considered explained the respondent’s offending.
First, the respondent had developed post-traumatic stress disorder as a result of his father’s years of abuse towards him. This was evidenced by, among other things, recurrent, involuntary and distressing memories and dreams; occasional dissociative reactions; distress and hyperarousal; and episodes of acute irritability.
Secondly, the respondent suffered from an ‘adjustment disorder’ which was not merely the product of being upset at the breakdown of his marriage, but involved quite disproportionate distress. This heightened the respondent’s already existing feelings of inadequacy. According to Professor Carroll, the respondent’s wife and daughters were clearly the most important attachment figures in his life, and the possibility of divorce had an abruptly catastrophic effect upon his mental health.
Thirdly, the respondent was, at the time of the offending, ‘mildly intoxicated’ with both doxylamine (from the Restavit tablets) and nicotine (from chain smoking). This would have exacerbated already pathologically elevated anxiety levels. Professor Carroll observed that it was possible that the respondent had taken as many as six Restavit tablets (of 25 mg each) on the night in question. That number of tablets, in combination with the effect of nicotine upon adrenaline levels in his body, would have resulted in heightened arousal levels.
Professor Carroll concluded:
In summary therefore, at the time of the offence [the respondent] was suffering from a severe adjustment disorder, which had developed on the background of chronic PTSD and distress secondary to job loss. His mental processes in the hours prior to the offence were further affected adversely by his intake of doxylamine and nicotine, which both acted to escalate his arousal levels further. The net effect of his intensely over-aroused psychophysiological state appears to have been that he was precipitated into a short–lived mental state whereby he was in an acutely anxious state similar to ‘panic’ – a kind of psychological ‘tunnel vision’ developed whereby he was severely impaired in his capacity to think rationally about his predicament. He developed irrational thinking whereby he ‘catastrophized’ that he would be made destitute by his wife's actions, and appears to have developed short-lived rage directed towards her. Subjectively he described corresponding feelings of “spinning out” and unclear thinking, consistent with the effects of acute over-arousal. He appears to have acted in a correspondingly impulsive fashion, with very limited deliberation, followed by immediate feelings of anguish and regret.
At the relevant time, the combination of mental health conditions outlined above, would have severely affected his ability to control his emotions, to think clearly, to make calm reasoned decisions or to make appropriate judgments. In the absence of· these conditions, there is nothing to suggest that Browning would have been motivated to act as he did. I therefore conclude that his mental health conditions were major causal factors in his offending.
Submissions on the plea and before this Court
On the plea, and before this Court, it was submitted that in the light of Professor Carroll’s report, and the evidence of Amy, Rhiannon and Janette Browning, the respondent had, in effect, clearly suffered some form of mental breakdown.
This gave rise to a submission that, in accordance with the principles laid down in Verdins,[14] both general and specific deterrence should be ‘sensibly moderated’. It was submitted, in particular, that the respondent’s offence should not be regarded as a revenge killing but, rather, as an irrational and spontaneous response to the breakdown of his marriage while in a distressed and vulnerable state.
[14](2007) 16 VR 269.
It was further submitted that the respondent was entitled to rely upon his prior good character. He had no previous convictions. This being his first time in custody, the respondent would find imprisonment particularly difficult. His prospects for rehabilitation were said to be good, with various character references attesting to this.
The Crown submission on the plea and again before this Court focussed, not unnaturally, upon the nature and gravity of the offending. This was said to have been a premeditated killing. It involved a brutal attack upon a defenceless woman who had been entitled to feel safe in her family home.
It was said that an aggravating feature of the offending was the fact that it occurred while the respondent’s daughter, Amy, was in the house. She was therefore exposed to the traumatic aftermath of what had taken place.
Finally, it was submitted that there was an element of breach of trust associated with this offence. The victim was the respondent’s wife of many years’ standing, to whom he owed, at the very least, a positive duty of care. All in all, the offence should be viewed as very serious, and as calling for a heavy penalty.
Analysis and Conclusion
The Crown’s submission that this was a serious example of the offence of murder must be accepted.
