DPP v McMaster
[2008] VSCA 102
•12 June 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 267 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STUART JOHN McMASTER |
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JUDGES: | ASHLEY and NEAVE JJA and LASRY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 May 2008 | |
DATE OF JUDGMENT: | 12 June 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 102 | |
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Criminal Law – Sentencing – Appeal by Director of Public Prosecutions – Manslaughter of child by unlawful and dangerous act – Plea of guilty – Weight of plea in circumstances of case – Significance for sentencing of uncharged assaults – Sentence of 12 and a half years’ imprisonment not manifestly inadequate – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Ms J A Dixon SC with Mr G F Meredith | Victoria Legal Aid |
ASHLEY JA:
On 14 August 2007 a judge of the Trial Division sentenced Stuart McMaster to 12 years and 6 months’ imprisonment for the manslaughter of Cody Hutchings, a boy aged five years. He also sentenced McMaster to 6 months’ imprisonment for intentionally causing injury to Belinda McMaster (‘BM’). He ordered that the sentence on the latter count be wholly cumulated on the sentence imposed on the count of manslaughter. The total effective sentence was thus 13 years’ imprisonment. His Honour fixed a non-parole period of 10 years.
Now the Director of Public Prosecutions appeals, contending that the sentence imposed on the count of manslaughter, the total effective sentence and the non-parole period were each manifestly inadequate.[1] In fact, everything turns on the sentence which the learned judge imposed in respect of the count of manslaughter. Counsel for the Director made that plain in the course of argument. Manifest inadequacy in the total effective sentence and the non-parole period were the consequence, so it was said, of the sentence on the count of manslaughter being manifestly inadequate.
[1]The particulars in support of the alleged inadequacy are stated as follows:
(a)In imposing a sentence of 12 years and 6 months in respect of Count 1 and in fixing the non-parole period of 10 years imprisonment, the Learned Sentencing Judge:-
(i)failed to adequately reflect the gravity of the offence generally and in this case in particular;
(ii)failed to sufficiently take into account the aspect of general deterrence, and in particular in relation to offences involving the physical abuse and unlawful killing of young children;
(iii)failed to adequately manifest the curial denunciation of the offending conduct engaged in;
(iv)gave too much weight to factors going to mitigation, in particular the plea of guilty in respect of count 1 of Presentment U00667222.1;
(v)gave insufficient weight to the aggravating features of the offending, in particular, the fact that the unlawful killing of the deceased was the culmination of severe and persistent violence and humiliation perpetrated over a period of months on a young child in the Respondent’s care;
(vi)gave insufficient weight to the maximum penalty applicable to this offence (20 years imprisonment);
(vii)gave insufficient weight to the Respondent’s prior criminal history;
(viii)gave insufficient weight to the effect of the offending upon the deceased’s family;
(ix)failed to sufficiently take into account current sentencing practices for offences of this nature;
(x)failed to sufficiently take into account the aspect of specific deterrence; and
(xi)failed to punish the Respondent to an extent and in a manner which is just in all the circumstances.
This matter was one which, at time of sentence, gave rise to controversy in sections of the media. Something of the same kind occurred when the appeal was heard. Further, the sentence was apparently the catalyst for the government bringing in the Bill which was enacted as the Crimes Amendment (Child Homicide) Act No.7 of 2008.[2] The appeal must nonetheless be decided, as must every appeal, by consideration of the court record and in accordance with established sentencing principles.[3]
[2]The Act creates a new offence of child homicide. The relevant provision, inserted as s 5A of the Crimes Act1958 (Vic), reads as follows:
A person who, by his or her conduct, kills a child who is under the age of 6 years in circumstances that, but for this section, would constitute manslaughter is guilty of child homicide, and not of manslaughter, and liable to level 4 imprisonment (20 years maximum).
The new provision does not apply to the present case.
[3]The following passage from the reasons for judgment of O’Sullivan JA in R v Knockaert, 16 Man R (2d) 313 (Manitoba Court of Appeal), cited in Ruby, Sentencing, (6th ed, 2004), a Canadian text, explains very clearly why that is so.
Every case must be looked at on the basis of the record before the court, careful attention being paid to all the aggravating and extenuating circumstances of both offence and offender.
In the course of oral argument, counsel for the Crown … referred to a “public outcry” against court leniency in this case and in similar cases. In my opinion, courts should not pay any attention to public pressure when considering the fitness of a sentence. This is not because of an insensitivity to public opinion but because of an awareness of the possibility of injustice if attention is paid to matters beyond the record of the case before us. We have no means of measuring public opinion; the people have elected representatives and political parties to give expression to their opinion by constitutional means; it is the task of an independent judiciary to administer and apply the law without fear or favour and without being influenced by any outcry no matter how much media support may accompany it.
The appeal should be dismissed
So considered, in my opinion, the appeal should be dismissed.
The following matters lead to that conclusion. They explain some of the circumstances of the offence. Later I will expand upon the circumstances to an extent, and upon some of the conclusions which I now express in summary form.
· First, counsel for the Director accepted that the judge’s sentencing remarks were ‘exemplary’. His Honour had addressed all relevant sentencing circumstances. Counsel agreed that the Director’s complaint came down to this: that his Honour, having carefully and fully described all the relevant matters, had erred by prescribing a period of imprisonment which was not simply inadequate, but manifestly so. As the Director pursued the appeal, then, it was not suggested that his Honour had failed to identify any relevant sentencing circumstance.[4]
[4]Counsel for the respondent agreed that his Honour’s sentencing remarks were ‘a model’; but with the qualification that the remarks made no mention of the probability of the respondent being obliged to serve his punishment in protective custody. She submitted that such a circumstance would make his imprisonment more burdensome than is ordinarily the case, and that this stood in mitigation of penalty. It provided an additional reason which justified the sentence imposed. As will be seen, I have not found it necessary to examine this submission.
· Second, in imposing a sentence, a judge in every case must balance out a variety of circumstances, some of which will point towards a heavier sentence, some of which will point in favour of greater leniency. Because sentencing is a weighing-up of competing circumstances, there is no single ‘correct’ sentence. Rather, the judge exercises what is called a sentencing discretion. Within the permissible exercise of that discretion, there will be a range of possible sentences. It is a commonplace that no two people are likely to weigh up a multiplicity of circumstances in just the same way.
· Third, when the Court of Appeal is asked to say that a sentence was inadequate (or excessive) it does not simply put itself in the position of the sentencing judge and say ‘this is the sentence which ought be imposed’. Rather, its function is to consider whether the appellant has established that the sentence imposed clearly and unequivocally fell outside the boundaries of the permissible range. That is why the appellant will argue that the sentence was ‘manifestly’ inadequate - or excessive, as the case may be. Only if the appellant persuades the court of that matter will the court itself fix a substitute sentence.
