Maybus v The Queen
[2017] VSCA 125
•30 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0083
| LUKE PAUL MAYBUS |
| V |
| THE QUEEN |
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| JUDGES: | OSBORN, KAYE JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 May 2017 |
| DATE OF JUDGMENT: | 30 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 125 |
| JUDGMENT APPEALED FROM: | [2016] VSC 116 (Beale J) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Charges of manslaughter, theft and arson – 9 years’ imprisonment on principal offence – Total effective sentence of 10 years’ imprisonment with non-parole period of 8 years – Whether plea of guilty to manslaughter was a ‘late plea’ – Whether plea was entered at ‘first reasonable opportunity’ – Plea of guilty received mid-trial following significant damage to credit of key Crown witness – Cameron v The Queen (2002) 209 CLR 339 applied – ss 5(2)(e), 6AAA Sentencing Act 1991 – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr D Gurvich QC | Stephen Andrianakis & Associates |
| For the Respondent | Mr D Trapnell QC | Mr J Cain, Solicitor for Public Prosecutions |
OSBORN JA
KAYE JA:
On 15 January 2015, the applicant was arrested and charged with one count of the murder, one count of theft and one count of arson. Two co-accused were also charged with the same murder. After a contested committal proceeding, at the conclusion of which the applicant pleaded not guilty to each of the charges, the trial for murder, along with the trial of his two co-accused, was listed to commence in early February 2016. On 22 February 2016, the applicant was arraigned in front of a jury panel and pleaded not guilty to murder, but guilty to the charges of theft and arson. In the second week of the trial, during cross-examination of a principal prosecution witness, the prosecution and the applicant agreed to settle the charges against him. Accordingly, on 2 March, the applicant was re-arraigned and pleaded guilty to manslaughter.
Following a plea, the applicant was sentenced by the trial judge as follows:[1]
[1]R v Walker & Maybus [2016] VSC 116 (‘Reasons’).
| Charge No | Offence | Maximum | Sentence | Cumulation | |
| 1. | Manslaughter [contrary to common law] | 20 years’ imprisonment | 9 years’ imprisonment | Base Sentence | |
| 2. | Theft [Crimes Act 1958 (Vic) s 74] | 10 years’ imprisonment | 6 months’ imprisonment | 6 months concurrent with Charge 3; cumulative with Charge 1 | |
| 3. | Arson [Crimes Act 1958 (Vic) s 197] | 15 years’ imprisonment | 12 months’ imprisonment | 12 months concurrent with Charge 2; cumulative with Charge 1 | |
| Total Effective Sentence: | 10 years’ imprisonment | ||||
| Non-Parole Period: | 8 years | ||||
| Pre-Sentence detention declaration pursuant to section 18(1) of the Sentencing Act 1991: | 428 days | ||||
| S6AAA Statement: | 12 years’ imprisonment with a non-parole period of 9 years | ||||
| Other relevant orders: | Disposal orders under section 77(1) Confiscation Act 1997 | ||||
The applicant now seeks leave to appeal on one ground, namely:
The learned sentencing judge erred in failing to give effect to s 5(2)(e) of the Sentencing Act 1991, namely, that in sentencing an offender a court must have regard to whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicate an intention to do so.
Circumstances of the offending
The principal charge, of manslaughter, to which the applicant pleaded guilty, arose out of a violent assault perpetrated by the applicant, together with his co-offenders John Walker and Joseph Girgis, on one Michael Strike at the clubhouse of the Bandidos Outlaw Motorcycle Gang at Weston Street, Brunswick on 24 May 2014.
At that time, the applicant, Walker and Girgis were each fully patched members of the Bandidos. On the day of the offence, they were present in or about the clubhouse. Michael Strike, who was then 38 years of age, approached the side door of the building. Strike had earlier that day consumed methylamphetamine with his girlfriend. They attended Crown Casino, and subsequently after parting company from her, Strike then made his way through the Melbourne central business district to Brunswick.
As Strike approached the front door of the clubhouse, Walker’s dog, which was tethered near the door, started to make a noise. Walker went outside the clubhouse and noticed Strike hunched over near the dog. When Walker asked him what he was doing, Strike uttered something which was incoherent. He mentioned the Dandenong Chapter of the Bandidos. Strike moved towards Walker, and they were heard to be speaking in loud voices. Walker grabbed Strike, and pulled him inside the clubhouse. As he did so, the applicant shut and latched the door. Another loud conversation then ensued, in which Strike mentioned a bombing at the Dandenong Chapter of the Bandidos and that he knew one Michael Bogavic, an ex-member of the Bandidos. Thereupon, the applicant, who was standing behind Walker, punched Strike hard with his fist to the right cheek. Walker, an ex-boxer and bodybuilder, then punched Strike a number of times to the face and chest. At some stage, Girgis and the applicant each tried, unsuccessfully, to contact Bogavic by telephone. In the meantime, Walker and the applicant continued to assault Strike by punching him. The prosecution was not able to prove, beyond reasonable doubt, that Girgis was not also involved in the assault.
