DPP v SJK
[2002] VSCA 131
•23 August 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 88 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| S.J.K. |
| No.89 of 2002 |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| G.A.S. |
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JUDGES: | PHILLIPS, C.J., CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 July 2002 | |
DATE OF JUDGMENT: | 23 August 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 131 | First Revision – 26 Aug 2002 |
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CRIMINAL LAW – Sentencing – Crown Appeal – Manslaughter – Whether each co-accused to be sentenced as principal perpetrator or aider and abettor – Whether lesser sentence necessarily justified if each co-accused sentenced as aider and abettor – Youthful offenders - Principles relevant to sentencing youthful offenders - Gravity of offence – Lack of remorse – Whether deterrence and need for denunciation reduce scope of leniency due to youth – Sentence manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. B. Morgan-Payler Q.C. | Kay Robertson, Solicitor for Public Prosecutions |
| For the Respondent S.J.K. | Mr. I.D. Hill Q.C. | Jones and Dowling |
| For the Respondent G.A.S. | Mr. L. Lasry Q.C. and Mr. N. Clelland | Victoria Legal Aid |
PHILLIPS, C.J.
CHERNOV, J.A.
VINCENT, J.A.:
The respondents, who are presently aged 16 and 18 respectively, each pleaded guilty to a count of manslaughter in the Supreme Court on 24 July 2001. These offences, which carried a maximum penalty of 20 years’ imprisonment, had been committed at Seaford on 15 October 2000. The victim was a lady of 73 years of age living at her home who was killed in her own bedroom. The respondents were arrested within a few days and thereafter held in custody.
The relevant circumstances relating to the killing and what the respondents told the police after they were arrested can be briefly summarised. In setting out these events we had resort to a Summary of Evidence supplied to this Court, the content of which has not been disputed.
The deceased was born on 25th April 1927. During her life, she trained and worked as a clinical psychologist. She had three children and was a grandmother to six. The deceased was twice widowed and, as well as having a paid job for much of her adult life, she engaged in community work. During her mature years, the deceased was devoted to caring for her 47-year-old son Peter who suffers from chronic psychosis and brain damage as a result of surviving a near drowning accident in 1981. At the time she was killed, the deceased was a frail invalid pensioner. She suffered from diabetes and hip and knee osteoarthritis and she walked with the assistance of a walking frame. She lived with her son and received assistance from various care agencies to help her look after him and keep the house.
It was the deceased’s practice to always keep a quantity of cash in small denominations in her home as her son regularly asked her to give him some money. Although Peter suffered from a significant mental disability he still enjoyed shopping at the local supermarket. A reconstruction of his bank account shows that about 3 weeks before her death, the deceased withdrew $2,000 from that account made up of ten-dollar notes and five-dollar notes. A reconstruction of the deceased’s own bank account shows that on 4 October 2000 she withdrew $1000 made up of $10 notes. Peter visited the local Safeway supermarket in Seaford frequently, more often than not once a day and often during the night. The fact that the doors to his home were often left open was widely known among friends and associates of the deceased and her son. The deceased kept her money in a handbag which, when she was in bed, was kept close to her, generally on the floor at the side of her bed.
S.J.K. was born on 1 September 1985. At the time of the deceased’s death he was 15 years old and resided at home with his family. At the time of the offence he was suspended from a Secondary College. He spent much of his time frequenting local shopping centres and riding his skateboard. He also participated in inhaling the fumes from chrome paint, a practice known as “chroming”. He told police at interview that this activity made him high. He was once a close friend of the deceased’s grandson and had visited her house on occasions with him and done odd jobs for her for payment.
It was through this association with the grandson that S.J.K. had come to know the deceased, and was familiar with the internal layout of the house. He was also familiar with Peter’s habit of leaving exterior doors of the house open. S.J.K. was a close friend and confidante of the offender, G.A.S.
G.A.S. was born on the 15 of August 1984. At the time of the deceased’s death he was 16 years old and resided at home with his family. He was employed as an apprentice bricklayer. When not working he spent his time in the company of the offender skateboarding, frequenting shopping centres and chroming. G.A.S. was known to some of the deceased’s grandchildren.
On the morning of Saturday, 14 October 2000, the deceased awoke to find that her handbag had been stolen from the side of her bed during the night. (It later emerged the respondents were responsible for this.) The police and her insurance company were immediately notified. During that morning, a man found the deceased’s handbag discarded at the Seaford Oval Reserve. He collected the bag and contents which was scattered about and returned them to the deceased at her home. All that had been stolen from the handbag was a quantity of cash.
