Harlow v The Queen
[2017] VSCA 234
•4 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0097
| BONNIE KATE SAWYER-THOMPSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | TATE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined ‘on the papers’ |
| DATE OF JUDGMENT: | 4 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 234 |
| JUDGMENT APPEALED FROM: | [2016] VSC 767 (Croucher J) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Defensive homicide – Sentence of 10 years’ imprisonment – Non-parole period of seven years – Plea of guilty –Objective gravity of the offending – Relationship of serious violence, humiliation, and psychological abuse – Dependent personality disorder, post-traumatic stress disorder, depression and anxiety, youth, low IQ – Threat to kill family unless victim killed – Innocent victim – Whether a finding of chance to flee ignored context of threat and vulnerability – Whether judge erred in categorising the offending as falling towards the upper end of the range of seriousness – Foregone chance of acquittal – Co-operation – Whether reasonably arguable that manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Victoria Legal Aid |
| For the Respondent | No appearance | Mr J Cain, Solicitor for Public Prosecutions |
TATE JA:
The applicant, Bonnie Kate Sawyer-Thompson (‘Sawyer-Thompson’), pleaded guilty to one charge of defensive homicide. She was sentenced in the Supreme Court of Victoria on 20 April 2017 as follows:[1]
[1]R v Sawyer-Thompson [2016] VSC 767 (‘Sentencing reasons’).
Charge Offence Maximum penalty Sentence Cumulation 1 Defensive homicide [Crimes Act 1958 s 9AD] 20 years’ imprisonment 10 years’ imprisonment - Total effective sentence: 10 years’ imprisonment Non-parole period: 7 years Pre-sentence detention: 1,035 days S 6AAA statement: 15 years’ imprisonment with a non-parole period of 11 years Other orders: Forensic sample order
She now applies for leave to appeal this sentence on two grounds:
1.The learned sentencing judge erred in concluding that the offending fell towards the upper end of the range of seriousness.
2.The sentence of imprisonment and the non-parole period imposed were manifestly excessive, having regard to:
a. The applicant’s reduced moral culpability;
b. The applicant’s age and level of maturity;
c. The applicant’s remorse and prospects of rehabilitation;
d. The applicant’s limited antecedents;
e. The delay between offending and sentence;
f. The applicant’s plea of guilty and assistance to authorities;
g. The applicant serving her sentence more onerously due to her status as a police informer; and
h. Current sentencing practice.
The stabbing incident[2]
[2]This description of the offending has been summarised from the Prosecution Opening dated 14 November 2016 and the Sentencing reasons.
On Friday 20 June 2014 at approximately 3:30 am, Jack Nankervis (‘Nankervis’) broke into the home of Noel Patton (‘Patton’) by forcing open the back door. Patton is the father of Nankervis’ former partner, with whom he had one child. There was an altercation between Nankervis and Patton in Patton’s bedroom before Nankervis apologised and left. Police attended the property shortly after Nankervis left.
Nankervis was driven to and from the Patton property by Philip Mifsud (‘Mifsud’). After breaking into Patton’s house, Nankervis was taken by Mifsud to Sawyer-Thompson’s house so he could ‘lie low’. Mifsud and Sawyer-Thompson had been in a relationship for some months and Mifsud regularly spent time at Sawyer-Thompson’s unit. Nankervis and Sawyer-Thompson had not previously met.
Nankervis, Mifsud and Sawyer-Thompson spent the day together in the unit, consuming variously alcohol, methylamphetamine, cannabis, gamma-hydroxy-butyrate (‘GHB’) and Valium. Mifsud left the property on several occasions to sell drugs. At some time between 4:50 pm and 5:40 pm, on one of the occasions Mifsud was away from the property, Nankervis was killed.
Throughout the day, Mifsud had attempted to kill Nankervis in multiple ways. Mifsud had tried to force Nankervis’ hand into an electric toaster, slipped him GHB against his will, and tried to shove a coin down his throat. The motive for this is unclear.
Mifsud then threatened Sawyer-Thompson and ordered her to kill Nankervis. Mifsud told her that if she did not kill Nankervis, he would kill her family.[3] He went to his car and brought back a mattock. He told her to kill Nankervis with the mattock and tell people that Nankervis had tried to rape her. He then left the flat.
[3]See Sentencing reasons fn 8.