On the applicant’s plea, it was accepted that the applicant had acted pursuant to a joint criminal enterprise, with his co-assailants, in inflicting injury to Strike. Initially, all of the participants in the assault on Strike were unarmed. However, another assailant (who was not identified) assaulted Strike with a metal bar to his limbs, buttocks and torso. The applicant became aware of the use of the weapon for that purpose, but continued his own assault on Strike. On the plea, the applicant accepted that the initial blows, struck by the weapon to Strike’s body, were inflicted while the applicant was a party to the assault and he had not removed himself from the assault. Thus, he accepted that the blows with the instrument to the torso were within the scope of the joint criminal enterprise.
At one stage during the attack, Walker rammed Strike’s head into the stripper pole in the premises. In addition, at some stage, Strike was also struck to the head with a metal bar. It was not put by the prosecution that the applicant agreed, or was party, to the blow so inflicted to Strike’s head by the metal bar.
On the plea, it was accepted by the applicant that, at the conclusion of the assault at the clubhouse, which lasted for some minutes, Strike was catastrophically injured. Immediately following the assault, he was unconscious, and bleeding so profusely, that the sites of the bleeding were obscured.
Those involved in the assault on Strike made a decision to remove his body from the clubhouse. For that purpose, Walker went next door to the gymnasium, and obtained the keys to the gym van. He parked the van next to the side door of the clubhouse, and the applicant, with Walker and Girgis, picked up Strike and placed him in the rear of the van. The applicant then drove off in the van with Strike in the rear. Girgis denied that he accompanied the applicant, but his telephone records suggested that he did so. At that stage, the applicant was of the view that Strike was already deceased. The prosecution was unable to establish, beyond reasonable doubt, precisely when Strike died.
After the applicant left the clubhouse with Strike in the van, a clean-up commenced at the clubhouse. The whole main area of the clubhouse, and the walls, were cleaned in order to endeavour to conceal any trace of what had occurred. The refuse, including bloodstained clothing, was put into garbage bags.
In the meantime, the applicant drove to a street in Keilor East, where he left Strike’s body lying in a garden bed under a small tree.
Sometime after the applicant returned to the clubhouse, he contacted a friend, Matthew Grech, and made arrangements for Grech to attend the clubhouse with a trailer, in order to dispose of incriminating items, including some bloodstained couches at the premises. Subsequently during the evening, Grech attended the premises. The applicant assisted in loading chairs and a number of full rubbish bags onto Grech’s trailer, and he instructed Grech to dispose of them near Werribee. In accordance with those instructions, Grech conveyed the items to a reserve in Laverton where he dumped them.
The next day, Strike’s deceased body was found by a person who had visited Keilor Cemetery which was nearby. Strike’s body had severe and visible injuries to his head and torso. The subsequent autopsy revealed that he had sustained at least 17 areas of direct trauma inflicted by an implement. He had bruising and welt marks to the torso, extensive cranial fractures with underlying brain injuries, fractures to the middle third of the face, nose and jaw, multiple bilateral rib fractures, laceration and contusion to the lung tissues, a fractured right ankle, a dislocated finger, and blood in the major and minor airways. The pathologist concluded that the cause of death was blunt force trauma to the head and chest.
On Saturday 24 May, or Sunday 25 May, the applicant contacted Grech and asked him to assist with an ‘insurance job’. They, along with another person, attended in the vicinity of the Brunswick clubhouse. The applicant and Grech went to the car park at the gymnasium and broke into the van that had been used to dispose of Strike’s body. The applicant then hotwired the van with a screwdriver. That conduct comprised charge 2 on the indictment, the charge of theft. The applicant then drove the van with Grech in it to Cowper Street, Footscray where he set the van on fire. That conduct comprised the offence alleged in charge 3 on the indictment, the charge of arson.
The proceedings
As we have noted, the applicant was arrested and charged with murder, theft and arson on 15 January 2015. He participated in a record of interview with police, in which he declined to comment in answer to the questions put to him. Originally, he was jointly charged, with Girgis and Walker, with the murder of Michael Strike. The applicant ran a contested committal hearing, at the conclusion of which he pleaded not guilty to all three charges. The trial was set down for 8 February 2016. Before that date, the applicant gave no indication of an intention to plead guilty to any charges. In particular, no formal offers were made by him, or on his behalf, to plead guilty to manslaughter.
On 8 February 2016, the prosecution accepted a plea by Girgis to a charge of assisting an offender, and dropped the murder charge against him. Girgis undertook to give evidence against Walker and the applicant in accordance with a statement that he had signed on that day. In that statement, Girgis said that it was the applicant who had wielded the metal bar during the assault. After Girgis’s statement was provided to the applicant on that day, the applicant’s legal representatives inquired whether the prosecution would settle for anything less than murder. That approach was rebuffed. However, based on Girgis’s statement, the prosecution accepted a plea by Walker to the lesser charge of manslaughter.
As mentioned, the applicant was arraigned in front of the jury panel on 22 February 2016. He pleaded not guilty to murder, but guilty to theft of the van and arson of that van. A number of witnesses were called by the prosecution in the following days, including Girgis. In the course of cross-examination of Girgis, counsel for the applicant made significant inroads in damaging his credibility and reliability. As a consequence, the prosecution made enquiries of the applicant’s legal team as to whether he would plead guilty to manslaughter, which is a statutory alternative to murder pursuant to s 421 of the Crimes Act 1958. The applicant agreed to do so. On 2 March 2016, the applicant was re-arraigned before the jury, and pleaded not guilty to murder, but guilty to the statutory alternative of manslaughter pursuant to s 219 of the Criminal Procedure Act 2009. That plea was accepted by the prosecution, and the jury was discharged without verdict in relation to the murder charge.