· Fourth, the Director of Public Prosecutions has statutory power to appeal against inadequacy of sentence. But such an appeal puts a convicted and sentenced person at risk of a kind of double jeopardy. For that reason, courts of appeal have constantly stressed that such appeals should be rare; and that they should not be allowed except in limited, clearly defined, circumstances.
· Fifth, McMaster pleaded guilty to manslaughter. It was manslaughter by ‘unlawful and dangerous act’. The act, the sentencing judge had to accept, was a single specific incident of trauma, done without intent to kill or do really serious injury to the victim. The judge was not permitted to sentence McMaster as if he had pleaded guilty to, or been convicted of, murder.
· Sixth, McMaster was charged with the manslaughter of the child, but not with any other offence against him. As his Honour’s sentencing remarks show, it may be that he could have been charged with many other assaults; or some at least. That was a matter for the prosecuting authorities. The fact is that he was not so charged, and as a matter of legal principle the judge was not permitted to impose a sentence for the manslaughter which punished McMaster for offences with which he had not been charged. His Honour was entitled to have some regard to other proved or admitted assaults, but only for limited purposes. It is an important sentencing principle that an offender is to be punished only for the offence(s) with which he or she has been charged.
· Seventh, McMaster’s plea of guilty to manslaughter came after a trial in which he had been prosecuted for murder, and in which the jury had been unable to agree upon a verdict. There was evidence that, some days before his death, the boy had been involved in a bicycle accident. Questions asked by the jury in the course of its deliberations show that it was concerned that the fatal damage, which according to the forensic evidence was very probably inflicted some days before the boy’s death, may have been caused by the accident and had nothing to do any assault by McMaster. By then pleading guilty to manslaughter,[5] McMaster acknowledged guilt of a serious offence and laid himself open to substantial punishment. By accepting the plea, the prosecution ensured that he would not emerge free of any conviction over the child’s death, which was an evident risk had he been re-tried for murder. The Sentencing Act1991 (Vic) says that a plea of guilty is to be taken into account when an offender is sentenced. Such a plea is a mitigating circumstance. It will tend towards imposition of a lower sentence. It will have more weight in some cases than in others. Here, for reasons indicated, it was a plea of very considerable significance.
[5]He had made a similar offer well before trial.
· Eighth, as a matter of legal theory manslaughter embraces a number of very different circumstances. Before amendment of the law by the Crimes (Homicide) Act No.77/2005,[6] a person who killed with intent to kill could be convicted of manslaughter, not murder, if the killing was done under provocation. Before and after that amendment, a person could also be convicted of manslaughter if the killing was by unlawful and dangerous act, or by gross negligence. In the last two situations, there is no intent to kill or do really serious injury.
[6]Applicable to offences committed after its commencement date, 23 November 2005
Speaking generally, ‘provocation manslaughter’ has been regarded as the most serious kind of manslaughter – no doubt because there has been a finding of intention to kill. And so, again speaking generally, the heaviest sentences have characteristically been imposed for ‘provocation manslaughter’. McMaster, to repeat something which I said a little earlier, pleaded guilty to manslaughter of the unlawful and dangerous act kind.
· Ninth, because manslaughter embraces circumstances which are of very different legal complexion, there can be a vast difference in the circumstances in which a person comes up for sentence. In R v Weinman, King CJ remarked that –
Manslaughter is a very variable offence. In its lowest range of criminality, it may be little more than a practical joke that went wrong, and in its highest it stops just short of murder.[7]
[7](1987) 49 SASR 248, 250.
That difference is reflected in the wide variation in sentencing dispositions over the years. In the five years between 2001-2002 and 2005-2006, 91 offenders were sentenced for the crime. Most, but not all, were ordered to be imprisoned. The lowest sentence of imprisonment, year by year, varied between 3 and 5 years. The heaviest sentence, year by year, varied between 8 and 15 years. The average sentence varied between 5 years and 9 months and 7 years and 9 months.
· Tenth, the sentence imposed upon McMaster was, by conventional standards, an extremely heavy sentence for a manslaughter by unlawful and dangerous act to which the offender had pleaded guilty. No sentence was drawn to the Court’s attention in which such a long period of imprisonment had been imposed for an offence of that kind, even an offence involving the killing of a child. It may be noted that in bringing forward the Crimes (Child Homicide) Bill the responsible Minister referred to sentences for manslaughter of a child over the preceding decade. The lowest sentence had been 5 years and 6 months imprisonment, and the heaviest sentence 10 years imprisonment. Most sentences had been ‘in the 7 to 9 year range’.
· Eleventh, in R v AB(No. 2)[8] this Court upheld a sentence for a provocation manslaughter of 15 years imprisonment. Later I will refer to the Court’s reasons for judgment. It is enough to say, for the moment, that the Court expressed the opinion that sentences for manslaughter generally had not reflected recognition of an increase in the maximum penalty from 15 to 20 year’s imprisonment in 1997.
· Twelfth, giving AB full weight, and recognising the awful crime which McMaster committed, I find it difficult to see how the learned judge could have imposed a sentence in excess, or at least significantly in excess, of that which he in fact imposed. Counsel for the Director, faced with the obligation of showing that the sentence was inadequate to the extent necessary to enable the appeal to succeed, submitted that his Honour ought to have imposed a sentence of 15 years’ imprisonment or upwards. Having regard only to the mitigating circumstance constituted by the plea of guilty, counsel’s submission implied that if McMaster had been convicted of manslaughter after a trial at which he had pleaded not guilty, the sentence should have been something in the order of 17 – 18 years. Not even in a case of provocation manslaughter such as AB has such a sentence, it seems, been imposed.
[8][2008] VSCA 39.
The sequence of events
I said earlier that I would expand upon the circumstances of the matter. I will do so in a limited way. There would be no point in simply repeating the extensive analysis of relevant circumstances made in the admittedly exemplary sentencing remarks of the learned judge below. The reader may find those remarks at [2007] VSC 133.
Cody Hutchings died on 25 March 2006. He was then aged five years. He suffered from a genetic abnormality, Williams Syndrome, which manifested itself by delayed social development and some impairment of motor skills.
The boy lived with his mother BM, his younger brother, and the respondent in the period between mid 2005 and the time of his death.[9] Successively, the family lived at Terang, Warrnambool and Hoppers Crossing. They lived at Hoppers Crossing from December 2005.
[9]Although the respondent had the same surname as the boy’s mother, the two were not married.
The police became involved on the day of the child’s death. There was evidence that he had suffered many, many injuries – mainly bruises and abrasions – to almost every part of his body. Photographs which were tendered at trial, and which I have seen, graphically illustrate those injuries. The fatal injuries, and other severe injuries, were not, however, immediately apparent.
