Hopkins v The Queen
[2015] VSCA 174
•19 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0244 | |
| DAVID WARWICK HOPKINS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY and REDLICH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 June 2015 |
| DATE OF JUDGMENT: | 19 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 174 |
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ELECTION TO HAVE APPLICATION FOR EXTENSION OF TIME FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL
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CRIMINAL LAW – Application for extension of time for leave to appeal against sentence – Murder – Sentence of life imprisonment with 30 years’ non-parole period – Whether head sentence or non-parole period manifestly excessive – Long delay in seeking extension of time – Whether proposed appeal would probably succeed – Application refused – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M Fitzgerald | Marich Legal Pty Ltd |
| For the Crown | Mr B F Kissane QC | Ms V Anscombe, Solicitor for Public Prosecutions |
ASHLEY JA:
Redlich JA will deliver the judgment of the Court.
REDLICH JA:
Following a plea of guilty, on 19 October 2011 the applicant was sentenced to life imprisonment with a non-parole period of 30 years for the murder of Nicole Millar.[1]
[1]R v Hopkins [2011] VSC 517 (‘Reasons’).
It was not until 17 November 2014 that the applicant applied for an extension of time in which to file a Notice of Appeal against both his conviction and sentence.
The application for an extension of time was refused by Deputy Registrar Tedhams on 16 December 2014.
On 7 January 2015, the applicant filed a notice of election to renew that application.
On 5 June 2015, the applicant abandoned his application for an extension of time in which to seek leave to appeal against conviction. Therefore, what is before the Court is only the renewal of his application for an extension of time within which to seek leave to appeal against sentence.
The applicant was in a de facto relationship with Nicole Millar from 2008. The two of them were heavy users of illicit drugs and there was a history of violence and anger directed at Ms Millar by the applicant. His abusive behaviour was observed on several occasions by both the family and co‑workers of Ms Millar, in particular in the weeks preceding her death.
On the morning of 1 June 2010, the two drove Ms Millar’s son, Kane, who lived with them, to school. CCTV footage then recorded the car driving into the car park of a Woolworths supermarket in Bayswater, where it remained for approximately four and a half minutes. It was next recorded reversing and driving into the adjoining service station, where it stopped in front of the petrol pump. The applicant got out of the car and began refuelling it.
The pump was on the passenger side of the car and Ms Millar remained seated on the driver’s side.
Shortly after beginning to fuel the car, the applicant removed the nozzle of the handpiece from the filling point, opened the passenger door and began pumping fuel over Ms Millar. She immediately tried to leave the vehicle but was restrained by the applicant wielding the knife that he usually carried.
She cried out for help and sounded the horn but he slashed or stabbed her in the neck and continued to pump fuel over her before setting her and the car alight.
The applicant exited the passenger door, removed his own burning clothing and commenced pacing near the rear of the vehicle. Ms Millar exited the vehicle on the driver’s side. She was completely engulfed in flames. She stumbled a short distance before falling to the ground, where she remained burning from head to toe.
Bystanders were ringing 000 and attempting to help her, but the applicant actively prevented any assistance being given to Ms Millar. He brandished his knife at those who approached and threatened to kill them. He stalked around Ms Millar, saying things to her like, ‘burn, bitch, burn’, ‘I hope you die’, ‘burn, let her burn’, and ‘hurry up and burn’. Ms Millar was screaming in agony throughout.
It was not until someone drove a car directly at him that the applicant moved out of the way and people were able to aid Ms Millar. She was transported to the Alfred Hospital where she died at 6:00pm that evening from injuries – full thickness burns over 90 per cent of her body – that were untreatable.
Before being placed into an induced sleep, Ms Millar was in indescribable pain and begged the doctors not to let her die.
After Ms Millar was assisted at the site, the applicant fled to the steps of a nearby church. He brandished his knife and made gestures as if cutting someone’s throat. He at first refused to comply with any directions given by attending police and seemed unaffected when sprayed with capsicum three times. But eventually he surrendered, and was taken to hospital. There, he was treated for burns and for self‑inflicted stab wounds and cuts.
In sentencing the applicant, King J had regard to a series of victim impact statements. She noted that a number of people had been traumatised by the applicant’s actions.