As part of the plea agreement, the parties negotiated a summary of agreed facts, which we have outlined. Specifically, the prosecution accepted that, contrary to the account given by Girgis, the applicant had not struck the deceased to the head with a metal bar, and that he was not a party to that part of the assault on the deceased.
Applicant’s personal background
It is not necessary, for the purposes of this application, to outline the applicant’s personal circumstances in any detail. It is sufficient to note that at the time of the offence he was 27 years of age. He had limited education, and after leaving school, successfully completed a carpentry apprenticeship. Thereafter, he was regularly employed in the construction industry, and in other semi-skilled occupations.
The applicant’s previous convictions
The applicant has an extensive criminal history. As noted in the judge’s reasons for sentence,[2] since the age of 17 years, he had amassed 75 convictions from nine court appearances. In particular, in April 2011, he was convicted by the Melbourne County Court on charges of false imprisonment, intentionally causing injury, recklessly causing injury and two other offences arising out of a violent incident in which he attacked and assaulted his long-time partner by repeatedly punching and kicking her. He was sentenced to 2½ years’ imprisonment with a non-parole period of 6 months for those offences.[3] Subsequently, in February 2013, the applicant was sentenced by Sunshine Magistrates’ Court to an aggregate sentence of one months’ imprisonment, which was wholly suspended for six months, on two counts of recklessly causing injury and one count of unlawful assault. Those offences arose out of an incident in which the applicant, with a friend, confronted and assaulted the boyfriend of the applicant’s friend’s ex-partner, and then the applicant head-butted his friend’s ex-partner in the face.
[2]Reasons [26]–[34].
[3]DPP v Maybus [2011] VCC 470.
The plea
It is not necessary to outline all of the matters that were argued in mitigation of sentence on the plea. On the issue of the timing of the applicant’s plea of guilty, counsel for the applicant told the sentencing judge that while the matter had resolved quite late, there had been approaches made earlier to resolve the matter after Girgis had made his statement. In particular, the applicant’s solicitors had sent a text message to the prosecution asking, ‘Is there any point in us having a discussion about this matter resolving to anything less than a murder?’ The applicant’s counsel told the judge that he had been instructed by the applicant to ‘sound out the prosecution’, but at that stage he did not have instructions to offer a plea. Acting on those instructions, the defence had twice ‘sounded out’ the prosecution whether there was any point in discussing settlement of the matter to a charge other than murder and the defence was given a negative response to that inquiry. Counsel submitted that the matter was only capable of resolution after Girgis had given evidence, and after his testimony had been tested in cross-examination. The prosecution had opened the case based on Girgis’s statement, and when the matter resolved, the prosecution resiled from relying on that account, and, it was submitted, accepted the applicant’s liability, for manslaughter, on a different basis.
Counsel further submitted that the judge should accept that the applicant was remorseful. The judge responded that there were strong arguments for the view that the plea was motivated by no more than self-interest. He pointed out that it was necessary for the applicant to point to evidence on which a finding could be made, on the balance of probabilities, that he was remorseful. In response, counsel for the applicant, ultimately, did no more than rely on the plea of guilty made by the applicant to the charge of manslaughter. The judge indicated that he had no difficulty accepting that the applicant was entitled to a discount for the plea of guilty based on utilitarian considerations, but that he would not be able to find that the applicant had evidenced any remorse. Counsel responded: ‘I can’t take it any higher than … there should be no adverse inference drawn in relation to remorse based on the fact that he accepted our advice … ‘. Counsel then commenced to address the judge about the applicant’s personal circumstances.
In response, counsel for the prosecution submitted that the judge should conclude that the offending by the applicant fell into the high end of the range of manslaughter offences. He pointed to a number of aggravating features relating to it. The prosecutor noted that the plea of guilty was made at a ‘late stage mid-trial’. He stated that while some overtures had been made, no formal offer to plead guilty to manslaughter had been previously put on behalf of the applicant. Counsel for the prosecution submitted that the applicant could have pleaded guilty to manslaughter at the committal, or when he was arraigned in front of the jury. Counsel accepted that the plea of guilty did have a utilitarian effect. He then addressed the judge concerning the applicant’s personal circumstances, and, in particular, his previous convictions for violence, to which we have referred.
Reasons for sentence
In his reasons for sentence, the judge, having recited the circumstances of the offending, made specific findings concerning the gravity of the offending. In particular, his Honour noted that at the time of the offence Strike was substance affected and vulnerable, that he had been personally dragged into the clubhouse with no justification at all, and that the applicant had thrown the ‘opening punch’ once Strike was inside the clubhouse. The judge observed that the applicant struck Strike with the intention of injuring him. His Honour considered that the fact, that the assault occurred in company with intent to injure, was an aggravating factor. His Honour noted that the applicant had accepted liability on the basis that he was a party to a joint criminal enterprise that included the use of the metal bar, and the joint assault on Strike was a sustained one. In addition, notwithstanding that, at the conclusion of the attack, it was obvious that Strike was badly injured and needed urgent medical assistance, the applicant did not call an ambulance, but, instead, bundled him into the back of the van and deposited him in another suburb. Based on those facts, the judge considered that the applicant’s offending was at the upper end of the mid-range of manslaughter offences.[4]
[4]Reasons [24].