The sentencing judge described the offending as follows:
During their relationship, Mr Mifsud had subjected Ms Sawyer-Thompson to serious violence and humiliation. She had witnessed his violence to others. She believed him to be dangerous, and took his threat seriously. It was against this background that, despite the fact that Mr Mifsud’s absence from the flat presented an opportunity to do something else (such as go to the police, who were just down the street, or simply run away), Ms Sawyer-Thompson, in a drug-addled state of terror and submission, resolved instead to do as she was told.
And so it was that she took to Mr Nankervis with the mattock, and then a knife, while he laid on her bed, completely defenceless. She struck and stabbed him repeatedly to the head, face and neck. He suffered about 70 separate injuries, including seventeen knife wounds. Plainly, she meant to kill him, and she did. But the attack went much further than that: it was merciless, grisly and disturbing. Mr Nankervis’s face was caved in to the point that it was unrecognizable.[4]
[4]Reasons [3]–[4].
When Mifsud returned to the unit and discovered Nankervis’ body, he exited the property and vomited in the gutter. He then drove Sawyer-Thompson to his brother’s house and then her mother’s house. At 9:50 pm, he attended Morwell Police Station and reported Nankervis’ death. The police attended the property and found Nankervis’ body. Sawyer-Thompson was found walking from her mother’s house to her sister’s house at 12:40 am. She was arrested. She made full admissions that she had killed Nankervis, albeit with varying explanations as to why.
Sawyer-Thompson was aged 19 at the time of the offending. She had been in a relationship with Mifsud for approximately 12 months, during which she had been subjected to significant physical and psychological abuse. Mifsud maintained a relationship with another girlfriend, with whom he had two children, and used Sawyer-Thompson in order to deal drugs and as a test subject for drug experiments. It was in this context that she felt intimidated and influenced to kill Nankervis.
Defensive homicide
The offence of defensive homicide was abolished in November 2014.[5] Defensive homicide had been introduced in November 2005 as part of a package of reforms that included the abolition of the defence of provocation,[6] based on a Victorian Law Reform Commission review of defences to homicide.[7] The offence was abolished following a 2013 departmental review which found that the offence had not been operating as intended.[8]
[5]Crimes Amendment (Abolition of Defensive Homicide) Bill 2014.
[6]Crimes (Homicide) Act 2005.
[7]Victorian Law Reform Commission, Defences to Homicide: Final Report, Report No 94 (2004).
[8]Department of Justice, Victoria, Defensive Homicide: Proposals for Reform, Consultation Paper (2013).
The offence of defensive homicide applied where a person killed another person while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury in circumstances where he or she did not have reasonable grounds for that belief.[9]
[9]Crimes Act 1958 s 9AD (since repealed).
Prior to pleading guilty to defensive homicide, Sawyer-Thompson was charged with murder and indicated that she intended to rely on the statutory defence of duress. A question on the statutory interpretation of the defence of duress was referred to this Court during the proceeding in the court below.[10] On the second morning of the trial, after a jury had been empanelled, Sawyer-Thompson abandoned the defence of duress and entered a plea of guilty to defensive homicide.
[10]DPP v Parker (a Pseudonym) [2016] VSCA 101.
The prosecution provided a summary of defensive homicide cases to the judge, which reviewed 22 cases of defensive homicide. These cases indicated that sentences similar to those imposed in this case were reserved for serious examples of defensive homicide that involved aggravating features.[11]
[11]See, eg, Creamer v The Queen [2012] VSCA 182; R v Ghazlan [2011] VSC 178; DPP v Edwards [2009] VSCA 232; Wilson v The Queen [2011] VSCA 12; cf R v Evans [2009] VSC 593.
Judge’s reasons
The judge characterised the objective seriousness of the offending as ‘very grave’, while noting the significant mitigating factors applicable to Sawyer-Thompson. He stated:
This particular instance of defensive homicide is both unique and very grave. It is unique because the threat did no emanate from the person killed but from another who, ultimately, was absent at the time of the killing. As I have said, Ms Sawyer-Thompson could have gone to the police – they were just down the street. Those facts also contribute to the gravity of the offence. That the attack was ghastly in its execution and that Mr Nankervis was utterly defenceless make it all the worse. At only 23, Mr Nankervis has lost his life in horrible circumstances, and, inevitably, his family and friends are devastated.