Her Honour then concluded that the applicant’s behaviour that day was an example of ‘the worst kind of viciousness and sadistic behaviour that a court is likely to ever see’[2] and that the offending fell into the worst case scenario for a charge of murder.[3] She concluded, therefore, that the maximum penalty of life imprisonment was appropriate, subject to the imposition of a minimum term. She decided that setting a non-parole period was justified by a combination of factors, one of which was the applicant’s plea of guilty.[4]
[2]Ibid [26].
[3]Ibid [27].
[4]Ibid [29].
Her Honour accepted that the applicant had entered that plea at an early stage, but she did not find this indicative of remorse. Nonetheless, she noted that the community and the court had been well served by having been spared the expense and time of a trial. Thus, the plea had a utilitarian value which should be encouraged.[5]
[5]Ibid [32].
A number of medical reports had been tendered in the course of the plea. The judge reviewed them, and then concluded that, whilst the applicant’s drug consumption had affected him to some degree on the day of the offending, it was ‘not to such a level that [he was] not in control of [his] own thoughts and actions’.[6]
[6]Ibid [39].
The applicant seeks leave to appeal against his sentence on the sole ground that the head sentence and non-parole period are manifestly excessive.
By way of particulars, it is said that the sentencing judge gave excessive weight to the manner of the victim’s death, and that her Honour failed to give sufficient weight to three matters: the absence of premeditation, the plea of guilty, and the applicant’s lack of prior convictions for offences of violence, together with character references which were tendered on the plea.
To be permitted to proceed with the application for leave to appeal out of time, the applicant must persuade the Court that there are ‘special and substantial reasons’ for extending the time.[7] The material before us suggests that the applicant always maintained a desire to appeal. But the explanation for the three-year delay beyond the expiry of the statutory limit has been quite unsatisfactory. No special or substantial reasons for extending time have been identified.
[7]R v Darby (Unreported, Supreme Court, Court of Criminal Appeal, Gowans, Lush and Crockett JJ, 2 May 1975) 1–2; Efandis v The Queen [2014] VSCA 42, [35]–[36].
It is well recognised that the more time that has elapsed beyond the statutory period, the more exceptional the circumstances will have to be before an extension of time is granted. Importantly, the Court will not grant a considerable extension of time unless satisfied that the proposed appeal would probably succeed.[8]
[8]Ibid.
In oral argument, applicant’s counsel drew attention to the recent decision of the High Court in Kentwell v The Queen.[9] He submitted that a distinction is drawn between an application to proceed with a stale appeal against conviction and a stale appeal against sentence, the principle of finality applying with less rigour in the case of a proposed appeal against sentence. Assuming that to be so, he conceded the question remains the same, namely, would the appeal probably succeed. We approach the matter, then, on the basis that an extension of time should not be granted unless there are compelling reasons to conclude that a serious injustice would arise were the application not to be granted.
[9](2014) 313 ALR 451.
Before going further, we should make reference to the fact that counsel for the applicant who appeared before us appeared pro bono. He had also prepared an attractive written submission and must be commended not only for the service he has undertaken but for his industry and the comprehensive nature of his submissions.
The primary submission which was advanced was that her Honour erred in placing this murder in the worst category of that offence. To make good this contention, applicant’s counsel focused upon four matters. First, it was submitted that excessive weight was given to the manner of the victim’s death. Second, it was contended that insufficient weight was given to the absence of premeditation. Third, it was argued that the judge gave insufficient weight to the applicant’s patently disturbed mental state. Fourth, it was submitted that insufficient weight was given to the applicant’s personal circumstances, this encompassing his plea of guilty, lack of convictions for violence and good character references.
As to the first of those matters, counsel readily acknowledged in the written case that it would be a futile exercise to attempt to imagine a death that more appals the conscience than death by burning. It is a form of death likely, in common knowledge, to be accompanied by extreme pain, as it must have been for Ms Millar, who was conscious throughout the ordeal.[10] In Director of Public Prosecutions v Alipek,[11] Nettle J, as he then was, aptly described it as a form of death ‘so brutal as to be beyond the understanding of most civilised human beings’.[12] The applicant’s actions in preventing bystanders from coming to Ms Millar’s aid and in taunting her as she burned alive also elevated the objective gravity of the offence. His counsel submitted, however, that the manner of death was only part of the offending, and that it should not have been allowed to ‘swamp’ other relevant considerations.
