Kamna Ramjutton v The Queen
[2015] VSCA 309
•23 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0004
| KAMNA RAMJUTTON | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH JA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 August 2015 |
| DATE OF JUDGMENT: | 23 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 309 |
| JUDGMENT APPEALED FROM: | [2014] VSC 611 (Emerton J) |
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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Unlawful and dangerous act – Aiding and abetting – Sentenced to 8y 6m, non-parole period 6y – Complicity – Pre-planning – Victim lured to house and assaulted – Death by strangulation – Appellant encouraged principal offender by presence – Participated in pre-planning and luring victim to house – Whether judge mischaracterised role – Culpability – Acquiescence – Whether appellant less blameworthy – Whether sentence manifestly excessive – Appeal dismissed – R v Lam (2008) 185 A Crim R applied.
CRIMINAL LAW – Appeal – Sentence – Mitigating factors – Offer to plead guilty – Discussions between counsel – Whether unconditional indication of intention to plead guilty – Judge did not take into account – No error – Sentencing Act 1991 s 5(2)(e).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C T Carr | Matthew White and Associates |
| For the Respondent | Mr P B Kidd SC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
CROUCHER AJA:
Overview
The appellant and her husband were each charged with the murder of Faisal Zazai. Shortly prior to her trial, the appellant pleaded guilty in the Supreme Court to one charge of manslaughter, on the basis that she aided and abetted her husband’s unlawful and dangerous act. Following the trial, her husband was convicted of murder. The appellant was sentenced to eight years and six months’ imprisonment, with a non-parole period of six years.
On 20 March 2015, the appellant was granted leave to appeal on the following grounds:[1]
1The learned sentencing judge erred in finding that it did not reduce the appellant’s culpability that she was not the driving force behind the unfolding events and her role could best be described as acquiescence.
2The sentencing process miscarried because the learned sentencing judge sentenced on a factual basis different to the agreed basis upon which the plea proceeded, without any forewarning that she would do so.
3The learned sentencing judge erred in sentencing on the basis that the appellant’s offending was extremely serious because she was ‘involved in planning some kind of serious assault’ on the victim.
4The sentence imposed is manifestly excessive.
[1]Ramjutton v The Queen (Unreported, Supreme Court of Victoria, Court of Appeal, Redlich JA, 20 March 2015).
For the reasons that follow, we would dismiss the appeal.
Background
Circumstances of the offending
The circumstances of the offending are set out in the summary of prosecution opening, exhibited on the plea.
The appellant and her husband were each born in Mauritius and arrived in Australia in 2006. The appellant was aged 25 at the time of the offending.
In 2007, the appellant and her husband each began employment with Pizza Fellas, a business operated by the deceased, Mr Zazai, and his brother. In 2009, the appellant and her husband began renting a property in Felicity Drive, Tarneit. Mr Zazai acted as a referee on their rental application and later partially funded a trip for the appellant and her husband to Mauritius in 2011.
In July 2012, the appellant’s husband took over an existing Pizza Fellas franchise in Taylors Hill from Mr Zazai and his family. Within six months of the appellant’s husband taking over the franchise, Mr Zazai and his brother became aware that debts associated with the franchise were not being paid by the appellant’s husband, and they paid the rent for the store to assist. In December 2012, Mr Zazai and his brother questioned the appellant’s husband about the debts and he told them the store was not making any money. The appellant’s husband said he could not run the store anymore and the franchise was returned to the Zazai family.
By the time of the offending, the appellant and her husband were under significant financial stress. The appellant was the sole breadwinner and, in January 2013, her husband had opened an account at Crown Casino, where he was gambling in an attempt to make money to pay off their debts.
The appellant continued work with the Pizza Fellas store in Tarneit. An arrangement was in place whereby the appellant would record the takings at the end of each day and hold the money for Mr Zazai to collect on either a Tuesday or a Thursday night at the end of trade from the store.
On Thursday 9 May 2013, the appellant, despite being rostered on to work at the Tarneit store, told a co-worker that her grandfather had died and that she would not be coming into work that day. She asked that co-worker to contact Mr Zazai (who she knew would be coming that night to collect the takings) and ask him not to go to the store that night. After several exchanges between the appellant and Mr Zazai through the co-worker, the appellant contacted Mr Zazai directly and said she was at home but unable to get to the shop. Mr Zazai agreed to come to the house and collect the takings.