On the other hand, Ms Sawyer-Thompson was only 19 at the time, had suffered serious violence and psychological abuse at the hands of Mr Mifsud, was easily led or pressured by him, is of low intelligence, suffers from post-traumatic stress disorder (‘PTSD’), depression and anxiety, has pleaded guilty, has sought to assist the authorities in the investigation and potential prosecution of Mr Mifsud, is sorry for what she has done and has reasonable to good prospects of rehabilitation.[12]
[12]Reasons [11]–[12].
A number of facts were still in dispute when Sawyer-Thompson came to be sentenced. The judge therefore was required to make numerous findings in regard to what he was satisfied had occurred.
The judge rejected the assertion that Sawyer-Thompson had told her mother that Nankervis owed money to bikies and that that was the reason Mifsud wanted her to kill him.[13] However, he did accept that Sawyer-Thompson had told her mother that Mifsud wanted Nankervis dead.[14]
[13]Ibid [131].
[14]Ibid [132].
In her evidence on the plea and her statement to police, Sawyer-Thompson referred to two men named Bobby and Adam whom she said she witnessed talking to Mifsud about killing Nankervis. At one point she suggested that ‘Bobby’ was ‘the guy who told me to hit him [Nankervis]’.[15] The police found no evidence of these men. The judge was not satisfied on the balance of probabilities that Bobby and Adam existed and considered that they may have been concocted in the immediate aftermath of what she had done and in her drug-fuelled haze.[16] She said that she loved Mifsud and that ‘he was not there when it happened and that he did not have anything to do with it.’[17]
[15]Ibid [82].
[16]Ibid [134]–[137].
[17]Ibid [87].
The judge found that, even though there were some inconsistencies in the evidence Sawyer-Thompson gave in relation to Mifsud’s threat to her, he was ‘satisfied (albeit only just), on the balance of probabilities, that the substance of her account about the threat is true’.[18] Specifically, the judge was satisfied that Mifsud ‘threatened her to the effect that he would kill her family unless she killed Mr Nankervis, and that she feared that that is what he would do’.[19]
[18]Ibid [139].
[19]Ibid.
The judge was not satisfied of any motive of Mifsud for wanting Nankervis dead. He stated that the absence of any such finding made no difference to the sentence to be imposed.[20]
[20]Ibid [144].
The judge was satisfied, on the balance of probabilities, that Mifsud had subjected Sawyer-Thompson to ‘cruel, humiliating and violent acts of the type disclosed in her evidence’.[21] He described their relationship and Sawyer-Thompson’s evidence in this way:
Ms Sawyer-Thompson met Mr Mifsud about twelve months before the killing. They had a sexual relationship. They would take drugs together. He introduced her to the use of ‘ice’. He was involved in dealing drugs, and would have her assist him in that endeavour on occasions.
He was violent to and humiliating of her at times. He used a cigarette to burn her back and a lighter to burn her arm. While she used some drugs voluntarily, he also injected her with a syringe against her will. When they stayed together with Anthony Talerico, on occasions, Mr Mifsud would make her sleep outside. He forced her to watch ‘snuff’ films. He punched and choked her. He forced her to swallow a drink containing nutmeg, which made her ill. He forced lit firecrackers down her top. He hit her across the head with a bottle, dragged her by the hair and then cut off her ponytail. He pushed her down some stairs. He made her sniff petrol and snort ‘dexies’ with nail polish remover. Under threat of being hurt if she revealed the truth, he made her part of his drug deals when he sold ‘fake’ drugs. She saw him assault another man and threaten him that, if he told police, he would come to his house. He ripped off her dress in front of others, exposing her bra and shorts underneath for all to see. He controlled what she was to say to others. He had put a gun to her head to make her break into a house. He forced her to swallow bullets. He threw a can of cat food at her head.[22]
[21]Ibid [145].
[22]Ibid [108]–[109].
The judge’s finding with respect to the violence and humiliation to which Sawyer-Thompson had been subjected by Mifsud was supported by Mifsud’s history of violence towards others and his substantial criminal history of violence and weapons offences.[23]
[23]Ibid [146]–[147].
Sawyer-Thompson gave evidence that she believed she had only hit Nankervis five or so times. The judge did not accept that evidence. He was satisfied by the medical evidence that Sawyer-Thompson had hit Nankervis with the axe and the knife in the order of 70 times.[24]
[24]Ibid [149].
