Lewis, David Huw v Trebilco, Raymond Edward

[1984] FCA 92

Re: LESLIE RAYMOND CARBON
And: THE QUEEN
No. NTG 32 of 1983
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Muirhead J.
Toohey J.
McGregor J.

CATCHWORDS

Criminal law - manslaughter - appeal against severity of sentence both as to head sentence and non-parole period - principles applying to appeals against sentence - appeal dismissed.

Criminal Law (Conditional Release of Offenders) Act

Parole of Prisoners' Act

The Queen v. Tait (1979) 46 FLR 386

R. v. Prindable (1979) 23 ALR 665

Channon v. R. (1978) 20 ALR

Anderson v. R. (1978) 19 ALR

R. v. Eckhardt (1971) 1 SASR 347

HEARING

DARWIN

#DATE 13:4:1984

ORDER

The appeal be dismissed.

JUDGE1

The appellant was indicted on a charge of murdering Karl John Smith on 25 April 1983 at Bartalumba Bay, Groote Eylandt.

The trial began in the Supreme Court of the Northern Territory on 28 September, the appellant having pleaded not guilty to the charge against him. On the third day of the trial, when it would seem that the Crown's case had been nearly completed, the appellant was rearraigned and pleaded guilty to manslaughter. The Crown was prepared to accept that plea in satisfaction of the indictment and the appellant was duly convicted of manslaughter by the jury.

The learned trial judge sentenced the appellant to imprisonment with hard labour for 8 years and fixed a nonparole period of 4 years. The appellant appeals against the head sentence and the non-parole period.

The appellant was born in Western Australia on 13 June 1944 and at the time of his conviction was 39 years of age. He was a fisherman by occupation and held a masters ticket for 300 tonne vessels. From late 1977 until the time of his arrest he was a skipper of prawn trawlers in the Territory.

He was married in Western Australia in 1964, separated in 1979 and divorced in 1981. There were four children of the marriage, two of whom died shortly after birth. The other two children are with their mother but the antecedent report recites that the appellant "has regular contact with them and still has a good relationship with his ex-wife and her current husband".

The death of Mr Smith took place in the following circumstances. On Anzac day last year the appellant was the skipper of the fishing vessel Xanadu which experienced mechanical problems as a result of which the appellant returned to Bartalumba Bay for repairs. He arrived back at about 2 p.m.

Some of the crew of the Xanadu including the appellant and his fiancee Liz Cieslik, went to the Bartalumba Bay clubhouse where alcohol was available. One of the crew members was Anthony Tonnett who had earlier had disagreements with another crew member Ian Brittan. Mr Tonnett remained on board the Xanadu to work on the fishing nets and he did not arrive at the clubhouse until about 5.30 p.m. When he did arrive, the appellant was there playing two-up and drinking alcohol; Miss Cieslik and Mr Brittan were also there.

Late in the afternoon or early evening Miss Cieslik, it was said, began to criticise Mr Tonnett's performance as an employee and Mr Brittan joined in by making further disparaging remarks. The result was a fight between Tonnett and Brittan in which tables, chairs and glasses were knocked over.

The appellant seized Mr Tonnett in a headlock and it was accepted by the Crown that he did so in order to break up the fight. At this point Mr Smith, who was a fisherman, intervened, apparently believing that the appellant was assisting Brittan in his fight by securing Tonnett in a headlock. He said to the appellant "one on to one" and punched him in the nose, perhaps more than once. It was a sufficiently severe blow to fracture the appellant's nasal bone.

The appellant pointed out that he was the skipper and that Tonnett and Brittan were his deckhands. There was evidence that Mr Smith then apologised to the appellant for what he had done. Because of the course the trial took, the appellant did not give evidence but it was said by his counsel, in the course of his submissions as to sentence, that the appellant did not hear the apology.

The appellant's nose was bleeding and he went to the washroom to wash his face. He returned and sat down at a table. By this time Mr Tonnett had left the club. He went down to the Xanadu, collected his belongings and returned to an area near the club where he sat on a stack of wooden pallets.

While he was there he was joined by another man and then by Mr Brittan. Mr Tonnett and Mr Brittan apparently set about trying to resolve the differences that had existed between them. While they were talking Miss Cieslik approached them and again started to argue with Tonnett. She then returned to the clubhouse and at or about that time Mr Smith came from the clubhouse.

