Felicite v The Queen
[2011] VSCA 274
•9 September 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0193 | |
| RON FELICITE | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH and HARPER JJA and ROBSON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 28 July 2011 |
| DATE OF JUDGMENT | 9 September 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 274 |
| JUDGMENT APPEALED FROM | [2010] VSC 245 (T Forrest J) |
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CRIMINAL LAW – Sentence – Murder of domestic partner – Whether a less heinous category of the offence – Relevance of provocation or great emotional stress – Primacy of denunciation, general deterrence and just punishment – Proportionality of non-parole period to head sentence – Romero v The Queen [2011] VSCA 45 considered – Mitigating considerations in determining non-parole period.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr P Kidd | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
The appellant pleaded guilty in the Supreme Court to the murder of his wife, Marie Juliette Felicite in the kitchen of the unit in which they lived. In a frenzied attack the appellant had stabbed her to death with two kitchen knives. The appellant, having been granted leave, appealed against his sentence of 19 years’ imprisonment, with a non-parole period of 16 years’ on the basis that both the head sentence and the non-parole period were manifestly excessive and that the learned sentencing judge erred in his approach to determining the non-parole period.
Circumstances leading up to the offending
The appellant married the deceased in 2004, and their son was born in July 2005. The learned sentencing judge stated that the appellant’s relationship with the deceased at times had been characterised by his incapacity to control his anger.[1] In around 2004 on an occasion when the appellant and the deceased were staying with the deceased’s parents, the appellant was ejected because his arguing necessitated police intervention. Subsequently while staying in Mauritius the appellant punched and broke a window at the house where he was staying. The appellant admitted in his interview with police that he had threatened to kill the deceased in November 2007. The deceased called the police and sought an interim intervention order, which was granted, but she did not pursue a further order.[2]
[1]R v Felicite [2010] VSC 245, [4].
[2]Ibid [5].
In May 2009 the deceased’s cousin witnessed the appellant arguing with his father over the telephone. She saw him take a knife out of the wooden block on the kitchen bench, and heard him say he was going to go to his parent’s house to kill them. When the appellant placed the knife under his jacket, his son screamed and ran away, causing the appellant to stop.
On 3 August 2009, the deceased rang her cousin in a state of distress. The sentencing judge found that the appellant had threatened the deceased to such an extent on that occasion that she had gone to Dandenong police station with their son and a friend, and then moved in with her mother for a couple of days.
On 6 August 2009 the appellant attended his general practitioner with the deceased to seek help for his anger. He was prescribed the sedative medication Diazepam, and was referred to a consultant psychiatrist.
On 29 August 2009 at approximately 11am, the police attended the appellant’s house in response to a request by the deceased. The appellant and the deceased had been arguing. The argument concerned the deceased’s communications with a male called Dino she had met on the internet. Police took no further action at that point. Later that day, the appellant and deceased attended a marriage counselling session run by a counsellor from the Seventh Day Adventist Church to discuss ongoing difficulties in the marriage. During this session, the deceased said that she wanted to end the relationship with the appellant and pursue a relationship with Dino whom she loved.
The appellant adopted an apparently magnanimous demeanour in response to this revelation. That night he had difficulty sleeping, and when he woke up on Sunday morning he took a large number of Diazepam tablets, before returning to bed. He awoke later feeling like a ‘pressure cooker’. In the early afternoon the appellant and the deceased had an argument about the deceased contacting her cousin about the proposed marital separation. The deceased left and went to the kitchen. The appellant followed the deceased into the kitchen and selected two knives, (one of which he described in his interview with police as ‘the biggest knife I could find’). He then attacked the deceased, stabbing her repeatedly in the neck and throat region. There were twelve separate incised defects noted to her anterior cervical spine, and multiple incised injuries to her hands, the latter of which demonstrated that the deceased had tried to defend herself from the attack. At least part of the attack was viewed by the couple’s four-year-old son.
Soon after the attack the appellant went to the police and informed them he had killed his wife. He participated in a lengthy record of interview, in which he made full admissions. He pleaded guilty at the committal mention.