On the issue of the plea of guilty made by the applicant, the judge set out the circumstances in which the plea was made. The relevant part of his Honour’s reasons, which were the subject of the application for leave in this case, is contained in the following passage:
I consider that yours was a late plea to manslaughter – no formal offers to plead guilty to manslaughter were ever made prior to Mr Girgis giving evidence and, when arraigned in front of the jury panel, you did not take the opportunity then to plead not guilty to murder but guilty to manslaughter which you could have done notwithstanding that the prosecution would not have accepted such a plea at that stage – but having said that, I do not take the view that your late plea of guilty to manslaughter is insignificant.
In my view, by reason of Mr Girgis having turned Crown witness, and providing the only account of who did what behind the closed doors of the Bandidos’ clubhouse, the central issue in the trial became his credibility and reliability. There was a real possibility that the jury might reject him as a witness of truth and not find to the criminal standard that you were the perpetrator of or even a party to acts that were a substantial cause of death, resulting in you being acquitted of homicide altogether. Although the plea was late, it was entered in circumstances where I am satisfied, on the balance of probabilities, you had a viable defence to homicide and that makes it significant, as does utilitarian considerations such as the saving of time and cost and inconvenience to the community, witnesses and members of the jury. There were probably two to three weeks left in the trial when it was terminated by your plea of guilty to manslaughter.
But I am not satisfied your plea was motivated by remorse. Mr Girgis may have been damaged in cross examination but he was certainly not demolished. Indeed, as your counsel, in accordance with the rule in Browne v Dunn put his instructions to Mr Girgis, and Mr Girgis appeared to respond with genuine surprise to your version of events, his credibility in the eyes of the jury is likely to have grown. Your plea, in my view, was entered in circumstances where there was a real risk of you being convicted of murder. The resolution of the matter on the basis of self-interest, not remorse is, in my view, how things played out.
In summary, I am not satisfied on the balance of probabilities that your plea bespeaks remorse, or that you are in fact remorseful, though one, of course, hopes that you are.[5]
[5]Reasons [44]–[47].
Ground 1: the timing of the applicant’s plea of guilty
In support of ground 1 of the application, senior counsel for the applicant referred to s 5(2)(e) of the Sentencing Act 1991, which requires the judge, in determining sentence, to take into account 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. Counsel submitted that the judge erred in making a finding, in that respect, that the applicant’s plea was a late plea to manslaughter. It was submitted that, on the contrary, on the correct view of the facts, the applicant pleaded guilty at the earliest stage at which he could realistically do so.
In that respect, counsel noted that in the lead up to the trial the prosecution had peremptorily rejected the approaches made on behalf of the applicant to discuss settlement of the murder charge. Thus, at all times thereafter the applicant faced a charge of murder, until the prosecution case had been substantially weakened by the cross-examination of Girgis, at which stage the prosecution made the offer to the applicant to accept a plea of manslaughter. Counsel referred to passages of the judgments of the High Court in Cameron v The Queen[6] in support of his contention that during the period in which the prosecution maintained the charge of murder against the applicant, there was a strong incentive for him to persist in his plea of not guilty, to that charge and not to plead guilty to the alternative of manslaughter. Counsel contended that the facts of this case are stronger, in favour of that proposition, than they were in Cameron, because in the latter case, the only difference between the charge initially brought against the offender, and the charge to which the offender pleaded guilty, lay in a different formulation of the particulars to the charge, rather than in the substance of the charge.
[6](2002) 209 CLR 339, 345 [21] (Gaudron, Gummow and Callinan JJ), 356 [56], 363–4 [75] (Kirby J) (‘Cameron’).
Counsel further submitted that throughout the trial, until the prosecution made the offer to the defence to accept a plea on the lesser charge of manslaughter, the applicant faced a prosecution case that was based on the evidence of Girgis, and, in particular, that contained the allegation that it was the applicant who wielded the metal bar, and used it to inflict blows to the head of the victim Strike. Thus, it was contended, it was not until after Girgis’s evidence had been substantially discredited, that it was feasible for the applicant to plead guilty to manslaughter.
Counsel for the applicant thus submitted that the judge erred in failing to accept the proposition, advanced on behalf of the applicant, that the plea of guilty to manslaughter had been made at the earliest possible stage in the proceeding. He submitted that that error affected the weight given by the judge to the plea of guilty, not only in assessing its utilitarian effect, but also in considering whether the plea of guilty evidenced a willingness by the applicant to facilitate the course of justice and to accept responsibility for his crime. In that respect, counsel referred to the passage from the joint judgment in Cameron, that if a plea is entered at the earliest reasonable opportunity, that might be a significant factor, in determining whether the guilty plea is indicative of remorse, acceptance of responsibility, and a willingness to facilitate the course of justice.[7] Counsel also relied on the declaration made by the judge, under s 6AAA of the Sentencing Act 1991, as to the sentence that would otherwise have been imposed but for the plea of guilty, in support of his contention that the judge gave inadequate weight to the plea of guilty in the circumstances. In doing so, counsel, correctly, accepted what this Court has said, on a number of occasions, about the limited relevance of the s 6AAA declaration to an application for leave to appeal against sentence.
