DPP v TY (No 2)
[2009] VSCA 226
•2 October 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 518 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TY |
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| JUDGES | MAXWELL P, ASHLEY and NEAVE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARINGS | 20 July 2009 and 8 September 2009 |
| DATE OF JUDGMENT | 2 October 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 226 |
| JUDGMENT APPEALED FROM | [2007] VSC 489 (Bell J) |
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CRIMINAL LAW – Sentence – Director’s appeal – Respondent’s murder conviction and sentence quashed while serving concurrent sentence for subsequent offence – Respondent re-sentenced after conviction for murder on re-trial – Whether declaration of pre-sentence detention incorrect – Effect of sections 18(1) and 18(2)(d) of the Sentencing Act 1991 – Effect of quashing of murder conviction and sentence – Whether incorrect pre-sentence detention declaration is a sentencing error – Whether sentencing judge erred in application of totality principle – Whether sentencing judge applied a two-tiered approach to sentencing – Whether sentence manifestly inadequate – Relevance of earlier sentence – Whether insufficient weight given to gravity of offence – Whether excessive weight given to mitigating factors of youth of offender, prospects of rehabilitation and remorse – Appeal dismissed.
PRACTICE AND PROCEDURE – Application for leave to amend notice of appeal – Allegation of specific factual error – Application refused.
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr R van de Wiel QC with Mr M Croucher | Dowling McGregor Thomas |
MAXWELL P
ASHLEY JA
NEAVE JA:
On 8 December 2006 TY was found guilty by a Supreme Court jury of murdering Christopher Thomas Williams, after a second trial for that murder. He had previously been convicted of murder on 2 March 2005. That conviction was quashed by the Court of Appeal on 24 May 2006 and a retrial was ordered.
After hearing a plea in mitigation of sentence in February and again in October 2007, the judge in the second trial sentenced TY, on 28 November 2007, to a maximum term of 11 years, 46 weeks imprisonment, with a non-parole period of seven years 46 weeks. His Honour declared that TY had spent 1457 days in pre-sentence detention (‘PSD’).
The Director of Public Prosecutions now appeals against that sentence, on the ground that the sentence imposed on TY was manifestly inadequate. The Director also contends that the judge erred in law in making the PSD declaration of 1457 days, alternatively that the judge was led into sentencing error by the erroneous calculation of PSD.
Background to the offending
TY’s conviction for murder arose out of an incident involving himself and another group of young people at a tram shelter. The victim, Christopher Williams, was 17 years old and was celebrating the end of his VCE year with his friends. The respondent, then aged 14, made offensive remarks about a girl who was with Christopher’s group of friends. The learned judge summarised the tragic events which led to Christopher’s death, as follows:
As you have admitted, this kind of abusive remark was completely uncalled for. Nothing that Rachael had said or done, nothing in the way she looked, nothing in the way she had cut up her dress for fun on the occasion, justified your remarks. You were showing off as a young tough guy in front of your friends.
You then addressed yourself to David Scerri. You said something like: ‘Is that your girlfriend?’ and ‘take a bit of control over your missus, mate’. David had neither said nor done anything to provoke these remarks. I think these remarks were strange ones for a boy aged 14 years to make, and really confirm that you were acting up in front of your friends.
David chose not to react to the remarks you made towards him and Rachael. Rachael’s reaction was to say jokingly to Christopher something like: ‘You’ll stand up for me, won’t you?’ This is the kind of thing that any girl in her position on that day might have said, just reacting frivolously to the moment, and never expecting anything to happen. However, Christopher did stand up for her. In retrospect, none of his friends or family were surprised, for that is the kind of person he was.
What happened next is not exactly clear, and various accounts have been given by the witnesses. I have examined the evidence and the submissions made by counsel to the jury. I have carefully considered the verdict of the jury, the basis of which I have already described. I think the account that I am about to give is consistent with that verdict.[1] It is also based on what I can be satisfied of on the balance of probabilities.[2]
Christopher turned around towards you and asked what you had said about his friend Rachael, but he did not do so aggressively. You said something like: ‘I wasn’t fucking talking about you’. Other words were spoken between you. Christopher was facing you and about half an arms length away. You felt intimidated and believed you were going to get bashed by him or his friends, some of whom were bigger than you and all of whom were older. That belief was not justified. You were the aggressor, not he or them. Christopher had not threatened you, lifted his hands, shouted at you or done anything else of that nature. He was simply asking what you had said about Rachael. But, being out of your depth, and acting on the spur of the moment, your reaction was terrible. You struck Christopher twice to the head with the golf umbrella, the second time with considerable force, driving its sharp metal tip deep into this poor young man’s brain. You then immediately boarded a tram that had just arrived and were heard to say something like: ‘I don’t give a fuck who he is.’
Christopher was fatally wounded, and died in the intensive care unit at the Royal Melbourne Hospital, as a result of your acts, and in the presence of his loving family, on 25 October 2003.[3]
[1]Cheung v R (2001) 209 CLR 1, 12-14.
[2]R v Olbrich (1999) 199 CLR 270, 281.
[3][2007] VSC 489, [9]-[14].
Ground 2
We deal first with the second ground of appeal, which complains of an error in the PSD declaration and of a consequential error in the application of the principle of totality. This concerns the manner in which his Honour took account of the fact that, while TY was serving the sentence for murder imposed in the first trial, he was sentenced for other offences. The details are as follows.
TY was remanded in custody on 21 October 2003.[4] He was convicted of murder on 2 March 2005 and sentenced on 20 April 2005 to 14 years’ imprisonment with a non-parole period of nine years.
[4]The applicant was arrested on 21 October 2003 and initially charged with attempted murder. The appellant’s outline of argument says that he was ‘shortly thereafter’ charged with murder. The victim died on 25 October, so that presumably the period of pre-sentence detention for murder ran from that date. This issue was not addressed at the hearing.
On 5 July 2005 (that is, while he was serving the murder sentence imposed after the first trial), TY was convicted of two charges of robbery and one of intentionally causing injury. He was sentenced in the Children’s Court to twelve months’ detention in a Youth Training Centre, to be served concurrently with his murder sentence (the ‘Children’s Court sentence’).
His conviction in the first murder trial was quashed by the Court of Appeal on 24 May 2006, and he was remanded for retrial.
Following his second trial and conviction for murder, TY was sentenced on 28 November 2007. He had been in custody continuously since 21 October 2003. In the calculation of PSD which was eventually supplied to his Honour, all of that period except the period between 24 May 2006 and 5 July 2006 was included. It came about this way.