[10] R v Everett (Unreported, New South Wales Court of Criminal Appeal, Allen J, 13 December 1995). See also R v Streeton [1997] QCA 178.
[11][2004] VSC 206.
[12]Ibid [28].
Counsel submitted also that the applicant was engaged in lawful behaviour, refuelling the vehicle, when his mental state altered. He argued that his client had no preconceived intent to immolate the victim. In the written case, he contended that the only permissible inference from the facts was that a ‘homicidal intention supervened spontaneously’.
Thus, the primary argument was that, immediately prior to his offending, the applicant suddenly developed a disturbed mental state; and that this had to be borne in mind when considering the degree of criminality to be attached to his conduct.
As to the second matter relied upon, it was submitted that the sentencing judge gave insufficient weight to the absence of premeditation. In the written case, counsel contended that the sentencing judge’s finding that the applicant was in ‘a drug-fuelled rage’ at time of offending was unrealistic. Counsel pointed to a number of factors, including the applicant’s agitation, distress and paranoia at time of offending. Although they fell short of establishing a drug-induced psychosis, they did not accord, counsel submitted, with the sentencing judge’s conclusion. Because the judge had mischaracterised the applicant’s disturbed mental state as ‘drug-fuelled rage’, her Honour had given insufficient weight to the absence of premeditation, such that it was ‘not open to her Honour’ to reach the conclusion that this was a worst category case.
It can thus be seen that the second argument, as with the first, rested substantially on the assertion that the applicant’s mental state was disturbed at time of offending in a way which the judge failed to recognise. The third matter relied upon, in turn, refers to the applicant’s ‘patently disturbed mental state’.
In our view, each of these arguments rested upon an unsound foundation.
First, the applicant’s grounds of appeal do not assert specific error, but only the imposition of a sentence which is manifestly excessive. Yet under cover of this ground, submissions were advanced from which the Court was invited to conclude that the sentencing judge drew an impermissible inference as to the applicant’s state of mind at time of offending.
Second, and perhaps more importantly, the substance of the complaint was an attempt to re-agitate the issue that was raised and abandoned in the applicant’s application for leave to appeal against conviction. Brief reference should therefore be made to the issues which the applicant raised in that abandoned application.
The applicant initially pleaded guilty at the committal proceedings on 8 March 2011. On 29 March 2011 he was arraigned and pleaded guilty to one count of murder. But on 5 September 2011, through counsel, he made an application to change his plea on the basis that he had a defence of mental impairment. Belatedly, on that occasion, an alternate defence was said to be available – that the offence had been committed whilst the applicant was in a drug-induced disassociated state.
It was clear from both this and previous mentions that the applicant’s mental state was viewed by the applicant and his legal advisors as being a matter of primary concern that required full investigation and attention.
In response to the submission that the applicant should be permitted to change his plea because he had defences based upon his mental state at the time of the killing, King J expressed the strong view that the material, most significantly a report of Dr Deacon dated 9 November 2010, did not support any defence related to a disassociated state of mind resulting from narcotic consumption. Counsel was unable to point to any evidence that could support either of the foreshadowed defences. Unsurprisingly, therefore, her Honour rejected the application.
The proposed grounds of appeal against conviction, now abandoned, asserted that her Honour had erred in refusing to permit the applicant to change his plea.
No further material was adverted to in the course of the present application which could permit a conclusion that the applicant’s consumption of drugs supported either of the proposed defences. Nor was there any attempt to suggest that there was material permitting at least a conclusion that the applicant suffered from a mental disorder as might constitute a mitigating circumstance. Significantly, counsel eschewed any suggestion that the applicant’s mental state constituted a separate factor in mitigation of penalty. We note in passing that counsel made reference in the written case, by way of a footnote, to DPP v Arvanitidis,[13] and R v Martin,[14] cases in which it was recognised that the known effects of drugs as inducing violence may constitute an aggravating factor.
[13](2008) 202 A Crim R 300.
[14](2007) 20 VR 14.
When pressed in oral argument whether the contention was being advanced that the judge erred in inferring that the applicant’s conduct was to be explained as done in a drug-fuelled rage, counsel conceded that it was open to her Honour to have made such a finding. Not only was it open, but counsel was not able to suggest what other finding could have been made on the evidence before her Honour. Counsel explained, in reply, that he was really contending that an assessment of the applicant’s degree of moral culpability required the judge to take into account that he was irrationally affected by the consumption of drugs and did not act in a controlled and composed manner.