At 7:40 pm, the appellant’s husband purchased a roll of duct tape. Upon returning home, he parked his car on a nearby street (away from his own address) and walked to the Felicity Drive address.
At approximately 10:34 pm, Mr Zazai arrived at the Felicity Drive address. A violent physical altercation took place, which began in the kitchen and finished with a struggle on the front lawn as Mr Zazai was attempting to flee. At some point, the appellant’s husband placed his hands around Zazai’s neck and squeezed until he stopped resisting. The appellant and her husband then dragged Zazai back inside the house.
At approximately 10:43 pm, police attended at the address. Officers observed the appellant at the front door appearing distressed. The appellant’s husband came to the door and appeared to be out of breath and sweating. He then told police that there was a person in the house who was unconscious and not moving.
Police entered the property and found Mr Zazai in a room adjacent to the kitchen. Mr Zazai did not appear to be breathing, his face was a purple colour and his eyes were rolled back. Police, and later paramedics, commenced CPR in an attempt to revive him but it became apparent that he was not showing any signs of life. Mr Zazai was declared to be deceased at 11:09 pm.
The appellant and her husband were arrested by police. Police located and seized latex gloves from the bushes in the front yard, a handbag containing $2,240.70, a roll of duct tape and a crumpled piece of duct tape from the kitchen and dining area. Police also found and seized a red bag containing $8,750.60 from the centre console of the motor vehicle belonging to the deceased.
The appellant subsequently gave various false accounts of what occurred to the police at the scene, in recorded interviews and also in a typed signed statement.
Sentencing remarks
The judge’s reasons for sentence include the following:[2]
[2]DPP v Dookheea [2014] VSC 611. All extracts are from the revised reasons as provided to the Court (‘Reasons’).
[11]There was an element of planning as to how you would deal with Mr Zazai when he came to the house, and when that plan was put into place, it resulted in the death of Mr Zazai. The plan conceived by you involved extracting money from Mr Zazai or persuading him to expunge the debt owing to him. To that extent there was a plan, and it was a plan that involved money.
…
[17]The crime of murder is extremely serious, as is the crime of aiding and abetting an unlawful and dangerous act that results in the death of a person. The court has a duty to uphold the sanctity of human life. There must never be any doubt about the commitment of the community and the court through which it speaks to defend the importance of human life with the imposition of substantial penalties. By your crimes, you have caused the death of a young man who had much to live for and was a much loved and valued member of a large and close-knit family.
…
[45]Your counsel did not rely on Verdins principles in the plea. However, he submitted that you fell to be sentenced towards the lower end of the range of sentences for the offence of manslaughter because you did not perform the physical acts causing death and, although you aided and abetted through acts of preparation and participated in an assault, this was done without any intention to kill or cause really serious injury. You were not the driving force behind the unfolding events that led to Mr Zazai’s death and your role can best be described as acquiescence in the events initiated by your husband.
[46]In my view, these are not matters that greatly reduce your culpability for the crime of which you stand convicted of aiding and abetting an unlawful and dangerous act perpetrated by Mr Dookheea. Your crime is extremely serious, having regard to your participation in the violent assault on Mr Zazai and the fact that you were involved in planning some kind of serious assault on him.[3]
…
[50]While I am reluctant to hold you strictly to account for a description of your feelings given in the stressful context of the police interview, those words clearly betray a lack of remorse for your actions. Furthermore, I note that your plea of guilty to manslaughter was not made until just before the trial and in the setting of a very strong case against you.[4]
[3]Emphasis added. The unrevised reasons, which were initially used by the parties, omitted the word ‘greatly’ from the first line of para 46, and some of the paragraph numbers were different.
[4]Reasons [11], [17], [45], [46] and [50].
Grounds 1, 2 and 3 rest upon the meaning to be given to the sentencing remarks in paragraphs 45 and 46. It must be recognised that in those paragraphs the sentencing judge was responding to the following specific submission made by defence counsel at the plea hearing:
[DEFENCE COUNSEL]: Yes. I will come to that, Your Honour, but perhaps if I can begin in relation to the circumstances of the offence and the way in which the case is put by the prosecution and the way in which the plea of guilty is made. It will be my submission that this is a matter where Ms Ramjutton would appropriately fall to be sentenced towards the lower end of the range of sentences for the offence of manslaughter. I don’t say at the lowest end but I say towards the lower end of the range of sentences for that offence. The first basis on which that submission is made that she falls to be sentenced as an aider and abettor. The first proposition is that as an aider and abettor, she is not someone who it is alleged has physically participated in the act that caused the death of the victim in this matter. It is accepted that she has participated in some planning and preparation for an incident but, of course, that is planning and preparation that, as it’s put by the prosecution, is in effect planning and preparation for a different offence. It is planning and preparation that does not involve an intention to kill or cause very serious injury.