[7]Ibid 345–6 [22] (Gaudron, Gummow and Callinan JJ).
In response, senior counsel for the respondent submitted that it was open to the judge to conclude that the plea to the statutory alternative of manslaughter, by the applicant, was a late plea in the context of the case. Counsel noted that, the submissions, made on behalf of the applicant focused on the period between 8 February 2016 (when Girgis made his statement) and 2 March 2016 when the proceeding resolved. However, the proceedings before the Magistrates’ Court had commenced with a filing hearing on 20 January 2015. From that stage on, it was open to the applicant to make a plea to the alternative of manslaughter. Senior counsel submitted that it was not relevant that the prosecution might not have accepted such a plea at that stage.
Counsel further submitted that the applicant could have pleaded guilty to manslaughter, which is a statutory alternative to murder, at any stage after the committal proceeding. During that period, the applicant could have indicated his intention to plead guilty, in that respect, while reserving his right to contend that the plea was made on a different view of the facts than that contended for by the prosecution. In addition the applicant could have pleaded guilty to the alternative of manslaughter, on arraignment before the jury, and through his counsel could have explained to the jury that, while he accepted responsibility for the blows to the torso which resulted in the death of Strike, he was not a party to the infliction of the blows to Strike’s head with the metal bar.
In those circumstances, counsel submitted that the judge did not err in concluding that the plea of guilty was made, in the circumstances of the case, at a late stage. He submitted that if a plea had been made earlier, and accepted by the prosecution, any factual dispute between the prosecution and the defence could have been resolved on a contested plea hearing. Rather, counsel submitted, the applicant chose to take the risk, and he made a forensic decision not to plead guilty to the alternative, in order to endeavour to gain an acquittal in respect of both the head charge of murder and the statutory alternative of manslaughter. Counsel contended that the decision of the High Court in Cameron should be distinguished. In that case, the offender could not plead guilty to the charge that was before the court, because he would have acknowledged his guilt of an offence he did not commit. On the other hand, in the present case, the applicant could have pleaded guilty to the alternative of manslaughter. By doing so, the applicant would not have thereby acknowledged the Crown case against him, but, rather, each of the elements of the charge.
Counsel for the respondent further submitted that, if the Court were to conclude that the judge had made an error in determining the stage at which the guilty plea had been made, the Court should not impose any different sentence on the applicant. He submitted that it was open to the judge to be satisfied that there was no remorse by the applicant. The applicant’s prospects of rehabilitation were found, by the judge, to be poor. The applicant had a number of previous convictions, and the principles of denunciation, general deterrence and specific deterrence had particular application in the case. Accordingly he submitted that, in those circumstances, the judge had given correct weight to the applicant’s plea of guilty, and there was no appropriate basis upon which this Court should reduce the sentence imposed by the trial judge.
Ground 1: Analysis
The issue on this application is quite narrow and precise, namely, whether the judge erred in considering that the plea of guilty to the charge of manslaughter, made by the applicant, was a late plea. As mentioned, s 5(2)(e) of the Sentencing Act 1991 requires a judge, in determining a sentence, to have regard to the stage in the proceedings at which the offender pleaded guilty ‘or indicated an intention to do so’.
A plea of guilty, by an accused person, has long been considered to be an important mitigating factor to be taken into account in determining sentence. In assessing the weight to be given to the plea, as a mitigating factor, it is relevant for the sentencing judge to consider the utilitarian value of the plea, as an objective factor, together with subjective considerations, including whether the plea was attended by remorse, a willingness to facilitate the course of justice and an acknowledgment of responsibility, by the particular offender.[8]
[8]See Phillips v The Queen (2012) 37 VR 594, 606–9 [43]–[52], 614 [68]–[69] (Redlich JA and Curtain AJA).
In the present case, on any view, the plea of guilty, by the applicant, was made at a late stage in the proceeding. The central question is whether it would have been realistic or practicable, in the context of the case, for the applicant to have pleaded guilty to the alternative of manslaughter, or to have indicated his intention to do so, at any earlier stage in the proceeding.
Certainly, at least from a theoretical point of view, there were a number of stages earlier in the proceeding, at which the applicant could have proffered, or made, such a plea. As senior counsel for the respondent pointed out, the initial charge sheet contained a charge of murder to which there was a statutory alternative of manslaughter. The proceeding came before the Magistrates’ Court, on a preliminary filing hearing, on 20 January 2015. Subsequently, in the same year, a contested committal proceeding took place. At either of those two stages it was open to the applicant to plead guilty to the alternative of manslaughter. Further, it was open to the applicant, at any stage before trial, to indicate his intention to plead guilty to the alternative of manslaughter at the trial, or alternatively he could have made an offer to do so on condition that the charge of murder against him be withdrawn. The applicant did not take either course at any stage. As mentioned, no offer of a plea to manslaughter was made to the prosecution before the jury was empanelled. Counsel then acting for the applicant did not have instructions to make such an offer, but were only authorised to ‘sound out’ the prosecution as to whether it was in a position to engage in discussions concerning resolution of the case. Finally, on arraignment before the jury, it was open to the applicant to plead not guilty to murder, but guilty to manslaughter.