As has been said, the respondent took possession of a large kitchen knife and inflicted numerous stab wounds upon his wife’s upper body. He did so with intent to kill her. He attacked her in her bed while she was sleeping and utterly defenceless. He continued to stab her despite her futile attempts to defend herself and her cries for help.
While the respondent’s two daughters, as victims of his offending, appeared to have reconciled themselves to him (presumably because they recognised that he had been unwell when he killed their mother), there were other victims who grieved for the deceased and who had plainly not forgiven him. The victim impact statements made that clear.
Although the sentencing judge took into account the various Verdins factors upon which the respondent relied, his Honour appears to have accorded them only qualified weight. He concluded, for example, that these factors had contributed ‘to some degree’[15] to the respondent’s conduct, rather than making a stronger finding in that regard. He also concluded only that there should be ‘some sensible moderation’[16] to general and specific deterrence. Once again, he did not express himself in stronger terms, as he might have done.
[15]Reasons [28].
[16]Ibid.
Given that the respondent had pleaded not guilty and, in the sentencing judge’s view, his remorse was not ‘of a significant level’, the question before this Court is whether, as the Director submitted, the sentence of 18 years’ imprisonment with a non-parole period of 14 years, though possibly just within the range had there been a plea of guilty coupled with a high degree of remorse, was manifestly inadequate in the absence of such mitigating factors.
It was submitted on behalf of the Crown that one indication that the sentence imposed was manifestly inadequate could be gained from a consideration of other sentences imposed, in recent years, for comparable offences.
During the course of argument before this Court, both sides referred to such ostensibly comparable cases.
In Director of Public Prosecutions v O’Neill,[17] the facts were as follows. The deceased and O’Neill were in a homosexual relationship. O’Neill claimed that the deceased regularly subjected him to abuse and humiliation in front of others, though he said that, generally, the deceased was loving and affectionate towards him.
[17][2015] VSCA 325 (‘O’Neill’).
On 4 December 2013, O’Neill ‘snap[p]ed’ after rejecting the deceased’s sexual advances, and in response to the deceased having called him a ‘frigid bitch’. O’Neill struck his partner on the head with a steel pan, and then proceeded to strangle him with a dog lead while the deceased pleaded for his life.
In the days following, O’Neill continued to act as though the deceased was still alive. He prepared and laid out meals for two people, and attended appointments on his behalf (explaining that the deceased was unwell).
Some four days after the murder, O’Neill (who, until then, had kept the deceased’s body on the bed in a large plastic furniture bag) laid out dinner and a candle near the bed. He then left the apartment for a short time, and returned to find the apartment alight. In his statement to police, O’Neill had claimed that the deceased was alive and eating dinner before the fire started. However, following a post-mortem examination, O’Neill was arrested. After some hours, he admitted to having murdered the deceased some days earlier.
O’Neill pleaded guilty to both murder and arson. Following a plea in mitigation, he was sentenced to a total effective sentence of 18 years’ imprisonment with a non-parole period of 13 years. The individual (base) sentence imposed on the charge of murder was 17 years’ imprisonment.[18] The 6AAA statement[19] provided that, but for the respondent’s guilty plea, the total effective sentence that would have been imposed was 22 years’ imprisonment with a non-parole period of 17 years.
[18]Two years’ imprisonment was imposed for the offence of arson, one year of which was cumulated upon the base sentence.
[19]Sentencing Act 1991 s 6AAA.
The Crown appealed against the individual sentences, the total effective sentence, and the non-parole period.[20] In respect of a ground alleging manifest inadequacy, the Court considered both the aggravating features of the offending and the mitigating factors present (including that the murder was spontaneous and had
resulted from O’Neill’s ‘complex personality disorder’;[21] and that he had no previous convictions, had pleaded guilty at an early stage, was genuinely remorseful, and had eventually made full confessions to police). The Director’s appeal was dismissed.