At approximately 9.20 a.m. on Monday, 16 October 2000, two women arrived at the deceased’s home to assist her with housework and general care. They spoke to Peter in the hallway of the house. One of the women entered the deceased’s bedroom and saw her lying on the floor beside her bed. The authorities were called and the investigations began. The deceased was found in her bedroom lying on her right side on the floor at the side of her bed. Her face was bloodied and it was obvious that she had been beaten around the head. She was wearing a petticoat, short-sleeved top and a windcheater. The windcheater had been pulled over her head. Her arms were still in the sleeves. She was partly covered with a doona and quilt and the bedroom appeared to have been completely ransacked. Small household items covered the deceased and a large number of items were scattered around the bedroom floor. Her single bed mattress had been upturned. A bloodstained cushion was located at the foot of the bed. The lounge room glass sliding door at the front of the house was open thus giving access to the house from the front porch. At the rear of the house, the kitchen glass sliding door which gave access to the back porch, was also open.
A post-mortem examination of the deceased was conducted on 16 October. The cause of death was asphyxia by manual neck compression. Although he was unable to exclude the possibility that there was some element of smothering in the mechanism of death, the pathologist gave evidence to the Committal Court that the main cause of death was one of strangulation. The pathologist noted multiple areas of blunt trauma to the head, chest, back and the anal and vaginal areas. He also noted trauma to the front, back and top of the skull. Each was a separate injury. The bruising to the head was more likely to be caused by a fist. The bruising around the laryngeal cartilage was consistent with squeezing. There was also bruising around the vaginal area which was consistent with pressing fingers. There was a symmetrical pattern of bruising over the anterior chest which was consistent with someone having knelt on the chest of the deceased. The deceased also sustained three fractured ribs which would have required at least moderate to severe force to occur.
The police investigation led to the two respondents and each was interviewed. S.J.K. was interviewed at the Frankston Police Station during the evening of Tuesday, 17 October. During the interview S.J.K. explained that he had no knowledge of the circumstances of the death of the deceased or the earlier theft of the handbag. He said that on the night of Sunday, 15 October he was at his home from about 8.30 p.m. and that he had gone to bed at about 10.30 or 11.00 p.m. He said that he had got up the following morning at about 9 or 10.00 a.m. and he denied any wrongdoing. At the completion of that interview, S.J.K. left the police station. He returned to the police station with his parents a short time later. He did so voluntarily and told police that he wanted to tell them what had really happened.
He participated in a second interview during which he admitted to stealing the deceased’s handbag in her home on 14 October and then having returned to the deceased’s house during the evening of Sunday, 15 October for the purpose of stealing more money. He told police that on both occasions he was in the company of G.A.S. S.J.K. stated in the course of the second interview that on Saturday, 14 October 2000, at about 5.00 a.m. he and G.A.S. went to the deceased’s house and stole her handbag from beside her bed whilst she slept. He told police that she was a heavy sleeper. He explained that, knowing that Peter was accustomed to leaving the house during the night and leaving the door open, he and G.A.S. waited for him to do so and then entered the house through the front door. S.J.K. told police that he and G.A.S. took $540 in cash in five and ten dollar notes from the handbag and had then discarded the bag at the Seaford Oval Reserve.
S.J.K. went on to explain that he and G.A.S. then caught a train at the Seaford railway station and travelled to Cheltenham and then to the Frankston railway station. At Frankston, he said that he and G.A.S. each bought a Nokia brand mobile phone at “The Local Cash Trader” using the money stolen from the deceased. They each paid $125 in cash for the phones they purchased . Railway security videos show that both were together at the Seaford railway station at 6.20 a.m., at Cheltenham railway station at 6.57 a.m. and Frankston station at 7.52 a.m.
In the second interview, S.J.K. also gave an account of his movements and activities on Sunday 15 October 2000. He stated that at about 10.00 p.m. he and G.A.S. returned to the deceased’s house for the purpose of stealing more money. Each had a skateboard with them. He told police that he knocked at Peter’s bedroom window expecting him to wake up and to open the back door for him which in fact Peter did. He said that Peter then went back to bed. He explained that Peter saw G.A.S. and mistakenly called him “Joel”. They both then hid as he heard Peter tell his mother that Joel was there. S.J.K. said that he heard the deceased’s reply “Are you sure he is here?” S.J.K. then stated that he and G.A.S. waited a short time before both entered the house through the rear door which Peter had left unlocked. He said that G.A.S. picked up a cushion as they made their way to the deceased’s bedroom. When in the bedroom, S.J.K. said that the deceased woke up at which point G.A.S. jumped on her and covered her head with the cushion. S.J.K. claimed that the deceased struggled and that G.A.S. punched her numerous times about the head area and also choked her. S.J.K. said that he left the room briefly during the assault to check on Peter, who he found to be sleeping and returned to find that the deceased had fallen off the bed and onto the floor where G.A.S. continued to assault her until she stopped struggling and was still. He stated the deceased had blood about the face.