The judge was satisfied that Nankervis had been given GHB by Mifsud in order to stupefy him. He came to this conclusion on the basis of expert evidence that GHB can only be detected in the body for a short period of time and evidence that showed: (1) Mifsud was in the possession of GHB, (2) Mifsud had asked how much of the drug was required to make someone unconscious, and (3) Nankervis was against the drug and wouldn’t take it voluntarily.
The judge then turned to the nature and gravity of the offence. He accepted, in substance, the Crown’s submission that this was a ‘bad’ example of defensive homicide that fell towards the upper end of the range of seriousness.[25] He provided six bases for his view that ‘this is a very grave example of defensive homicide’.[26] First, Sawyer-Thompson’s behaviour took the life of a young man in horrendous circumstances.[27] Secondly, the threat to Sawyer-Thompson did not emanate from the victim of the offending.[28] Thirdly, the source of the threat was absent at the time of the offending, giving Sawyer-Thompson the opportunity to escape from or report the threat.[29] Fourthly, the attack was executed in a ‘ghastly and disturbing’ manner, ‘well beyond the point that was necessary to kill him’.[30] Fifthly, the victim’s injuries were so grave that he was unrecognisable.[31] Sixthly, Nankervis was defenceless and in a drug stupor at the time of the offending, and Sawyer-Thompson knew this.[32]
[25]Ibid [161].
[26]Ibid [162].
[27]Ibid [162].
[28]Ibid [163].
[29]Ibid [164].
[30]Ibid [165].
[31]Ibid [166].
[32]Ibid [167].
In regard to Sawyer-Thompson’s culpability and degree of responsibility, the judge held that there were three factors that reduced her culpability and degree of responsibility. Absent those factors, he stated that the offence would be ‘close to the worst, if not within the worst, category of defensive homicide’.[33] The factors that reduced her culpability and degree of responsibility were the fact that the killing was not her idea, she was vulnerable to Mifsud’s threats due to a history of violence, and she had impaired judgment at the time of the offending. As to her judgment, the judge was satisfied by psychological evidence that Sawyer-Thompson was suffering from the effects of post-traumatic stress disorder, as well as depression and anxiety. He accepted the evidence of the Crown psychologist Dr Gee that Sawyer-Thompson ‘was not in a position to make reasoned and ordered judgments, nor maintain complete control over her faculties’.[34]
[33]Ibid [168].
[34]Ibid [177]-[178].
Sawyer-Thompson was assessed of being low intelligence with a full-scale IQ of 70, only one point above a diagnosis of a mild intellectual disability. She presented with characteristics of a dependent personality disorder. Further, she was addled by drugs at the time of the offending.
Balancing those factors, the judge concluded that he still considered the offending to be an objectively grave example of defensive homicide that falls towards the upper end of the range of seriousness, although it ‘would be far worse but for the mitigating considerations evident in the opinions of the psychologists’.[35]
[35]Ibid [179].
After describing Sawyer-Thompson’s personal circumstances and background,[36] the judge considered the factors open in mitigation including her admissions to police, plea of guilty, assistance to authorities, remorse, limited criminal history, youth, delay, and reasonable prospects of rehabilitation.
[36]Ibid [181]–[193].
In regard to Sawyer-Thompson’s admissions, the judge took into account that she had ‘never shirked from admitting that she was the one that killed Mr Nankervis’.[37]
[37]Ibid [196].
The judge considered Sawyer-Thompson’s plea of guilty as significant in four ways. First, he acknowledged that the plea came at a late stage but noted that she had offered to plead guilty to defensive homicide well before trial under different circumstances.[38] Secondly, a stressful trial involving the ordeal of cross-examining the witnesses was avoided and any assertions of attempted rape by Nankervis not required to be interrogated.[39] Thirdly, the plea demonstrated an acceptance by Sawyer-Thompson of her ‘legal responsibility for her actions and a willingness to facilitate the course of justice’.[40] Fourthly, the plea was entered despite the possibility of acquittal by way of the defence of duress or self-defence if it could be demonstrated that her belief in the need to kill Nankervis was reasonable. The judge stated that ‘because she has foregone what, in my judgment, was at least some chance of an outright acquittal, Ms Sawyer-Thompson’s plea of guilty is all the more worthy in mitigation’.[41]
[38]Ibid [198].
[39]Ibid [199].
[40]Ibid [200].
[41]Ibid [201].