Personal circumstances of the offender
The appellant had been brought up in a very religious family, and was harshly disciplined by his father. He had no prior convictions, and had a strong work history. He had presented to his general practitioners since 2007 complaining of anxiety, mood swings and bad temper, and had sought treatment for anger management intermittently.
Dr Sullivan, a forensic psychiatrist who gave evidence on the plea, provided the opinion that the appellant has been suffering from a long-standing major depressive disorder, and that it was likely that the appellant was suffering from this at the time of the offending.
However, Dr Sullivan was of the view that, although depression can cloud judgment, there was only a weak causal link between the appellant’s disorder and the offending. Dr Sullivan gave evidence that taking Diazepam can have a disinhibiting effect.
It was not in issue, as the history disclosed, that the appellant had long standing difficulties in anger management. Dr Sullivan also gave evidence that with time, the appellant would develop the maturity required to deal in a more controlled manner with stressful events.
Ground 1: Sentence was manifestly excessive
The appellant sought to demonstrate that the head sentence of 19 years with a non-parole period of 16 years was manifestly excessive having regard to current sentencing practice and various mitigating circumstances. Those circumstances were considered by the sentencing judge during the plea and included the appellant’s early guilty plea; his lack of prior convictions, no previous physical violence against the deceased; the existence of a major depressive disorder which had a weak causal connection to the offending conduct; the diazepam ingested prior to the offence; and the appellant’s good prospects of rehabilitation and good work history.
The appellant submitted that ‘this case is far from the most grave examples of spousal murder’, noting the absence of aggravating circumstances such as premeditation or prior physical violence. Although Counsel for the appellant eschewed any suggestion that a ‘domestic’ murder should be viewed as a less serious category of the offence, the implication underlying much of the argument was that there is such a classification which attracts its own peculiar range of sentences. Inherent in the argument was the frequently made assumption that a just sentence should make allowance for the human frailty which emerges during the emotional turmoil of a dispute between spouses in a domestic setting. In essence, the appellant submitted that the sentencing judge did not give sufficient weight to these considerations, which it was said were reflected in current sentencing practice for such murders.
Domestic or Spousal Murders are a no less heinous category of murder
The sentencing judge avoided any characterisation of the domestic relationship between the deceased and the applicant as grounds for mitigation. He was right to do so as a domestic murder is not to be treated as comprising a less heinous category of the offence merely because such a relationship is present.[3]
[3]Cf R v Keir [2003] NSWSC 140, [26]–[27] (Kirby J).
In R v Goodall, Batt JA made plain, with the agreement of the President and Buchanan JA, that there is no lesser category of murder categorised as ‘domestic’ or
‘spousal’ murders.[4] In R v Azizi,[5] King J recently reiterated that fact and made the following observations with which I entirely concur:
Every woman and man in this country is entitled to the protection of the law. Marriage does not sanction or give permission to any husband to treat his wife in a manner that is inconsistent with her rights as a fellow human being. No man has the right to order or direct a woman to behave in a certain way, merely because he is her husband. And of course the same applies in reverse. Both women and men, have a right to be protected within a marriage. Matters such as this used to be referred to many years ago as a domestic murders. It makes it no less significant or painful in terms of consequences, than any other type of murder. The punishment for a so-called domestic murder is not one that is reduced because of that fact. In the pantheon of murders, a domestic murder does not occupy a lowly position because of its nature. The protection of persons within a marriage is, and should be, a high and proper priority of the criminal justice system. Accordingly, it must be recognised that the courts take a most serious view of the protection of persons in an abusive and/or violent domestic situation.[6]
[4]R v Goodall [2000] VSCA 106, [21] (Batt JA, with Winneke P and Buchanan JA agreeing).
[5][2010] VSC 112.
[6]Ibid [24].