The evidence demonstrates that the applicant’s conduct was to be explained as done in a drug-fuelled rage. Though affected by his drug consumption, it was very clear that the applicant understood precisely what he was doing. The submission cannot be sustained that his drug consumption in some way reduced his moral culpability. The regrettable fact is that this Court sees only too often the results of drug-induced violence that explains the infliction of horrific injuries. Absent circumstances in which an offender has no forewarning that the consumption of drugs may so affect him, the consumption of drugs does not constitute a mitigating circumstance. Counsel for the applicant accepted that was so. There being no medical evidence that the applicant otherwise suffered from a mental disorder, the finding of the sentencing judge is, in our view, unimpeachable.
Returning to the applicant’s submission as to the absence of premeditation, it is true that the presence of premeditation is ordinarily significant in elevating the seriousness of murder; and it can be said that this was not a case involving a ‘cold-blooded execution’. But counsel was compelled to concede that the absence of premeditation need not be present for a case of murder to be considered to be in the worst category justifying the imposition of the maximum penalty.
Of course, it is entirely unnecessary for a sentencing judge to refer to the absence of aggravating circumstances. That said, it is clear from her Honour’s sentencing remarks that her Honour sentenced the applicant upon the basis that his conduct was not premeditated.
There were, however, other aggravating circumstances present which explained why the objective gravity of the offence was elevated. Counsel for the applicant rightly conceded that if his arguments concerning the applicant’s state of mind and moral culpability were not made out, there were features of the offence that could explain its placement in the worst category. The circumstances of death and the applicant’s conduct at, and proximate to, the time of offending significantly increased his degree of criminality. Other victims were exposed to this horrific event. The manner of death, including the applicant’s conduct in preventing others from coming to the aid of Ms Millar, was given no more prominence than it deserved.
As we said in the joint judgment in Hudson v The Queen:[15]
Once there are features of the offending which require it to be characterised as falling within the worst category, the sentence will not become unreasonable or unjust because a lesser sentence has been passed in a like case or the same sentence has been passed for a case said to have worse features. The ‘worst’ category is to be understood as the joint judgment in Veen v The Queen (No 2) described it:
... the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451–452. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.
In cases where a life sentence has been considered to be an appropriate sentence, the range of circumstances attracting that penalty is seen to vary widely. A detailed analysis of the cases in this worst category shows that the aggravating circumstance of pre-meditation is sometimes present. It was absent from the present case as the applicant’s offending did not involve pre-planning. On the other hand, there were aggravating features of the present case that are not to be found in those other cases. … Reference to features of ‘comparable’ cases in that worst category which are not present in the case under examination will not demonstrate that the impugned sentence is beyond the range of sentences that were available to the sentencing judge in the exercise of his discretion.[16]
[15](2010) 31 VR 610 (‘Hudson’).
[16]Ibid 619–20 [38]–[39].
Counsel submitted, as we earlier noted, that the applicant’s guilty plea was given less credit than was appropriate in the circumstances of the case. Her Honour dealt at some length with his plea and found that there was no remorse. That finding has not been challenged. Thus, the discount which the judge granted was necessarily reduced. Moreover, as Hudson illustrates, the nature of a crime may not require any discount for a plea of guilty and certainly not one which precludes the Court from imposing the type of sentence here imposed. We reject the submission that the sentence suggests that the objective utility of his plea was not given sufficient consideration.
The further submission that the non-parole period imposed demonstrates that insufficient weight was given to the guilty plea is similarly unpersuasive, relying, as it does, on resort to arithmetic comparisons.
Counsel’s submission that the judge’s failure to refer to the applicant’s limited criminal history in her sentencing remarks indicates that she gave insufficient weight to that factor must fail. Her Honour did both refer to this factor and consider it.[17]
[17]See Reasons, [28] and Transcript of Plea, DPP v Hopkins (Supreme Court of Victoria, King J, 30 September 2011) 100.
As to the submission that character references which were tendered were not given adequate consideration, her Honour did give careful consideration to the applicant’s prospects of rehabilitation, thereby addressing the very issues raised in those references. This point, in our view, has no substance.
The proposed appeal therefore has no prospect of success. The renewed application for an extension of time must be refused.
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