In answer to police questions 899 and 910, S.J.K. told police that G.A.S. was sort of leaning on top of the deceased after she was moved from the bed onto the floor. He said “That was when he was pushin’ on her like pushin’ on her and he said he heard a crack and I was like ‘you probably broke her neck’ and he was like, ‘nah’, and that when I thought it doesn’t sound good that’s when I said ‘let’s go’ and he goes ‘we’ll look around the room’ and then I said ‘Check her pulse first’ and he said there wasn’t one and then we started lookin’ around the room fast and then we went out. That was like when he heard the crack that’s when I said, ‘check her pulse’ I went and checked on Peter. He was still asleep. I went back in and we were lookin’ around the room still and then we went into the lounge room and there was nothing in there so we went into the kitchen and then we left.”
S.J.K. told police that he was about two and a half to three metres away from G.A.S. and the deceased when G.A.S. was pushing on the deceased’s head and said that he heard a crack. Never at any stage during the interview did he give any account of coming into contact with the deceased which might account for the presence of his DNA, which later investigation revealed was under the deceased’s fingernails. During the compilation of his pre-sentence report, S.J.K. attempted to give an explanation as to how his DNA could have been found under the deceased’s fingernails (which was the case). However, at no time during the police interview did he assert he came into contact with the deceased.
S.J.K. also told police that G.A.S. pulled the mattress off the bed and searched for money that may have been underneath it. He also told police they were both in the bedroom and kitchen and searched those rooms before leaving the house and said that he had $10 - $15 in coinage which he took. He said that they then went back to the local Safeway supermarket where G.A.S. called a taxi using his mobile telephone. They both caught the taxi which dropped G.A.S. off before S.J.K. left the cab. At the conclusion of the interview S.J.K. made a statement which repeated much that he had said during the interview.
What S.J.K. told the police was, of course, not evidence against G.A.S.
G.A.S. was interviewed at the Frankston Police Station during the evening of Tuesday, 17 October 2000.
He claimed to have had no involvement or knowledge of the death of the deceased or the theft of her handbag. He said that on Saturday, 14 October 2000, the date of the theft of the deceased’s handbag, he woke up at 7.30 a.m. having gone to bed at about 10.00 p.m. the night before. He stated that he did not leave his house between those times.
In his interview with police, G.A.S. maintained that he learned of the deceased’s death from watching a television news bulletin on the morning of Monday, 16 October at about 6.00 a.m. prior to him leaving for work. However, the body of the deceased was not found until about 9.00 a.m. on that morning and there was no publicity about the death of the deceased until later in the day.
With regard to Sunday, 15 October 2000, G.A.S. told police that from 7.30 p.m. until about 1.30 a.m. on Monday, 16 October 2000, he was with S.J.K. and two of S.J.K.’s friends known to him only as “James” and “Jason”. He stated he did not know their names or addresses or where they lived. He did state that “James” and “Jason” lived in a block of 4 or 5 flats off Wells Road in a street near the Holden Dealership and were also known to Joel Firth.
G.A.S. also stated that on Saturday 14 October, he was not present at the Seaford railway station with S.J.K. (Railway security video footage subsequently proved that to be a lie.)
A biological examination of scrapings from the deceased’s fingernails was conducted by Henry Roberts at the Victorian Forensic Science Centre. This examination identified a mixture of DNA present, calculated to be 44,000 times more likely to be that of the deceased, the respondent S.J.K. and another person, selected at random from the Victorian caucasian population, than that of the deceased and two other persons selected at random from the Victorian caucasian population.
On 23 July 2001, the respondents were arraigned and each pleaded not guilty to a count of murdering the deceased. A trial was plainly still in contemplation and after discussion occurred as to a possible view by the jury, the hearing was adjourned until the following day.
On 24 July 2001 leave was given to the Prosecutor to file over a new Presentment charging a count of manslaughter against both respondents. To this count they pleaded guilty. Neither respondent had prior convictions. The Prosecutor informed the learned judge “It has also been indicated to us that each accused, through their counsel, will not be urging on Your Honour, in terms of the sentencing process, that either is appropriate for a Youth Training Centre Order”. The Prosecutor also submitted “…they [the respondents] were each aiders and abettors, that is, the Crown cannot point to who was the principal offender”. The learned judge ordered pre-sentence reports to be prepared and adjourned the proceedings to a date to be fixed.