McMaster was twice interviewed in the 24 hours after the boy’s death. On the first occasion he gave a generally exculpatory account. On the second occasion he admitted assaulting the child on a large number of occasions – on the day of death, and over a period of five months prior thereto, it having ‘got bad in the last 2, 3 weeks’. He had assaulted the child using his hands, rarely his foot, and at times a belt which he had adapted into a strap.
On 26 March 2006 the respondent was charged with the boy’s murder. On the same day he was charged with intentionally causing injury to BM, that charge arising out of his having assaulted her on the day of the boy’s death.
The respondent was committed for trial on 13 December 2006.
On 15 February 2007 he offered to plead guilty to the manslaughter of the child. The Crown refused the offer.
The respondent went to trial in June 2007. The respondent pleaded not guilty to all counts on the presentment.[10]
[10]There were three, because it was alleged, effectively in the alternative, that the respondent had intentionally caused injury to BM, and had recklessly caused her injury.
There was evidently a substantial issue at trial as to what injury had been fatal. Although there was much bruising and abrasion to the child’s head, face, neck, chest, abdomen, arms, legs, lower back and flank, perineum and lower buttocks, and an injury to the shaft and head of the penis, the injuries which could have caused death were effectively three in number. First, severe damage to structures and organs within the abdominal cavity. Second, a skull fracture some seven to ten days old. Third, a recent skull fracture.
Putting the matter somewhat simplistically, at McMaster’s trial for murder the Crown needed to satisfy the jury, beyond reasonable doubt, that he had done a particular act, with criminal intent, which had caused particular injury, and so the child’s death.
But there were two problems for the prosecution in that connection. First, the pathologist who performed a post-mortem examination upon the child’s body could not be entirely confident which of the possibly fatal injuries had in fact been the fatal injury. Second, there was evidence that the child had been involved in a bike accident at a time consistent with the time at which the abdominal injury – considered by the pathologist to have been the probable cause of death – had been suffered.
The jury, which deliberated for a lengthy period, was evidently concerned about these matters. Through its foreman, in the period of its deliberations, it asked a number of questions. They included:
(a)if we accept the inference that the bike “caused” the death of Cody by your summation then it [sic] is not guilty …
(b)However, your definition of “caused” from the aid memoir (sic) means a substantial operating cause, it need not be the only cause and it need not be the major cause.
(c)The meaning of “cause” is in the element of murder, seems to contradict in your summary that it’s one inference or the other.
The learned sentencing judge provided answers to those questions. It is not suggested that his answers were in any way erroneous.
The jury could not agree upon a verdict on the count of murder; and it found the respondent guilty of intentionally causing injury to BM.
Those verdicts were announced on 26 June 2007.
The aftermath of the verdict
Then followed, it may be inferred, negotiations between the prosecution and the defence. They resulted in the Crown bringing a new charge against the respondent - one of manslaughter - in lieu of the charge of murder; and in the respondent pleading guilty to that new charge.
The outcome of the negotiations had an obvious detriment and an obvious benefit from the standpoint both of the prosecution and the defence. The prosecution was spared the risk that, in a new trial for murder, the jury might acquit the respondent altogether – as a jury could have done if it had concluded, in effect, that the fatal injuries had been caused by the bike accident. In return, the prosecution got the certainty of the plea of guilty to a serious offence. From the respondent’s standpoint, the detriment and benefit were the reverse. The respondent was freed of the risk of conviction for murder; but in return pleaded guilty to a serious offence.
There can be no doubt, I think, whatever might have been the misgivings of the prosecution, that the outcome of the negotiations was sensible from its standpoint. A jury had already given indication that the prosecution case had a potentially irredeemable flaw.
Manslaughter by unlawful and dangerous act (the fifth and seventh summary points)
I noted earlier that manslaughter is an offence which, as a matter of legal principle, can be committed in a number of ways. Factually, of course, the ways in which it can be committed are infinite – or at least very numerous.
One way in which a person can be guilty of manslaughter is if death is caused by an unlawful and dangerous act. For the purposes of this kind of manslaughter, an unlawful act is one which involved a criminal offence – often, an assault. A dangerous act is one which, from the standpoint of a reasonable person in the position of the accused, carried an appreciable risk of serious injury to the deceased person.
It can be seen that, just as the crime of murder requires the identification of conduct which caused death, so does the crime of manslaughter by unlawful and dangerous act require such identification. Unless death is a consequence of repeated trauma - and that was not the situation in this case - a particular causative act must be identified.
In the present case, the respondent admitted through his counsel, in the course of a hearing which followed his plea of guilty to manslaughter, that he had caused the fatal injuries by, as the learned sentencing judge put it, applying force to the child’s abdomen of a kind ‘consistent with an adult’s foot being thrust into his stomach region’.
His Honour summarised what McMaster admitted to this way:
Cody died from the application to his abdomen of force consistent with an adult’s foot being thrust into his stomach region. You did this to him. You did it not once, but twice. You told the police that when Cody was sitting down you pushed him in the stomach with your bare foot with the result that he was forced into a lying position on the ground. The thrust you generated in this way was, you said, harder than you thought; and you did what you did although you had seen bruises on him at different times beforehand. You knew that you had caused at least some of those bruises. Unbeknown to you, the first incident when you used your foot on Cody was probably the act which resulted in his death some time later.
The pathologist described the injuries that were then caused. He found an extensive area of haemorrhage involving the entire mesenteric structure and including 350 millilitres of blood. The blood had been present for sufficient time to allow it to change colour from red to dark brown or black, and to allow to develop the septicaemia and peritonitis from which Cody probably died. This indicates that the trauma that caused the fatal bleeding occurred some time before the day of death. The source of the blood was a shearing tear to the mesenteric root. Two areas of the liver were also torn. All these structures are deep seated, and the force necessary to damage them must be assessed accordingly.
The pathologist twice described the degree of force involved as “quite severe”. I am, on the basis of the nature of the relevant internal injuries, satisfied beyond reasonable doubt that you subjected Cody either to a very hard push, or allowed at least some of your weight to be placed on his stomach as he lay on the ground, so that you partially stood on him. Another point should also be made. Whether you pushed Cody with your foot, or partially stood on him, your action indicates a degree of contempt for the child and, likewise, a total disregard for the humiliation that such action would cause.
Statutory sentencing principles
Section 5(1) of the Sentencing Act 1991 (Vic), says this:
5. Sentencing guidelines
(1) The only purposes for which sentences may be imposed are –
(a)to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b)to deter the offender or other persons from committing offences of the same or a similar character; or
(c)to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d)to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e)to protect the community from the offender; or
(f)a combination of two or more of those purposes.