…
It is conceded that in addition to that planning and preparation stage, it is conceded that Ms Ramjutton participated in an assault on Mr Zazai and that that is an assault that occurred both inside and outside of the house. However, it is a part of the way the prosecution puts its case that that is an assault what was absent an intent to kill or absent an intent to cause very serious injury, because if it were put that way, that would be a different matter for Ms Ramjutton.
[HER HONOUR]: It was an assault where the victim was trying to run away, on the evidence before the court.
[DEFENCE COUNSEL]: Yes, that is accepted, Your Honour. A matter, though, of some significance in terms of her falling to be sentenced as an aider and abettor is that essentially the act that constitutes her aiding and abetting, is her continued presence at the time when the unlawful and dangerous act occurred. The unlawful and dangerous act is clearly the act that is being performed by Mr Dookheea, and it’s accepted that this follows on from an assault that occurred over a period of time and it's an assault that Ms Ramjutton physically participated in that assault, so it is accepted that that is when the act occurred and it’s at the end of a physical incident that Ms Ramjutton did participate in.
The appellant fell to be sentenced on the basis that she was aware that her husband had seized hold of the deceased by the throat and that, by her presence, she intentionally encouraged her husband, thereby aiding and abetting him in the commission of an unlawful and dangerous act.
The appellant’s submission on the plea and in this Court in support of each ground proceeded on a false premise, namely, that for the purpose of aiding and abetting by presence, one may only have regard to the conduct of the aider and abettor at the moment the relevant act constituting the principal offence is committed.
It is well established that presence alone will not suffice to constitute aiding and abetting. The circumstances must be sufficient to support the inference that the aider and abettor’s presence could have encouraged, and was intended to encourage, the commission of the principal offence.
In R v Lowery (No 2),[5] Smith J set out the principles relating to aiding and abetting which have been consistently applied in this State for over 30 years. His Honour said:
Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another — another whom the law calls the principal in the first degree — if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connection means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree. ...
[5][1972] VR 560, 561–2.
In Giorgianni v The Queen,[6] Mason J examined the terms ‘aid, abet, counsel or procure’ and then said:
But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen ACJ in R v Russell ... , as being applicable to secondary participation in misdemeanour. Having listed various words, including ‘aiding’ and ‘abetting’ which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed: ‘all the words above mentioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission’. As R v Russell itself illustrates, there need not exist any agreement or consensus between the principal in the second degree or secondary participant and the principal offender... .[7]
[6](1985) 156 CLR 473 (‘Giorgianni’).
[7]Ibid 492–493 (emphasis added) (citations omitted).
In R v Cuong Quoc Lam,[8] this Court endorsed the following summary by Redlich J of the applicable principles:
[8](2008) 185 A Crim R 453, 474–5.
The requisite mental element of a principal in the second degree was stated by Wilson, Deane and Dawson JJ as requiring ‘intentional participation in a crime by lending assistance or encouragement’ ... The necessary intent for aiding and abetting or counselling and procuring requires ‘knowledge of the essential facts of the principal offence’. ... As Giorgianni illustrates, a secondary participant will not have sufficient knowledge and hence the necessary intent if the participant does not know that the principal offender was about to do or was doing something which amounted to the alleged offence.
Knowledge of the essential facts includes knowledge of the principal in the first degree’s intention. In R v Stokes & Difford ... Hunt J stated:
To establish that an accused is an accessory to the commission of a crime by another person (whether or not he is a co-accused), by aiding and abetting him, the Crown must establish: (1) the commission of that crime by the principal offender, and (2) that the accused was present at the time when the crime was committed, and (3) that ... the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender (whether or not the accused knew that they amounted to a crime) and (4) that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that crime. The accessory’s intention to assist or encourage the principal offender must be based upon that knowledge. ...
After some analysis of Giorgianni Hunt J, speaking of both accessories before the fact and those who may be present said:
It is usually more appropriate to speak of the accessory’s knowledge (or awareness) of the principal offender’s intention to do an act with a particular state of mind at the time when the accessory aids, abets, counsels or procures the principal offender to commit the crime in question than it is to speak of the accessory’s knowledge of the act done by the principal offender with that state of mind. The knowledge will usually crystallise in the accessory’s mind before he involves himself as an accessory to that crime.