There has generally been a rejection of the notion that ‘domestic’ murders form a discrete category of murder because a spousal relationship exists, or that there is a particular range or ‘commonly accepted pattern’ for sentencing in ‘domestic murder’ cases.[7]
[7]Knight v R [2006] NSWCCA 292, [26] (McClellan CJ at CL); R v Whitmore [1999] NSWCCA 75, [16] (Grove J, with Mason P and James J agreeing); R v Rosevear [1999] NSWSC 732, [23] (Studdert J); R v Plevac [2004] NSWSC 916, [53] (James J); Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321, [172]–[175] (Giles JA, with Howie and Fullerton JJ agreeing); R v Darcy [2007] NSWSC 1392, [45]–[46] (Berman AJ); R v Gilham [2009] NSWSC 138, [47] (Howie J); Leyshon v The State of Western Australia [2007] WASCA 223, [27] (Owen JA, with Wheeler and Buss JJA agreeing).
The labels of ‘domestic murder’ or ‘spousal murder’ are to be viewed as merely descriptive and relate only to the relationship between the accused and the victim. They are not a category of murder in any prescriptive sense nor does a murder that fits that description of itself entitle the offender to any mitigation of sentence.
Allowance has sometimes been made for the fact that a murder committed on the spur of the moment in a domestic environment as a consequence of a volatile mixture of emotions, whether or not in response to what was previously recognised as provocation in law, may attract a lesser sentence.[8] The existence of great emotional strain within a domestic or spousal relationship which plays upon the offender’s emotional susceptibilities and results in a spontaneous act may bear upon the offender’s degree of criminality. But murders that occur in such circumstances are not to be approached as though they fall into a discrete and less serious category of the offence.[9]
[8]The Queen v Sanftl (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, King and Teague JJ, 14 October 1988), 3–4; R v Keir [2003] NSWSC 140, [26] (Kirby J). See also R v Holton (2004) 41 MVR 89; [2004] NSWCCA 214, [122] (Grove J with Smart AJ agreeing; Hulme J dissenting in part).
[9]R v Whitmore [1999] NSWCCA 75, [16] (Grove J with Mason P and James J agreeing).
The taking of a domestic partner’s life undermines the foundations of personal relationships and family trust upon which our society rests. The sentence must reflect both the sanctity of human life and societies’ abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be the protector, not the perpetrator of violent abuse.[10] An outburst of homicidal rage in such contexts is totally unacceptable.[11] The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course.[12] Accordingly the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress.
[10]Diver v R [2010] VSCA 254, [41] (Ashley JA, with Neave and Weinberg JJA agreeing).
[11]R v Gojanovic (No 2) [2007] VSCA 153, [140] (Ashley and Kellam JJA and Kaye AJA).
[12]R v Doherty [2001] VSC 474, [21] (Bongiorno J) affd R v Doherty (2003) 6 VR 939; R v Davey [2006] VSC 173, [25] (Osborn J); R v Badanjak [2004] NSWCCA 395, [31] (Wood CJ at CL, with McClellan AJA and Smart AJ agreeing).
Consistent with this regard to general deterrence and the abuse of trust his Honour correctly emphasised the need for denunciation and just punishment regarding the appellant’s offending:[13]
Your crime was one of savage brutality committed upon a person you professed to love. This is a crime which carries a maximum of life imprisonment. It is committed very frequently by one party to a relationship upon the other. I have a duty to spell out with clarity that parties to a relationship have a right to the full protection of the law and that the protection of those parties from spousal violence is a high priority of the criminal justice system. That protection is no more than an aspiration if general deterrence is not given significant weight in the sentencing mix.
[13]R v Felicite [2010] VSC 245, [30].
Furthermore, counsel for the applicant also conceded before this Court that the seriousness of the applicant’s offending was aggravated by the fact that the offence was committed, among other things, against the appellant’s wife and in her own home and in the presence of their young child.
In seeking to make good his primary contention that the sentencing judge failed to make an objective assessment of the appropriate sentencing range and did not give current sentencing practice due weight, the appellant drew attention to the small number of cases to which the sentencing judge was referred during the plea; the view of the sentencing judge that the cases cited on spousal murder would only be of general assistance as to the application of sentencing principles; that the sentencing statistics referred to would be of relatively little assistance; and the refusal of the judge to entertain a submission from the Crown as to the appropriate range. This course followed by the sentencing judge was said to explain in part why his Honour’s sentencing discretion miscarried.