That instruction binds all judges and magistrates in this State.
Section 5(2) sets out matters to which a court sentencing an offender must have regard –
(2) In sentencing an offender a court must have regard to –
(a) a maximum penalty prescribed for the offence; and
(b) current sentencing practices; and
(c) the nature and gravity of the offence; and
(d)the offender’s culpability and degree of responsibility for the offence; and
(daa)the impact of the offence on any victim of the offence; and
(da)the personal circumstances of any victim of the offence; and
(db)any injury, loss or damage resulting directly from the offence; and
(e)whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and
(f)the offender’s previous character; and
(g)the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.
Again, that instruction binds all judges and magistrates in this State.
There are other matters to which, by the Act, a sentencing court may have regard in sentencing an offender. I need not refer to them.
Two Principles of Importance in Sentencing (the sixth summary point)
I turn to the application of Parliament’s will as set out in the Sentencing Act.
It can be seen that each of s 5(1) and (2) of the Act fasten upon the offence for which the person is to be convicted. That is because a person is sentenced for the charged offences of which he or she has been convicted, or to which he or she has pleaded guilty.
This is one very important principle of sentencing: that a person is not to be sentenced for an offence with which he or she has neither been charged nor convicted.[11]
[11]R v Newman & Turnbull [1997] 1 VR 146, 150 (Winneke P, with whom Hayne JA agreed).
There is another great principle: a sentencing judge or magistrate ‘is entitled, and indeed bound, to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged.’[12]
[12]Ibid 150.
Sometimes, the two principles collide. Then the latter must give way to the former. The giving way is, however, not always complete.
There are, I think, broadly four situations in which collision may occur. I set them out, together with the consequences in each instance.
First, at a time and in circumstances intimately connected with the commission of a charged offence, an offender may also commit a second offence, in respect of which no charge is laid. The circumstances of the uncharged offence cannot be taken into account as circumstances of aggravation of the offence charged if they would have warranted a conviction for a more serious offence.[13] But if the circumstances reveal an uncharged offence which is less serious, it is open to the sentencing court to have regard to those circumstances as aggravating the charged offence if it considers that as a matter of degree and fairness it should do so.[14] Examples of such circumstances being taken into account are R v Heblos[15] and R v Birnie.[16] Further, if the circumstances of the uncharged act represent the consequence of the charged offence, those circumstances can be taken into account in sentence passed on the charged offence.[17]
[13]Examples are R v De Simoni (1981) 147 CLR 383 and R v Newman & Turnbull [1997] 1 VR 146.
[14]See the observation of Eames AJA (as this Honour then was) in R v Sessions [1998] 2 VR 304, 320 and 322.
[15](2000) 117 A Crim R 49, 55 [33] (Eames AJA, with whom Phillips CJ and Brooking JA agreed).
[16](2002) 5 VR 426, 431 – 433, [15] – [17] (Ormiston JA).
[17]R v Sessions [1998] 2 VR 304, 307-308, 313–314 (Hayne JA, with whom Batt JA agreed and Eames AJA substantially agreed). There, the consequence was injury to the victim, which is in any event an obligatory sentencing consideration: Sentencing Act, s 5(2)(db).
Second, in this State an accused person may agree that a charge, or a limited number of charges, be brought against him or her on the footing that they are representative of, or a sample of, a number of offences. Fox and Freiberg in their Sentencing: State and Federal Law in Victoria[18] explain the advantages to the prosecution and the defence of such an agreement this way:
The use of sample counts is advantageous to both the prosecution and accused. It foreshortens proceedings for the prosecution and spares witnesses’ time and, in sexual cases, trauma. It is useful for the prosecution in situations involving repeated offences by an accused against the same victim, such as in incest cases, in which it would be virtually impossible for the complainant to recall the details of a great number of individual incidents to the extent of being able to attribute to each a specific date or occasion. The accused is advantaged by being saved from acquiring a lengthy list of priors and is entitled to sentencing credit for cooperating in avoiding an unnecessarily protracted and complex hearing. Furthermore, the maximum penalty is defined by reference to the offences actually charged and not by those of which they are a sample. Though imposition of concurrent sentences for multiple offences might bring about a similar end result, conviction on representative counts simplifies the calculation of the sentence and possibly reduces the total effective period ordered to be served. This is particularly important where imprisonment is being imposed on any of the categories of “serious offenders” identified under Part 2A the Sentencing Act 1991 (Vic), since the statutory direction is that they are to receive cumulative sentences unless the court orders otherwise.[19]
[18](2nd ed, 1998).
[19]Ibid 133, para 2.337.
The manner in which a sentencing court may make use of a plea of guilty to a representative count was carefully considered by this court in R v SBL.[20] Two conceptual approaches were discussed. First, the fact that a charge is representative will deny an accused person the ability to contend, in mitigation, that the offence was an isolated, out of character, incident; but it may not be used to increase what would otherwise be a proper sentence.[21] Second, regard may be had to the whole picture presented by the accused’s conduct in determining the sentence to be passed upon the counts to which he has pleaded guilty.[22]
[20][1999] 1 VR 706.
[21]The approach of Bray CJ in Reiner (1974) 8 SASR 102, 105.
[22]R v Wright, (Unreported, Court of Criminal Appeal, Victoria, 13.5.1974, Nelson J).
Phillips CJ seems not to have discerned a difference between the two approaches[23]. Ormiston JA, however, took a contrary view. At least he disagreed with the statement of Vincent AJA (as he then was) in R v Leinkauf[24] that the sentencing judge:
… was not entitled to increase the severity of the sentences imposed by reference to the commission of other committed criminal acts and could only have regard to those acts for very limited purposes when imposing sentence…
[23]R v SBL [1999], 1 VR 706, 710-711.
[24](Unreported, Court of Appeal, 9.10.1996).
Ormiston JA did not go so far as to describe the circumstances comprehended by a plea of guilty to a representative count as being an aggravating circumstance in respect of the offence described in that count. He said that -
it would perhaps be unwise to go further than to say that the whole of the circumstances relating to each count must be given proper effect and recognition to the purpose of imposing a just sentence, paying due regard to recognised principles of proportionality and totality.[25]
[25]R v SBL [1999] 1 VR 706, 720 [65].
Batt JA went further. He described the ‘better view’, by reference to Wright, as being that -
the fact that a count is agreed to be a representative, specimen or sample count is an aggravating circumstance.[26]
[26]Ibid 725 [69].
To some extent, however, that observation was qualified when his Honour said –
Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context.[27]
[27]Ibid 726, [70].