In the case of an accessory who is present and who intentionally gives the principal offender assistance and encouragement in relation to his commission of that crime, it may well be that either or both of them has or have already been involved in an assault upon the victim. The accused charged with being an accessory — having become aware of the principal offender’s intentions no doubt by reason of his involvement in the assault up to that time – only at that stage, and with that knowledge, intentionally assists and encourages the principal offender — for example, by himself continuing to assault the victim. That was the basis of the decision in Mohan. But even in such a case, it is strictly with the accessory’s awareness of the principal offender’s intentions for the future that he then encourages and assists him, rather than with his awareness (except in the loosest sense) of the actions done by the principal offender in the past. ...
This reasoning illustrates both the relevance of preceding events and the need to ensure that the distinction is maintained between a belief or intent of the secondary participant arising from prior knowledge and the intent required at the time of the acts of assistance or encouragement.
Both principle and authority suggests that the prior acts of a secondary participant and the surrounding circumstances in which the secondary participant was involved are relevant to the intent of the secondary participant and the nature and the quality of the alleged acts of aiding and abetting.
In R v Beck ... Macrossan CJ, after observing that one may look at all of the aider’s conduct to see whether he intends and is giving support at a particular moment, said:
Intentional encouragement may come from expressions, gestures or actions intended to signify approval. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend upon a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions ... a calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime would be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no tell-tale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out ...[9]
[9]R v Cuong Quoc Lam and Ors 59 A Crim R 448, 455–457 [18]–[26] (emphasis added) (citations omitted).
The acts and words of the accused, done or said prior to the commission of the crime by the principal offender, are relevant as informing the question whether the principal in the second degree intended by his or her presence to encourage the principal offender to commit the principal offence.[10] Thus the acts of the appellant prior to the commission of the unlawful and dangerous act gave colour to her presence at the moment when the acts causing death occurred. The appellant’s planning, and her participation in the prior events, revealed her intent at the time her husband committed the unlawful and dangerous act. Those preceding events gave her presence a particular quality, linking her in purpose with her husband in the commission of the unlawful and dangerous act.
[10]R v Al Qassim [2009] VSCA 192, [5] (Buchanan JA, with whom Dodds-Streeton JA and Lasry AJA agreed).
Ground 1
The appellant submits that the judge erred in finding that her culpability was not reduced by the fact that she was ‘not the driving force behind the unfolding events that led to [the victim’s] death’ and that she acquiesced in events initiated by her husband.
The appellant contends that such a finding is inconsistent with the legal basis upon which she was said to be an aider and abettor in the offence of manslaughter. Her complicity rested upon her presence and her knowing encouragement of the unlawful and dangerous acts which caused death. On the plea, the appellant described her crime as a ‘relatively passive acquiescence’ in the acts of her husband, with whom she had an ‘overly dependent relationship’.[11] Given this acquiescence, the appellant contends, the only encouragement she provided as an aider and abettor was through her voluntary presence at the commission of the offence. The judge should therefore have viewed her culpability as reduced.
[11]Reasons [44].
The appellant submits that, as her Honour did not state in her sentencing remarks that the aiding and abetting was by ‘presence’, her Honour did not recognise that that was the basis for her complicity. This, it was initially said, explained why the judge rejected the appellant’s acquiescent role as less blameworthy.
We do not accept the appellant’s characterisation of the way in which her Honour approached the appellant’s culpability. In the impugned passage, her Honour was referring to the events which preceded the acts causing death. On the plea defence counsel had submitted that those prior events had involved planning and participation by the appellant but without any intention to kill or cause really serious injury. We see no error in the judge’s conclusion that the appellant’s role in those antecedent events did not greatly reduce her culpability on the charged offence.
The appellant’s reduced culpability for the act causing death was inherent in the form of complicity to which she pleaded guilty — of aiding and abetting by presence. It is evident that her Honour recognised that to be the basis upon which the appellant was complicit in the offence and that, at the time of the commission of the unlawful and dangerous act or acts and in the events which preceded them, the appellant was ‘carried along by the actions’ of her husband.[12] The sentencing remarks demonstrate that her Honour did in fact sentence the appellant upon the basis that she had played a ‘secondary role’ in the acts causing death.
[12]Ibid [51].
