Lee v Tasmania
[2020] TASCCA 6
•28 March 2018
[2020] TASCCA 6
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Lee v Tasmania [2020] TASCCA 6
PARTIES: LEE, Cody James
v
STATE OF TASMANIA
FILE NO: CCA 3464/2017
DELIVERED ON: 28 March 2018
DELIVERED AT: Hobart
HEARING DATE: 5 March 2018
JUDGMENT OF: Blow CJ, Geason J and Porter AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Failing to report the killing of a person – Victim attacked and killed in defendant's presence at his home – Cumulative sentence of 3½ years' imprisonment with non-parole period of 2½ years.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: P Monk
Respondent: D G Coates SC
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASCCA 6
Number of paragraphs: 40
Serial No 6/2020
File No CCA 3464/2017
CODY JAMES LEE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
GEASON J
PORTER AJ
28 March 2018
Orders of the Court:
Appeal allowed.
Sentence of 3½ years' imprisonment, with non-parole period of 2½ years, set aside.
Appellant sentenced to 15 months' imprisonment.
That 3 months and 7 days of that sentence be concurrent with the sentence imposed on the appellant by the Honourable Justice Pearce on 29 September 2017, and the balance cumulative with that sentence.
That the appellant not be eligible for parole until he has served 7½ months of the substituted sentence.
That the substituted sentence take effect as if it had been imposed on 15 November 2017.
Serial No 6/2020
File No CCA 3464/2017
CODY JAMES LEE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
28 March 2018
This is a sentencing appeal. On the morning of 1 January 2017 the appellant, Cody Lee, was at his home in Newnham. Another man, a friend of his, was asleep on his couch. Two more men entered the appellant's home. They attacked the man who had been sleeping on the couch. He was punched and kicked. His hands and ankles were tied up with tape. Water was poured over his face until he could not breathe. On a number of occasions a plastic bag was put over his head. He was choked at one stage. Eventually he lost consciousness when the plastic bag was held over his head. He did not regain consciousness. He died there. The appellant took no part in the attack. He and the two assailants tried to revive the victim by performing CPR on him, but they were not successful. The visitors removed the body and later disposed of it in a lake.
The appellant witnessed the killing but did not report it to the police or any other appropriate authorities. Failing to report the killing amounted to a crime contrary to s 162A(2) of the Criminal Code. The following month, after the victim's body had been located, the appellant was charged with that crime. He pleaded guilty in the Magistrates Court on 11 May 2017, and was committed to the Supreme Court for sentence. On 15 November 2017 Slicer AJ sentenced him to 3½ years' imprisonment, with a non-parole period of 2½ years. His Honour ordered that that sentence was to be cumulative with any sentence that the appellant was then serving. He was serving a sentence for aggravated burglary and aggravated armed robbery. I will discuss that sentence later.
The appellant contends that the head sentence and the non-parole period were both manifestly excessive, and that the learned sentencing judge failed to give proper weight to the "totality principle". I will discuss that principle later.
Failing to report the killing
On 18 January 2017 members of the victim's family reported to the police that he was missing. Media releases called for information as to his whereabouts. The police began an investigation. They spoke to the appellant on four occasions. It was not until the fourth occasion, on 2 February 2017, that he told the police what had really happened. Even then, he said that he did not know whether or not the victim was dead.
The first occasion when the police spoke to the appellant was on 19 January 2017. He told the police that he had been with the missing man on 31 December; that the missing man had stayed the night at his home; that he woke up at midday and found no one else was home; that he had not seen or heard from the missing man since; and that he thought he may have gone to Western Australia.
He was formally interviewed by the police on 27 January. On that occasion he told the police that he had woken up on New Year's Day; that the missing man was on the couch; that someone stood at his bedroom door; that he heard a knocking sound after that, like the sound of someone being hit; that he thought the man was getting bashed; that he saw a man with a screwdriver who was wearing a mask, a cap and gloves; that someone else said they thought that they had knocked the man out, but that he had got up and run out the door. He said he saw blood on the floor, on the couch, and near a sliding door, but not outside. He said that he did not think anything bad had happened. He went into greater detail, but there is no need for me to recount everything that he said.