The important question is whether any of those possible courses were realistically open to the applicant.
The appropriate test, to be applied in relation to that question, was considered by the High Court in Cameron,[9] to which counsel for the applicant referred. In that case, the appellant was charged with possessing a prohibited drug, namely, the substance commonly referred to as ‘ecstasy’. In fact, analysis of the substance found in his possession established that it contained amphetamine (‘speed’), and not the substance charged. The appellant’s solicitor wrote a letter to the Director of Public Prosecutions stating that the charge as drafted was incorrect, and that it should be amended to reflect the drug that was in the appellant’s possession. When the charge was amended, the appellant entered a plea of guilty. The issue on appeal concerned the application of s 8(2) of the Sentencing Act 1995 (WA), which provided that ‘the earlier in proceedings that [the guilty plea] is made, or indication is given that it will be made, the greater the mitigation’.
[9](2002) 209 CLR 339.
In their joint judgment, Gaudron, Gummow and Callinan JJ stated the relevant principles by adopting the following passage from the judgment of Ipp J in Atholwood v The Queen:[10]
It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts … to persist in a not guilty plea on all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity.[11]
[10](1999) 109 A Crim R 465 (‘Atholwood’).
[11]Ibid 468 quoted in Cameron (2002) 209 CLR 339, 345 [21].
Based on those propositions, Gaudron, Gummow and Callinan JJ concluded that a ‘significant consideration … is whether the plea was entered at the first reasonable opportunity’.[12] Their Honours considered that, in that case, it was not reasonable to expect the appellant to have pleaded guilty to an offence which had been wrongly particularised, for, by doing so, he would have acquiesced in procedures ‘which might result in error in the Court record or, indeed, in his own criminal record’.[13] Thus, their Honours concluded that the Court of Criminal Appeal of Western Australia was in error in holding that the appellant could have pleaded guilty before the charge was amended to specify the correct substance that he had in his possession.
[12]Cameron (2002) 209 CLR 339, 346 [22].
[13]Ibid 346 [24]
The present case is different, and in our view, distinguishable, from the facts in Cameron. In the present case, if the applicant had indicated an intention to plead guilty to manslaughter, but not murder, he would not thereby have been accepting his guilt of an offence that he did not commit. The prosecution opening, that was filed before Girgis provided his statement to the prosecution, contained an outline of a number of circumstantial facts, upon which the prosecution intended to rely in its case against the then three accused persons, Walker, Girgis and the applicant. At the conclusion of the document, the prosecution stated that its case against all three accused persons was that they had acted together in a joint criminal enterprise to murder Strike. The evidence of the forensic pathologist indicated that the deceased had sustained a number of severe blows, not only to the head, but also to the body, using a blunt instrument. As we have already mentioned, the pathologist concluded that death was caused by the blows both to the torso and to the head. In those circumstances, it was open to the applicant to proffer a plea of guilty to manslaughter, on the basis that he had been a party to an assault that constituted an unlawful and dangerous act which caused the death of Strike, but that he was not a party to blows, that were the cause of death of Strike, and which had been inflicted with an intention to kill him or cause him really serious injury.
Certainly, after Girgis made his statement, the case against the applicant changed, as the prosecution case then alleged the applicant himself had used the metal bar to inflict blows to both the head and body of Strike. Nevertheless, as we have noted, it was open to the applicant, on arraignment before the jury, to have pleaded guilty to manslaughter, but not murder, and for his counsel, in a preliminary opening to the jury, to have outlined the basis upon which the plea was made, and, in particular, to have put in issue those aspects of the prosecution case that were relied on to prove participation by the applicant in a joint enterprise to inflict blows on Strike with an intention to kill him, or to cause really serious injury to him.
The applicant is not to be criticised, or penalised, for not having taken any of those courses. However, it was not demonstrated to us, in the course of the hearing of the application for leave to appeal, as to why any of those courses were not reasonably open to the applicant. Instead, it is apparent that the applicant made a forensic decision to contest his guilt, without acknowledging criminal responsibility at all for the death of Strike. In his reasons for sentence, the judge noted that there was a real possibility that the jury might have rejected Girgis as a witness of truth, and not find, to the criminal standard, that the applicant was the perpetrator of, or even a party to, acts that were a substantial cause of death, resulting in the applicant being acquitted of homicide altogether.[14] Thus, it is evident that at his trial, the applicant, through his counsel, sought to present a case that he was not responsible for any of the acts of violence that had resulted in the death of Strike. Again, the applicant is not to be criticised or penalised for taking that course. However, it is sufficiently clear that the applicant made a forensic decision to seek to contest all criminal liability before the jury, rather than taking any of the alternative courses, which we have discussed, involving a plea or acknowledgement by him of his guilt of the alternative of manslaughter.
[14]Reasons [45].
Each case must, of course, depend on its own facts. In particular, the question whether an offender pleaded guilty, at the first reasonable opportunity, depends significantly on the context of the particular case. The facts in Atholwood, for example, were significantly different to the facts in the present case, and thus the observations made by Ipp J, which we have earlier quoted, must be viewed in that context.