In discussion on the first day of the plea hearing, counsel for the Crown told his Honour that ‘there should be a pre-sentence declaration’ for the period of approximately six weeks between the quashing of the conviction on 24 May 2006 and the expiry of the Children’s Court sentence on 5 July 2006 (‘the six week period’). On the second day of the plea hearing, however, counsel for the Crown told his Honour that the six week period did not count as PSD on the murder charge. Counsel for the Crown also told his Honour that TY had served 1403 days of PSD up to the date of the plea. That was the entire period of custody from October 2003, with the exception of the 6 week period.[5] After sentencing TY on 28 November, his Honour made a declaration that he had served 1457 days PSD.[6]
[5]That is 946 days from 21 October 2003 to 24 May 2206 (conviction quashed), plus 511 days from 5 July 2006 (the end of the Childrens’ Court sentence) until 27 November 2007, the day before he was sentenced.
[6]That is 1403 days plus the period from 10 October 2007 (the plea hearing day) until the date of sentence.
In relation to PSD, his Honour said:[7]
In determining the period of imprisonment to which you should be sentenced, the sentencing principles require me to take into account the period of 43 days imprisonment – say 6 weeks – which you served between 24 May 2006 and 5 July 2006 for another offence. That former date was the one on which the Court of Appeal upheld your appeal against your first conviction and ordered a retrial. If you had been properly tried and then sentenced on that first occasion, the period of six weeks’ imprisonment would have been served as part of the term of imprisonment then imposed. It would not have been served as an additional period of imprisonment. This being a sentence after a retrial, s 18 of the Sentencing Act 1991 does not permit this period to be taken into account in calculating the amount of pre-sentence detention that you have served, which has been agreed at 1457 days. But the Court of Appeal has established that, in fairness to a convicted person in your position, the period can be taken into account in the calculation of a term of imprisonment that is to be imposed.[8] The way it is taken into account is to reduce the term of the head sentence and the non-parole period,[9] which is what I will do in this case.
[7]Sentencing remarks, [65].
[8]His Honour referred to R v Heaney (Unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Brooking JA and Hampel AJA, 27 March 1996) 6; R v Stares (2002) 4 VR 314, 321. See also R v Renzella [1997] 2 VR 88, 98.
[9]R v Stares (2002) 4 VR 314, 323.
At the conclusion of his sentence, his Honour said:[10]
[10]Sentencing remarks, [72].
TY, in all of the circumstances, for the murder of Christopher Williams I would sentence you to be imprisoned for 12 years. I would fix a minimum of eight years before you become eligible for parole. Taking into account the six weeks that you served in prison on another matter, the actual sentence that I impose is that you be imprisoned for 11 years and 46 weeks. I fix a minimum of seven years and 46 weeks before you become eligible for parole. Pursuant to s 18 of the Sentencing Act I declare that the time that you have spent in custody in relation to these proceedings is 1457 days (inclusive of today) and I direct that it be reckoned as a period of imprisonment already served under the sentence imposed.
Was the PSD declaration incorrect?
On the appeal, both counsel initially agreed that the correct period of PSD was 1135 days, and that the prosecutor had erred in informing the judge that PSD up to the date of the plea was 1403 days. They focused upon s 18(2)(d) of the Sentencing Act1991 in submitting that the period between 5 July 2005 and 24 May 2006 (‘the 11 month period’) had been wrongly included by the prosecutor in the calculation of PSD under s 18 of that Act. Counsel for the Director also argued, in substance, that during the 11 month period the applicant had only been serving the sentence imposed in the Children’s Court, the sentence for murder having been retrospectively expunged when the conviction and sentence were quashed.
The Court, having given preliminary consideration to the matter, was concerned that the common starting point of the parties might not be correct. At its request, counsel re-attended and made submissions directed to the asserted error.
In the course of the further argument, both counsel agreed that, in light of the decision of this Court in R v Broad,[11] the judge had correctly excluded the six week period from PSD because in that period the respondent had been serving the Children’s Court sentence as well as being on remand for murder.
[11][1999] 3 VR 31, 33-5 (Brooking JA). See also DPP v Ibrahimoff (2001) 3 VR 66, 68 [8] (Brooking JA).
In respect of the 11 month period, both counsel now accepted that s 18(2)(d) of the Sentencing Act had nothing to say about the matter. That was clearly correct. Section 18(2)(d) does not exclude, simply, a period of custody already served under another sentence of imprisonment. What must be excluded is a period of custody ‘previously declared’ under s 18 (or s 35 (2)(c), which makes equivalent provision for periods spent in youth detention) as reckoned to be a period of imprisonment or detention already served under another sentence.
This is made clear, if the words of the provision did not make it clear in any event, by endnote 11 of the Sentencing Act, which relevantly states:
Section 11(2)(b) [of the Sentencing and Other Acts (Amendment) Act 1997] inserted a new subsection (d) into section 18 to clarify that the offender should not receive a benefit for pre-sentence detention more than once for any specific period of pre-sentence custody.
It was further made clear by Charles JA, with whom Phillips CJ and Chernov JA agreed, in R v Stares.[12] In the present case, there was no relevant ‘previous declaration’ of PSD.
[12](2002) 4 VR 314, 320-322.
Counsel for the DPP maintained, however, that the effect of the quashing of the conviction was that the original sentence for murder had ‘never been’. That is, TY must be regarded as having been on remand for murder at all times after sentence on 20 April 2005. In those circumstances, he argued, s 18(1) had no operation during the period of currency of the Children’s Court sentence – although it did have operation in the period 20 April 2005 to 5 July 2005, because TY was then in custody only in respect of the murder.[13] Counsel accepted that the fact that TY had served the Children’s Court sentence was relevant to totality, and submitted that this was how the judge below should have taken it into account.
[13]Counsel did not say this, but it was the inevitable consequence of the situation for which he contended.
We pause to emphasise that counsel for the Director did not contend simply that, because (as he asserted) the sentence had ‘never been’, the 11 month period was irrelevant to calculation of PSD. He might have so contended, arguing that the Children’s Court sentence provided a juristic basis for TY having been in custody for that period. He might also have argued that there was no obligation to provide a juristic basis for TY having been in custody in the period between sentence for murder on 20 April 2005 and sentence in the Children’s Court on 5 July 2005. But he submitted, instead, that TY had been in custody for the murder from 20 April 2005 onwards – not under sentence, but on remand. It was for that reason, he submitted, that the 11 month period could not be brought to account as PSD.