In R v GJN[28] counsel referred Nettle JA to what Batt JA had said in SBL in the passage which I first cited. His Honour implicitly accepted that it represented the correct analysis. He described the principles of sentencing applicable to representative counts as ‘well known’.[29] He rejected a submission that what might have been said to be stern sentences on representative counts had been an attempt by the sentencing judge somehow to reflect all of the wrongdoing referred to in the depositions. Rather, he concluded, the sentences reflected ‘the serious nature of the conduct constituting the individual offences.’[30]
[28][2005] VSCA 183.
[29]Ibid [6]–[8].
[30]Ibid [9].
In the event, whether it is strictly correct to describe the circumstances comprehended by an agreed representative count as an aggravating matter in respect of that count, at least it is a matter which may reflect upon sentence in two ways: first, as precluding the assertion, in mitigation, that the offence was an isolated one. Second, as affirmatively enabling the offence to be seen in its full context – which is likely to bear upon matters such extent of culpability, need for specific deterrence and prospects of rehabilitation.
The third class of case does not deserve the description ‘uncharged act’. It is the situation addressed by s 100 of the Sentencing Act. By that section, a person convicted of an offence may ask the sentencing court to take into account, in imposing sentence, other offences with which he or she has been charged. The court is given a discretion to take the other offences into account. It is precluded from imposing a sentence beyond the maximum applicable to the particular charge before the court. In this class of case, obviously enough, there need be no connection in time and place between the offence charged and the other offences which are taken into account; and there need be no similarity in the kinds of offences, by contrast with the situation in the case of a representative count.
Fourth, there is a class of case in which -
· Unlike class 1, there is no intimate connection in time and place between the charged offence and the uncharged act.
· Unlike class 2, there is no representative count.
· Unlike class 3, there are no pending charges which a person convicted asks to be taken into account in sentence imposed on a charge upon which there is a conviction.
That class consists of cases in which -
· Acts have been committed against the victim of a charged offence.
· Such acts would constitute, if proved, distinct criminal offences.
· Such criminal conduct is removed in time from the circumstances of the charged offence.
· Such criminal conduct is often, but is not necessarily, of the same kind as the conduct giving rise to the charged offence.
· No criminal charges have been laid, although they might have been, in respect of that other conduct.
In such a case, the offender cannot be additionally punished, on the charge for which he or she is being sentenced, for uncharged offences. But the weight of authority is that uncharged criminal conduct, if admitted or proved, may be used to explain the context in which the offence occurred by going to negative mitigating circumstances upon which the offender might otherwise seek to rely – for example, that the charged offence was an isolated incident by a person of otherwise good character.[31]
[31]H (1980) 3 A Crim R 53. Compare Moffitt P at 62 and Begg J at 74 with Street CJ at 59.
In R v Parfitt[32] Nettle JA described the difference, for sentencing purposes, between uncharged acts of the kind now under discussion and acts comprehended by a representative count. I should set out what his Honour said:
[32][2006] VSCA 91, [11]–[16].
The appellant argues that the idea of assessing the gravity of the charged offence in the context of the uncharged offences is tantamount to treating the charged offence as a representative count, and therefore of aggravating penalty by reference to uncharged acts - in the same way, it is said, that penalty may be said to be aggravated in the case of a representative count.
In my judgment that argument is also misplaced. As Batt JA explained in R. v. SBL,[33] the fact that a count is a representative count has two effects: It:
" ... preclude[s] its being said in mitigation that the offence was isolated ... [and] it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context."[34]
It is, however, only the second of those effects which is peculiar to a representative count. The first may be just as much applicable to a non-representative count. It is true that in the passage from SBL just cited, Batt, J.A. used the word "context" to describe the second of the effects, and it is true that the judge in this case spoke in terms of placing the charged act in the "context" of the uncharged acts. But the notion of "context" is not peculiar to the second effect. Self evidently, the "context" in which an offence is committed may inform one or other or both effects according to whether the subject offence is a non-representative or representative count. So, in this case, the judge looked at the subject offence in context for the purposes only of the first effect and expressly excluded consideration of the second. As her Honour said, "The fact that there was a continuing relationship ... means I cannot treat the count as a one off incident, immediately regretted and not repeated, or as a single isolated act" but "I am not, however, sentencing you for anything other than the one count, to which you have pleaded guilty".[35]
[33][1999] 1 VR 706.
[34][1999] 1 VR 706 at 726 [70], my emphasis.
[35]Ibid [14]–[16].
Plainly, Nettle JA drew a distinction between the use of uncharged acts for sentencing purposes in cases where, on the one hand, uncharged acts are reflected in a representative count, and, on the other hand, cases where they are not. In my respectful opinion, drawing such a distinction is principled. But the distinction may not be maintained easily, and it is open to criticism that it will produce sentencing based upon artificiality.
Should the permissible use of uncharged acts extend beyond refutation of the offence being an isolated incident to refutation of other potentially mitigatory circumstances? There seems no logical reason to differentiate between them. Uncharged acts, if admitted or proved, would be equally capable of denying mitigation of sentence based upon good prospects of rehabilitation or absence of need for specific deterrence. Again, denial of the opportunity to argue, in mitigation, that an offence was an isolated incident will generally imply that the contrary was the situation, which is likely to bear upon culpability.
It was pointed out by the Queensland Court of Appeal in R v D[36] that the use of circumstances to reveal ‘context’ or ‘relationship between victim and offender’, or to establish the offender’s ‘past conduct’, ‘character’, ‘reputation’, or to show that the offence was not an ‘isolated incident’, may be regarded as circumventions of a restriction otherwise imposed on consideration of a circumstance which is not to be taken into account on sentencing, and that -
[t]o withhold leniency by reference to offences of which a person being sentenced has not been convicted is … to punish that person for those offences as surely as if additional punishment were imposed by reference to those offences.
[36](1995) 80 A Crim R 50, 88.
I respectfully agree. The reality should be recognised that consideration of admitted or proved uncharged acts will have some adverse effect, from an offender’s standpoint, upon sentence imposed in respect of a charged offence. Even so, the explanation that such acts are to be considered in refutation of circumstances of mitigation is best adhered to because it is rightly understood by judges to significantly temper the extent to which uncharged acts of the kind now under discussion can affect sentence.
Uncharged acts – their legal significance in this case
It will be apparent that the present case is an instance of what I have called the fourth kind. By his plea of guilty to manslaughter, McMaster pleaded guilty to the essential facts necessary to constitute that offence – that is, to the necessary legal ingredients, or elements, of the offence; and to facts sufficient to make out those elements in the particular case.[37] In the present case, McMaster admitted to killing the child by the application of severe force, on a single occasion, to the child’s abdomen. That admission was vital. It had not been made in McMaster’s record of interview. It did not emerge elsewhere in material to which his Honour could have had regard in sentencing McMaster.