[20]The four grounds relied upon were, in summary: first, that the individual sentences, total effective sentence, and non-parole period were manifestly inadequate; second, that the judge erred in finding that the fire was not an aggravating feature of the murder; third, that the judge erred in categorising the murder as falling at the ‘lower end’ of the scale; and, fourth, that the judge erred in fixing a ‘lower than usual’ non-parole period.
[21]O’Neill [2015] VSCA 325, [134]. On the plea, O’Neill had relied upon Verdins (2007) 16 VR 269, seeking the moderation of general and specific deterrence and to mitigate moral culpability (based upon the evidence of a psychologist regarding O’Neill’s personality disorders). That reliance was not challenged by the prosecutor below. However, on appeal, the Crown made submissions which were inconsistent with its position on the plea. The Crown was ultimately precluded from pursuing arguments that were not pressed below. The Court did note, however, that although in its view the threshold criteria of Verdins were not satisfied, O’Neill’s ‘complex personality matrix was not … irrelevant to the sentencing synthesis’ (at [96]) and ‘[h]is condition bore, in a limited way, upon the seriousness with which his conduct should be viewed’ (at [100]).
In McPhee v The Queen,[22] the applicant[23] had pleaded guilty to one charge of murder. Following a plea in mitigation, he was sentenced to a total effective sentence of 20 years’ imprisonment with a non-parole period of 16 years. The sentencing judge made a declaration[24] that, but for the plea of guilty, she would have sentenced the applicant to 22 years’ imprisonment with a non-parole period of 18 years.
[22][2014] VSCA 156 (‘McPhee’).
[23]This was an election pursuant to s 315 of the Criminal Procedure Act 2009 to have an application for leave to appeal determined by this Court. Leave was granted and the Court determined the appeal.
[24]Sentencing Act 1991 s 6AAA.
On appeal, the applicant relied upon a single ground; namely, that the head sentence and non-parole period were manifestly excessive. The particulars in support of that ground complained of the judge having failed to give sufficient weight to various mitigating factors, including the applicant’s admissions and cooperation with police, his unblemished record and productive life, the absence of premeditation, and his guilty plea.
In that case, the applicant’s relationship with his wife had been deteriorating for some time. She was unhappy with his drinking and use of pornography, and suspected that he was having an affair. Friends and family observed that the applicant was jealous and controlling. The applicant and his wife were making plans to separate and he was seeing a psychologist both on his own and, occasionally, with the deceased.
On 3 January 2013, the deceased told the applicant that she no longer loved him, and rejected his advances. When she went to the living room and lay on the couch, he went to the kitchen, picked up a 28 centimetre knife, walked over to the deceased and stabbed her twice in the chest. He then panicked and used the deceased’s skirt to wipe the knife, before calling triple zero. He attempted resuscitation under the operator’s instructions. The deceased was subsequently declared dead at the scene. In his record of interview, the applicant said he could not explain why he had done what he did.
This Court considered that the sentence imposed fell outside the range of sentences reasonably open to the sentencing judge. In a joint judgment, Redlich and Priest JJA said:
[The sentence] is inconsistent with current sentencing practice for the crime of murder. The offence not only fell within the lowest category of seriousness of the offence of murder, but at the lower end of that category. There were not only present the constellation of mitigating factors relied upon by the applicant, including his exemplary work record and an unblemished history, but an absence of the aggravating features that would normally elevate such offending into a more serious category. The applicant was also entitled to the full discount of his plea, both for its utilitarian benefit and his undoubted remorse. Applying current sentencing practice, in our view a sentence of 20 years’ imprisonment for murder would ordinarily require the presence of some aggravating features or an absence of the mitigating features that are here present.
The applicant initially contended that it was because the mitigating circumstances were not given sufficient weight that a manifestly excessive sentence was imposed. It is unnecessary to seek to identify the reason why such a sentence was imposed. The error may lie in attaching too little weight to mitigating factors or in a misjudgment as to the objective gravity of the offence so that it was placed in a higher category of seriousness of the offence than is warranted, or there may have been a misconception as to current sentencing practice for the relevant category of seriousness of the offence. It may lie in a combination of these or other reasons. In oral argument, counsel for the applicant, in his attractive argument, now submitted that her Honour may have erred in any of these respects. As this case demonstrates, where a sentence is outside the range of sentences available, it will often be impossible to identify why that is so, hence the residual discretion in House v The King.[25]
[25]McPhee [2014] VSCA 156, [14]–[15] (citations omitted).