Mr Smith joined Mr Tonnett and after they had been speaking for a time Miss Cieslik returned and continued to argue with Tonnett. Mr Tonnett noticed the appellant coming from the direction of the wharf. The Xanadu was said to be moored about 500 yards from the clubhouse. The appellant joined Miss Cieslik and then told Mr Tonnett he was sacked. The appellant and Miss Cieslik then went into the clubhouse. About 5 minutes later the appellant reappeared at the door of the clubhouse. Mr Smith asked the appellant to come over and explain why he had sacked Mr Tonnett. The appellant said that it was none of Mr Smith's business. By this time Miss Cieslik had joined the group and started to argue with Mr Smith. Eventually Smith said to the appellant "Shut the bitch up or I will get her". The appellant was then seen to be holding a Ruger 6 chamber revolver. It was a heavy calibre weapon, a .357 magnum. It belonged to the appellant and was used for killing sharks caught in the nets. The inference is clear that the appellant had, after the incident at the clubhouse, gone to the Xanadu and secured the weapon. The appellant pointed the revolver at Mr Smith and Miss Cieslik heard the hammer of the weapon pulled back. Mr Smith lunged at the appellant and, from a distance of 6 feet or so, the appellant discharged the weapon. Mr Smith fell down. According to Mr Tonnett, the appellant said to him "I am not mucking around". In Mr Tonnett's words, the appellant and Miss Cieslik then "bolted". An interval of some 2 hours had elapsed from the time of the fight between Tonnett and Brittan to the shooting of Smith.

Dr Hayden was on the scene a short time later but concluded that Mr Smith was dead. A post mortem revealed that he died of a bullet wound to the chest.

The learned trial judge said that he must assume, from the Crown's acceptance of the plea of guilty to manslaughter and the jury's consequent verdict, that the appellant had no intention to kill Mr Smith and that he had no intention to fire the revolver. But, his Honour said:

" . . . I must regard your follish and dangerous conduct very seriously. No doubt you're entitled to consideration and compassion. Because of your intemperate conduct, it is now too late to extend any consideration or compassion to Karl Smith".

Counsel for the appellant submitted that his client did not know the revolver was loaded. Again, because of the course the trial took, that aspect was not able to be tested. The objective fact was that there were three live shells in the weapon before the shooting, one of which was discharged and, in the words of counsel for the Crown, "the hammer was over that discharged one at the time that the gun was found".

There was some evidence before the learned trial judge of the general good character and regard in which the appellant was held. At the same time, the appellant did have 5 previous convictions, all in Western Australia. Three of those convictions (two in 1963 and one in 1976) were for assault. On the second of those convictions, which involved two charges of assault with intent to resist arrest, the appellant was sentenced by the District Court to 18 months hard labour. The sentences were ordered to be served concurrently. There was a conviction in 1963 of unlawfully removing property and a conviction in 1961 of unlawful use of a motor vehicle. At that time the appellant was 17 and was committed to the care of the Child Welfare Department until he was 18.

The learned trial judge referred to these convictions but nevertheless his remarks indicate he took into account the evidence of the appellant's good character, the fact that his employers spoke well of him and that he had assumed the responsibilities of skipper of a prawn trawler.

The principles which apply to appeals to this court against sentence were enunciated in The Queen v. Tait (1979) 46 FLR 386 at 388 in a passage which has since been frequently referred to in subsequent decisions of this Court. It begins with a citation from Crannsen v. The King (1936) 55 CLR 509 at pp. 514-520 -

"'. . . the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority.'"

The Court continued:

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v. The King (1913) 16 CLR 336, at pp. 339-340; R. v. Withers (1925) 25 S.R. (N.S.W.) 382, at p.394; Whittaker v. The King (1928) 41 CLR 230, at p. 249; Griffiths v. The Queen (1977) 137 CLR 293.)"

In this appeal counsel for the appellant submitted that the error of the learned trial judge is apparent by reason of the severity of the sentence and the length of the non-parole period, not by reason of error in regard to any principle of law or lack of consideration of important aspects contained in the evidence or submissions. In fact it was implicit in Mr McDonald's submissions that the learned trial judge, in his remarks on sentence, did refer to those features which could reasonably be said to operate in favour of the appellant. His Honour further stated -

"I take into account that you were in a very poor condition to defend yourself in a fist fight and you may have felt that you and your fiance were at some risk from your victim and you produced a revolver not intending to fire it, but simply to frighten your victim and to stop the apprehended assault upon you or your fiance."

We consider these considerations indicated acceptance of a factual background not unfavourable to the appellant.

It was contended, accurately enought, that the crime of manslaughter embraces different forms of illegal conduct with varying degrees of culpability. Mr McDonald submitted that the circumstances here involved placed the matter at the lower end of the scale, there being no proved intention to kill or maim, no intention to pull the trigger. In this context he argued that the appellant armed himself with the revolver only as source of protection to himself and his fiancee and as a deterrent against any repetition of Mr Smith's earlier conduct. It was submitted that his conduct under such circumstances should be categorised as less serious than those cases involving excessive self defence or involving manslaughter reduced from murder by reason of provocation - situations in which the intention to kill or cause grievous bodily harm is evident. Mr McDonald also referred to previous sentences of this court, submitting in so doing that the sentence in question appeared disparate. Whilst we understand the basis of such a submission, the reference to earlier sentences has but limited value as inevitably the factual backgrounds are diverse.