[37]As to which see R v McBain, (Unreported, Court of Criminal Appeal, 22 February 1988, referred to in Fox and Freiberg, Sentencing: State and Federal Law in Victoria, (2nd ed, 1999), p 114, para 2.315.
Both before and after that incident, as McMaster admitted, he had assaulted the child. Indeed, he admitted that he had done so frequently even on the day of the child’s death. But, as I have earlier made clear, none of those assaults, or any injury which they caused, were the subject of charges. Neither did they contribute to the death.
Counsel for the Director submitted that there would have been difficulties in framing charges. To some extent, I accept that it was likely to have been so. There may also have been forensic reasons for the Crown not attempting the task. But two things are clear: first, the respondent was in fact not charged with any of those other assaults; second, he could not be punished, when sentencing him for the manslaughter to which he had pleaded guilty, for those other assaults. Rather, they could be taken into account, in sentencing McMaster for the manslaughter, only in the way which I have discussed at [56]–[58].
That is broadly the way in which the learned judge did take the uncharged acts into account. Indeed, he went as far as he could possibly have gone in that connection. The Director could have no complaint in that connection. So, his Honour said-
It is also relevant to note the context in which the fatal assault occurred. It was one of a series of physical attacks on Cody that were systematic and serious. Some of them were brutal. You have not been charged with these other assaults, and I therefore cannot and do not impose any punishment for them. On the other hand, in this case the context necessarily affects my response to submissions that you are remorseful.
and –
The context is also important for another reason. I am required by law to take into account the nature and gravity of the offence. Just as my sentence must reflect the fact, if it be the fact, that the offence was an isolated and aberrant act, out of character with the typical behaviour of the offender, so must a sentence reflect the fact, if it be the fact, that the offence for which it is imposed was one of a series of acts of cruelty inflicted upon a young and defenceless child who, as a result, is now dead. In these circumstances I must emphasise that, although I intend for this reason to describe the context in some detail, I must not and do not sentence you for any offences other than the one count of manslaughter and the separate count of intentionally causing injury.
and –
For reasons that have not been fully explained, your outbursts became more and more frequent during the last weeks of Cody’s life. It was submitted on your behalf that they were spontaneous and therefore unpremeditated. Perhaps that is true of some of them. But you not only anticipated a continuation of your role as disciplinarian, but prepared for it by modifying a belt to become a heavy strap for the corporal punishment of a very young and defenceless boy. I am satisfied beyond reasonable doubt that over the final fortnight you repeatedly, and increasingly often, unlawfully assaulted Cody by slapping him to his head, trunk and limbs with your hand and with the modified leather belt. You sometimes expressed remorse after an assault. Far from any remorse modifying your treatment of Cody, however, it became progressively more reprehensible. To the extent that you experienced remorse during Cody’s lifetime, therefore, that remorse was transient and ineffectual. It cannot now be taken into account in your favour.
and, in respect of the skull fractures –
… The fractures may have been caused by quite different falls – from a bicycle, or down the steps leading into the back yard of your home. I therefore wish to make it clear that I do not sentence you on the basis that you were responsible for either fracture. I refer to them because they were a significant aspect of the pathologist’s findings, and because they form part of the context surrounding Cody’s death; a context that demonstrates, it seems to me, not merely a failure of insight into Cody’s medical circumstances, but a callous disregard for them. The application of force that killed Cody, and for which you have pleaded guilty and must be sentenced, was initiated by someone who was wilfully and callously blind to the consequences of the numerous incidents of trauma, some accidental but most not, to which his young body was subjected.
and –
I accept that… you never during Cody’s lifetime had actual knowledge of either of the two fractures to his skull. Nor did you have actual knowledge of the internal damage to his abdominal region. Nevertheless, the circumstances surrounding what seems to have been the fatal assault on Cody, together with the events of the last day of his life, point to your complete and inexcusable failure to inquire into the effect upon him of, let alone provide him with proper treatment for, the trauma to which he had been subjected.
and –
The second occasion on which you planted your foot in Cody’s stomach also requires special mention. It was the day he died. You knew, on that day – 25 March last year – that you had thrust your bare foot in his stomach once before. You knew that he had, on that first occasion, asked you to stop. You also knew that, on about 18 March, he had fallen off his bicycle. As the handlebars hit the ground, his stomach hit the handlebars. You knew or ought to have known that his abdomen might thereafter be especially tender. Yet, after that accident, you had frequently slapped him in that region of the body without inquiring how tender it might be. You observed, that, after you with your foot had on 25 March pushed Cody to the ground, he grabbed his stomach. You were aware that your blows were often more forceful than you appreciated at the time. You had noticed fear in Cody’s eyes when he looked at you. If, in your moments of reflection, it occurred to you that you might be the cause of real physical or psychological damage to a child in your care, you did nothing to change your behaviour, and made no attempt to provide Cody with proper medical attention.
The events of 25 March 2006 exemplify the general context in which you are to be sentenced.
The Sentencing Discretion (the second summary point)
Judges and lawyers speak about a ‘sentencing discretion’. What it means is this. In deciding what sentence is to be imposed in any particular case, a judge or magistrate has to bring to account many circumstances of the offence, the offender and the victim, which are likely to point in different directions – some towards a heavier sentence, some towards a more lenient sentence. There will be a maximum penalty set for the offence. Then it is for the judge, balancing out all the circumstances to select what seems to be the appropriate sentence.
It has repeatedly been said by courts of appeal, and rightly, that no one sentence is correct. There is a range of sentences all of which are open.[38] Any number of judges might conscientiously examine the same circumstances and yet consider that somewhat different sentences were appropriate. Sentencing is not simply an arithmetical process.
The role of the Court of Appeal on an appeal against sentence; and Director’s appeals (the third and fourth summary points)
[38]See, for example, DPP v Bulfin [1998] 4 VR 114, 141 (Callaway JA).
Sometimes it is complained that, in sentencing a convicted person, the sentencing judge misapplied some sentencing principle. That is not this case, and nothing need be said about this Court’s approach in that situation.
Often, though, a convicted person will simply complain that the sentence imposed was ‘too heavy’. In such a case, it is not the function of this Court to impose a different sentence only because it thinks that it would have sentenced the offender to ‘a bit less’. It will allow an appeal only if it concludes that the sentence was outside the range that a sound exercise of the sentencing discretion could have justified. This approach reflects the fact that there is no single correct sentence, that the sentencing judge has the primary responsibility for imposing sentence, and that a sentence ‘within the range’ should not attract a successful appeal. So it is that appeals are dismissed even though the individual judges of this Court might consider that the sentence imposed was somewhat lenient or somewhat stern.