Leave to appeal was granted and the appeal was allowed. The applicant was re-sentenced to 18 years’ imprisonment with a non-parole period of 13 years.
We note that the respondent in the present case relied heavily upon McPhee in support of his contention that the sentence imposed upon him was within range.
In Director of Public Prosecutions v Zhuang,[26] the respondent was the deceased’s mother-in-law. Although their relationship had initially been good, it had deteriorated after the birth of the deceased’s son. In 2011, there were two reported incidents of physical violence by Zhuang towards the deceased.
[26][2015] VSCA 96.
On 3 May 2012, during the course of an argument, Zhuang struck the deceased’s face and head more than 30 times with a hammer. The deceased also sustained defensive injuries to her arms and hands. She died as a result of her injuries.
Zhuang placed the deceased’s body in a suitcase. She then disposed of the body, together with various cloths and towels that she had used to clean the premises, in a neighbour’s wheelie bin. Subsequently, at about 2:00 am the following morning, Zhuang returned to the deceased’s house. She pushed the wheelie bin to Darebin Creek, tipped the bag with the body into the creek, and hid the bin in nearby bushes.
Zhuang surrendered herself to police the following day. She claimed that the deceased had tried to assault her with the hammer and that she had grabbed it and struck the deceased in order to protect herself and the deceased’s son. The principal issue at trial was whether Zhuang had acted in self-defence.
The jury convicted Zhuang of murder. She was sentenced to 18 years’ imprisonment with a non-parole period of 13 years and six months.
The Crown appealed against that sentence, on the ground of manifest inadequacy.
On appeal, the Court observed that
this was a brutal murder that involved an amount of violence (in excess of 30 blows from a hammer to the victim’s face and head) that was a serious feature of the respondent’s crime. The murder was committed in the victim’s own home (where she was entitled to feel safe), and in the presence of the victim’s two year old son. The gravity of the respondent’s offending was aggravated by her conduct in removing and seeking to dispose of [the deceased’s] body. Her subsequent conduct in reporting [the deceased’s] death and assisting the police to locate and recover her body, could not, in our view, be said to ‘substantially offset’ her earlier conduct. This is particularly so having regard to the respondent’s version of what occurred in the lead-up to [the deceased’s] death.[27]
[27]Ibid [53] (citations omitted).
Their Honours noted that the judge had taken into account, by way of mitigation, Zhuang’s prospects of deportation, and her ‘not insignificant’[28] personal circumstances (including that she had grown up in abject poverty in a rural part of China, and that she was illiterate, had received no education, was of borderline intelligence, and was of otherwise good character).
[28]Ibid [55].
The Court went on to say:
As we have observed, this was a brutal murder. The respondent has not expressed contrition. Her offending was significantly aggravated by her treatment of the victim’s body. The fact that she later reported the death, and assisted police to locate and recover [the deceased’s] body, bore upon the degree to which the respondent’s conduct with respect to the victim’s body elevated the objective gravity of her offending. We are, with respect, unable to accept that it could be viewed as having ‘substantially offset’ that earlier conduct.[29]
[29]Ibid [59] (citations omitted).
The Court allowed the Crown appeal, and re-sentenced Zhuang to 22 years’ imprisonment with a non-parole period of 17 years.
In its written submissions, the Crown referred to a number of other cases which, it was submitted, this Court should use as a ‘general yardstick’ for current sentencing practice. These included Delich v The Queen,[30] R v Klaussner,[31] and R v Daing.[32]
[30][2014] VSCA 66.
[31][2015] VSC 296.
[32][2015] VSC 440. A Crown appeal against sentence was dismissed by this Court — see DPP (Vic) v Daing [2016] VSCA 58.