The various cases cited at the plea,[14] and the so called ‘comparable cases’[15] cited on appeal were said to demonstrate that the sentence imposed was outside the range of sentences reasonably open to the sentencing judge. All the comparable cases cited were concerned with domestic murders. In fact they covered a very wide range of circumstances attracting head sentences which ranged from 14 years to 23 years. Inherent in the submission that the sentencing judge did not have sufficient regard to cases on ‘domestic’ murder, was the assumption that the court was dealing with a particular category of the offence to which a particular range of sentences applied. It should not be thought that cases which concern the murder of a domestic partner will necessarily provide better guidance as to the appropriate sentence. Only cases, whatever their context, which contain features common to the case which falls for sentence and which bear upon the appropriate sentence, will be of any assistance.
[14]R v Baxter [2009] VSC 180; R v Foster [2009] VSC 124; R v Chalmers [2009] VSC 251; R v Dutton [2010] VSC 107; R v Tran [2008] VSCA 80.
[15]R v Barrett [2010] VSCA 133; Davey v R [2010] VSCA 346; Diver v R [2010] VSCA 254; R v Singh [2010] VSC 299; R v Boyle [2009] VSCA 289.
The sentencing judge’s approach was consistent with the caution sounded in Hudson v R[16] that ‘like cases’ can only, at best, provide a general guide or impression as to the appropriate range of sentences and that ‘comparable cases’ can only provide limited assistance to a sentencing court.[17] In particular, sentencing should not be approached as though the correct sentence falls within a very narrow band.
[16][2010] VSCA 332, [29], [31]–[32] (references omitted).
[17]See eg Hasan v R [2010] VSCA 352, [53] (Maxwell P, Redlich and Harper JJA).
The allied submission made by the appellant that conclusions can be drawn from sentencing statistics for murder from 2003–2004 to 2007–2008, that suggest that the sentence was manifestly excessive disregards the obvious and frequently stated proposition that statistics will rarely be of use in determining whether a sentence imposed in a particular case is manifestly excessive or manifestly inadequate – for the simple reason that they do not illuminate the facts upon which the sentences in other cases were imposed.[18]
[18]DPP v Maynard [2009] VSCA 129, [35]; DPP (Cth) v Milne [2001] VSCA 93, 13. R v Skuta [1998] VSCA 35, [22] (Phillips JA, agreeing in the result with Winneke P and Kenny JA). See also Pavlic (1995) 83 A Crim R 13, 31; DPP v CPD (2009) 22 VR 533, 547 [57] (Maxwell P, Redlich JA and Robson AJA).
Similarly, in Hili v The Queen the majority of the High Court said:[19]
Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes.
[19](2010) 85 ALJR 195, 205 [48] (French CJ, Gummow, Hayne, Crennan, Kiefal and Bell JJ).
The sentencing judge was plainly correct to accord relatively little significance to the statistics proffered by counsel during the plea.
Finally, the sentencing judge was under no obligation to require more extensive citation of comparable cases during the plea or to refer to such authority as he took into account in providing guidance as to the appropriate range. Neither did he err in declining to take up the Crown’s offer to provide him with its submission as to the appropriate range of sentences. It was entirely a matter for his Honour to determine whether he would be assisted by such a submission. That is consistent with the rationale in R v MacNeil-Brown,[20] that the sentencing court was entitled to expect the prosecutor to make a submission on sentencing range if the court requested such assistance, or even though no such request had been made, where the prosecutor perceived a significant risk that the court would fall into error regarding the applicable range.[21]
Provocation or great emotional stress in domestic murders
[20](2008) 20 VR 677.
[21]Ibid 678 [3] (Maxwell P, Vincent and Redlich JJA, with Buchanan and Kellam JJA dissenting).
I have already referred to the fact that the circumstance that the murder occurred in the heat of the moment by an offender who has reacted to some form of provocation or emotional stress may bear upon the severity of the sentence but that ordinarily principles of general deterrence, denunciation and just punishment will remain the primary considerations. Various observations made in past cases about the mitigating effect of such a circumstance are to be understood as subject to this important qualification.
