I D Hill QC with L C Carter for the appellant in M273/2003 (instructed by Jones Dowling McGregor)
R Richter QC with T Kassimatis for the appellant in M275/2003 (instructed by Victoria Legal Aid)
P A Coghlan QC with C M Quin for the respondent in both matters (instructed by the Solicitor for Public Prosecutions (Victoria))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
GAS v The Queen SJK v The Queen
Criminal law – Sentencing – Prosecution granted leave to file new presentment charging manslaughter in place of murder against two accused – Counsel for prosecution informed trial judge of "plea agreement" whereby accused would plead guilty and prosecution would submit that sentencing should proceed on basis that each accused was an aider or abettor rather than principal offender – Prosecution appeal against sentence on ground of manifest inadequacy – Appeal succeeded on basis that insufficient weight given to objective gravity of killing and aggravating circumstances, and undue weight given to youth and rehabilitation prospects of offenders – Whether Court of Appeal erred in dealing with the appeal in a manner contrary to the "plea agreement" – Effect of admission involved in pleading guilty to unlawful and dangerous act manslaughter – Culpability of aider and abettor relative to that of principal offender.
Criminal law – Sentencing – "Plea agreement" – Whether prosecution conduct of appeal was contrary to "plea agreement" – Respective responsibilities of prosecution, accused and trial judge with respect to "plea agreements" – Whether trial judge's responsibility to find and apply sentencing principles may be circumscribed by conduct of counsel – Whether appropriate that "plea agreement" should deal with issues of sentencing principle – Desirability of reducing "plea agreement" to writing – Discretion of appeal court in prosecution appeals against sentence to decline to intervene although error is shown in sentencing process.
Words and phrases – "plea agreement", "aider and abettor".
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ. These appeals are against a decision of the Court of Appeal of Victoria[1] (Phillips CJ, Chernov and Vincent JJA), which allowed prosecution appeals against sentences for manslaughter imposed by the primary judge (Bongiorno J)[2], and fixed higher sentences. The sole ground of appeal to this Court is that the Court of Appeal erred in permitting the Director of Public Prosecutions to conduct his appeal in a manner said to be contrary to a "plea agreement" reached at first instance, and in dealing with the appeal in a manner contrary to such agreement.
[1]Director of Public Prosecutions v SJK; Director…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
GAS v The Queen [2004] HCA 22
Case
[2004] HCA 22
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard appeals from the Court of Appeal of Victoria in two matters, *GAS v The Queen* and *SJK v The Queen*. The appeals concerned the sentencing of two young offenders, aged 16 and 15 at the time of the offence, who had pleaded guilty to manslaughter following the brutal killing of an elderly woman during a robbery. The central dispute on appeal to the High Court was whether the Court of Appeal had erred by permitting the Director of Public Prosecutions to conduct their appeal against the initial sentences in a manner contrary to an alleged "plea agreement" made at first instance.
The legal issues before the High Court included whether the Court of Appeal had erred in its handling of the prosecution's appeal against sentence, specifically in relation to a purported "plea agreement". The Court was required to consider the effect of an admission involved in pleading guilty to unlawful and dangerous act manslaughter, particularly in circumstances where the prosecution could not prove which of the two accused was the principal offender. Furthermore, the Court had to determine the respective responsibilities of the prosecution, the accused, and the trial judge concerning such agreements, and whether a trial judge's sentencing responsibilities could be circumscribed by the conduct of counsel. The Court also considered the desirability of reducing "plea agreements" to writing and the discretion of an appellate court to decline intervention in a sentence appeal, even if error is shown.