It must be said that none of the cases to which we were referred cast much light upon whether the sentence imposed in this case was wholly outside the range of sentences reasonably available to the sentencing judge. Certainly, the respondent cannot gain much support from McPhee,[33] in which there was a plea of guilty, genuine remorse and, arguably, fewer aggravating circumstances than were present in this case.
[33][2014] VSCA 156.
In the end, having given this matter anxious consideration, we accept the Crown’s submission that both the sentence of 18 years and the non-parole period of 14 years were manifestly inadequate.
Given the nature of this offence, and the various aggravating features to which the Crown rightly drew attention, we are satisfied that this sentence should not be permitted to stand. A brutal and wholly unprovoked killing of a defenceless woman in her own home, coupled with the sentencing judge’s conclusion that he was not persuaded that the respondent’s remorse was ‘of a significant level’, must have warranted a lengthier sentence than that imposed. That is so, notwithstanding the various matters of mitigation to which we have had full regard.
It was submitted that even if this Court concluded that the sentence was manifestly inadequate, it should exercise its residual discretion to dismiss the appeal. No proper basis for the exercise of that discretion was put forward. While it is true, as the respondent submitted, that the Crown drew attention on the plea to McPhee, it did not do so by way of invitation to the judge to treat that case as ‘comparable’ in the sense of providing the parameters of a proper sentence. Rather, it did so merely to assist his Honour with what was then a recent case involving murder in the context of family violence that had been perpetrated by a man in his 50s. The Crown relied upon McPhee with regard to the principles set out therein, but not as a guide to the gravity of the respondent’s offending, or how it should be characterised. Nor did the Crown rely upon the case as any indication of what might be an appropriate sentence. Indeed, the prosecutor said on the plea that there were a number of cases that could constitute ‘useful guidelines’, but the sentencing judge did not accept the offer to be taken to them.
The fact that the Crown did not, as it might have done, draw attention to a number of other supposedly ‘comparable’ cases, does not provide a basis for the exercise of the residual discretion. The sentencing judge is vastly experienced. His Honour would have had a detailed and unparalleled knowledge of both the sentences for murder generally imposed within the Trial Division, and the decisions of this Court regarding such sentences. In that context, it is understandable that the prosecutor below did not consider it necessary to do any more than make appropriate submissions as to the relevant factors to be taken into account as part of the overall sentencing synthesis.
We would allow the appeal. We would set aside the sentence and non-parole period imposed below. In lieu thereof, we would sentence the respondent to a term of 21 years’ imprisonment with a non-parole period of 16 years.
KAYE JA:
For the reasons that follow, I agree that the appeal should be allowed, and that the respondent should be re-sentenced in accordance with the judgment of Weinberg and Whelan JJA. I shall state my reasons for that conclusion, as they differ, if only as a matter of degree and emphasis, from those of the majority. I also do so in deference to the very experienced sentencing judge in this case.
As noted by the majority, the only ground on which the appellant seeks to disturb the respondent’s sentence is that of manifest inadequacy. While, consistent with usual practice, the notice of appeal sets out a number of particulars of that ground, it does not seek to rely on any separate ground of specific sentencing error. The test of manifest inadequacy is a stringent one, requiring acceptance of the proposition that the sentence, imposed below, was such that it must have been the product of an error in the exercise of the sentencing discretion. In Director of Public Prosecutions v Karazisis,[34] Ashley, Redlich and Weinberg JJA quoted[35] with approval the following passage from the judgment of Redlich JA in Director of Public Prosecutions v Bright:
An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’[36]
[34](2010) 31 VR 634 (‘Karazisis’).
[35]Ibid 645 [40].
[36](2006) 163 A Crim R 538, 542–3 [10] (citations omitted); see also DPP v Zhuang [2015] VSCA 371, [43] (Redlich, Priest and Beach JJA).
Accordingly, in Karazisis, Ashley, Redlich and Weinberg JJA stated:
As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender. [37]
[37]31 VR 634, 662–3 [127].