In R v Keir,[22] Kirby J recognised that in the context of domestic murders, a volatile mixture of emotions can sometimes cause people to act in a way which is wholly unpredictable and out of character. His Honour considered that where such passion is present, recognising human frailty, such murders are less heinous.
Similarly, in The Queen v Sanftl,[23] Crockett J referred to remarks he made in a matter of Baker in which he said that generally domestic murders may be thought to be at the bottom of the scale in terms of gravity or heinousness in recognition of the fact that such offences are often committed on the spur of the moment in a domestic environment or when the offender has been under great emotional strain. His Honour observed:[24]
If the commission of the offence is, for example, the result of a discovery of the victim's infidelity or the culmination of his protracted course of ill-usage of his family or as a reaction to some domestically incited provocation – falling short of provocation in law – so as to play upon the offender's emotional susceptibilities, it is usually not difficult to extend a measure of sympathetic consideration to the offender.
[22][2003] NSWSC 140, [26]–[27].
[23](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, King and Teague JJ, 14 October 1988), 3–4.
[24]Ibid 4.
These observations are not inconsistent with the need to give primacy to the sentencing principles to which I have referred and should be so understood.[25] In Sanftl Crockett J then made some further observations that are particularly apposite to the present case:[26]
the applicant quite cold-bloodedly shot his wife not once but twice mortally wounding her and that he did so not in sorrow or despair but in anger. Doubtless the occasion was an emotion charged one but the Judge considered, again it appears to me quite properly that evidence of other incidents revealed the applicant to be a man subject to attacks of ungovernable temper who in a loss of self-control had simply resorted to the use of a firearm in order to cope with his problems. This type of offence is, as the Judge observed, altogether too prevalent and it was thus not incorrect to have regard to the element of general deterrence when selecting an appropriate minimum term.
[25]See [18] above.
[26](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, King and Teague JJ, 14 October 1988), 4.
Whether provocation or emotional stress explains why the accused resorted to the offending conduct and whether it was of an order so to have any bearing upon the degree of criminality of the offender will depend upon the circumstances of each individual case. Here the appellant submitted that the stressful emotional circumstances were such as to entitle the appellant to some sympathetic consideration. His conduct it was said should have been viewed as an unpremeditated reaction to the fact that the deceased intended to leave him. Clearly the sentencing judge did not regard this as a mitigating circumstance. The argument leading up to the offending conduct appeared to revolve around contact between the deceased and her cousin concerning the proposed marital separation. It did not involve an element of provocative behaviour or sudden emotional stress which gave rise to a spontaneous response. The appellant had by the time of the argument known of the proposed separation and the contact between the deceased and her cousin regarding the separation should have been neither surprising or overwhelming. As late as the day before the offence, during their marriage counselling session, the appellant heard the deceased’s wishes to separate from him and as previously stated, adopted an apparently magnanimous demeanour in response.
The appellant relied upon his problems with anger management during the plea to explain why he acted as he did. But his violent response was not a spontaneous reaction to a sudden event causing great emotional stress. It was the consequence of his inability to control his anger. His long running difficulties with controlling his anger could not provide a justification for attributing any particular mitigatory weight to the domestic argument which preceded the offending conduct. The appellant’s susceptibility as a result of his ongoing anger management issues did not require the sentencing judge to impose a lesser sentence.
The sentencing judge did not treat the appellant’s problem with anger management as an aggravating factor, or as bearing upon his moral turpitude, or as effecting the need for specific deterrence. Contrary to the appellant’s submission, I discern no error in the manner in which the sentencing judge assessed the significance of the appellant’s loss of self-control. Denunciation, just punishment and general deterrence were of primary significance.
In my view the head sentence fixed, while towards the upper end of the range of sentences open to the sentencing judge in a sound exercise of the sentencing discretion, properly reflected the considerable weight to be given to the principles of general deterrence and just punishment arising from the spousal relationship between the appellant and the deceased.