The High Court dismissed the appeals, finding that the Court of Appeal was correct in concluding that the sentences imposed at first instance were manifestly inadequate. The Court reasoned that while there was an element of artificiality in sentencing each appellant on the basis that they aided and abetted the killer, this was a necessary consequence of the prosecution's decision to charge manslaughter when they could not prove who the principal offender was. However, the Court emphasised that the admissions involved in pleading guilty to unlawful and dangerous act manslaughter, in the context of extremely aggravating circumstances, were significant. The Court also rejected the contention that the decision in *R v Bannon and Calder* supported the leniency of the initial sentences, noting that in that case, both offenders had been sentenced to the maximum penalty of life imprisonment, whereas the principle established was that an aider and abettor should receive a lesser penalty than the principal actor.
In each matter, the appeal was dismissed.
Orders
Orders of the court
In each matter:
Appeal dismissed.
Background
Background to the litigation
GLEESON These appeals are against a decision of the Court of Appeal of Victoria[1] (Phillips CJ, Chernov and Vincent JJA), which allowed prosecution appeals against sentences for manslaughter imposed by the primary judge (Bongiorno J)[2], and fixed higher sentences. The sole ground of appeal to this Court is that the Court of Appeal erred in permitting the Director of Public Prosecutions to conduct his appeal in a manner said to be contrary to a "plea agreement" reached at first instance, and in dealing with the appeal in a manner contrary to such agreement. [1]Director of Public Prosecutions v SJK; Director of Public Prosecutions v GAS [2002] VSCA 131.[2]R v SJK and GAS [2002] VSC 94.The facts The prosecution of the appellants, who were aged 16 and 15 respectively at the time of the event, arose out of the brutal killing of an elderly woman in the course of a robbery at her home. The victim was aged 73. She lived alone with her handicapped son, aged 47. The appellant SJK knew the son, and both appellants knew that the victim kept substantial amounts of cash at home in order to provide her son with money for shopping expeditions, which he enjoyed. They also knew that the doors of the house were often left open at night by the son. The victim was found dead on the morning of 16 October 2000. Her condition was described by the Court of Appeal as follows: "The cause of death was asphyxia by manual neck compression. Although he was unable to exclude the possibility that there was some element of smothering in the mechanism of death, the pathologist gave evidence ... that the main cause of death was one of strangulation. The pathologist noted multiple areas of blunt trauma to the head, chest, back and the anal and vaginal areas. He also noted trauma to the front, back and top of the skull. Each was a separate injury. The bruising to the head was more likely to be caused by a fist. The bruising around the laryngeal cartilage was consistent with squeezing. There was also bruising around the vaginal area which was consistent with pressing fingers. There was a symmetrical pattern of bruising over the anterior chest which was consistent with someone having knelt on the chest of the deceased. The deceased also sustained three fractured ribs which would have required at least moderate to severe force to occur." The appellants were interviewed by the police. The appellant SJK admitted to having gone with GAS to the victim's house on the evening of 15 October for the purpose of stealing money. This was the second occasion on which they had done that. He said that, while he and GAS were in the victim's bedroom, she woke up, and GAS then attacked her and appeared to break her neck. The appellant GAS admitted that he had been with SJK on the night of 15 October, but denied that they had been at the victim's house.The pleas at trial The appellants were both charged with murder, and were committed to the Supreme Court of Victoria for trial. Each pleaded not guilty. On 24 July 2001, before a jury was empanelled, counsel for the prosecution informed the trial judge that there had been "some developments". He then informed the judge of the following matters. First, he said the prosecution would seek leave "to file over a new presentment". Secondly, he told the judge that this had been a "difficult forensic case" because there had been no plan to kill the deceased prior to the entry into the house, SJK had said it was GAS who did the killing, GAS had said that he wasn't there at all, and there were certain "difficult forensic problems". Thirdly, he said that the family of the victim were in court. Fourthly, he said, "it has been indicated to us that each accused will plead guilty to this presentment, and it has also been indicated to us that each accused, through their counsel, will not be urging upon your Honour, in terms of the sentencing process, that either is appropriate for a youth training centre". The judge granted leave to file the new presentment, which charged manslaughter in place of the earlier