Lord v The Queen

[2020] NSWCCA 208

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lord v R [2020] NSWCCA 208

Hearing dates:

22 July 2020

Date of orders:

24 August 2020

Decision date:

24 August 2020

Before:

Bathurst CJ at [1]
Garling J at [2]
Wright J at [68]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against sentence —Applicant drove wife into river in a fit of rage and then attempted to rescue her – Applicant pleaded guilty to manslaughter - whether significance of rescue was diminished as a mitigating factor – no issue of principle

CRIME — Appeals — Appeal against sentence — Manifest excess – whether sentence was manifestly excessive in the circumstances – ground of appeal dismissed – no issue of principle

Legislation Cited:

Criminal Appeal Act 1912

Cases Cited:

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Edward Kenneth Lord (Applicant)
Regina (Respondent)

Representation:

Counsel:
S J Odgers SC (Applicant)
F Veltro / C Curtis (Respondent)

Solicitors:
R Hill (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/62100

Publication restriction:

Not Applicable

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law - Criminal

Citation:

R v Lord [2020] NSWSC 82

Date of Decision:

21 February 2020

Before:

Harrison J

File Number(s):

2017/62100

Judgment

1. BATHURST CJ: I agree with the orders proposed by Garling J and with his Honour’s reasons.

2. GARLING J: Edward Kenneth Lord (“the Applicant”) seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against a sentence imposed upon him on 21 February 2020, by Harrison J in the Supreme Court of NSW.

3. On 29 October 2017, the Applicant was charged on Indictment with the murder of his wife, Michele Lord, on 20 October 2015, at Tumbulgum in the State of NSW. Shortly before his trial commenced, on 10 September 2019, the Applicant entered a plea of not guilty to murder but guilty to manslaughter. That plea was accepted by the Crown in full discharge of the Indictment.

4. The maximum penalty for the offence of manslaughter is 25 years imprisonment. The legislation does not fix any standard non-parole period.

5. Harrison J sentenced the Applicant to imprisonment for a total period of 10 years and 8 months, with a non-parole period of 8 years. His Honour ordered that the sentence commence on 27 February 2017, which was the day upon which the Applicant was arrested. He has been in custody since that time.

Application for Leave to Appeal

6. On 28 April 2020, the Applicant sought leave to appeal against that sentence upon two grounds:

“1.   The sentencing Judge erred in discounting the significance of the [Applicant]’s actions in retrieving his wife from the vehicle because the sentencing Judge was not able to discern how this was done.

2.   …

3.   The sentence was manifestly excessive.”

7. Ground 2 was abandoned before the application was heard.

Facts

8. The facts were agreed before Harrison J. The following summary is taken from that Agreed Statement of Facts, which was before the sentencing Judge, and from His Honour’s summary.

9. The Applicant and his wife, who is the deceased, had been married for about 25 years and at the time of the offence lived in Queensland. They had no children.

10. The marital relationship between the Applicant and his wife had deteriorated over some years prior to the offence. The Applicant had been conducting an extra‑marital affair with a woman who he met at a coffee shop, and became a regular client at a local massage parlour. He persuaded the deceased that they ought hire this woman to work as a live-in housekeeper at their home in Queensland. They did so and the woman moved into, and lived in, their marital home.

11. The deceased suspected that an affair was being conducted and confronted the Applicant about it in mid-September 2015.

12. On 13 October 2015, the deceased met with a lawyer to discuss the commencement of divorce proceedings and the implications of a property settlement. In an attempt to resolve of their marital issues, the deceased and the Applicant planned to spend Sunday 18 October 2015 together, driving to Byron Bay and then returning to Queensland.

13. Towards the end of the day, the Applicant and the deceased ate an evening meal together in Murwillumbah and left that restaurant at about 9.30pm. At that time there was nothing untoward observed regarding their behaviour.

14. Shortly after this restaurant visit, a commercial fisherman witnessed a loud aggressive argument between the Applicant and the deceased. This argument occurred in a carpark just off the Tweed Valley Way, near the intersection of Riverside Drive at Tumbulgum. That carpark was in a secluded area adjacent to the Tweed River. There were no houses nearby.

15. The argument caused the Applicant to become extremely angry and he became enraged about what had transpired between them during the argument.

16. The Applicant drove off in the motor vehicle with the deceased as a passenger in an easterly direction along Tweed Valley Way. About 400m east of the carpark, the Applicant, in his rage, deliberately turned the car’s steering wheel sharply to the left so that the car travelled over the northern solid edge line, continued across the sealed shoulder and the grass shoulder before going down the rock seawall into the Tweed River. The Applicant was aware that the river ran alongside the roadway on its northern side.

17. The driving of the car by the Applicant into the river was an intentional but spontaneous act carried out purely to vent his rage. It carried an appreciable risk of serious injury to the deceased, but it was agreed that the Applicant had no intention to do her serious bodily harm or to cause her death.