On 11 October 2001 the Prosecutor opened the case to the judge. Victim Impact Statements were tendered (Exhibit “A”). The Court was informed that “strangulation” was the cause of death and that the case was a “very serious example of the crime of manslaughter”. It was further submitted by the Prosecution that a disposition of detention in a Youth Training Centre was not appropriate for both respondents.
Counsel then appearing for G.A.S. addressed his Honour. He tendered the pre-sentence report on his client (Exhibit 1). He referred to G.A.S.’s habit of “chroming” (inhaling intoxicating fumes) and called as a witness a Uniting Church Minister, Ms Dixon, a counsellor at the Juvenile Justice Centre Parkville. She said that, in her opinion, G.A.S. “would be a good chance for rehabilitation”. Contrary to what had been said to the judge on 24 July, counsel drew the attention of the witness to the assessment in the pre-sentence report that G.A.S. was suitable for Youth Training Centre disposition and elicited from her that she was of the same opinion.
Counsel then appearing for S.J.K. also addressed his Honour. He disputed that his client could be categorised as having lied as a result of a DNA sample found. (We shall later return to this matter.) He tendered his client’s pre-sentence report, Exhibit 2, and a report of a forensic psychologist, Mr Bernard Healey, dated 16 May 2002. (The pre-sentence report contained an assessment that S.J.K. was suitable for Youth Training Centre disposition.) Counsel asserted that his client was greatly troubled by what had occurred. In outlining the personal circumstances applicable to S.J.K., counsel told his Honour that S.J.K. had practised chroming, but stated that it was not suggested his client’s indulgence in this habit exculpated him for his offence. Counsel for the Crown then addressed the judge and the hearing was adjourned to a date to be fixed.
The matters were mentioned before the judge on 25 February 2002 as a result of an obscene phone message left for the daughter of the deceased by the respondents. Counsel for S.J.K. tendered a further report of Mr Healey as to this, Exhibit 4. Again, there was an adjournment to a date to be fixed.
The matters were further mentioned on 8 March 2002 when a discussion paper by the Parliamentary Drugs and Crime Prevention Committee inquiry into the Inhalation of Volatile Substances, was tendered at the request of the judge, Exhibit “C”. On that day the judge told the respondents they would be sentenced to terms of imprisonment.
On 3 April 2002 the respondents were each sentenced to a term of imprisonment for six years. Non-parole periods of four years were fixed and declarations made of 531 days pre-sentence detention.
It is proper, we think, in fairness to their compilers, to state some detail about the pre-sentence reports. That on S.J.K. was dated 28 September 2001. As earlier indicated, it recommended his suitability for Youth Training Centre disposition. In so doing, the writer was acting on a narrative of events given to him by this respondent. S.J.K. had stated to the writer that the idea of a further theft in the house of the deceased came from G.A.S. (An initial theft having occurred during the night of 14 October.) As to events in the house, he described G.A.S. as the attacker and that it was he, S.J.K., who had tried to restrain G.A.S. and when he did so his arm was scratched by the deceased. He said that he did not touch her. Indeed, he expressed remorse that he should have done more to prevent her death at the hands of G.A.S.
Mr Healey, who provided a sympathetic report, also acted upon S.J.K.’s statement that G.A.S. was the attacker and that the idea of returning to the residence was that of G.A.S. He gave the same account of events in the residence that he had given to the pre-sentence report writer. Mr Healey expressed the opinion that some post-traumatic stress was likely to persist in S.J.K., he “having witnessed the tragedy of 15 October 2000”.
The pre-sentence report on G.A.S. was dated 28 September 2001. In recommending that he was suitable for Youth Training Centre disposition, the writers acted on his narrative of events. This attributed to S.J.K. the idea of returning, after the first theft, to the deceased’s residence. He declared he had never entered the bedroom and was not aware of what had gone on in there and that he had left the house before S.J.K.
In mid April 2002 the appellant Director of Public Prosecutions filed and served notices of appeal in relation to the sentences imposed on the respondents. In each instance he pleaded that the sentence was manifestly inadequate and supplied the following particulars.