He was interviewed by the police again on 1 February, under caution. He told them that everything he had previously said was true, but that he had left out bits and pieces for the safety of himself and others. He provided the names of the two men who had attacked his friend. He gave details about the bashing of his friend. He said that he thought the two men had put him in the boot of a vehicle to take him somewhere to talk to him. He said that one of them returned later in the day, gave him a lift to his father's home, and gave him $50 or $100 to buy cigarettes. He gave descriptions of the two men to the police.
The two men were arrested the next day, 2 February, and charged with murder. Later that day the appellant was interviewed for a fourth time, as I have said, and gave the police a thorough description of the events of 1 January.
Police divers recovered the victim's body the following day, 3 February.
The appellant's failure to report the killing had a number of significant consequences. It lengthened the trauma of the relatives of the victim. It delayed the identification and prosecution of the assailants. It created a risk that they might not be brought to justice. It hampered the obtaining of evidence from a post-mortem examination of the body, which deteriorated during the period of nearly five weeks when it was under water. It prolonged the police investigation. It made it necessary for the police to devote considerable resources to the identification of the assailants.
If the appellant had reported the killing promptly after the assailants left his home, there is a chance that the police would have been able to apprehend them before they disposed of the body. After leaving the appellant's home, one of the assailants returned with cleaning products and groceries. Later in the day, the two assailants drove around the Lilydale area, hoping to find a mineshaft into which they could throw the body, but they were unable to find one. Subsequently they went to a shop, purchased an inflatable raft, drove to Lake Eugenana, and disposed of the body there.
There were a number of mitigating circumstances which the learned sentencing judge was obliged to take into account. Those circumstances, and my comments in relation to them, are as follows:
· The appellant was young. The killing occurred just before his 19th birthday.
· He attempted to revive the victim after he became unconscious.
· He did not report the killing because he was scared that he, his girlfriend, and/or their families might be harmed by way of retribution if he did. He understood that the assailants had attacked the victim because he had stolen a car from one of them, and they wanted to get it back. He saw his friend killed. Given the level of violence inflicted as a result of the taking of a car, he had every reason to fear what might happen if he reported the killing.
· He was terrified by the attack on his friend. He felt "broken" as a result of the killing. He learned afterwards that his girlfriend had been paid a sum of money to disclose the victim's location to one of the assailants, and felt "betrayed" as a result of that.
· He pleaded guilty at an early stage. However there was no real likelihood of him being found not guilty of the charge.
· He had been in custody since 23 February 2017 and had been serving other sentences for most of that time. In accordance with the "totality principle", the learned sentencing judge was required to take into account the fact that, in practical terms, the sentence for this crime was cumulative with two other prison sentences, which I will discuss later.
· There was a period of seven days, from 23 February to 1 March inclusive, when the appellant was in custody, and which had not been taken into account when other sentences were imposed. It appears that the appellant was in custody at that time in relation to other matters, not his failure to report the killing. The prosecutor incorrectly told the learned sentencing judge that the appellant had not spent any time in custody that had not already been taken into account when other sentences were imposed. It would have been appropriate for the learned sentencing judge to have taken the seven days in question into account if he had been aware of the correct position: Geale v Tasmania [2009] TASSC 28, 18 Tas R 338.
· In the months that he had been in custody, he had been seeing a counsellor to deal with the psychological consequences of what he had seen.
· He had not spent any time in an adult prison before the killing.
Some common mitigating factors were absent in this case. The appellant was not a first offender. He was not willing to co-operate with the authorities in relation to giving evidence in the proceedings against the two men who were charged with murder, and the learned sentencing judge was told that. He had not provided any useful information to the police until after their investigation had yielded sufficient information for them to consider it appropriate to arrest the two men and charge them with murder.
The appellant's antecedents
The appellant came from a loving and supportive extended family. His counsel told the learned sentencing judge that his mother and grandmother had attended every court appearance with him, and that his mother would offer him a stable place of residence upon his release from custody. He became addicted to illicit drugs when he was about 14 years old. Prior to the killing he had been using crystal methylamphetamine.
He has a great many convictions for crimes and offences committed from the age of 13 onwards. His offending involved dishonesty, firearms, drugs, several assaults, offences against police officers, breaches of bail conditions, breaches of restraint orders, trespassing, damage to property, and giving a false name. Magistrates sentenced him to periods of detention under the Youth Justice Act 1997 in June 2013, February 2014, August 2014, and July 2015. The third of those sentences was partly suspended, but the suspended component was later activated. In November 2015, on a charge of assault, a magistrate imposed a suspended detention order and made a community service order. Probation orders were made on a number of occasions.