18. After entering the river, the vehicle began to sink front-first, which was where the engine was located, and it eventually came to rest on the riverbed approximately 4.4m below the surface and inverted onto its roof.

19. It is appropriate to set out what happened next as recorded in the Agreed Statement of Facts:

“39.   The [Applicant] escaped the sinking vehicle through his open driver’s side window and later told police he went back underwater and managed to pull the deceased out through his open driver’s side window (the deceased’s window being up) in an unconscious state and brought her to the river edge where he tried to resuscitate her. He was unable to carry her up the rock embankment.

40.   The [Applicant] then ran approximately 200m to the nearest house and sought assistance from the residents, who contacted Emergency Services. An off-duty nurse stopped as the first police arrived, and assisted him to carry the deceased up over the rock embankment. They then conducted CPR on the deceased until the arrival of an Ambulance and Paramedics who took over treatment of the deceased with CPR, ventilation and intravenous adrenalin which restarted her heart beating after a period of cardiac arrest. She was subsequently flown to the Gold Coast University Hospital in a critical condition where she was placed on life support.”

20. The deceased did not survive. Her cause of death was agreed to be a combination of a lack of oxygen to the brain and pneumonia secondary to inhalation of water, both of which were due to being drowned.

21. The Agreed Statement of Facts recorded a number of versions of the events which were given by the Applicant to the police.

22. At the scene the Applicant gave an explanation to the police which suggested that the car had entered the water purely by accident. The Applicant was taken from the scene to the Tweed Heads Hospital. He was interviewed there. Again, the version given by the Applicant was consistent with an accident or inadvertence on his part.

23. In October 2015, about a week after the event, the Applicant attended Tweed Heads Police Station and participated in a further recorded interview with police investigators. He told police that his marriage to the deceased was harmonious and that they were in a happy relationship. He gave a further version of the events leading up to the car entering the water. It expanded on his earlier versions. Again, the version given was one of complete accident.

24. The Agreed Statement of Facts records that during this interview the Applicant gave this version of events:

“The [Applicant] described how he managed to climb out of the open driver’s window. Upon realising the deceased did not follow him to the surface, the [Applicant] said he dived down to the submerged vehicle. The [Applicant] said that he was up to his waist inside the driver’s side window feeling for the deceased before grabbing her and dragging her out and to the surface. He managed to drag the deceased to the base of the rock wall, where he noticed she was unconscious and not breathing.”

25. The Applicant was arrested on 27 February 2017. In a further recorded interview on that day, he again informed police that he had been in a loving relationship with his wife and that he had no more than an employment relationship with his housekeeper.

26. The Agreed Statement of Facts also recorded that the deceased had told her friends and family that the Applicant had a tendency to become angry and react spontaneously and aggressively by punching walls and the like. She did not suggest that there had been any physical violence towards her from the Applicant.

Sentence Proceedings

27. The sentence proceedings were heard on 13 February 2020. They were relatively brief. The Crown tendered the Agreed Statement of Facts. Criminal histories were tendered which showed that the Applicant had no previous criminal offences – although he had a record of various traffic infringements in Queensland. Each of those infringements resulted in a fine. As well, there were a number of Victim Impact Statements provided to the Court from the deceased’s family.

28. The Applicant tendered material which included a psychological report from a clinical psychologist, Mr John Machlin, a character reference by a friend and a number of TAFE certificates setting out what the Applicant had managed to do whilst in custody.

29. Written and oral submissions were provided by counsel for the Crown and for the Applicant. No oral evidence was called from any witness.

Remarks on Sentence

30. His Honour delivered his Remarks on Sentence on 21 February 2020. They were comprehensive. Having recounted the history of the matter and the Agreed Statement of Facts, His Honour turned to the issue of objective seriousness.

31. His Honour noted that the Agreed Statement of Facts made it clear that the offence was not planned. His Honour noted that the actions of the Applicant obviously carried an appreciable risk of serious injury to the deceased and to himself. His Honour observed that the risk included both physical injury as a result of the vehicle leaving the roadway and entering the water, as well as the risk of drowning from the inability to escape as the vehicle sank.

32. His Honour then set out a paragraph, which it is appropriate to record in full as it is the subject of the submissions in the first ground of the appeal. At [44] His Honour said:

“The Agreed Facts indicated that Mr Lord retrieved his wife from the vehicle at some stage after it entered the water. Her window was closed. His was open. I am not able to discern precisely how Mr Lord is said to have retrieved his wife in the circumstances. Mr Lord is the only person able to offer a description of how he did it. The Agreed Facts are regrettably lacking in such detail.”

33. His Honour concluded that viewed objectively the offence was a serious example of a death caused by the commission of an unlawful and dangerous act. This conclusion is not criticised by the Applicant.