Counsel for TY did not accept that, because the conviction had been quashed, his client must be taken to have been on remand, rather than imprisoned under sentence, from 20 April 2005. He submitted that the situation was analogous to the case of a person whose sentence is varied on appeal (whether the appeal be brought by the person under sentence or by the Director). In that situation any period of imprisonment up to the time of re-sentence is counted as PSD.[14] Counsel drew the Court’s attention to R v Rich (No 2),[15] and to the sentencing remarks of Lasry J in R v Galas & Mikhael.[16] He did not submit, however, that in either of those cases the present issue was squarely addressed. As we understand it, in the end he did not contend that there was any authority directly in point.
TY was under sentence until his conviction was quashed
[14]R v Jennings [1999] 1 VR 352, 369 [75] (Brooking JA, with whom Tadgell JA relevantly agreed).
[15](2002) 4 VR 155.
[16][2008] VSC 513, [38]-[40].
In our opinion, the 11 month period was rightly counted as PSD. The trial judge was not misinformed. We do not accept the Director’s submission that the effect of the quashing the murder conviction was that both conviction and sentence were to be treated as if they had never existed, and that what had been understood – up to the point of the quashing – to be a period of imprisonment under sentence no longer had that characteristic but rather the characteristic of a period on remand. The true position is to the contrary, in our view. That is, the quashing of the murder conviction, and of the sentence imposed following the conviction, operated only from the date of the quashing. Time served under the sentence up to the date of the quashing retained its character as such. Our reasons are as follows.
First, as a matter of form alone, TY was under sentence between 20 April 2005 and 24 May 2006. It was only from the latter date – following the quashing - that he was remanded in custody.
Secondly, counsel for the Director ultimately submitted that, in every instance where a conviction is quashed on the ground of miscarriage of justice and a re-trial ordered, the sentence which was imposed following the conviction was as if it never had been. That was a radical contention, as was counsel’s submission that what had been a period of imprisonment under sentence in this case was re-characterised as a period on remand once the conviction was quashed. The disposition of criminal appeals is governed by statute. One would need to find very clear words or plain authority to accept either submission.
There is nothing in the Crimes Act1958 (or the Sentencing Act) which provides any support for the Director’s argument. Nor, as we shall explain, is any support to be found in the authorities on which the Director relied. The decision most closely in point, so far as our researches have shown, is to the opposite effect.
In Hancock v Prison Commissioners,[17] the English Court of Criminal Appeal (operating under a provision effectively identical to s 568(4) of the Crimes Act)[18] upheld an appeal against sentence for housebreaking. The Court quashed the sentence of ten years’ imprisonment originally imposed, and substituted a sentence of seven years’ imprisonment. The appellant subsequently sought to establish that, because he was under a ‘new’ sentence, he should not suffer the loss of remissions (totalling more than two years) which had occurred while he was serving the ‘old’ sentence.
[17][1960] 1 QB 117.
[18]The English provision was s 4(3) of the Criminal Appeal Act 1907, which relevantly provided: ‘On an appeal against sentence, the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence …’
Winn J rejected the contention that the quashing of the original sentence meant that it was ‘thereby rendered null and void, and wholly set aside as though it had never been’. In his Lordship’s view, the word ‘quash’ in the empowering statute was not used to mean ‘annul’, but was used:
… in the less drastic meaning that the former sentence is by the order of the court rendered null and void at the moment when the Court of Appeal decides to substitute for it a different sentence, so as to make that earlier sentence null and void and of no effect for the future from that point of time onwards, but not so as to render it null and void ab initio, namely, as from the date when it was passed.
I feel that that must be the right way of construing the section, for otherwise, at least as a matter of theory, the successful appellant against the length of sentence would be a person who had been unlawfully imprisoned as from the date of his conviction and removal to gaol until the time when the Court of Criminal Appeal so pronounced; and all measures of restraint exercised on him (not merely by retaining him in gaol but in other ways) in that interim period would be, at least in theory, tortious wrongs committed against him, were it not that the true intent of such an order and the true meanings of the words in subsection (3) of section 4 of the Criminal Appeal Act, 1907 which enables such an order to be made, is that the Court of Criminal Appeal quashes for the future the original sentence, and substitutes for the future the new sentence which the Court of Criminal Appeal considers the proper sentence, albeit that that sentence itself takes its extent from the original date of the first sentence; that is to say, it is a term of so many years calculated from a starting date which is the same date as the starting date of the sentence which has been, in the sense which I have indicated, quashed’.[19]
[19]Ibid 125-6 (emphasis added).
With respect, this is a compelling analysis – as a matter of statutory interpretation and as a matter of both principle and policy. It is necessary that a court order imposing sentence be – and be treated as – valid and enforceable unless and until it is set aside (whether after a successful conviction appeal or after a successful sentence appeal).[20] For analogous reasons, an injunction must be obeyed ‘to the letter’ unless and until it is dissolved or set aside on appeal.[21] Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal. The status of court orders - at least those of superior courts - is quite different in this respect from that of administrative decisions.[22] Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[23]
[20]At the very least, that is so in what we call, at [31] and [40], the ‘common situation’.
[21]McNair Anderson v Hinch [1985] VR 209, 313.
[22]As to court orders, see Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590, 603; Emanuele v Australian Securities Commission (1997) 188 CLR 114, 124 (Brennan CJ); Metform Pty Ltd v Mascon Systems Pty Ltd (Unreported, Court of Appeal, Brooking and Tadgell JJA, Hedigan AJA, 13 February 1997). As to administrative decisions see Minister for Immigration v Bhardwaj (2002) 209 CLR 597, 614 [51]; Plaintiff 5157/ 2002 v Commonwealth (2003) 211 CLR 476, 506 [76].
[23]DMW v CGW (1982) 151 CLR 491; Residual Assco Group v Spalvins (2002) 202 CLR 629, 658-61; Re Macks; ex parte Saint (2000) 204 CLR 158, 236-7 [218]-[220].
The Director’s authorities
Counsel for the Director relied on a number of authorities, the first of them orally, the others in a later written submission. Orally, counsel referred to the English case of Crane v DPP.[24] It raised a question as to the consequences which flowed from the statute which established the Court of Criminal Appeal. The appellant was one of two offenders who had been impermissibly tried on separate indictments in the one trial. It had been held in the Court of Criminal Appeal, that in the particular circumstances the trial had been a nullity. The question arose what order should be made. The Court of Criminal Appeal ordered that the verdict and sentence be expunged and a new trial be had. It was held by majority in the House of Lords that it had been open to the Court of Criminal Appeal to so order, and that it had not been obligatory for the court to enter a verdict of acquittal.
[24](1921) 15 Cr App R 183.