In Atholwood, the appellant was initially charged with a conspiracy to cultivate cannabis. He elected a preliminary hearing on that charge, and on the day of that hearing, that charge was withdrawn and six other substantive charges were presented against him. On the day before the trial was due to commence in the District Court of Western Australia, the appellant agreed to plead guilty to one charge, with the result that two other charges were the subject of a nolle prosequi, and two further charges, which were unrelated, were adjourned for a separate trial. It was in that context that Ipp J considered that it was unrealistic to suggest that the applicant should have pleaded guilty to the charge of cultivating cannabis (on which he was convicted) at a stage when he was facing two other similar charges which were subsequently withdrawn, and at a stage at which he had not yet received appropriate advice.[15]
[15]Atholwood (1999) 109 A Crim R 465, 468 [11]; cf R v Robertson [2005] VSCA 190 [11]–[12] (Chernov JA).
By contrast, in the present case, the applicant always faced the same charge, namely, murder, with the statutory alternative of manslaughter. At all times the prosecution case was that the applicant was a party to a joint criminal enterprise to murder Strike. While, as we have noted, the factual basis of that allegation changed after Girgis made his statement, nevertheless the structure of the case, by which the prosecution sought to establish the guilt of the accused, remained fundamentally the same. In those circumstances, unlike the offender in Atholwood, it would not be unrealistic, in our view, to conclude that the applicant could have pleaded guilty to the alternative of manslaughter, or could have indicated his intention to do so, at a number of earlier stages in the proceeding that we have discussed.
For those reasons, we do not accept the proposition, advanced on behalf of the applicant, that the judge erred in considering that the plea of guilty made by the applicant was a late plea. In our view, it was open to the judge, in the context of the case, to reach that conclusion. Further, and importantly, it must be borne in mind that the judge was in a more advantageous position, than this Court, to properly assess the question whether the plea of guilty, made by the applicant, occurred at the first reasonable opportunity. The judge was seized of the matter, and had heard sufficient of the evidence to have made an assessment as to whether it might have been realistic for the applicant to have proffered a plea of guilty to manslaughter earlier, or to have made such a plea on arraignment before the jury. For those reasons, we do not accept the fundamental premise in the argument in support of the application for leave to appeal, namely, that the judge erred in finding that the plea was made at a late stage.
Further, we are not persuaded that, if the judge made such an error, it had any vitiating effect on the sentence imposed on the applicant. The judge, having found that it was a late guilty plea, nevertheless took the view that the plea was ‘not … insignificant’,[16] and stated his reasons for that conclusion. First, as we have mentioned, the judge noted that at the stage at which the applicant pleaded guilty, there was a ‘real possibility’ that the jury might acquit him of homicide altogether. Implicit in that finding was an acknowledgement by the judge that the applicant, by his plea, had thereby accepted responsibility for his criminal actions. Further, the judge also noted that the plea was significant because of the utilitarian value of it. Neither of those findings, of course, are impugned by the applicant. The judge was not satisfied that the applicant’s plea was motivated by remorse. In our view, it is clear that it was open to the judge to make that finding, as no evidence was proffered on behalf of the applicant of any remorse on his behalf.[17]
[16]Reasons [44].
[17]Cf Barbaro v The Queen; Zirilli v The Queen (2012) 226 A Crim R 354, 364–5 [34]–[38] (Maxwell P, Harper JA and T Forrest AJA).
The judge, correctly, concluded that the offending by the applicant was serious. His Honour outlined a number of circumstances that fully support that conclusion.[18] The applicant had a number of previous convictions for serious violence. The judge considered that those previous convictions reflected adversely on his prospects for rehabilitation. In effect, the applicant relied on little, by way of mitigating factors, other than his plea of guilty. In those circumstances, it is clear that the sentence passed on the applicant was substantially moderated by reason of his guilty plea. Thus, if contrary to our conclusion, the judge erred in finding that the guilty plea was made at a late stage, it is not at all apparent that that finding had any material effect on the sentence passed on the applicant.
[18]Reasons [18]–[23].
In the course of submissions, counsel for the applicant sought to rely on the s 6AAA declaration made by the judge, in support of his submission that the judge had given inadequate weight to the guilty plea by the applicant. However, as counsel acknowledged, this Court has, on a number of occasions, previously stated that such a declaration is of limited, if any assistance, in a case such as this, because the declaration is based on a hypothesis in circumstances which are quite artificial.[19] The reliance by the applicant on the s 6AAA declaration thus does little to advance the position of the applicant on this application.
[19]Saab v The Queen [2012] VSCA 165 [58]–[59] (Buchanan, Weinberg and Mandie JJA); Scerri v The Queen (2010) 206 A Crim R 1, 7–8 [30]–[31] (Maxwell ACJ, Redlich JAand Vickery AJA); Zogheib v The Queen [2015] VSCA 334 [61]–[64] (Kaye JA, with whom Maxwell P and Santamaria JA agreed).
Further, in those circumstances, if, as contended by the applicant, the judge erred in his assessment of the stage at which the applicant pleaded guilty to manslaughter, and if the sentencing discretion were thereby reopened, we would not have imposed a sentence that was lower than that imposed by the sentencing judge. Rather, in light of the circumstances of this case, we consider that the sentence imposed by the judge was eminently reasonable, and indeed, notwithstanding the guilty plea, a more severe sentence would have been justified.