During the course of proceedings, the judge enquired as to whether Mifsud would be prosecuted for his involvement in the offending. The matter was then adjourned so that Sawyer-Thompson could give a statement. She made that statement and gave an undertaking to further assist the authorities in their investigation and potential prosecution of Mifsud. The Director of Public Prosecution decided not to proceed with prosecution of Mifsud. The judge then heard submissions on whether Sawyer-Thompson’s statement and undertaking to assist authorities in the prosecution of Mifsud could be taken into account as a mitigating factor.
The judge made four findings in relation to whether Sawyer-Thompson’s assistance to authorities could be taken into account as a mitigating factor:
First, while I do not accept, and cannot make a finding about the truth or accuracy of, some aspects of Ms Sawyer-Thompson’s account in evidence and in her statement, I am satisfied that the substance of her account of Mr Mifsud’s involvement in ordering her to kill Mr Nankervis, and of his ill-treatment of her, is both full and frank.
Secondly, I am satisfied that Ms Sawyer-Thompson’s offer and undertaking to assist, and the provision of her statement, reflect contrition and a genuine desire to bring a person to justice but also a hope of obtaining the potential sentencing benefit that might flow from such behaviour.
Thirdly, while I accept the substance of her account on the balance of probabilities, I can well understand how it is that the Director has come to the view that there is no reasonable prospect of a conviction [of Mifsud] based on her evidence … Thus, I accept Mr Thomson’s submission that, at least at this point, the practical value of her offer, statement and undertaking amounts to nought.
Fourthly, I accept that it is likely that, while in prison and perhaps beyond, Ms Sawyer-Thompson will suffer at least some odium, and in any event may well fear reprisals, from cowardly types who regard informers as fair game. I note that, at the time of the last hearing, Ms Sawyer-Thompson was in protective custody.[42]
[42]Ibid [211]–[214].
The judge concluded that:
Some weight – but moderate rather than substantial weight – should be given in mitigation to Ms Sawyer-Thompson’s assistance to, and offer and undertaking to assist, the authorities in the investigation and potential prosecution of Mr Mifsud, even though the Director has declined to take the matter any further. I have given this factor less weight than otherwise on account of the fact that, at least at present, it is reasonable to conclude that there is no practical value in her offer, statement and undertaking. But the other features of her attempt and offers to assist mean that at least a moderate weight must be given to this factor. By way of comparison, in the circumstances of this case, the weight I have given this factor, while still significant, is somewhat less than that which I have given to the plea of guilty.[43]
[43]Ibid [215].
In regard to remorse, the judge found that Sawyer-Thompson was ‘genuinely sorry for her involvement in the killing of Mr Nankervis and the terrible grief it has caused his family’.[44] He was satisfied of this on the basis that her admissions were evidence of remorse, the evidence of her psychologist that she was ‘riddled with guilt’, her letter of apology to Nankervis’ mother, her sworn evidence of her remorse and her offer to assist the authorities, which was partly motivated by remorse.[45]
[44]Ibid [219].
[45]Ibid [220]–[224].
The judge noted that Sawyer-Thompson only had some minor Children’s Court matters on her record, ‘of only slight relevance to sentence’.[46]
[46]Ibid [227].
Sawyer-Thompson was not only young at the time of the offending (19 years old), but she was also considered by psychologists for both parties to be immature for her age.[47] However, the ‘extreme gravity’ of the attack was considered by the judge to lessen the prominence that her youth would have had if sentencing for a less serious case of defensive homicide.[48] The judge held that:
Despite the fact that she believed her family would be killed unless she killed Mr Nankervis, I think that the extreme and disturbing violence employed by Ms Sawyer-Thompson demand that denunciation and protection of the community are significant considerations in sentencing her, which, in turn, tends to leave less room than otherwise for the mitigating effect of her youth.[49]
[47]Ibid [229].
[48]Ibid [230].
[49]Ibid.
Some weight was also given to the delay between the offending and sentencing. Due to a variety of factors outside of the control of Sawyer-Thompson — including the taking of the case stated to the Court of Appeal, the examination of Sawyer-Thompson’s mental state and the investigation of Mifsud — nearly three years had passed between the time that Nankervis was killed and the date of sentence.[50]
[50]Ibid [234].
The judge considered the delay to be relevant in mitigation because of the considerable strain it placed on Sawyer-Thompson while she awaited her fate and because she had used the time well to undertake courses in prison and ultimately to plead guilty to the offending.[51]
[51]Ibid [235].