In writing, counsel referred to a number of Australian cases in which, he contended, Crane has been applied.[25]He submitted that such cases ‘generally involve[ed] defects in jury procedure or where more than one presentment was before the jury’; but that in jurisdictions where appellate courts have power to order retrial ‘the concept of nullity of proceedings has been extended to situations beyond those covered by the ancient writ of venire de novo.’[26] Particularly relying upon R vTalia,[27] he submitted, as we have earlier noted, that whenever this Court quashes a conviction on the ground of a miscarriage of justice and orders a retrial, the earlier trial is rendered a nullity, and the sentence imposed must be treated as if it never existed.
[25] Russell v Bates (1927) 40 CLR 209; Munday v Gill (1930) 44 CLR 38; Johns v The Queen (1979) 141 CLR 409; Maher v The Queen (1987) 163 CLR 221; R v Sagacio (1990) 99 FLR 439; R v Butler (1991) 24 NSWLR 66; R v Talia& ors [1996] 1 VR 462; Petroulias v R [2007] NSWCCA 134; and R v Swansson (2007) 69 NSWLR 406.
[26]Citing Newell v The King (1936) 55 CLR 707, DPP v White [1978] 1 AC 426; R v Butler (1991) 24 NSWLR 66; R v Talia [1996] 1 VR 462; Petroulias v R [2007] NSWCCA 134;
[27][1996] 1 VR 462.
The authorities to which counsel referred show that there may be such a failure to observe the requirements of the criminal process in a fundamental respect that a trial may be rendered ‘a nullity, at least in the sense that the conviction produced cannot withstand an appeal.’[28] Thus, for instance – (1) in Crane,[29] two defendants were impermissibly tried in the one proceeding on separate indictments; (2) in Johns,[30] the accused’s barrister impermissibly overrode his client’s peremptory challenge to a juror; (3) in Maher,[31] two counts were added to an indictment after the jury had been sworn; and (4) in Petroulias,[32] it became apparent in the course of a trial that one juror had been disqualified from serving, and so should never have been empanelled. To contrary result, in Munday[33] it was held by majority that the right of persons charged on separate informations to separate hearings by a Police Magistrate could be waived, the right not going to the jurisdiction of the magistrate; and in Butler[34] a defect in the committal procedure was held not to require that there be a stay on trial pending a fresh committal.
[28]The language of the High Court in Maher v The Queen (1987) 163 CLR 221, 223.
[29]Crane v DPP (1921) 15 Cr App R 183.
[30]Johns v The Queen (1979) 141 CLR 409.
[31]Maher v The Queen (1987) 163 CLR 221.
[32]Petroulias v R [2007] NSWCCA 134.
[33]Munday v Gill (1930) 44 CLR 38.
[34]R v Butler (1991) 24 NSWLR 66.
Each of the cases to which we have referred, whether decided one way or the other, is remote from the common situation in which, as here, the error which resulted in the conviction being quashed was a misdirection.[35] They do not justify the Director’s large contention that in this State the necessary consequence of a conviction appeal succeeding on the miscarriage of justice ground is that both the conviction, and resulting sentence, are nullities. Talia[36] certainly does not support the contention. There, a trial had been conducted on the erroneous basis that a statute which removed the right of an accused to make an unsworn statement applied in the instant case. The court described this as ‘an error’.[37]
[35]The principal error discerned by this Court was a failure to sufficiently direct as to the elements of reckless murder, and to distinguish that offence from the offence of unlawful and dangerous act manslaughter. The distinction between a fundamental failure in the trial process and the question whether there was a miscarriage of justice, in the sense that the accused lost a chance of acquittal that was fairly open, was discussed, in the context of unfitness to plead, by Gaudron J (who dissented in the result) in Eastman v The Queen (2000) 203 CLR 1, 21-22, [62]-[63].
[36]R v Talia& ors [1996] 1 VR 462.
[37]Ibid 476.
In answer to the Crown’s submission that the proviso to s 468(1) of the Crimes Act could apply, the court in Talia held that the error was one which went to the root of the trial. There had been a serious departure from the essential requirements of the law. The question then was what order should be made. It was argued for the applicant that there should be verdict and judgment of acquittal because, in a new trial, the applicant would be unable to make an unsworn statement. The court rejected that submission, relying upon Crane only to say that Lord Atkinson’s opinion:
made it clear that the essential characteristics of a new trial or a venire de novo, following a mistrial, were the same in that they required the summoning of a new jury to try again the issue which had already been joined and which founded the original indictment …[38]
Further, according to the court, Newell[39] (in which Crane was not referred to by the High Court) ‘stands for the proposition that a fundamental right in respect of a new trial is not to be held to be readily extinguishable.’[40]
[38]Ibid 478.
[39]Newell v The King (1936) 55 CLR 707. There, the judge took a majority jury verdict although he doubted whether a statutory amendment abolishing the requirement of a unanimous verdict applied. Rather than record a conviction, he reserved a question for the Full Court.
[40]R v Talia & ors [1996] 1 VR 426, 479.
In the event, as we earlier said, the authorities upon which counsel for the Director relied did not support his principal submission. Neither, we add, did any of them go so far as to say - even in the exceptional circumstances which there arose - that any sentence served by the convicted person had not been so served; or that prior custody must be treated as time on remand. Those issues, of course, could only have been relevant, if at all, in the event of conviction on retrial.
The statutory provisions
The language of s 18(1) of the Sentencing Act is, of course, of key importance in resolving the present issue. We turn first, however, to the relevant parts of the Crimes Act. The following matters are in point.
First, the powers conferred on the Court by s 568(1) and (2) of the Crimes Act1958 give no indication that the consequences of a conviction appeal being allowed are as counsel for the Director contended. The powers of the Court include, for instance, power to direct that a verdict and judgment of acquittal be entered. This does not imply that sentence served pursuant to the conviction now quashed is to be regarded as no sentence at all.
Secondly, section s 568(7) of the Crimes Act empowers this Court, where it directs a new trial, or remitter under s 568(5), to ‘make such order as to it seems fit for the safe custody of the appellant or admitting him or her to bail’. In the present case, the Court remanded TY for re-trial. That is a very common form of order where the alleged offender has hitherto been imprisoned under sentence. If the Director’s submission was correct, the remand order was otiose – because once TY’s conviction was quashed, he reverted to his original pre-trial status of being an accused person on remand. The further logic of the Director’s submission is that it would have been different had TY not been on remand before his first trial, or at least before sentence. To our knowledge, no such distinction has ever been proposed hitherto.