The Director of Public Prosecutions is given specific power to appeal against sentence.[39] It has been held, however, that the occasion for a Director’s appeal should be a rare one, and that the circumstances in which this Court should allow an appeal are confined. In reasons for judgment which have very often been cited, Charles JA said this in R v Clarke[40] -
[39]It is a discretion to bring an appeal where, in a particular case, the Director considers that a different sentence should have been passed and is satisfied that an appeal should be brought in the public interest. The requirements which enliven the discretion are conjunctive. Further, the ‘public interest’ is not to be confused with the interest of the public, still less with a perception as to the interest of the public.
[40][1996] 2 VR 520, 522 (Winneke P and Hayne JA agreeing).
The relevant rules may be stated in the following propositions:
1.An appeal by the Crown should be brought only in "the rare and exceptional case" (Everett at 299) to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy" (Malvaso at 234).
2.Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).
3.A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562-3).
Allpass is also authority for the following propositions:
4.When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
5.An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.
Against that background, it has been emphasised that clear and egregious[41] inadequacy of sentence is required before this court will intervene.[42]
[41]Defined by the New Shorter Oxford English dictionary to mean, relevantly, ‘remarkable in a bad sense; gross, flagrant; shocking’.
[42]See, for example, DPP v Johnston (2004) 10 VR 85, 96 [28]; DPP v Josefski (2005) 158 A Crim R 185, 190 [16]–[20] (Maxwell P); DPP v Oversby [2004] VSCA 208.
In all, for reasons solidly rooted in principle and which have to do, to an appreciable extent, with the idea that a person should not run a kind of double jeopardy, the barrier to the Director succeeding in an appeal alleging inadequacy of sentence is a high one, higher than that faced by a convicted person who contends that the sentence was excessive. That is no less so only because, as has been noted by this Court, the frequency of appeals by the Director has increased in more recent years.
R v AB (No 2) (the eleventh summary point)
In 1997, the Parliament increased the maximum sentence for manslaughter from 15 to 20 years’ imprisonment. In R v AB (No 2)[43] this Court considered that circumstance in an appeal brought by the convicted man against a sentence of 15 years’ imprisonment for manslaughter (on which were cumulated sentences earlier imposed for other offences) with a (new) non-parole period of 13 years.
[43](2008) VSCA 39.
The circumstances were, in short, that the applicant and his victim were two erstwhile business partners, each of whom had a criminal past, who had fallen out over their business affairs. The dispute ended up with the applicant discharging five rounds from an unlicensed shotgun, which he had recently purchased, into his victim. The shooting was with murderous intent. The weapon was loaded, to emphasise that intent, with ammunition of a kind which the learned sentencing judge observed was of ‘maximum killing effect’. But the prosecution evidently failed to exclude the possibility that the killing occurred under provocation. At the time, the effect of provocation, as the law understands that word, was that what would otherwise have been the offence of murder was reduced to the offence of manslaughter.
The learned sentencing judge described the offence as being manslaughter ‘of the gravest kind’. He also said that -
on your own admission, the offence was premeditated and committed with the unequivocal intention of taking the deceased’s life.[44] Provocation though there may have been, your massacre of the deceased was an outrage.
[44]This Court treated his Honour as having concluded that the killing was premeditated in the sense that AB had equipped himself to kill the victim, and intended to do so if it became necessary, but that the intention to kill resulted from loss of control consequent upon the assumed provocation [2008] VSCA 39 [31].
This Court did not allow AB’s appeal so far as the head sentence of 15 years was concerned.
It agreed with the evident conclusion of the learned sentencing judge that the provocation was ‘of a low order’, and that such provocation did not take the offence outside the category of ‘the gravest of homicides short of murder’.[45]
[45]Ibid [33], [35].
In sentencing AB, the learned sentencing judge said this:
Before the maximum sentence for manslaughter was increased in 1997 from 15 years to 20 years’ imprisonment, sentences of imprisonment imposed in cases of manslaughter by reason of provocation tended not to exceed ten years and were frequently less, although there were cases in which they ranged as high as 13 years. Following the increase in the maximum from 15 years to 20 years’ imprisonment, it was to be expected that there would be a corresponding increase in the sentences actually imposed. Yet sentencing statistics suggest that actual sentences have by and large remained the same.
For my own part, the increase in the maximum does imply that there should be some increase in the sentence actually to be imposed and I propose to follow that course in your case. Despite the general utility of current sentencing trends, I am not prepared to follow them down to a level below the sentence which a maximum of 20 years implies it is necessary to impose. Since the maximum sentence is now 20 years’ imprisonment, and since in the case of manslaughter by provocation that maximum takes into account the ameliorating effect of provocation, I consider that the gravest offences of manslaughter are liable to attract sentences of 17 years or more.[46]
[46][2006] VSC 96, [58]–[59].
This Court was asked to hold that his Honour had attached undue weight to the increase in the maximum penalty. It said this:
The maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed. It serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of the offence in question. Recently, in R v Sibic, this court referred to the following passage from the decision of the High Court in Markarian v R, where the majority said:
“[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”
The joint judgment in Markarian recognises that a change in the maximum penalty may also indicate that Parliament regarded the previous penalty regime as inadequate. In the present case, the Minister’s speech made quite clear that the increased maximum was intended to result in the imposition of “higher sentences”. The trial judge was entitled – indeed, bound – to have regard to the fact that Parliament had increased the maximum sentence for manslaughter from 15 to 20 years, particularly given his view – which we share – that this killing was to be characterised as ‘manslaughter of the gravest kind’.[47]
[47][2008] VSCA 39, [40]–[41].
and -
… His Honour concluded that the sentences imposed for the worst category of this offence had not increased since the maximum penalty had been increased. This conclusion was not challenged on the appeal. In other words, the guidance provided by the increased maximum conflicted with the guidance provided by existing sentence practice.
How was that conflict to be resolved? Because courts have hitherto not responded to the legislative command to increase sentences in manslaughter cases, his Honour was not fettered by the previous pattern of sentencing but was obliged to give effect to Parliament’s decision to increase the maximum penalty. As the maximum sentence is reserved for the worst sort of cases – and this was one – the increased maximum called for the imposition of a sentence higher than the general trend of those sentences relied upon by AB.[48]
and -
Whenever Parliament increases the maximum sentence for any criminal offence, that increase has potential significance for all sentences to which the new maximum applies. As the present case illustrates, the increase will have very substantial implications for any sentence for an offence that is placed within the worst category of that offence. Even where the offence to which the increase applies is nowhere near the worst category, the increase remains of relevance since, in the usual case, the increase shows that Parliament regarded the previous penalties as inadequate. Even where the new maximum may only be of general assistance, it becomes the ‘yardstick’ which must be balanced with all other relevant factors.[49]
[48]Ibid [47] – [48].
[49]Ibid 51.