In July 2017 a magistrate sentenced him to nine months' imprisonment, backdated to commence on 2 March 2017, with three months thereof suspended, in relation to 21 offences, as follows:
· On 12 September 2016, a breach of bail.
· On 18 September 2016, making off without payment. (A compensation order for $49.20 was made.)
· On 22 October 2016, driving whilst disqualified and failing to submit to the taking of a blood sample.
· On 29 October 2016, stealing property worth $6.10.
· On 1 November 2016, possessing a controlled drug.
· On 3 November 2016, unlawful possession of property and failing to wear an approved bicycle helmet.
· On 4 November 2016, motor vehicle stealing, driving whilst disqualified, dangerous driving, exceeding the speed limit in a built-up area, failing to submit to the taking of a blood sample, and possessing a controlled drug. (The magistrate also recorded a conviction for failing to comply with the duties of a driver involved in a crash on that day.)
· On 29 December 2016, making off without payment.
· On 27 January 2017, destroying property, trespass, unlawfully possessing a dangerous article in a public place, and a breach of bail.
· On 2 February 2017, three assaults.
In January 2015 Mr Lee and three companions travelled to Bracknell, invaded a young man's home, threatened him with a knife and knuckle dusters, demanded money, drove the man to an ATM, and compelled him to withdraw $500, which they stole. Mr Lee did not have a weapon, but knew that two of his companions did. He pleaded guilty to charges of aggravated burglary and aggravated armed robbery. On 29 September 2017 Pearce J sentenced him to two years' imprisonment. That was the sentence he was serving when Slicer AJ sentenced him. That sentence was backdated to commence on 1 September 2017. Six months of that sentence was suspended. Pearce J ordered that the appellant would not be eligible for parole until he had served nine months of that sentence. He is still serving it.
The totality principle
The totality principle requires a sentencer, when imposing a prison sentence on an offender who will have to serve two or more consecutive sentences, to take into account the total of those sentences, and fix a sentence that will result in the total not being excessive, but being just and appropriate. The principle was recognised and applied by the High Court in Mill v The Queen (1988) 166 CLR 59. In that case, at 63, the court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) quoted and approved the following passage in Thomas, Principles of Sentencing, 2nd ed (1979) at 56-57:
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
At 63, the court made it clear that the principle is to be applied when sentences of imprisonment are imposed by more than one sentencing court. At 67, the court made it clear that the principle is to be applied both in relation to head sentences and in relation to non-parole periods.
The totality principle required the learned sentencing judge, in fixing a head sentence and in fixing a non-parole period, to take into account both (a) the fact that the appellant had served 6 months of the sentence imposed by the magistrate from 2 March 2017 to 1 September 2017 inclusive; and (b) the fact that the appellant was liable to serve 18 months of the sentence imposed by Pearce J, commencing on 1 September 2017, subject to eligibility for parole after serving 9 months of that sentence.
The total of the 7 days in custody commencing on 23 February 2017, the 6 months spent in custody pursuant to the magistrate's sentence, the 18-month active component of the sentence imposed by Pearce J, and the head sentence to which this appeal relates, amounted to a little over 5½ years. The effect of the two orders permitting parole was that the appellant would not be eligible for parole until he had spent a little over 3 years and 9 months in custody.
Manifestly excessive?
Before the commencement of s 162A of the Criminal Code in 2003, it was not a crime in Tasmania for a person to fail to report a killing. Since then only eight people, including the appellant, have been convicted and sentenced as a result of committing that crime. The longest sentence imposed on any of the other seven offenders was one of 15 months' imprisonment. Counsel for the appellant relied heavily on that fact. She provided a thorough analysis of the principal circumstances relevant to the sentencing of the other offenders for contraventions of s 162A.