Thirdly, s 579 of the Crimes Act should also be mentioned. Subsections (1) to (3) were the subject of analysis by Brooking and Phillips JJA in Jennings.[41] Brooking JA, with whom Tadgell JA relevantly agreed, considered that s 579(3) in its then form was impliedly repealed (save for a fragment) by the enactment of the predecessor of s 18(1) of the Act. At the relevant time, s 579(3) read as follows:
The time during which an appellant pending the determination of his appeal or pending a new trial is admitted to bail and subject to any directions which the Full Court may give to the contrary on any appeal, the time during which the appellant if in custody is specially treated as an appellant under this section shall not count as part of any term of imprisonment under his sentence. And in the case of an appeal under this Act any imprisonment under the sentence of the appellant whether it is the sentence passed by the Court of trial or the sentence passed by the Full Court shall subject to any directions which may be given by the Full Court as aforesaid be deemed to be resumed or to begin to run as the case requires if the appellant is in custody as from the day on which the appeal is determined, and if he is not in custody as from the day on which he is received into prison under the sentence.
It can readily be seen why the question of implied repeal arose. But s 579(3) was amended in 1999.[42] It now reads:
The time during which an appellant pending the determination of his appeal or pending a new trial is admitted to bail shall not count as part of any term of imprisonment under his sentence.[43]
[41][1999] 1 VR 352.
[42]By s 18(4)(a)(b).
[43]Crimes Act 1958, s 579(3).
In our opinion, the unstated but inevitable obverse of s 579(3) in its present form – which now reads compatibly with s 18 of the Act - is that time spent in custody pending a new trial is to count as part of a term of imprisonment under sentence in the event of conviction on the new trial.
Fourthly, that conclusion sits comfortably with the enlarged application of s 18(1) resulting from its amendment in 1997, and with authority to the effect that ‘custody’ where used in the subsection includes imprisonment under sentence pending appeal.[44] As to the former, s 18(1) no longer requires that the person be in custody only in relation to the offence in respect of which PSD is being calculated. Prior to its amendment in 1997, the sub-section did so provide. PSD in respect of an offence was limited to a period of time during which the person was held ‘in custody in relation to proceedings for that offence … and for no other reason’.
[44]Upon the latter point, see R v Jennings [1999] 1 VR 352, 363 [43] and 369 [67] (Brooking JA).
Thus if a person was held in custody for another reason - for example, if he or she were serving another sentence at the time - the period did not count as PSD. Section 18(1) was amended by the Sentencing and Other Acts (Amendment) Act 1997 by omitting the words ‘and for no other reason’.[45] The fact that in R v Broad[46] and the cases which have followed it, s 18 (1) has been held not to apply where a person is on remand for one offence whilst serving sentence for another does not mean that the omission of the words ‘for no other reason’ did not effect a substantial change in the ambit of s 18(1).
[45]And see R v Stares (2002) 4 VR 320-322 [20]-[22] (Charles JA).
[46][1999] 3 VR 31.
We think it improbable, even in a case of the kind epitomised by Crane, that a defendant convicted on a second trial would not be entitled to have time served after the first trial counted as PSD. But we need only conclude that, at the least, the statutes do not support the submissions of counsel for the Director in what we have called the ‘common situation’, of which this case is an instance.
Other reasons for rejecting the Director’s submission
Additional to the language of the statute, and the authorities to which we have thus far referred, the Director’s submission that, once his conviction appeal was upheld, TY was to be treated as having been on remand from 20 April 2005, seems unlikely to be correct. The asserted consequence, depending upon a chance circumstance, could not be uniform across a range of cases. It would not deal at all with some situations; and would produce anomalies in others. So, for instance, what would be the juristic basis of past custody (if any) in a case where verdict and judgment of acquittal was entered? Would it differ according to whether the successful appellant had been, or had not been, on remand, either before trial or at least before sentence? Again, what would be the juristic basis for past custody (if any) in a case where a conviction appeal was allowed and the appellant had not been on remand either before trial or at least before sentence?
Now consider the circumstances of this case. If there had been no Children’s Court sentence, the Director’s argument means that the judge on the second trial could not have treated the period between 20 April 2005 and 24 May 2006 as PSD on the basis that TY was under sentence; but could have done so on the basis that he must be taken to have been on remand. Then add in the fact of the Children’s Court sentence. The Director’s argument that TY was on remand for murder means that, in those circumstances, PSD would be allowable for the period up to 5 July 2005, but not thereafter. Further, according to the logic of the Director’s argument, it would be different if TY had only appealed against sentence in respect of the murder. Had such an appeal been successful, PSD should have been allowed for the entire period from 20 April 2005. The (concurrent) Children’s Court sentence would have been irrelevant.
The contention for the Director was that the judge who sentenced TY after the second trial could only take the 11 month period of custody into account on a Renzella[47] basis. That might well have been less advantageous in its outcome for TY than the application of s 18(1) of the Sentencing Act because, often enough in a case of the Renzella kind, a person is allowed something less than the full period during which custody was ‘doubly warranted’. We would be reluctant to interpret s 18(1) to have any more restrictive operation than its words plainly require.
[47]R v Renzella [1997] 2 VR 88.
Counsel for the Director expressed a concern that, if the period when TY was serving the Children’s Court sentence counted as PSD, then he would be ‘double dipping’. But, in view of the fact that the Children’s Court sentence was ordered to be served concurrently with the sentence for murder which TY was then serving, that would not appear to be so.
Faced with that apparent problem, counsel for the Director submitted that there would have been a potential for ‘double dipping’ if the Children’s Court sentence had been ordered to be served cumulatively on the sentence for murder; and if PSD had then been allowed, on re-sentencing TY on the murder count, for all the period of the Children’s Court sentence. But, with respect, that does not seem to be so. When TY fell to be re-sentenced on the murder count, the Children’s Court sentence had expired. Because this was not a case of re-sentencing on a successful appeal against sentence, the sentence did not date back to 20 April 2005. Rather, the sentence operated from 28 November 2007. Upon the assumed hypothesis, it would have been open to the judge, recognising the intent of the sentence imposed in the Children’s Court – an intent which had been frustrated by the successful conviction appeal - to impose a sentence which, to the extent that he considered it appropriate, gave effect to that intent.
We next observe that the authorities to which Counsel for the respondent referred us do not support the Director’s argument. The facts in Rich (No 2)[48] were complicated. But it is clear that, insofar as PSD was not allowed, it was because s 18(2)(d) of the Sentencing Act applied.[49] In R v Galas & Mikhael,[50] also, there was a factually complex situation. It is unnecessary to recapitulate the details. It is enough to notice that the learned judge was neither asked by counsel nor did in fact, in his published reasons, venture into the possible operation of s 18 of the Sentencing Act in the particular circumstances.
[48]R v Rich (No 2) (2002) 4 VR 155.
[49]Ibid 167 [107] (Brooking JA). There is an obvious misprint, in that the report refers to ‘s 18(1)(d)’ rather than ‘s 18(2)(d)’.