In the event, the 1997 increase in the maximum penalty for manslaughter is to be viewed as being of relevance in all cases of manslaughter, not only cases ‘in the worst category of that offence’. The extent of the assistance which is to be gained from consideration of the increased maximum is as a yardstick, to be balanced with all other relevant sentencing considerations.
Given the necessary approach, it should be observed that although a comparison of the circumstances of individual cases is of limited utility in sentencing – because every case is a unique combination of circumstances, and because there is no single correct sentence in any case – there were features of AB (No 2) which did put it in the very worst category of manslaughter. It was a murder reduced by (weak) provocation to manslaughter, in a case which had gone to trial on a plea of not guilty. Standing back, this Court concluded that it was within the sound exercise of the sentencing discretion that a head sentence of 15 years be imposed for a manslaughter of the kind which has traditionally been regarded as in the worst category. Very bad as McMaster’s offence was, it is hard to see, on a plea of guilty which was significant, and there being several other mitigatory features as found by the learned judge, that it could attract a sentence comparable to that which was said in AB not to be manifestly excessive.
Sentencing in manslaughter cases generally; and the sentence imposed in this case (the ninth, tenth and twelfth summary point)
Allowing for the criticism of manslaughter sentences made by the learned trial judge in R v AB (No.2), criticism which this Court in substance endorsed, it is nonetheless the fact – as I have earlier explained - that the sentence passed upon McMaster was very heavy by conventional standards for an unlawful and dangerous act manslaughter, let alone one in which there was a plea of guilty, let alone one in which the plea of guilty was made despite there being a real prospect that the accused might escape conviction altogether for the death of the victim.
Further, the learned judge found that, by contrast with McMaster’s behaviour before Cody Hutchings’ death – behaviour fuelled by use of legal and illicit drugs and by ‘totally unrealistic and inappropriate’ expectations of a five year old child - he was at time of sentence remorseful. He was then drug free. He was an intelligent man, and if he continued to abstain from drugs and used his intelligence and common sense, his prospects of rehabilitation were ‘at least reasonable’, and might be ‘a good deal better than that’.
It could not fairly be said that the learned judge allowed these mitigatory factors to overwhelm the significance of the gravity of an offence committed against a vulnerable victim in McMaster’s care – matters which his Honour many times emphasised; or the fact that McMaster had a number of prior convictions – although none of them were for offences of violence; or the effect of the child’s death upon the family, a number of whom had made victim impact statements. The clearest indication that his Honour did not err in balancing out the various sentencing considerations lies in the sentence which he imposed.
Counsel for the Director referred to cases of child killing in which life imprisonment had been imposed despite a plea of guilty. But they were cases in which the plea of guilty was to murder. McMaster was not to be sentenced on such a basis, and the sentence imposed upon him cannot be considered by this Court from that standpoint.
Counsel for the Director relied upon the sentence imposed by this Court in DPP v Arney.[50] The accused man pleaded guilty to two counts: the manslaughter of his five month old daughter, and recklessly causing serious injury to the child in an earlier attack. The violent incidents in which the particular injuries were inflicted were amongst up to 10 occasions on which he admitted he had struck the baby (sometimes with multiple blows) in the short period of her life. The sentencing judge imposed a sentence of 7 years imprisonment for the killing and 4 years for the offence of recklessly causing serious injury. Cumulating 2 years of the latter sentence on the former, he arrived at a total effective sentence of 9 years; and he fixed a non-parole period of 5 years. This Court allowed a Director’s appeal, agreeing that the killing ‘stood towards the upper end of the scale of seriousness of cases of this kind’.[51] It re-sentenced the offender to 9 years’ imprisonment for the killing, and affirmed the sentence in respect of the other offence and the order for cumulation. The total effective sentence was thus 11 years’ imprisonment. The Court fixed a non-parole period of 8 years.
[50][2007] VSCA 126.
[51]Ibid [12] (Nettle JA).
Three points should be made. First, although the decision preceded AB (No.2), it clearly was founded on the same premise – that manslaughter sentences did not reflect the present maximum penalty.[52] Second, the conclusion that the sentence imposed at first instance was manifestly inadequate built upon that premise. Third, Nettle JA, who gave the leading judgment, considered that a significantly heavier sentence again would have been warranted had it not been a Director’s appeal.[53]
[52]Ibid [14] – [15] (Nettle JA).
[53]Ibid [17].
I do not accept that Arney should be viewed as being, in effect, a half-way house between old sentencing practice and the approach commended by AB (No.2). Rather, in my opinion, it was an instance of the Court breaking free from old practice in a way which AB (No.2) endorsed.
I do not consider that Arney assists a conclusion that the manslaughter sentence imposed in the present case was manifestly inadequate. That was a bad case of child killing by unlawful and dangerous act. Allowing that the sentence imposed by this Court might have been significantly greater had it not been imposed on a successful Director’s appeal, there is still a great difference between sentences of 9 years’ and 12 years’ and 6 months imprisonment. Remember also that the total effective sentence of 11 years’ imprisonment in Arney reflected the fact that there – by contrast with the present case – the prosecution brought a second charge against the offender. Again, nothing suggests that the plea of guilty in Arney was anything more than the offender bowing to the inevitable.
Turning to another matter, counsel for the Director emphasised, a number of times, the occurrence, frequency and nature of the uncharged assaults. Implicitly, he seemed to invite this Court to punish McMaster for those offences. But neither the judge below nor this Court could do that. I have outlined the limits to which those assaults could be brought to bear in sentencing McMaster for the crime charged.
Counsel for the Director also submitted that the only thing upon which the respondent could rely in mitigation was his plea of guilty; and that not much weight should be given to that plea. I disagree with the latter submission, for reasons already indicated; and also because, contrary to counsel’s submission, I do not agree that the pre-trial offer to plead guilty should have been largely discounted because McMaster went to trial on a plea of not guilty. For reasons indicated, the case was
not one in which, had McMaster been found not guilty of murder, he must have been convicted of manslaughter. Again, no cogent reason was advanced why his Honour’s identification of other mitigating circumstances should be rejected.
Order
I would order that the appeal be dismissed.
NEAVE JA:
Having regard to the fact that a principle akin to double jeopardy applies to Director’s appeals against sentence, I would also dismiss the appeal. I agree with Ashley JA’s view that the learned sentencing judge took account of the context in which Cody Hutchings died, to the extent that sentencing principles allowed him to do so. As counsel for the Director conceded, his Honour also took account of all other relevant sentencing matters, including Mr McMaster’s guilty plea.
LASRY AJA:
I have had the benefit of reading in draft the reasons of Ashley JA and I agree with his Honour’s analysis and with his conclusion that the appeal by the Director of Public Prosecutions should be dismissed.
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