Emphasis was also placed on the fact that the appellant did not know the weapon was loaded - a situation the Crown accepts and must accept in view of agreement at trial to accept a plea of guilty to manslaughter in satisfaction of the indictment for murder.

Be that as it may, the evidence indicates the weapon was used in the course of fishing operations by the appellant. It was a weapon with which he was familiar; there was absolutely no evidence to suggest malfunction. The appellant's ignorance that it contained ammunition could only be supported on the basis that when he obtained the revolver from the trawler he did not check this familiar weapon. It was his decision to arm himself and place the revolver down the front of his shorts. It was his election to carry it and produce it under circumstances in which there was neither necessity nor rational justification. At the time he drew it, cocked it and pointed it, neither he nor his fiancee could be said to be under any serious threat. It is understandable that the learned trial judge categorised such conduct as "foolish" and stated he regarded it as "highly dangerous". We take the view that no other view was tenable and the introduction of this large calibre firearm was a factor sufficient in itself to place the crime in a serious category. The inherent dangers of such conduct are so obvious as to require no elaboration and the learned trial judge, with his experience in the Northern Territory, would be well aware that a sentence which may provide some deterrent was required. This was in fact emphasised by the Crown Prosecutor in his brief submissions before sentence.

The maximum sentence for manslaughter in the Northern Territory is life imprisonment. The discretion as to sentence is otherwise unrestricted by statute and includes conditional release pursuant to the provisions of the Criminal Law (Conditional Release of Offenders) Act. However, in the present case a sentence of imprisonment and a substantial sentence was necessary. Immediate or early conditional release or a short sentence of imprisonment would have produced a sentence "so lenient that it did not accord with the general moral sense of the community and so lenient that it was unlikely to be a sufficient deterrent to others". R. v. Prindable (1979) 23 ALR 665 at 669; see also Channon v. R. (1978) 20 ALR 1 at 5.

In short, accepting as we do that the protection of the public was a matter of primary concern to the learned trial judge in this type of case, the imposition of the sentence of 8 years imprisonment, whilst substantial, could not be termed manifestly excessive.

It was also argued that the learned trial judge erred in fixing a period of 4 years before the appellant will be entitled to parole. Sub-section 4(1) of the Parole of Prisoners' Act provides that a court shall specify a lesser term during which an offender so sentenced is not to be eligible for parole release. It is well established that the exercise of such a discretion may be examined in the course of appeal against sentence. Clearly the legislature considers it is in the interests of the community that offenders should as a general rule be released and given the opportunity of rehabilitation before expiration of the sentence. In the present case there is no reason to doubt that the appellant is unsuitable for parole or that he will not respond to the opportunities granted by parole. But this is not a case where the minimum non-parole period fixed is such that it too closely approximates the date of release under remission entitlement. In such a case the value of parole release may be jeopardised. The question again is whether the non-parole period fixed is within the limits of a reasonable exercise of judicial discretion. The principles involved were examined by this court in Anderson v. R. (1978) 19 ALR 212, a case where the trial judge had imposed a nonparole period of 3 years being one half of the sentence. The appeal was limited to the length of the non-parole period. Smithers J. at 214 et seq examined the matter in detail and referred to the judgment of the Full Court in R. v. Eckhardt (1971) 1 SASR 347 at 351-2 where that court referred to the task of formulating a "duly proportioned and properly balanced sentence that is appropriate to meet all the circumstances of the case". The element of deterrence is not lost in this exercise. As Smithers J. said at p.221-

"It is clear that the element of deterrence must be balanced against the requirements of rehabilitation, that scope should be provided for the effective operation of the parole system. At the same time regard should be had to the punitive aspect of that system and its potential to result in actual imprisonment at a time remote from the commission of the crime and extending substantially beyond the term of the main sentence."

The learned trial judge did not give reasons fixing a non-parole period of 4 years; but it is evident from his observations as to the appellant's past history that he considered he should be granted the opportunity of rehabilitation before his release date. The period fixed is such as to facilitate the rehabilitative procedures. It cannot be said with a sentence of this duration that an order which necessitates a prisoner serving one half of the sentence imposed by the court is, for that reason alone, excessive. We are not persuaded that the learned trial judge erred in imposing a sentence of 8 years imprisonment with hard labour; nor is error demonstrated in his determination of the nonparole period. In fact we regard the sentence as being balanced and duly proportioned, paying regard both to the nature and circumstances of the offence and to the appellant's background and antecedents.

The appeal will be dismissed.