[50][2008] VSC 513.
Finally, in some situations the operation of an incidental disability attendant on a conviction is not, or may not be, stayed pending appeal. One instance is an order made under s 28 of the Road Safety Act1986 (Vic). Such an order has an immediate impact. We do not think it could be said, if a conviction appeal is allowed, that the incidental disability never existed. Yet that would seem to be the logic of the Director’s argument.
Is a PSD error a sentencing error?
Although we have concluded that the judge made no error in his declaration of PSD, for the sake of completeness we now examine the submissions which were made upon the original (erroneous) assumption that the declared period of 1457 days was incorrect. We will refer to the assumed error as ‘the PSD error’.
The submission for the Director was that the PSD error was a sentencing error per se, that is, it was an error of law which vitiated the exercise of the sentencing discretion. For the reasons which follow, we reject that submission.
The Director has a right of appeal against sentence if the Director considers that ‘a different sentence should be passed’ and is satisfied that an appeal should be brought in the public interest.[51] A declaration of PSD is not part of the sentence imposed, and an error in a PSD declaration is not a sentencing error.
[51]Crimes Act 1958, s 567A.
A declaration of PSD is an official statement of time served under the sentence. Thus, s 18(1) refers to the period which ‘must be reckoned as a period of imprisonment or detention already served under the sentence’.[52] The PSD declaration serves the vital (administrative) purpose of ensuring that the sentenced person spends no more time in custody for the relevant offence(s) than is required by the sentence imposed. It is very important that the declaration should be accurate. Hence sub-s 18(7) and (8)(b) permit an application to be made to the sentencing court to correct an inaccurate declaration.
[52]Emphasis added.
Nor does the calculation of PSD have any bearing on the determination of the appropriate sentence. The appropriate sentence is arrived at by the application of conventional sentencing principles to the circumstances of the case. It is only after the sentence has been determined – and pronounced – that the question of PSD arises.
What are the implications of sentencing error for a Director’s appeal?
We have rejected the submission that the declaration as to PSD amounted to a sentencing error. However it is appropriate to deal briefly with another submission made on behalf of the Director. On the basis that an incorrect PSD declaration amounted to sentencing error, counsel for the Director contended in his written submission that ‘an erroneous ruling of law may be the subject of a Crown appeal’.
In support of the contention that the error required the Court to re-sentence the respondent, counsel for the Director relied on DPP v King.[53] In that case the respondent had pleaded guilty to one count of culpable driving causing death. The presentment alleged that he had committed the offence by driving negligently and/or whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. The appellant was prepared to plead guilty to the count involving negligent driving, but contested the admissibility of the blood alcohol analysis. The Court held that the question of whether the blood alcohol analysis was admissible should have been resolved before a guilty plea was taken, or a plea of not guilty should have been entered.
[53][2008] VSCA 151.
Redlich JA said that an alternative approach would have been for the prosecution to file a new presentment which excluded reference to the form of the offence constituted by driving under the influence of alcohol. That would not have prevented the prosecution from relying on the appellant’s alcohol consumption as an aggravating circumstance. His Honour remarked:
[t]he sentencing judge would then have been called upon to determine whether the analysis was admissible as an aggravating circumstance. An erroneous ruling as to its admissibility could then have been the subject of a Crown appeal against sentence.[54]
[54]Ibid [24].
The situation contemplated by Redlich JA concerns an error pertaining to an aggravating factor, which had a direct effect on the adequacy of the sentence imposed. King does not support the proposition that, on an appeal by the Director, any error found to have been made by the judge necessarily requires the Court to re-sentence the respondent.
This would be inconsistent with the well established principles limiting the circumstances in which Crown appeals against sentence should be brought,[55] and the principle of double jeopardy, under which a Court upholding a DPP appeal may impose a lower sentence than would have been appropriate the first time the offender was sentenced. Under s 567A of the Crimes Act 1958 the Director’s power to appeal arises where the Director ‘considers that a different sentence[56] should have been passed and is satisfied that an appeal should be brought in the public interest’. An error which would not result in a different sentence does not re-open the Court’s sentencing discretion on a Crown appeal.[57] Further, even if a material error is made by the sentencing judge the Court may decline to exercise its discretion to re-sentence the offender on an application by the Crown. Later in these reasons we explain why we do not consider that the sentence is manifestly inadequate.
[55]Everett v R (1994) 181 CLR 295, 299; R v Clarke [1996] 2 VR 520, 522 (Charles JA).
[56]See also the various other bases upon which a Crown appeal may be brought, discussed in R v Clarke [1996] 2 VR 520, 522.
[57]R v Allpass (1993) 72 A Crim R 561, where the Court declined to allow the appeal despite an error in a material fact made by the sentencing judge.
Did his Honour err in applying totality principles?
The Director’s alternative submission was that the PSD error had led the judge into sentencing error. According to the argument, ‘by assuming as he erroneously did that the PSD continued to run during the time the Children’s Court sentence was being served’, the judge failed to address ‘the real question’, which was to determine the appropriate total sentence to be imposed for ‘the two episodes of criminality’.
This submission must also be rejected. His Honour was well aware of the need to have regard to the other offences committed by TY in considering the total sentence which should be imposed on him. His Honour paid specific attention to the six week period. As appears from the passages from his sentencing remarks set out in [11] above, his Honour recognised that this period could not be taken into account under s 18 of the Sentencing Act, but that it was relevant in calculating the total term of imprisonment which should be imposed. His Honour’s reference to R v Heaney[58] and to R v Stares[59] makes it abundantly clear that he was referring to the court’s discretion to take into account, in relation to totality, a period of imprisonment during which a person is held in custody for other offences.
[58](Unreported, Court of Appeal, Winneke P, Brooking JA and Hampel AJA, 27 March 1996) 6.
[59](2002) 4 VR 314.
It is difficult, in any case, to understand how it is said that there was an error regarding totality – or, at least, an error which resulted in a manifestly inadequate sentence being imposed on the respondent. By the time the judge came to impose the sentence for murder, the Children’s Court sentence had been fully served. The criminality involved in the offences for which that sentence was imposed – about which the Crown said nothing to the sentencing judge – was therefore irrelevant to the task of sentencing him for murder.
If his Honour had approached sentencing on the footing that the 11 month period could not be reckoned as PSD, it is likely that he would have reduced the murder sentence, under the Renzella principle, as he did in the case of the six week period. His Honour was understandably concerned that the quashing of the first conviction meant that TY had lost the benefit of full concurrency between the Children’s Court sentence and the sentence for murder which he was serving up to the date of the quashing.
Did the Judge apply a two-tiered approach to sentencing?