During the course of oral submissions in this case, it became apparent that the appellant and this Court were relying on different versions of the sentencing judge’s reasons. The appellant relied on the unrevised reasons, in which the word ‘greatly’ did not appear before the word ‘reduce’. The revised reasons, which accord with the sound recording of the sentencing, do include the word ‘greatly’. Ultimately, counsel for the appellant conceded that, if that were the case, ground 1 would fail.
Ground 1 is not made out.
Grounds 2 and 3
In grounds 2 and 3, the appellant submits that the sentencing judge erred in sentencing the appellant otherwise than as someone who, by her presence, had encouraged the principal’s acts. Under ground 2, the appellant submits that she was sentenced on the basis of her ‘participation’ in the assault which caused death, rather than as having encouraged her husband’s acts by her presence. Under ground 3, the appellant submits that the sentencing judge incorrectly categorised her as participating in a ‘serious’ assault, and thereby erroneously elevated her culpability.
In support of these contentions, the appellant relies on the following statement in the reasons:
There was an element of planning as to how you would deal with Mr Zazai when he came to the house, and when that plan was put into place, it resulted in the death of Mr Zazai.[13]
The appellant further relies on the judge’s description of her crime as:
extremely serious, having regard to your participation in the violent assault on Mr Zazai and the fact that you were involved in planning some kind of serious assault on him.[14]
[13]Ibid [11] (emphasis added).
[14]Ibid [46] (emphasis added).
The appellant contends that the findings that she planned ‘some kind of serious assault’, and participated in the ‘violent assault’, meant that the sentencing judge had assessed her culpability as though she had planned and participated in the unlawful and dangerous act. The appellant further submits that the ‘seriousness’ of the planned assault was treated as increasing the gravity of her crime. To assess the gravity of the crime by reference to participation in ‘the violent assault’ enlarged the nature of the appellant’s complicity beyond encouragement by presence.
In order to understand her Honour’s remarks, the Crown submits, the broader factual basis of the plea needs to be considered. It points to the fact that, in accordance with the defence submission on the plea, the judge found that the appellant was a party to a prior plan, which included getting the victim to the house; assaulting him; and stealing his money. The Crown submitted that the sentencing remarks reflected a recognition that the plan, and its execution, were relevant to the appellant’s presence at the time of the unlawful and dangerous act.
We reject the appellant’s contention as to the meaning to be given to the sentencing judge’s remarks. They involve no departure from the legal or factual basis on which she pleaded guilty. As we have already stated, the sentencing judge was responding to the submissions by defence counsel on the plea. Her Honour’s reference to planning and participation in ‘some kind of serious assault’ was not a reference to the unlawful and dangerous act which caused death but to the preceding events, which included a plan to assault in order to rob the deceased. The intent to encourage could be inferred from what preceded the appellant’s presence at the time of the principal offence.
In assessing her culpability, the sentencing judge correctly took into consideration the appellant’s active participation in the plan that brought the appellant to the house, her knowledge that an assault of some kind was likely to occur, and her active role in the violent physical assault, both inside and outside the house, which immediately preceded the fatal strangulation. The initial assault was a violent assault, and the appellant participated in it.
The term serious reflected the gravity of the proposed confrontation in which the deceased was to be robbed. Her Honour qualified the intended assault as ‘some kind’ of serious assault, consistent with the finding by her Honour that the nature of the assault planned was in fact lacking in any real precision, being a product of ‘desperate and confused’ thinking.[15] Hence the plan involved ‘some kind of serious assault’.[16] The impugned remarks related to the active role played by the appellant in the assault of the deceased (inside and outside the house) which immediately preceded the fatal act of strangulation carried out by the husband.
[15]Reasons [14].
[16]Reasons [46].
In oral argument, it was conceded by counsel for the appellant that there was some ambiguity as to the word ‘assault’ in the impugned paragraphs; and that, if the word referred to the preceding assault, it would be difficult to maintain grounds 2 and 3.
We would dismiss both grounds.
Ground 4
The appellant submits that the sentence imposed was manifestly excessive in light of her mitigating personal circumstances. The appellant argues that someone who is ‘carried along’ by someone else’s actions is significantly less culpable than an ordinarily strong-willed individual who makes an independent decision to offend.