34. His Honour then considered the subjective circumstances of the Applicant in a manner which did not give rise to any complaint. Those subjective circumstances largely came from the report of the clinical psychologist.

35. His Honour noted the guilty plea of the Applicant and noted that it entitled him to a discount of 15%. He concluded that the Applicant had failed to demonstrate remorse.

36. His Honour then considered, again in a manner about which there was no complaint, the various elements to which he was obliged to have regard when considering the appropriate sentence. He then imposed the sentence which I have described at [4] above.

Ground 1 – Error in Discounting the Significance of the Applicant’s Actions

37. In the written submissions placed before the sentencing Judge, counsel for the Applicant conceded “… that the offence is objectively serious …”. The Crown had submitted that the act “… was above the mid-range of objective gravity for this offence”. His Honour’s conclusion that the offence was a serious one is consistent with the Applicant’s concession.

38. In the course of the submissions on objective seriousness at the sentence hearing, the Applicant’s counsel submitted that there were six factors which were relevant to the assessment of objective seriousness. The first of these was that the act of driving the car off the road and into the river was spontaneous and unplanned. His Honour made such a finding.

39. The second factor was that the Applicant had no intention of causing his wife serious bodily harm or to cause her death at the time of driving the car off the road. His Honour made no finding to the contrary of that submission. Indeed, having regard to the fact that the Applicant was originally charged with murder and pleaded guilty to manslaughter (which plea was accepted by the Crown in full discharge of the Indictment), it necessarily follows that the Applicant did not have the intention to cause his wife serious bodily harm or to cause her death.

40. The third factor was that the act occurred as a result of the Applicant becoming enraged. That was an agreed fact which His Honour noted in his review of the Agreed Statement of Facts.

41. The next two factors combined were that the act carried with it an appreciable risk of serious injury to the deceased or to the Applicant. His Honour specifically noted those facts and made a finding to that effect.

42. The final factor relied upon in the submissions of the Applicant was put this way to the sentencing Judge:

“After the act, the offender did everything he could to save the deceased from serious injury or death by pulling her from the sunken vehicle, taking her to the riverbank, attempting resuscitation and seeking assistance to contact emergency services.”

43. It is in the context of that submission that it is apparent that His Honour made the remarks earlier recorded in [44] of his Remarks on Sentence.

44. Senior counsel for the Applicant, in his oral submissions to this Court, accepted that the Applicant bore an evidentiary onus to demonstrate to the sentencing Judge that he had done everything possible to retrieve his wife.

45. The submission on appeal crystallised the Applicant’s specific contention concerning the issue of retrieval of the deceased: that it was not just a question of a failure by the sentencing Judge to make an express finding that the Applicant had done everything he could to save his wife, but rather, as senior counsel said:

“I think I’d go one step further … it is that His Honour had erroneously discounted to some extent the significance of him retrieving his wife by the fact that His Honour was unable to work out precisely, was unable to determine precisely, how he had done it. In circumstances where the argument is that he should get some benefit for the fact that he had done everything he could to retrieve, to save, his wife, His Honour appears not to have given full significance to that because he was unable to determine how it had occurred. But in my submission, how it occurred did not in any way undercut the proposition that he had done everything he could to save her.”

46. In response, the Crown submitted that the Remarks could not be read as anything more than an uncomplicated statement which explained why no further factual finding could be made.

47. I am unable to accept the Applicant’s contention that the sentencing Judge, in noting that he was unable to make a precise finding as to the circumstances surrounding how the Applicant had retrieved his wife, must have, to some extent, discounted the significance of the Applicant’s conduct after driving his car into the river. The Remarks correctly note the lack of evidence concerning how the attempted rescue happened. Such a statement cannot be taken as a statement which discounts the significance of or else diminishes a consideration of the principal issue which was that the Applicant rescued the deceased from the motor vehicle after it entered the Tweed River.

48. I should also add that I do not accept that, if the remarks of His Honour were not directed to this issue, inherent in them is a diminution or discount of the significance of the Applicant in fact retrieving the deceased. That is an inference which is contended for by the Applicant on this appeal, which is not apparent from the face of the reasons. I do not accept the starting point of such an inference, which is that there is otherwise no reason for His Honour to have included those remarks.

49. Further, I am satisfied that the sentencing Judge was not in error in finding that there was insufficient evidence to reach a conclusion about all of the details of the attempted rescue.

50. The Agreed Facts make it plain, and his Honour noted in his Remarks, that:

1. the deceased died of a combination of factors due to her immersion in water i.e. drowning. That necessarily meant that at a point after the vehicle drove into the river, the deceased’s body was underwater for a sufficient period to enable that to occur; and

2. after the car entered the water and began to sink, the Applicant, having escaped from the sinking vehicle through his window, went back underwater and managed to pull the deceased out through the open driver’s side window, bring her to the surface, take her to the river’s edge where he attempted to resuscitated her.