“…the learned judge –
(a)failed, despite his findings as to the objective seriousness of the offence, to adequately reflect the seriousness of the offence generally and in this case in particular;
(b)failed to take into account or sufficiently to take into account the aspect of general deterrence;
(c)failed to take into account or sufficiently to take into account the aspect of specific deterrence;
(d)gave too much weight to the respondent’s youthfulness and prospects of rehabilitation;
(e)failed to regard the respondent’s post-offence behaviour as indicating the respondent’s poor prospects of rehabilitation; and
(f)erred in his application of the law with respect to the sentencing of co-offenders where each is sentenced as an aider and abettor.”
We now turn to the arguments of counsel on these appeals.
Mr Morgan-Payler for the appellant began his submissions by asserting that the respondents’ crimes were very grave examples of manslaughter. He reminded the Court that the victim was 73 years of age, frail with restricted mobility and suffering from various medical conditions. She cared for her disabled adult son and, as has already been mentioned, the doors of her house were not usually locked at night. This circumstance, said counsel, was well known to each of the respondents. Indeed, S.J.K. was a friend of the victim’s grandson and a visitor to her home where he had, from time to time, performed odd jobs. The respondents were aware that there was usually money kept in the house. In short, each of them was aware of the peculiar vulnerability of the victim they had chosen. Accordingly, their conduct exhibited a high degree of audacity and callousness.
Mr Morgan-Payler conceded on the part of the appellant that at the time the respondents entered the victim’s premises they did not have the killing of her in their minds. But, he argued, each respondent chose to remain in the house and be a party to an unlawful killing. They were complicit in what must have been a series of assaults and the infliction of gross indignity. That choice was made in the light of all that they knew as to their victim’s circumstances.
Counsel submitted that the attack upon her was not a spur of the moment “lashing out”, but a sustained attack. Ribs were fractured and death occurred by strangulation. A gratuitous sexual assault occurred and it occurred prior to her death.
Mr Morgan-Payler submitted that there was plain evidence that, after death had eventuated, one or both continued to look in the house for materials to steal. He said photographs of the premises show the degree of ransacking which occurred. There was no question of any abandonment of the enterprise even after any realisation that an unintended death had occurred.
Counsel submitted that these crimes came within the “highest category of gravity” of manslaughter. He contended that the prosecution had been consistent in this position and pointed to the use at the plea hearing by the Crown Prosecutor of the expressions “extremely serious”, “very serious” and “callousness” in describing these offences.
Mr Morgan-Payler said that the appellant’s primary submission was a simple one. It was that the learned judge gave too little weight to the gravity of these offences and too much weight to the aspect of rehabilitation of the respondents. As to the latter matter, he submitted that the evidence showed there should be “less than the usual amount of optimism” engendered in a sentencing judge.
Counsel contended that the conduct of the respondents was replete with lies. S.J.K. had told the police that he did not go near the deceased. Confounded by scientific evidence he attempted another account which might explain it. Both respondents maintained accounts that were demonstrably false even after they pleaded guilty. The incident involving the obscene phone call clearly showed the respondents’ prospects of rehabilitation were limited.
It is convenient to mention at this point that the prosecution had put to the sentencing judge that the respondents should be sentenced on the basis that there was "a principal offender" who individually perpetrated the vicious assault upon the deceased and that the level of involvement of the other respondent present was that of an aider and abettor. Why the matter was approached in this fashion by the prosecutor is unclear in a case in which the precise circumstances surrounding and leading to the death of the deceased could not be determined. As we understand the evidence, no conclusion could be drawn as to whether one or both of the offenders had attacked her.
Each of the respondents had, through his plea of guilty, in effect accepted that he was responsible for bringing about the deceased’s death by reason of his involvement in the commission of a savage and sustained assault upon her. It is to be observed that reference was made in that context to the judgment of this Court in R. v. Bannon and Calder[1]. In that case, after a relatively lengthy trial had been conducted, the sentencing judge found himself unable to “discern any distinction in the role played by each of the applicants in a case where admittedly there was a distinction"[2]. This meant, the Court held, that each of the offenders had to be treated as bearing the culpability of an aider and abettor in circumstances where involvement at that level was to be regarded as attracting a lesser penalty than that which would ordinarily be anticipated to be imposed upon the principal offender. The factual premises upon which the reasoning of the Court was based in that matter were not present here.
[1]Unreported, 21 September 1993, Vic. Sup. Ct.
[2]At 36-37, our emphasis.