The difficulty, of making out a ground of manifest inadequacy, derives, at least in part, from the nature of the exercise of the sentencing discretion in each individual case. That exercise, being the product of the process of an instinctive synthesis, necessarily involves the consideration, evaluation and reconciliation by a judge of a variety of relevant factors relating to the offending, and to the prisoner. The judge is required to take those factors into account in making an individual assessment of the issues of culpability, rehabilitation, general and specific deterrence, and denunciation. The importance of those sentencing considerations will necessarily vary for each case. It is for those reasons that reasonable judicial minds can, and regularly do, differ as to the appropriate sentence in an individual case, sometimes to a quite marked degree. It is well understood that there can be no ‘right’ sentence in any case.
In the present case, the sentencing exercise confronting the judge was itself difficult. On the one hand, for reasons to which I shall return, the offending itself was particularly serious. The objective overt acts of the respondent involved a brutal and vicious attack by the respondent on his defenceless wife, in her own home, in circumstances in which the victim had done nothing to provoke or precipitate the attack that the respondent launched on her. On the other hand, there were important factors, well established in the evidence, that were necessarily relevant to a proper assessment and consideration of the subjective culpability of the respondent for his actions, and which were directly relevant to the weight to be attached to factors such as general deterrence, specific deterrence and denunciation in the case.
It is trite, but important to bear in mind, that in assessing the culpability of an offender, the Court not only takes into account the nature of the actions of the offender, but also the mental state and motivations of the offender that accompanied those acts. It is for that reason that it has been recognised in a series of cases, the most recent of which are the decisions of this Court in R v Verdins[38] and Director of Public Prosecutions v O’Neill,[39] that psychological factors affecting an accused at the time of the offending are relevant to a number of the sentencing considerations that must be taken into account by a judge.
[38](2007) 16 VR 269, (‘Verdins’).
[39][2015] VSCA 325.
In this case, the evidence, set out in the judgment of the majority, clearly demonstrated a significant psychological deterioration in the respondent’s mental state in the critical period leading up to and culminating in on the day of the offence. The most cogent evidence, in that regard, was that of the respondent’s daughters and his mother. In that respect, it must be acknowledged that the judge had a better opportunity to consider and weigh the evidence of those critical witnesses, and to gain an understanding as to the state of the respondent’s psychological condition, by observing those witnesses, than is available to this Court. Nevertheless, even a reading of the transcript reveals that the evidence before the judge was cogent as to the dramatic decline in the respondent’s mental state during that critical period.
The evidence of Amy Browning, to which the majority has referred to, set out, on a daily basis, that deterioration. On 18 December, the day immediately preceding the offence, Amy’s concern about her father’s state was such that she wanted to take him to the doctor ‘… to make sure everything was okay’.[40] She described, in rather graphic details, the manner in which, on that day, the applicant was acting in a disturbed and bizarre manner. She stated ‘… it just didn’t look right to me….’[41] Similarly, the observations made by Rhiannon Browning of the respondent on that day, and the two telephone conversations that he had with his mother, Jeanette Browning, at midday, and again at 3.15 pm, on 18 December, were symptomatic of a man whose mental state was, at least in part, disintegrating.
[40]Trial Transcript 107.
[41]Ibid 121
In his report, Associate Professor Andrew Carroll, noted that the applicant’s childhood was dominated by severe levels of physical abuse and emotional abuse inflicted on him by his father, who was a violent alcoholic. Associate Professor Carroll found that, as a result of the years of abuse inflicted on him by his father in his formative years, the respondent had developed a post-traumatic stress disorder, evidenced by a number of symptoms including: recurrent involuntary and distressing memories and dreams relating to the trauma; occasional dissociative reactions in the form of intensely vivid recollections of that abuse; distress and physiological hyperarousal when reminded of the abuse; avoidance of emotional distress by resort to alcohol and cannabis; trauma related negative alterations in his thoughts and feelings, involving a long standing tendency to ‘bottle up’ his emotions and thus emotionally detach from the world; and long standing ‘hyperarousal’ symptoms. Associate Professor Carroll considered that, in that context, the respondent’s marriage and family had acted to ‘… validate his otherwise fragile sense of self and act as a bulwark against his underlying feelings of despair and inadequacy’.