Finally the Director complained under ground 2 that his Honour took an impermissible ‘two-tiered’ approach to the sentencing task. Reliance was placed on R v Young.[60] In that case, also an appeal against sentence, the judge had given the Court of Appeal a very detailed report in which he described the approach he had taken in sentencing the offender. He said that he had considered the sentence which was proportionate to the gravity of the crime and had then ‘gone on to decide what was the appropriate sentence to impose’. The Court held that his Honour had erred in fixing a ‘proportionate sentence’ before taking account of all the circumstances of the case. This ‘two-stage approach’ was held to be inconsistent with the concept that sentencing requires an ‘instinctive synthesis of all the various aspects involved in the punitive process’.[61]
[60](1990) VR 951.
[61]R v Williscroft [1975] VR 292, 300.
No such error occurred here. It is apparent from his Honour’s very comprehensive sentencing remarks that he took account of all relevant matters in determining the appropriate sentence. Those matters included the fact that TY’s imprisonment for the six week period could not be taken into account as PSD under s 18. His Honour then simply explained the manner in which he had taken account of that matter in imposing sentence.
Ground 2 must be rejected.
Ground 1
The first ground of appeal was that the sentence imposed was manifestly inadequate, having regard to a range of sentencing factors including denunciation of the offender’s conduct, specific and general deterrence and recognition of the sanctity of human life.
Counsel for the Director submitted that there was no evidentiary basis for his Honour’s factual finding that the crime was committed ‘in response to an unjustifiably but genuinely perceived fear.’[62] It was also submitted that the sentencing judge had given excessive weight to the respondent’s youth and prospects of rehabilitation.
[62]Sentencing remarks, [55].
Further, counsel for the Director submitted that, as ‘a matter of judicial comity’, his Honour should have imposed the same sentence as that imposed at the first trial. Counsel relied on R v Faure[63] and the statement in Williams v R (No 2)[64] that:
… unless there is some strong ground, there should not be a disparity between the sentence imposed upon persons convicted on the second occasion after a re-trial compared with those that were imposed upon them on the first occasion.[65]
Counsel for the Director submitted that none of the factors relied upon by the sentencing judge justified departure from the earlier sentence.
[63][2000] VSC 208, [31].
[64][1982] WAR 281.
[65]Ibid 283, (Burt CJ) citing Leary v R (Unreported, Court of Criminal Appeal, Western Australia, 18 August 1975) (Jackson CJ).
His Honour identified three reasons for imposing a shorter term of imprisonment than that imposed in the first trial – first, because the respondent had given evidence in the second trial, whereas he had not done so in the first trial; secondly, because the additional two years he had spent in detention provided a stronger basis to assess his prospects of rehabilitation; and thirdly, because of the delay between the first and second trial. Counsel for the Director said that none of these factors warranted imposition of a lower sentence.
Counsel for the Director submitted that the judge in the first trial had imposed a sentence that gave considerable weight to TY’s youth and prospects of rehabilitation. Further, the sentence imposed by the first sentencing judge might well have been increased because, at the second trial, the respondent had sought to escape liability by relying on self-defence and because he had been convicted of offences in the Children’s Court following the first trial. These matters ‘cancelled out’ any allowance which should be made for double jeopardy, so that the sentence imposed by the learned sentencing judge should have been re-imposed.
Counsel for TY submitted that the judge’s sentencing remarks demonstrated that he had given appropriate weight to all relevant considerations. His Honour was entitled to take account of the fact that the respondent gave sworn evidence about what happened and to give considerable weight to the evidence that the respondent’s prospects of rehabilitation had been enhanced between the first and second trial and to the delay that had occurred as a result of the first conviction being set aside.
Incorrect factual finding
We deal first with counsel’s attack on the finding that the respondent was motivated by fear in committing the offence. The Director’s notice of appeal did not contain any ground of appeal alleging factual error. Counsel for the Director asserted that he should nevertheless be permitted to argue that the judge had erred in his factual findings, because this matter was raised in his written outline of argument, filed on 11 September 2008, and the respondent’s counsel had not objected to it being raised. Counsel for the respondent pointed out that objection had been taken in his written outline to the attempt by the Director to go behind the sentencing judge’s factual findings ‘without any ground of appeal challenging them’.
Counsel for the Director sought leave to amend the notice of appeal to allege factual error. We ruled that the Director should not be permitted to amend the notice of appeal to challenge the correctness of the factual findings. Our reasons were as follows.
The Director has an appeal as of right against sentence under s 567A of the Crimes Act1958. No such right existed at common law. In our view, the sentenced person – and the Court – can reasonably expect that the grounds on which the Director brings such an appeal will be set out clearly, and comprehensively, in the notice of appeal.
What the Director sought to do was to allege specific error. In DPP v Arvanitidis,[66] Redlich JA observed that allegations of specific errors of law or fact made by a sentencing judge should generally be the subject of separate grounds of appeal. It may, of course, happen that counsel preparing the written outline of submissions on behalf of the Director will conclude that some additional, or modified, grounds of appeal should be advanced. If that occurs, the usual process must be followed – of seeking leave, on proper notice, to amend the notice of appeal. Merely to raise a new ground in the outline of submissions is not sufficient. The scope of the Director’s appeal is defined by the terms of the notice of appeal.
[66][2008] VSCA 189, [13]-[18].
Where an offender appeals against sentence the interests of justice may require the court to give leave to amend the notice of appeal, so as to allow the offender’s counsel to raise matters at the hearing which were not included in the grounds of appeal. Where necessary, the parties will be given leave to file written submissions addressing matters which were raised at the hearing for the first time.
In the absence of any indication in the grounds of appeal that the judge’s factual findings were to be challenged, the Court considered it would be unfair to TY to permit the Crown to make submissions on an alleged factual error. Apart from anything else, the sentencing judge had had no opportunity to provide a relevant report on that ground.
Relevance of the earlier sentence
As the judge correctly recognised, the sentence imposed after the first trial was a relevant factor in deciding how to sentence TY following his conviction at the second trial. We reject, however, the Director’s submission that the sentencing task on the second occasion is subject to a presumption that the same sentence should be imposed. The cases on which counsel for the Director relied do not support any such proposition, and we have found no other authority to that effect.
In R H McL v R[67] the High Court accepted that where an offender who has appealed successfully against conviction at a first trial is re-sentenced after conviction in a second trial:
[67](2000) 203 CLR 452.