Further the notion that, as a general proposition, an aider and abettor would be expected to receive a lesser penalty is one which must be approached with considerable circumspection. Even a moment's thought would bring to mind a number of realistic scenarios in which the culpability of an aider and abettor could be properly regarded as being at least equal to, if not significantly greater than, the principal offender. A shrewd or vicious individual, for example, who incites an intoxicated or less mentally competent or otherwise vulnerable individual to act in an extreme fashion, could hardly be regarded as entitled to a lesser penalty. Obviously, whether or not an aider and abettor should get a different penalty to that imposed upon the person who undertakes the commission of the offence must be determined in the light cast by all of the circumstances bearing upon the offence and the offender involved. We do not understand the Court in Bannon and Calder to have suggested otherwise.
The combination of the two propositions, first that each of the offenders had to be sentenced as an aider and abettor and second, that accordingly a lesser penalty was attracted, put to the sentencing judge by the prosecutor may well have influenced his view as to the proper sentences to be imposed in the present case. Before this Court, Mr Morgan-Payler did not attempt to support or justify the application of either of the two propositions.
Mr Hill, for S.J.K., began his submissions by referring to what he called the “restrictive” approach taken by appellate courts to Crown appeals. In this connection he cited R. v. Edwards[3]; DPP v. Whiteside and Diever[4] and DPP v. Raddino[5]. We have, of course, adhered to the statements of principle contained in those cases in the resolution of these appeals. Counsel also referred to portion of the judgments of Charles, J.A. in R. v. Clarke[6]. His Honour there said:
[3](1993) 67 A. Crim. R. 486.
[4][2000] 1 V.R. 331.
[5][2002] VSCA 66.
[6][1996] 2 V.R. 520 at 522-3.
“The relevant rules (as to Crown appeals) may be stated in the following propositions:
1.An appeal by the Crown should be brought only in ‘the rare and exceptional case’…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’…
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…; (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 …; (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…at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing…
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…
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.
These principles are unquestionably part of the law of this State; see R. v. Boxtel [1994] 2 V.R. 98 per Crockett and Hampel JJ. at 104; and R. v. Vallis [1996] 1 V.R. 269 in which the authorities were examined by this court. It is important, however, in the application of these principles, to bear in mind what King C.J. said in Osenkowski at 212-13:
‘[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender'’ life might lead to reform.’”
Mr Hill conceded that the offence committed by his client was “a very serious crime of manslaughter”. But, he urged, the sentencing judge had given consideration to all the manifold purposes of sentencing. It should not be overlooked, counsel said, that his client was a child of 16. Relevant authority established, Mr. Hill argued, that youth of an offender was a primary consideration for a sentencing court and was usually more important than considerations of general and specific deterrence. He submitted that incarceration of young persons in adult prisons always carried a real potential for damage to them. He referred to observations of Batt, J.A. in R. v. Mills[7]. His Honour had evinced approval of the following propositions put to him by counsel:
“i.Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii.In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii.A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s. 5(4) of the Sentencing Act 1991.)
[7][1998] 4 V.R. 235 at 241-2.
Mr Hill submitted these propositions are not inoperative in a case of a violent crime.
Referring to the chronology set out earlier, Mr Hill submitted that the passage of time had meant that his client had been left in a state of limbo. He was not able to properly utilise programmes in custody which may have assisted his rehabilitation. Thus, for example, custodial staff could not effectively discuss his case with him. He had also been subjected to physical and verbal mistreatment which may well explain the making of the obscene phone call which counsel described as an “immature and unpleasant act”. Counsel submitted there was much in his client’s pre-sentence report in his favour on the issue of his rehabilitation.
Finally, Mr Hill submitted that, should the appeal be allowed in the case of his client, this Court should give full effect to the doctrine of double jeopardy developed by the High Court.
Mr Lasry, for G.A.S., reminded the Court that his client fell to be sentenced as an aider and abettor. He submitted that this case underlines the tension between a “dreadful homicide” on the one hand and the difficulties confronting the courts “in dealing with children”. He submitted that the sentence of the sentencing judge achieved a proper balance between those two matters. It did incorporate deterrent effects, both general and specific. The submissions of the prosecution on this aspect, he submitted, had been inconsistent and unhelpful. Mr Lasry addressed the topic of the obscene phone call. He submitted that while it may show lack of remorse and poor rehabilitation prospects in an adult offender the same thing did not follow when at the time of offending a person was only 15 years of age. He allowed that the incident may diminish claims of remorse but commended to the Court as correct the statement of the Crown Prosecutor to the sentencing judge that the call “demonstrated a lack of appreciation of the seriousness of the crime to which they pleaded guilty”.