Ground 2: Specific error in approach to determining non-parole period
Under the second ground of appeal the appellant attacked the sentencing judge’s determination of the non-parole period on two interrelated bases. First, that the non-parole period did not bear an appropriately proportionate relationship to the head sentence. Second, that the non-parole period did not adequately give effect to the sentencing judge’s findings that there were good prospects of rehabilitation and that specific deterrence was not a significant factor in this case.
Proportionality of non-parole period to head sentence
It was submitted by counsel for the appellant that the proportion of the non-parole period to the head sentence in this case exceeded 80 per cent and that this constituted a non-parole period that was inappropriately proportioned to the head sentence. Yet both the appellant and the Crown, applying the reasoning in Romero v The Queen[27] accepted that where a head sentence was of the present order, the ratio of the non-parole period to the head sentence would usually be higher than for lesser offences which attracted lower head sentences.
[27][2011] VSCA 45.
In Romero v The Queen I said:[28]
For offences that do not attract the sort of sentences reserved for murder and other very serious crimes, non-parole periods between 60 and 66% and up to 75% of the head sentence are not regarded as uncommon. Where the ratio of the non-parole period to the head sentence exceeds these figures, the absence of an explanation may invite appellate scrutiny. Even then, the fact that the non-parole period exceeds 80% of the length of the head sentence does not inevitably lead to the conclusion that the sentencing judge made an error, because there is no set formula or fixed standard that applies to the fixing of a non-parole period. Moreover, counsel for the applicant appeared to accept that the common ratios applicable with respect to lesser offences are not particularly instructive in the case of very serious crimes where the head sentence is much higher. That concession, in my view, was rightly made. The ratio between the head sentence and non-parole period more commonly found for lesser offences and lower sentences are generally unlikely to be appropriate for murder and other serious crimes attracting similarly long head sentences, as they would create inordinately long parole periods and the non-parole period would not then, as it must, also reflect the gravity of the offending. The non-parole sentence would be shortened beyond the lower limit of what might be reasonably regarded as condign punishment. Other purposes of sentencing that are relevant to fixing the non-parole period as well as to fixing the head sentence, such as deterrence and protection of the community, would not then have been given their necessary weight.
This approach to non-parole periods for murder and other very serious crimes attracting very lengthy sentences accords with the information contained in the Sentencing Advisory Council’s recent report Provocation in Sentencing. It shows that within the period to which I have already referred, the most common minimum sentence for murder was a non-parole period of 14 years, being a ratio in the main of 77.8% of the head sentence. Of the 246 sentences for murder in this period, only nine sentences had a ratio of 67% or under, and 40% of all sentences had a ratio greater than 75%. The report also notes that the non-parole periods for 33 of the sentences for murder were at a ratio of 80% or above in relation to the head sentence. From the bare statistics it can be seen that the non-parole periods for murder sentences are very rarely of a length that is less than 67% of the head sentence, and a non-parole period for murder that is in excess of 80% cannot be viewed as out of the ordinary.
[28]Ibid [25]–[26] (Buchanan and Mandie JJA agreeing).
Initially the appellant in his outline of argument had submitted there was a potential inconsistency between the decision in Romero v The Queen and the decision in Diver v The Queen.[29] But it was conceded during oral argument that there is no inconsistency between those decisions. The Court in Diver v The Queen considered that a proportion between the non-parole period and the head sentence exceeding 80 per cent was excessive in the discrete circumstances of that case, not that the non-parole period was necessarily excessive because it amounted to more than 80 per cent of the head sentence.
Mitigating considerations in determining non-parole period
[29][2010] VSCA 254.
The argument that the sentencing judge should have attributed more weight to the appellant’s good prospects of rehabilitation in determining the non-parole period should also be considered in light of the decision in Romero v The Queen.
An offender’s prospects of rehabilitation are of great importance to determining the length of the non-parole period.[30] The sentencing judge expressly recognised the appellant’s prospects for rehabilitation were reasonably good, but added that such prospects also turn upon the appellant developing a capacity to control his anger – a capacity that expert evidence indicated may develop with time. This consideration had to be weighed against principles of general deterrence, that are particularly pronounced in cases of very serious crimes,[31] and for the reasons noted above, domestic murders. The non-parole period, while giving greater weight to matters personal to the offender, also involves a punitive element and must itself reflect the objective gravity of the crime. It should not result in an inordinately long parole period.[32] The non-parole period fixed by the sentencing judge appropriately reflected the balance between such considerations.[33]
[30]Mak v R [2011] VSCA 5, [32]. See also R v VZ (1998) 7 VR 693, 698 [15] (Callaway JA).