The judge assessed Sawyer-Thompson’s prospects of rehabilitation as ‘reasonable to good’, but not very good or excellent.[52] This finding was made on the basis of her admissions, plea, assistance to authorities, lack of prior convictions, youth, participation in programs while in prison, and family support.[53] The judge noted however that her prospects of rehabilitation were somewhat offset by her ‘entrenched history of drug use and the particularly disturbing nature of her crime’.[54]
[52]Ibid [236].
[53]Ibid [237]–[239].
[54]Ibid [240].
The judge then dealt with the purposes of sentencing. The judge stated that the ‘extreme and disturbing violence’ employed by Sawyer-Thompson demanded that general deterrence, denunciation, just punishment and protection of the community were significant considerations in the sentencing exercise.[55] He observed that specific deterrence should be given some weight, but that weight was diminished by the plea of guilty, Sawyer-Thompson’s attempt to assist the authorities, her remorse, her limited prior criminal history and her prospects of rehabilitation.[56] Those factors also made rehabilitation an ‘important sentencing purpose’.[57] The judge also stated that the community would be better served and protected if Sawyer-Thompson’s chances of reform were not crushed by an inordinately long prison sentence.[58] He noted that the principle of parsimony precluded him from imposing a sentence longer than necessary to achieve the above sentencing purposes.[59]
[55]Ibid [244].
[56]Ibid [245].
[57]Ibid [246].
[58]Ibid [247].
[59]Ibid [248].
In regard to current sentencing practices, the judge considered the summary of defensive homicide cases provided by the prosecution and sentencing statistics for sentences imposed for defensive homicide between July 2010 and June 2015. However, he noted the ‘limited utility’ of sentencing statistics as ‘they do not distinguish cases according to their most important sentencing considerations’.[60] He also observed that ‘[w]hile no two cases are ever truly alike, none of the cases I considered are quite like this one’.[61]
[60]Ibid [251].
[61]Ibid [252].
Lastly, the judge briefly discussed the difficulty in quantifying the discount in sentence applicable as a result of Sawyer-Thompson’s plea of guilty and undertaking to assist authorities.[62] Rather than considering those factors separately, he concluded that, had Sawyer-Thompson been found guilty of defensive homicide following a trial and had not assisted authorities either through a statement or by giving an undertaking, he would have imposed a sentence of 15 years’ imprisonment with a non-parole period of 11 years.[63]
[62]Ibid [253]–[260].
[63]Ibid [261]; Pursuant to Sentencing Act 1991 s 6AAA (‘the s 6AAA statement’).
Grounds of appeal
As mentioned, Sawyer-Thompson relies on two grounds of appeal: that the judge erred in concluding that the offending fell towards the upper end of the range of seriousness (ground 1) and that the sentence of imprisonment and non-parole period were manifestly excessive (ground 2).
With respect to ground 1, Sawyer-Thompson submits that the judge erred in considering this case to be a grave example of defensive homicide. She submits that he made that error on the basis of a consideration she characterises as irrelevant, namely that the threat to which Sawyer-Thompson was responding did not emanate from the deceased. She submits that this had no effect on her culpability. Further, she submits that the fact that she could have gone to the police ignored the context of the threat and her vulnerability, as established by psychological evidence.
She relies on Creamer v The Queen[64] to submit that the gravity of the offence is lessened because of the strength of the circumstances that gave rise to her belief that self-defence was warranted. Put another way, she submits that given there was only a small degree of departure from the reasonable basis required to make good the claim of duress, the judge ought to have reduced his assessment of the objective gravity of the offending.
[64](2012) 221 A Crim R 284.
In addition, Sawyer-Thompson submits that the sentence imposed was manifestly excessive even if the judge did not err in his assessment of the objective gravity of the offence. She cites other findings of the judge in support of this submission including that her reduced moral culpability took the offending out of the worst category, she expressed genuine remorse, the delay was not of her own making, and she had reasonable to good prospects of rehabilitation.
In particular, she submits that her youth remained a significant consideration in mitigation of the sentence. In combination with her prospects of rehabilitation and the judge’s expressed aim to return her to the community at the earliest possibility, her youth necessitated a shorter non-parole period. She also submits that her mental and cognitive impairments and the context of the crime meant that general deterrence, denunciation and just punishment should have been moderated as sentencing purposes.