Mr Lasry contended that in the sentencing of a child it was not the law that leniency should only be extended when the prospects of the offender’s rehabilitation were good. If an offender was “still malleable” as he submitted his client was, a sentence disproportionate to the gravity of the offence may well be appropriate if it made a contribution to rehabilitation. Mr Lasry drew the attention of the Court to his client’s pre-sentence report which he contended was important in the matter of rehabilitation. He offered reminders, in this connection, of his client’s plea, lack of prior convictions, expression of remorse and the circumstance that he had made some admissions. Counsel also referred to his conduct in custody, the psychological counselling he had received there, his voluntary involvement in programmes and his good relations with the staff. Mr Lasry submitted his prospects for rehabilitation were at least “reasonable”.
We are conscious that our account of the oral submissions of counsel for the respondents, which lost nothing by reason of their economical presentation, does not fully reflect their efforts on behalf of their clients. Both counsel filed helpful and full written outlines of argument.
The outline filed on behalf of G.A.S. contained submissions that there is no sentence that can be described as the correct sentence. There is always a range of appropriate sentences properly open. It was notorious that manslaughter can attract widely disparate sentences. In the case of G.A.S. the sentencing judge had properly considered all the manifold purposes of sentencing and was cognisant of the offence. In the case of the respondents, there had been a significant passage of time between the commission of the offence and the date of sentence. This had left G.A.S. in a state of uncertain suspense for a long time. It was further contended that the learned judge had treated G.A.S.’s post-offence behaviour appropriately and the sentence imposed had within it provision for both general and specific deterrence. His Honour did not err in taking into account material which suggested that G.A.S. had reasonable prospects for rehabilitation.
The outline filed on behalf of S.J.K. pointed out that the restrictive approach taken by appellate courts to Crown appeals is well established. It referred to R. v. Edwards[8] and contended that although the appellant submits that the public conscience is shocked by the sentenced passed on the respondents, it was important to note that the public conscience must be one which is informed by understanding all the circumstances particularly the considerations that apply to young offenders. It was also pointed out that the appellant had not particularised any specific legal error or point of principle. The Crown had accepted before the sentencing judge that S.J.K. was to be sentenced on the basis that the killing was not premeditated and that it could not be proved there had been any intent to kill before entry to the house. It was further contended that a sentence imposed on the basis that the offender was an aider and abettor meant acceptance that he was less culpable than a principal actor. The outline also referred to statistics relating to sentences for manslaughter in this State. These appeared to range from a maximum of ten years’ imprisonment to good behaviour bonds. It was asserted that as far as could be determined, manslaughter sentences for youthful offenders sentenced as principals had not exceeded the sentences imposed in this case and that the sentences imposed were mid-range for manslaughter sentences generally and at the top of the range for a young offender, without prior convictions, aged 15 at the time of the offence. Generally, it was submitted that the learned judge took all relevant matters into account and gave them appropriate weight. His Honour was correct in forming the view that the age of S.J.K. was a primary consideration. His post-offence behaviour in relation to the phone call should not be relied upon as indicating otherwise. Indeed, the Crown Prosecutor had ascribed this behaviour to “a lack of appreciation of the seriousness of the crime”.
[8](1993) 67 A. Crim. R. 486.
We should say at this point that counsel agreed that the Court should decide whether these appeals should succeed by a process of identifying, in relation to each respondent, the relevant circumstances and then examining the face of the sentences in order to determine, in the light of those circumstances, whether each was manifestly inadequate or not. In this exercise, relevant authority, touching appeals of this nature, was to be applied in this material. Statistics of past sentences, in the absence of detail of the particular cases, are to be treated as no more than a general guide.
Carrying out this process, we have come to conclude that the sentences imposed on the respondents are manifestly inadequate. In our view, after making full allowance for matters personal to the respondents, it is not possible to equate the sentences imposed with the gravity of the crime. It is likely, we think, that the learned judge gave too little weight to the gravity of the offences and too much weight to the aspect of rehabilitation of the youthful respondents. Substantial attention was directed in the course of the presentation of pleas in the court below, in his Honour's sentencing remarks and in this Court as we have already noted, to the significance of the youth of an offender for sentencing purposes and to what Batt, J.A. said in R. v. Mills[9] on this issue. But as his Honour himself pointed out in that case, youth is "a primary consideration" (emphasis ours) for sentencing purposes and in R. v. Bell[10] the learned judge again emphasised[11] that the general propositions accepted in Mills “are just that – general propositions”.
[9]At 241-242.
[10][1999] VSCA 223.
[11]At [14].
When youth is raised for sentencing considerations, the focus is usually placed upon the offender’s prospects of rehabilitation, but this is by no means the only basis upon which it assumes relevance. For at least a century, the attribution of criminal responsibility and the response in terms of the dispositions handed down upon offenders has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability and accountability. In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.