During the course of oral submissions, counsel for the appellant described the appellant as an isolated, dependent person, ‘worried to death’ about financial difficulties, in a state of desperation, and not culturally in a position to dispute a plan her husband had put forward. These circumstances were to be considered in conjunction with the fact that the appellant was only 25 at the time of offending; had pleaded guilty; had no prior convictions; and had shown remorse for her actions. In light of these mitigatory factors, the appellant submits, a sentence at the lower end of the sentencing range was appropriate and the sentence imposed was well above that range. It was, as the Crown accepts, a sentence falling within the mid-range for manslaughter.
Even if this constellation of personal circumstances were accepted without qualification, we do not consider that the sentence imposed was beyond the permissible range. However, the appellant’s submission that her plea of guilty constitutes a significant mitigating factor which reflects remorse requires qualification.
The appellant relied on what was said to have been an earlier offer to plead guilty, made shortly after the committal. On the plea, her counsel submitted that there had been discussions at the committal and ‘some indication given’ that she was prepared to plead guilty to manslaughter. Counsel said that the prosecution would not at that time accept anything less than a plea of guilty to murder. Counsel acknowledged that ‘no formal offer’ to plead guilty to manslaughter had been made. A formal offer was not made until the week of the trial. The sentencing judge did not accept that this constituted an early offer to plead guilty and counsel did not persist with the submission.
Section 5(2)(e) of the Sentencing Act 1991 provides that, when sentencing an offender, one of the factors that a court must have regard to is:
whether the offender pleaded guilty to the offence and, if so the stage in the proceedings at which the offender did so or indicated an intention to do so …[17]
[17]Emphasis added.
Counsel for the appellant submitted that it was important for the proper administration of justice that practitioners be free to engage confidentially in negotiations that fall short of formal offers, without fear that they may be disclosed in court at a later time should the negotiations fail. We accept that submission.
Although such discussions do not fall within the privilege which excludes evidence of settlement negotiations under s 131(1) of the Evidence Act 2008 — as such privilege does not extend to ‘an attempt to negotiate the settlement of a criminal proceeding’[18] — ‘off the record’ offers by either party are not, save in exceptional circumstances, to be admitted into evidence. Should it become relevant to sentencing, however, defence counsel should be able to rely on such an offer provided that it was an unconditional offer to plead guilty to some lesser or other charge. The judge, if satisfied of those facts and that the offer reflected a genuine willingness to so plead, must have regard to those facts in sentencing.
[18]Evidence Act 2008 s 131(5)(b).
At the same time, given the potential importance of the fact and timing of an offer to plead guilty, and in order to avoid unseemly arguments about what was said between counsel, it would be sensible practice for any such offer to be put in writing — even if it is thought that the offer will be rejected.[19]
[19]An illustration of the importance and efficacy of a written plea offer is to be seen in R v Lai [2015] VSC 346, [48]–[56], [60].
In the present circumstances, there is no reason to doubt the correctness of her Honour’s decision to decline to accept that the discussions between counsel had constituted an offer to plead guilty. Our conclusion is reinforced by the fact that experienced counsel on the plea did not persist with the submission in the face of her Honour’s query as to the status of those discussions. Further, there was no ground of appeal challenging the correctness of her Honour’s approach.
With respect to the appellant’s submission that her culpability should be reduced, as she was ‘carried along’ by and acquiesced in the actions of her husband, we observe that there was no suggestion of marital coercion. Such acquiescence must be considered in the context of their financial and gambling debt, which was a shared motive for their offending.
The Crown submitted that the sentence imposed was appropriate to the appellant’s level of culpability. According to the submission, the characterisation of her offending as ‘extremely serious’ was justified by:
·the central role which the appellant played in ‘luring’ the victim to their house;
·her involvement in the planning of the robbery; and
·her participation in the prior assault.[20]
[20]Reasons [46].
The case of R v Talj[21] was said to mirror the factual circumstances of the present case. In that case, too, the deceased was lured by the offender to a place where a violent assault took place in the presence of, and encouraged by, her. Following a plea of guilty, the offender was sentenced to a term of imprisonment of seven years, with a non-parole period of five years.
[21][2003] VSCA 87.
The Crown identified a number of distinguishing features that made this a more serious case, in addition to the fact that Talj fell to be sentenced in 2003. The Crown submits that the appellant’s sentence of eight years and six months falls ‘comfortably’ within the mid-range of sentences for manslaughter.
In our view, the offending is properly described as extremely serious. Although the sentence is towards the upper end of the range of sentences available, we consider the sentence to be well within a sound exercise of the sentencing discretion.
As this ground is also not made out, the appeal must be dismissed.
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