[31]See eg Romero v The Queen [2011] VSCA 45, [25]–[26].
[32]Ibid [25]. See also Bugmyv The Queen (1990) 169 CLR 525, 532.
[33]R v Felicite [2010] VSC 245, [29].
I would dismiss the appeal.
HARPER JA:
I have had the advantage of reading, in draft, the judgment of Redlich JA. I agree, for the reasons which his Honour has given, that the appeal should be dismissed.
ROBSON AJA:
I have had the advantage of reading the judgment of Redlich JA. I adopt his summary of the relevant facts of the offence and the personal circumstances of the appellant.
The appellant appeals against both the head sentence and the non-parole period on the ground that they are manifestly excessive. For the reasons given by Redlich JA, I am of the view that the both the head sentence and the non-parole period were not wholly outside the range of sentencing options available to the learned trial judge.
The appellant also appeals against the non-parole period on the ground that the learned sentencing judge erred in his approach to determining the non-parole period.
The appellant submits that given the factual finding that the appellant had good prospects of rehabilitation and that specific deterrence was not a significant factor, there was no basis for imposing an unusually long non-parole period. The appellant contends that the non-parole period is 84 per cent of the head sentence. The appellant contends that such a non-parole period is unusual. The appellant contends that the unusual ratio of non-parole period to the head sentence betokens error and in the absence of explanation for it, the sentencing discretion in the setting of the non-parole period can be said to be marred by error.
For the reasons given by Redlich JA I find that the learned sentencing judge did not err in his approach to determining the non-parole period. The appellants’ prospects of rehabilitation are important. The minimum term, however, is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole.
The relevant principles to the fixing of a non-parole term were explained by Dawson, Toohey and Gaudron JJ in the High Court of Australia in Bugmy v The Queen.[34] They said:[35]
[34](1990) 169 CLR 525.
[35](1990) 169 CLR 525, 536 and 538.
The practical effect of fixing a minimum term is that thereafter the Parole Board may, but of course need not, grant the prisoner parole: Corrections Act s 74(1). That is not to say that the minimum term should be seen as the shortest time required for a paroling authority to form a proper view of the prisoner's prospects of rehabilitation. That approach was rejected in Power v. The Queen.[36] Referring to Power, this Court said in Deakin v. The Queen:[37]
"The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence".
….
Uniformity of sentencing is a matter of importance. It cannot be pressed too far but what does emerge is that the minimum term fixed for the applicant is higher than any other in the statistics furnished to the Court of Criminal Appeal. That of itself is a matter calling for some scrutiny of the minimum term on the part of the appellate court. But in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole: see generally King C.J. in The Queen v. Robinson.[38] There is no incongruity necessarily involved in this approach, as Jenkinson J noted in Morgan and Morgan[39] when, as a member of the Victorian Court of Criminal Appeal, he said:
"The term of the sentence is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender. The minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify."
[36](1974) 131 CLR 623.
[37](1984) 58 ALJR 367; (1984) 54 ALR 765, 766.
[38](1979) 22 SASR 367, 370.
[39](1980) 7 A Crim R 146, 154.
These principles have been often referred to and applied in this Court.[40] For the reasons explained by Redlich JA I do not consider that the ratio of non-parole to head sentence does bespeak of error. Rather, in my opinion the minimum term fixed is consistent with the learned sentencing judge determining, in his discretion, the
minimum term that in his estimation in all the circumstances of the offence the offender should serve, without the opportunity of parole.[40]See for example, R v VZ (1998) 7 VR 693, [14] (Callaway JA), [22] (Batt JA); and Romero v The Queen [2011] VSCA 45, [25] (Redlich JA with whom Buchanan and Mandie JJA agreed).
I agree with Redlich JA that the appeal should be dismissed.
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