In the present case it must not be forgotten that the offenders knew of their victim's vulnerability and deliberately chose to take contemptuous advantage of it. They did not engage in some "spur of the moment" behaviour when they decided to enter the home of the deceased. They were well aware of the presence of an elderly frail woman and her seriously disabled son. Conduct of this kind can hardly be explained or ameliorated to any substantial degree by reference to their respective levels of maturity.
Perhaps as an expression of hope for the future of our society, we would anticipate that there would be very few similarly circumstanced young people of equivalent age and stage of development who would act as they chose to do. Making full allowance for their youth, the level of culpability of each of the two offenders before this Court must be regarded as extremely high.
The crime of manslaughter to which each has pleaded guilty can arise in many different circumstances and the criminality attached to its commission can vary correspondingly. In consequence, a wide range of penalties have been imposed. There have, however, been few equally serious, and probably no more serious, examples of this offence before the courts of this State for many years. It was incumbent upon the sentencing judge to reflect that level of seriousness and to express the denunciation of the community of the conduct of the respondents in the sentences handed down.
These remarks are not intended to diminish in any way the considerable significance to be accorded to youth and rehabilitation as factors to be taken into account in the determination of the appropriate sentence to be imposed on a youthful offender. They are intended, however, to emphasize that these factors constitute only some of a number of matters that must be taken into account and that, even in the case of a young offender, there are occasions on which they must give way to the achievement of other objectives of the sentencing law.
In this case, given the seriousness of the offence and of the offending and the lack of any real remorse shown by the respondents in relation to their crimes and given that there is little evidence to show that they have reasonable prospects of rehabilitation in the near future, the principles of general and specific deterrence and the need for the court to express denunciation of the crime assume considerable significance for sentencing purposes so that there is correspondingly less scope for leniency on account of the respondents’ youth. See R. v. Sherpa[12].
[12][2001] VSCA 145 at [11] per Callaway, J.A. with whom Ormiston, J.A. and O’Bryan, A.J.A. agreed.
Thus, for the reasons given, it falls to this Court to re-sentence the respondents. In this exercise we are obliged to apply the principle of “double jeopardy” as developed by the High Court. If we may say so, this principle is succinctly described in R. v. Allpass[13], a decision of the Court of Criminal Appeal of New South Wales.
“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 sentences it considers should have been imposed at first instance.”
This passage was, as earlier appears, cited with approval by Charles, J.A. in Clarke[14].
[13](1994) 72 A. Crim. R. 561.
[14]With whom Winneke P. and Hayne, J.A. agreed.
Moreover, the passage of time between the arraignment of the respondents and their sentence is cause for concern. Notwithstanding that it is quite understandable that his Honour was reluctant to arrive at a disposition prior to considering an anticipated Parliamentary Committee report on the inhalation of volatile substances that he considered may have had a bearing upon his decision. It would seem to be self-evident that the time between the conduct of a hearing and the imposition of sentence is likely to be difficult for all concerned. Whether regarded from the perspective of the victims' families, the offenders or the community generally, delays of the kind involved here are unfortunate and should, if possible, be avoided.
On the other hand, we are obliged to say that we are not aware of a manslaughter which has been accompanied by such a degree of callousness. The sexual assault exhibited a profound contempt for her dignity as a human being.
In all the circumstances, and bearing in mind in particular the principle of double jeopardy, we have come to conclude that each respondent should be sentenced to be imprisoned for nine years with a non-parole period of six years.
We will not depart this matter, however, without referring to events which followed the sentencing by the learned judge. There was much public criticism of the sentences imposed.
Each sentence delivered in this Court is published and is accompanied by a statement of reasons for sentence. Thus, opportunity is given for both scrutiny by any persons interested and criticism if they feel it is warranted. We would only ask that such criticism be informed. In these cases there also occurred personal attacks on the sentencing judge. These were characterised by ignorance of the full circumstances of the case. We note that the relatives of the deceased, while publicly critical of the sentences, did not descend to these tactics. Such attacks are, fortunately, rare in this country. They are to be deplored.
We have had occasion to read the transcript of the proceedings before his Honour at least a dozen times. No-one, performing that exercise, can fail to obtain a very clear picture of a judge earnestly striving to compose what he considered to be just sentences. If his Honour’s discretion miscarried, as we have concluded it did, this most certainly was not due to lack of endeavour. It should be stressed that this sentencing exercise was attended with grave difficulties which were faced by the learned judge.
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