It was in that context that Associate Professor Carroll considered that the post-traumatic stress disorder, suffered by the respondent, was the background to the development by him of a severe adjustment disorder as a consequence of the failure of his marriage. As Professor Carroll stated, that background ‘… acted as a very fertile ground for the development of an adjustment disorder in the wake of his wife’s decision to end the marriage’.
It is for those reasons that it is understandable that the sentencing judge considered that the principles, summarised in this Court in Verdins, had some application. His Honour stated:
I also accept that your pre-existing mental state as described by Associate Professor Carroll realistically contributed to your actions to some degree. In addition, your agitation was accelerated by lack of sleep. I am therefore persuaded that there should be some sensible moderation of the sentencing considerations of specific and general deterrence.
As I noted, the appellant does not contend that there was any specific error by the judge in finding that the Verdins principles applied in this case, so as to require a ‘sensible moderation’ of the sentencing considerations of specific deterrence and general deterrence. Although the judge did not refer, in that connection, to the consideration of denunciation, it would follow from his Honour’s reasons that the weight to be given to that aspect of the sentencing discretion would also be sensibly moderated in the same way.
I have set out above the matters, relating to the respondent’s mental state, in the lead up to the commission of the offence, in some detail, as they were directly relevant to a proper assessment of the culpability of the respondent, and to the weight to be attached to that consideration in the determination of his sentence.
On the other hand, the respondent’s actions make this case a serious instance of a crime of murder in the context of a domestic homicide. In particular, his actions were not the product of an instantaneous, spontaneous eruption of rage arising out of something said or done by his wife. Rather, and on the contrary, after a fitful night, the respondent arose from his bed, walked to the kitchen, took a knife from the knife block, proceeded to his wife’s bedroom, aroused her from her sleep, and then proceeded to inflict multiple blows to her upper body with it. By the verdict of the jury, and on the evidence, those actions of the respondent were each conscious, voluntary and deliberate. As understandably found by the sentencing judge, the respondent inflicted the fatal blows to his wife with the specific intention of killing her.
It is true that, at that time, the respondent’s judgment, and emotional controls, were materially disturbed by his decompensated psychological state. However, there was no suggestion that the respondent was suffering from the type of mental impairment, that afflicted the offenders in cases such as R v Mooney,[42] R v Anderson[43] and R v Tsiaras.[44] In other words, there was no suggestion that the respondent did not know and understand the nature and quality of his conduct, and there was no suggestion that he did not know that his conduct was wrong, at the critical time at which he stabbed his wife.
[42](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Lush and Jenkinson JJ, 21 June 1978).
[43][1981] VR 155.
[44][1996] 1 VR 398.
The respondent’s attack on his wife was brutal. It involved repeated stab wounds to her upper body. His wife was utterly defenceless. She tried in vain to ward off the fatal blows, but he persisted until he had stabbed her 15 times. The respondent’s wife was in her own home, and she was entitled to feel secure there, and to trust her husband not to harm her. The offending in this case was aggravated by the fact that it was committed in circumstances in which the respondent’s 22 year old daughter, Amy, was in the same house, and was confronted with the aftermath of the murder of her own mother.
As I have earlier stated, the decision confronting the sentencing judge was not straightforward or simple. However, notwithstanding the mitigating factors attaching to the applicant’s personal history, the lack of any history of violence by him to his wife, and his depleted psychological state at the time of the offending, I have come to the conclusion that the sentence imposed by the sentencing judge in this case was manifestly inadequate in the sense that I have defined earlier. The aggravating features attached to the offending, which I have summarised, were such that, notwithstanding the mitigating factors, I have reached the conclusion that the sentence was wholly outside the range of sentencing options available to the judge. For those reasons, albeit with some hesitation, I am persuaded that the appeal should be allowed, and that the respondent should be re-sentenced in the manner set out in the reasons of Weinberg and Whelan JJA.
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