… in the absence of countervailing considerations, the sentences imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial, otherwise the offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction The weight to be given to that consideration depends, of course, on the circumstances of the individual case.[68]
After an extensive review of the authorities, Kirby J explained the policy reasons underpinning that principle, as follows:
The appellant, entitled to succeed in an appeal against conviction, should not be restrained from appealing by a fear that the outcome will be, effectively, a heavier sentence. The appellant and the community should not be left with the impression, however unjustified, that the ‘machinery of criminal justice’ has extracted retribution against an appellant who, by hypothesis, was justified in appealing.[69]
His Honour referred to the passage from Williams v R (No 2)[70] on which the Director relied. That passage concerned the imposition of a higher sentence on the offender than had been imposed after the first trial, and must be read in its full context. The same applies to R v Bedford.[71]
[68]Ibid 459 [23] (Gleeson CJ, Gaudron and Callinan JJ), see also 476 [72] and 494–500 [131]-[144] (Kirby J).
[69]Ibid, 500 [143] (Kirby J).
[70][1982] WAR 281, 283.
[71](1986) 5 NSWLR 711, also a case concerning the imposition of a longer sentence by the judge at the second trial.
The Queen v Chen[72] also concerned the imposition of a sentence in the second trial which in its practical effect was ‘heavier than the sentence imposed in the first trial’. Changes to the sentencing legislation meant that the practical effect of the sentence was that the applicant would have had to serve a longer period in prison, because he would not have gained the benefit of a pre-release scheme. The Court held that the judge was bound to have regard to the practical effect of the earlier sentence although, in the circumstances of the case, the ground of appeal was not made out. Their Honours agreed with the observations of Burt CJ in Williams v R (No 2) about the policy basis for the principle that the sentence imposed in the first trial should normally be regarded as imposing a ‘ceiling’ on the sentence imposed after a second trial.[73]
[72](1993) 66 A Crim R 154.
[73]Ibid 175.
In R v Faure[74] Kellam J also referred to Chen in the context of considering whether a longer term of imprisonment was called for than that imposed after the first trial. His Honour then went on to consider whether the sentence which was previously passed should be reduced, but did not refer to the principle in Chen and Bedford in that context.[75]
[74][2000] VSC 208.
[75]Ibid [31]-[40].
The cogent policy reasons which justify treating the sentence imposed in the first trial as a prima facie ceiling on the sentence to be imposed after a retrial do not preclude the imposition of a lower sentence. Different considerations apply. The time which has passed since the first trial will often mean that the offender’s circumstances have changed and that some different weight will need to be given to factors relevant to the proper exercise of the sentencing discretion.
Was the sentence manifestly inadequate?
In order to succeed on this ground of manifest inadequacy the Crown must show that the sentence falls outside the range reasonably open to the sentencing judge. The inadequacy of the sentence must be ‘clear and egregious, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience’,[76] or must involve a ‘gross departure from what might in experience be regarded as the norm’.[77]
[76]DPP (Vic) v Bright [2006] 163 A Crim R 538, 542 (Redlich JA).
[77]Griffiths v R (1977) 137 CLR 293, 310 (Barwick CJ).
The principle of double jeopardy is relevant both when deciding whether a Director’s appeal should be allowed and, if so, in re-sentencing TY.[78] That principle is particularly relevant in the circumstances of this case, where allowing the Crown appeal would result in TY being sentenced on three separate occasions for the same offence.
[78]DPP (Vic)v Fevaleaki (2006) 165 A Crim R 524, 530 (Redlich JA).
We do not accept the Director’s submission that the sentencing judge understated the gravity of the offending. His Honour said:
In the retrial, you pleaded not guilty to the charge of murder and did not plead guilty to the charge of manslaughter. You accepted that your actions resulted in the death of the deceased, but you claimed to be acting in self-defence. The jury rejected that defence and, as I have said, found you guilty of the charge of murder once again. I think the jury decided that you acted towards Christopher with the intention of doing him really serious injury and that your actions were not a reasonable response to the circumstances that you thought you faced.[79]
[79]Sentencing remarks, [3].
Later his Honour said:
It is true that you have struggled with accepting the jury’s verdict of guilty of murder. You have told many people, as you told the jury, that you had no intentions towards Christopher and did not mean to kill him or do him really serious injury. I think your pleas of not guilty at the trial conducted before me reflected your genuinely-held personal views in that regard. However, the jury formed the view that you did intend to cause Christopher really serious injury and, as I have said, I think they convicted you on this basis. I do not think that your resistance to that verdict detracts from your remorse, for you completely accept, and are extremely sorry, that your actions caused Christopher’s death, to the inconsolable grief and suffering of his family and friends.
As his Honour recognised, he was faced with a very difficult sentencing task. Considerable weight had to be given to the gravity of the offence and its serious impact on the victim’s parents,[80] on other family members and on the young friends of the deceased boy. The sentence also had to reflect the unpremeditated nature of the offending, and the fact that TY was aged only 14 when he offended. His Honour also had to take account of importance to the community of rehabilitating TY.
[80]The mother read her victim impact statement in Court.
In our respectful view, his Honour’s sentencing remarks were exemplary. He addressed specifically the need for consistency in sentencing, and for that purpose reviewed a large number of cases in which young people had been sentenced for the crimes of murder and manslaughter. He carefully explained his reasons for imposing a lower sentence than that imposed in the first trial.
His Honour was entitled to give considerable weight to TY’s youth at the time of committing the offence and when he was sentenced and to the ‘dramatic’ self improvement brought about by the respondent since he committed the offence. Expert reports showed that TY was genuinely remorseful, had participated in programs designed to reduce violence and had made very positive progress in improving his behaviour. His Honour said that it was no exaggeration to say that, in terms of rehabilitation, ‘practically nothing more could be asked of [the offender]’ and expressed the view that TY’s long term prospects of rehabilitation were excellent.
His Honour noted that TY had given evidence at the second trial and not at the first, and that he had given evidence that he had no intention to kill the victim or do him really serious injury. He said that he considered that TY’s plea of not guilty on the ground of self defence reflected his genuinely held personal views in that regard. However, his Honour also referred to the fact that TY had said at his trial that: ‘It’s never reasonable to stab someone in the head ... it’s never reasonable. No one should be like that. Nothing like that should happen’. His Honour noted that ‘that evidence, which was freely given, would have been damaging to [TY’s]defence of self defence’.
The sentence imposed does not suggest that his Honour gave excessive weight to the delay between the trials and the consequent uncertainty suffered by the offender, as to the outcome of the prosecution.
There is no doubt that this was a shocking offence. Christopher Williams was only 17 when his life was ended by TY’s action. His grief-stricken family will be haunted by his violent death for the rest of their lives. In our opinion, however, the sentence imposed on TY was not manifestly inadequate.
We would therefore dismiss the Director’s appeal against sentence.
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