It cannot be said that there is a sentencing tariff for this sort of crime since there have been so few relevant cases. The existence of a range of sentences for a crime does not mean that every sentence for such a crime must fall within that range: Inkson v The Queen (1996) 6 Tas R 1, per Underwood J (as he then was) at 15; R v Allen [1999] TASSC 112, per Wright J at [14]; Barron v Tasmania [2010] TASCCA 3, 20 Tas R 114, per Wood J at [28]-[30]; Groenewege v Tasmania [2013] TASCCA 7 at [50]; Cordwell v Tasmania [2017] TASCCA 14, per Estcourt J at [17]-[20]. Statistical data as to previous sentences cannot be allowed to overshadow or displace a court's "own evaluation of the gravity of the offence before it in the light of all the known facts and circumstances": R v Dowie [1989] Tas R 167, per Wright J at 186.
In some sentencing appeals it is helpful to examine the range of sentences imposed for similar crimes in other Australian jurisdictions. That cannot be done in this case. No other Australian jurisdiction has a legislative provision like s 162A. The only jurisdiction with something remotely similar is New South Wales, where it is an offence to conceal a serious indictable offence: Crimes Act 1900 (NSW), s 316. That section provides for a maximum penalty of two years' imprisonment, or five years if the offender solicits, accepts, or agrees to accept a benefit in consideration for refraining from providing information to the authorities. The Director of Public Prosecutions referred us to some cases in which New South Wales judges commented on factors relevant to sentencing for that offence, but those cases did not add anything to the range of possibly relevant circumstances that feature in the Tasmanian cases.
My observations as to the other Tasmanian cases in which offenders have been sentenced for contravening s 162A are as follows:
· In some of the seven cases the offenders received global prison sentences for failing to report a killing and for other crimes. The other crimes in particular cases included perverting justice, making a false statutory declaration, and manufacturing a controlled substance.
· In at least one case, the sentencing judge was required to take into account the totality principle, with the result that the sentence imposed was shorter than would have been appropriate if the offender had not been required to serve another prison sentence.
· The impact, or lack thereof, on a police investigation is a very significant circumstance. In some cases the failure to report the killing made no difference to the police investigations. In others the impact on investigations was very significant. A failure to report a killing promptly can make a big difference as to the evidence available from an autopsy. A delay in reporting could even result in, or contribute to, a killer avoiding prosecution and punishment.
· An individual's motive for not reporting a killing is another very significant factor. Sometimes, as in this case, there is a fear of retribution. Sometimes there is a desire not to get a partner or family member into trouble. In one case, a man feared losing the custody of his child. Sometimes individuals who fail to report killings have committed crimes themselves, and fear that reporting the killings might result in them being prosecuted and imprisoned.
· In some cases the offenders provided false or misleading information to the police. In sentencing proceedings, that should be treated as an aggravating factor.
· In some cases the sentences imposed were, in my view, surprisingly lenient.
In my view the fixing of an appropriate sentence for failing to report a killing should depend very much on the impact of the failure to report it, the motive for not reporting it, the level of maturity of the person committing the crime, and, if applicable, the level of vulnerability of that person. Ordinarily a mature and secure individual who fails to report a killing because of indifference, or because of a desire not to incriminate an acquaintance, should receive a significantly heavier sentence than a young and vulnerable individual who fails to report a killing because of a well founded fear of terrible retribution.
In my view the appropriate penalty for failing to report the killing of a person should ordinarily be a significant prison sentence, particularly when the killing amounts to a murder. Sentences for this crime should be severe enough to deter others from failing to report killings, even when they fear retribution. On the other hand, personal deterrence will usually not be a significant factor in sentencing for such a crime.
Sentences for failing to report killings should ordinarily be much lower than those imposed for the crime of being an accessory after the fact to murder. The latter crime is committed when the offender knows that a murder has been committed, and does some act with the purpose and intention of enabling the murderer to escape punishment. The crime of failing to report the killing of a person is committed even if the offender does nothing to assist the killer, and even if the offender has no desire to assist the killer. In recent years, judges of this Court have published sentencing comments in relation to five accessories after the fact to murders: R v Legge, 12 December 2001; R v Coventry and H, 19 June 2002; Tasmania v Hudson, 21 May 2012; Tasmania v Pearce, 16 March 2016. The sentences in those cases have varied from 5 years to 7½ years. The earliest of them, a sentence of 7 years' imprisonment, was held by the Court of Criminal Appeal not to be manifestly excessive: Legge v The Queen [2002] TASSC 62.