charges of murder. The appellants were re-arraigned and both pleaded guilty. It appears to have been the common understanding that sentencing would not occur on that day, and that the proceedings would need to be adjourned for evidence and submissions on sentence. Counsel for the prosecution said that he wished to indicate that the prosecution was unable to say, and would never be able to say, who killed the deceased. He went on: "Accordingly, the proper way for your Honour to sentence both the accused, in circumstances such as this, is to place it at the lowest common denominator, that is, they were each aiders and abettors, that is, the Crown cannot point to who was the principal offender". He said that authority for that proposition was to be found in a decision of the Victorian Court of Appeal in R v Bannon and Calder[3]. The judge enquired as to "the basis of the manslaughter", and counsel replied that it was "lack of intent, unlawful and dangerous act". Counsel said "it will be an unlawful and dangerous act manslaughter on the basis of the unusual circumstances of this case, that the Crown cannot prove or demonstrate to your Honour's satisfaction to the relevant standard who was the principal offender. Bannon's case is authority where the Crown cannot do that." He gave the judge the reference to Bannon and Calder and said that where someone was killed in those circumstances "the sentencing judge was perfectly at liberty to sentence them on the basis at the very least that they were aiders and abettors". There was some discussion about matters irrelevant to the present appeal. The proceedings were then adjourned.[3]Unreported, 21 September 1993 (Phillips CJ, Crockett and Vincent JJ).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ
There was, no doubt, an element of artificiality involved in sentencing each appellant on the basis that he aided and abetted the killer, in circumstances where one or the other must have been the killer. That, however, was the necessary consequence of the prosecution's decision to charge each appellant only with manslaughter in a situation where it could not prove that either of the two offenders strangled the victim, and neither admitted that he did it. But that to which each appellant was willing to admit was a very serious offence. Nowhere in his remarks on sentence did Bongiorno J spell out in detail the effect of the admissions necessarily involved in the pleas of guilty, in the circumstances of this case. When those admissions are examined in the light of what was said in Giorgianni, and attention is given to the nature of the unlawful and dangerous act causing death (strangulation), an act which occurred in the context of extremely aggravating circumstances, then it can be seen that the Court of Appeal was right to conclude that the sentences imposed at first instance were manifestly inadequate, and was justified in increasing the sentences as it did.The decision in Bannon and Calder The argument put in pars 17 to 19 of the Director's written submissions, and answered in pars 34 to 39 of the written submission filed on behalf of SJK, was dealt with by the Court of Appeal, but it was not central to its reasons for allowing the appeal. Those reasons were as stated above. Two of the members of the Court of Appeal in the present case had been parties to the judgment in Bannon and Calder. The Court of Appeal rejected the contention that Bannon and Calder stands for any principle that could justify the leniency of the sentences imposed by Bongiorno J. They were right to do so. What Bannon and Calder had in common with the present case was that two people were convicted of unlawful homicide (there, murder), in circumstances where the evidence did not establish which of them killed the victims. Unlike the present appellants, they were both sentenced to the maximum term of imprisonment (life). The Court of Criminal Appeal said[8]:"Nevertheless [the sentencing judge's] very inability to discern any distinction in the role played by each of the applicants in a case where admittedly there was a distinction must mean that for sentencing purposes each applicant had to be treated as bearing the culpability of no more than that of an aider and abettor. This proposition rests upon the premise, which we think in the circumstances of this case to be correct, that such culpability is less than that which would attach to a principal actor. But the judge manifestly did not so sentence the applicants since he imposed on both the maximum possible penalty, namely that of life imprisonment.On a view which the judge in effect said was open to be taken, one of the offenders with little or no cause for so doing gained possession of a knife and launched a homicidal attack ...We think that an aider and abettor in such circumstances should have imposed upon him or her a lesser penalty than that imposed upon the principal actor ... One had to get less than life imprisonment. It cannot be said which offender. Therefore both must receive such a lesser sentence." (emphasis added)[8]R v Bannon and Calder, Victorian Court of Criminal Appeal, 21 September 1993 at 36-37.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