51. The Applicant contended, as the sixth element of his submissions to the sentencing Judge, that he had done everything which he could to rescue the deceased, based on the Agreed Facts. His Honour indicated that he was not persuaded of that conclusion, rather concluding that the extent and nature of the rescue could not be precisely discerned based on the evidence before him. His Honour was not obliged to accept this conclusion. It was a matter for the Applicant to persuade him so to do. His Honour’s remarks in the latter half of [44] in his Remarks on Sentence simply indicate that the Agreed Facts were lacking in such detail as would have enabled him to make a finding of the kind contended for by the Applicant.

52. As I have earlier said, I am unable to discern any error in his Honour’s approach. His Honour stated correctly that the Agreed Facts did not provide any detail of the way in which the Applicant went about the rescue of the deceased. That detail, if it was to be provided, fell to the Applicant (as the only person present who could give evidence as to what had occurred) to give such evidence, if he so chose. The Applicant elected not to give evidence. That was an election he was entitled to make. However, in those circumstances, it is not open to him to complain that the sentencing Judge did not accede to the conclusion for which he contended, namely that he had done everything that it was possible to do to save the deceased. The Applicant bore the onus of establishing that contention.

53. Importantly, such a conclusion imports considerations about the timing of the Applicant’s attempt to rescue the deceased. Did he go back to rescue the deceased immediately he was freed from the vehicle? Did he do so in sufficient time before the vehicle was completely submerged and sank to the bottom of the river? Or, did he do so having waited for some short period of time? Did he do so at the earliest time he thought he possibly could? These are all questions to which answers were not supplied in the evidence, and which are relevant to a conclusion as to whether the Applicant did everything possible to rescue the deceased. His Honour’s Remarks on Sentence simply drew attention to the lack of evidence concerning these important points.

51. The Remarks of his Honour made it clear that his Honour took into account and gave weight to the fact that the Applicant retrieved the deceased from the vehicle at a time when she was fully immersed in water.

52. Finally, even if the Applicant’s contention is correct, it is difficult to see that any diminished significance made any difference to His Honour’s conclusions. As earlier noted, the Applicant conceded that this was a serious offence when viewed objectively. That is what his Honour found. His Honour did not make the finding contended for by the Crown but proceeded on the basis of the Applicant’s concession.

53. In those circumstances, even if there was an error of the kind contended for (of which I am not convinced), I am not satisfied that any such error in the fact finding made any difference to the conclusion reached by his Honour.

54. I would not uphold the first ground of appeal.

Ground 3 – Manifest Excess

58. The Applicant submitted that the act was spontaneous, momentary and unplanned. The Applicant noted that it was carried out to only vent his rage, and not with the intention to cause injury or death to the deceased. The Applicant distinguished this type of offence from many other motor vehicle-related offences, and other instances of manslaughter. He contended that this meant that the offence was less serious than the sentence imposed by the sentencing Judge suggested.

59. As well, the Applicant’s submissions pointed to his strong subjective case, including his previous good character and the finding of the sentencing Judge that his prospects of reoffending were remote in the extreme thus demonstrating that there was no reason to give weight to any principle of specific deterrence.

60. The Applicant submitted that the sentence imposed was manifestly excessive because it was unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6].

61. With respect to the offence of manslaughter, there will always be a range of sentences which may be appropriate because the crime is one which depends, to a very significant extent, on the particular facts of a case.

62. Viewed objectively, although the act was spontaneous and momentary, it was an act which, as the sentencing Judge found correctly, was a serious example of a death caused by the commission of an unlawful and dangerous act. Aspects of the subjective case of the Applicant were favourable to him: he had not committed any previous criminal offence and he had good prospects of rehabilitation. It was also unlikely he would ever commit such an offence again. On the other hand, any unlawful and dangerous act involving deliberate conduct which results in the death of a person is an offence which carries with it a need for general deterrence. The facts of the offence called for weight to be given to the denunciation of the conduct of the Applicant. The sentencing Judge also found that the Applicant failed to demonstrate remorse. Consequently, there were factors that weighed both for and against the Applicant on sentence that needed to be given appropriate weight.

63. Having regard to all of the circumstances of this matter, I am unable to accept the Applicant’s submission that a head sentence of less than half of the maximum penalty which may be imposed (even allowing for an appropriate discount for a plea of guilty) was unreasonable, or else fell outside a range of penalties which could lawfully have been imposed.

Conclusion

64. I am unpersuaded that either of the grounds of appeal have been made out.

65. The Court has had the benefit of full argument by counsel in a matter of obvious public interest. In those circumstances I would favour a grant of leave to appeal.

66. I am of the view that the appeal be dismissed.

Orders

67. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

68. WRIGHT J: I agree with the orders proposed by Garling J.

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Decision last updated: 24 August 2020