Of course this appeal is concerned not only with the appellant's head sentence, but also with an order that fixed a non-parole period. A non-parole period is the minimum time that a judge determines that justice requires an offender to serve in prison, having regard to all the circumstances of the crime: Power v The Queen (1974) 131 CLR 623 at 629; Deakin v The Queen (1984) 54 ALR 765; Carr v The Queen [2002] TASSC 60, 11 Tas R 362 at [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5 at [10].
Section 17(3) of the Sentencing Act 1997 requires a non-parole period to be no less than half of the period of the head sentence. In this case the non-parole period was a little more than 70% of the head sentence. The appellant went into custody shortly after turning 19. The non-parole period specified by the learned sentencing judge results in the appellant not being eligible for parole until shortly before he turns 23.
Having regard to all the circumstances, particularly the appellant's young age, his fear of retribution, and the other sentences that he had served and was required to serve, it is clear that both the head sentence of 3½ years' imprisonment and the non-parole period of 2½ years were manifestly excessive. They were out of proportion to his culpability. They were "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen [2000] HCA 55, 202 CLR 321. It follows that the appeal should be allowed.
Re-sentencing
In my view, if the totality principle had not applied and the learned sentencing judge had been required to impose a stand-alone penalty for the failure to report the killing, it would have been appropriate for him to impose a head sentence of 20 months' imprisonment or thereabouts.
At the hearing of this appeal, the appellant's counsel informed the Court that he is now willing to give evidence in the proceedings against the two assailants, and to co-operate with the authorities in relation to the giving of that evidence. His willingness to co-operate in that way is a very significant mitigating factor that this Court must take into account in re-sentencing. It is a factor that was absent at the time of the sentencing proceedings last year. A number of cases suggest that the combined effect of a plea of guilty and a willingness to provide substantial assistance to the authorities should, in appropriate cases, result in a sentencing discount in the range of 20% to 50%, and sometimes more: Western Australia v Wynne [2008] WASCA 195, 188 A Crim R 502 at [90]-[93]; R v Baldock [2010] WASCA 170, 269 ALR 674 at [6]; R v Jones [2010] NSWCCA 108, 76 ATR 249 at [20]-[22]; ES v The Queen [2014] NSWCCA 268 at [25]; Ilic v Tasmania [2009] TASSC 94 at [19].
This Court must also take into account information that, since he was sentenced, the appellant has been doing useful work in the prison, first as a wardsman and later as a gardener; that he has been undertaking a course relating to anger management and family violence; and that he has been seeking assistance from a psychologist and a counsellor.
If either or both of the two assailants stand trial for murder, the appellant will be the most important Crown witness. He was the only eye witness to the killing. In my view, his willingness to co-operate in relation to the giving of evidence is such an important mitigating factor that it alone warrants a sentencing discount in the order of 25%.
In my view it would be preferable to give effect to the totality principle by making the appellant's sentence for failing to report the killing partly concurrent with the sentence imposed by Pearce J on 29 September 2017, rather than imposing a shorter sentence that does not fully reflect the appellant's culpability. In Mill v The Queen (above), at 63, the High Court said the following in relation to the application of the totality principle:
"… an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."
In my view it would be appropriate to make 3 months of the appellant's sentence for the crime in question concurrent with the sentence imposed by Pearce J. It would be appropriate to make a further 7 days of the sentence concurrent with the sentence imposed by Pearce J so as to take into account the 7 days that he spent in custody as from 23 February 2017.
For these reasons, I would allow the appeal; set aside the sentence of 3½ years' imprisonment and the related order as to parole ineligibility; sentence the appellant to 15 months' imprisonment; order that 3 months and 7 days of that sentence be concurrent with the sentence of imprisonment imposed by Pearce J on 29 September 2017, and that the balance be cumulative with that sentence; and order that the appellant not be eligible for parole until he has served 7½ months of that sentence. That 7½ months is intended to include the period of 3 months 7 days served concurrently with the sentence imposed by Pearce J. In order to overcome any possible difficulty as to the backdating of the substituted sentence, I would make a further order that it take effect as if it had been imposed on 15 November 2017.
File No CCA 3464/2017
CODY JAMES LEE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
28 March 2018
I have had the advantage of reading the Chief Justice's reasons for decision. I agree with them. There is nothing I wish to add. I join in the proposed orders.
File No CCA 3464/2017
CODY JAMES LEE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
28 March 2018
I agree with Blow CJ.
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