Lastly, she submits that the s 6AAA statement demonstrates that the judge was sentencing from a starting point that was demonstrably too high. Since the judge had indicated that her reduced moral culpability took her out of the worst category and that she had significant mitigating factors, she submits that a s 6AAA statement of 15 years’ imprisonment is indicative that the sentencing discretion miscarried. This is particularly the case when it was conceded that the highest sentence previously imposed for defensive homicide was 12 years and those cases did not benefit from a guilty plea discount.
The Crown submits that the judge gave clear reasons for his conclusion that the offending was grave. It also submits that the fact that Nankervis was not the source of the threat and that Sawyer-Thompson had the opportunity to flee were relevant considerations in the assessment of the gravity of the offence. It submits that the fact that these considerations were taken into account are not indicative that the greater context of the threat to Sawyer-Thompson was ignored.
The Crown does not agree that this is a case where the degree of unreasonableness of the belief that self-defence was warranted was only marginally different to a belief that would have been reasonable. It submits that the belief in this case was far from reasonable and this was emphasised at the plea hearing. It submits that the manner of killing Nankervis was a grossly disproportionate response to the perceived threat and that this was relevant to the assessment of the objective gravity of the offending. The unreasonableness of the belief is further supported by the fact that the judge was only just satisfied of the truth of Sawyer-Thompson’s account to the requisite standard.
The Crown submits that no error in regard to the assessment of the objective gravity of the offending has been demonstrated and, if it were, no different sentence should be imposed.
On ground 2, the Crown submits that the sentence was reasonably open to the judge. It cites the careful and comprehensive consideration by the judge of the factors in mitigation relevant to Sawyer-Thompson. In regard to Sawyer-Thompson’s submission that her youth was not appropriately taken into account, the Crown submits that the judge appropriately balanced the gravity of the offending and the benefit to the community of maximising her chances of reform. The Crown agrees with the judge, however, that Sawyer-Thompson’s youth and rehabilitation cannot be the paramount sentencing consideration given the extreme gravity of the offending.
The Crown submits that, even though Sawyer-Thompson’s prospects of rehabilitation were reasonable to good, her entrenched history of drugs and the disturbing nature of the crime meant that a shorter non-parole period was not justified.
As to current sentencing practices, the Crown relies on the following statement by Maxwell P in R v Copeland:
In some of the cases which have attracted head sentences of 10 or 11 years … the striking feature is sustained brutality — repeated stabbing or bashing of the victim — when the circumstances objectively provided no justification for such a response.[65]
[65][2014] VSC 39, citing McEwan v The Queen [2013] VSCA 329 [105]; R v Creamer [2011] VSC 196 [28]–[29]; R v Vazquez [2012] VSC 593 [12]; R v Ghazlan [2011] VSC 178 [3]; R v Edwards [2012] VSC 138 [49].
Lastly, the Crown submits that a s 6AAA statement cannot generally be taken as exhibiting error, particularly since it has been considered to involve ‘a substantial degree of artificiality’.[66] In this case, the declaration involved many considerations beyond just the plea of guilty.
[66]Zogheib v The Queen [2015] VSCA 334 [62].
In my view, it can be readily accepted that the circumstances of the offending involved brutal and horrific violence. However, there remains the question whether an error was made in the assessment that the offending fell towards the upper end of the range of seriousness, given the finding that Sawyer-Thompson genuinely believed her family were at risk of being killed by Mifsud[67] and given the numerous factors identified above that detracted from the gravity for the offending, including Sawyer-Thompson’s impaired ability to make reasoned judgments or control her faculties, her low IQ, her dependent personality disorder, and her vulnerability to Mifsud’s threats based upon her experience of his violence and psychological abuse. Furthermore, the question also remains whether the sentence imposed is manifestly excessive, especially in the circumstances that, as the judge observed, a significant factor in mitigation was that Sawyer-Thompson had foregone a chance of an outright acquittal if her belief in Mifsud’s threat could have been shown to be reasonable.[68]
[67]Sentencing reasons [139]. See [19] above.
[68]See [31] above.
In the circumstances, I consider that the question of whether Sawyer-Thompson should be granted leave to appeal against sentence should be determined by a bench of three judges and that the application for leave to appeal should be heard at the same time as the appeal. Pursuant to r 2.07(2)(b) of the Supreme Court (Criminal Procedure) Rules 2008, I refer the application for leave to appeal for determination by the Court of Appeal comprising three Judges of Appeal.
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