For those reasons, the application for leave to appeal against sentence should be refused.
CROUCHER AJA:
Introduction
I have had the benefit of considering the judgment of Osborn and Kaye JJA in draft.
In short, I have reached the view that, in the circumstances of this case, the judge erred in classifying the applicant’s plea of guilty as ‘late’, at least not without qualification. On the other hand, I do not think that the error made any difference to the weight the judge accorded to the plea of guilty or to his assessment of whether the plea was motivated by remorse. Finally, even if the error might have impacted on the judge’s reasoning in either of these ways, it is still an error of no consequence because, like Osborn and Kaye JJA, I am of the view that no different sentence should be imposed.
Accordingly, I would grant the application for leave to appeal against sentence but dismiss the appeal. My reasons follow.
Whether the plea of guilty was ‘late’, without qualification
Section 5(2)(e) of the Sentencing Act 1991 provides that, in sentencing an offender, a court must have regard to ‘whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which [he] did so or indicated an intention to do so’.
While I agree that the plea of guilty to manslaughter[20] came at a ‘late’ stage in the proceedings for murder and manslaughter, I do not accept that it was correct to characterise it, without qualification, as a late plea of guilty to manslaughter. On the contrary, the applicant pleaded guilty to manslaughter at the first available opportunity after he was charged with or indicted on – and therefore faced proceedings for – that offence alone.
[20]The applicant’s argument in this Court focused on the plea of guilty to manslaughter rather than on the pleas of guilty to the other offences.
It is, of course, true that, prior to and at the committal hearing, the applicant faced a charge of manslaughter in the alternative to the charge of murder. It is also true that, on an indictment solely for murder, a person may be found not guilty of murder but guilty of manslaughter.[21] Thus, the applicant could have pleaded guilty to manslaughter at any earlier stage – whether prior to or at the committal or before the jury – and maintained his plea of not guilty to murder. He also could have made it clear to the jury, through counsel, upon what basis he pleaded guilty. And, had he done so and had he been acquitted of murder but convicted of manslaughter, his plea of guilty would have been worthy of greater weight in mitigation than the plea he entered.
[21]See s 421(1)(a) of the Crimes Act 1958.
However, while those courses were open but not taken, that does not mean that the applicant’s plea of guilty to manslaughter should be regarded, without qualification, as ‘late’. Instead, as Ipp J said in Atholwood v The Queen, in a passage approved by the plurality in Cameron v The Queen, in determining ‘when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted … [r]egard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him’.[22]
[22]Atholwood v The Queen (1999) 109 A Crim R 465, 468, which passage was extracted (as part of a longer passage) with approval by Gaudron, Gummow and Callinan JJ in their joint judgment in Cameron v The Queen (2002) 209 CLR 339, 345 [21] (but see also generally at 345–6 [20]–[22]).
In my view, while reasonable minds might differ on the approach to these matters, I accept that there would be considerable forensic prejudice to the applicant if he had pleaded guilty to manslaughter at any earlier time than he did. Given the prosecution’s insistence on murder until the cross-examination of Mr Girgis, it is reasonable to assume that, at trial, the prosecution would seek to use any plea of guilty to manslaughter to the applicant’s disadvantage in proof of murder. Further, by taking that course before a jury, the applicant not only would have handed the prosecution a forensic advantage by admitting his liability, at least in complicity, for causing death by an unlawful and dangerous act or acts, but it would also allow them to submit to the jury, with greater forensic force, that the applicant wielded the metal bar and struck the deceased to the head with it. In my view, it is strongly arguable that both of these considerations would have put him at a greater risk of being convicted of murder.
In addition, even if acquitted of murder and convicted of manslaughter, the applicant still would be leaving the judge at large as to whether to sentence him on the basis that he did the damage with the metal bar, when he denied that assertion. Experience tells that factual disputes on pleas in mitigation are often hard to win once convicted by a jury.
There are two other particular features of this case that, while unnecessary to my decision, make me at least uncomfortable with the respondent’s persistence in the submission that it was a late plea of guilty, without qualification. First, prior to receipt of Mr Girgis’s statement, all three accused were said to be complicit in the assault causing death, which included use of the metal bar to strike the deceased to the head. Then came Mr Girgis’s statement, which directly implicated the applicant as the one who wielded the bar and struck the blows to the head. Yet, as soon as Mr Girgis was damaged in cross-examination, the prosecution came running, cap in hand, to counsel for the applicant, seeking to revive his earlier overtures about settlement. The curious thing is that, had Mr Girgis been available to be cross-examined at the committal, history suggests that it is likely that the prosecution then would have accepted a plea of guilty to manslaughter at that time, in respect of the applicant. Had that occurred, everyone would have agreed that the plea of guilty was not late, but comparatively early.
Secondly, while the applicant did not give instructions to offer a plea of guilty any earlier, it was accepted by the prosecutor on the plea that, despite the earlier overtures made by counsel for the applicant, prior to the cross-examination of Mr Girgis, the prosecution ‘were not interested, in the light of [Mr Girgis’s] statement, to accept [anything] other than a plea [of guilty] to murder’.[23] In other words, any formal offer to plead guilty to manslaughter, or entry of such a plea, would have been rejected anyway.
[23]Transcript of Proceedings, R v Walker & Maybus (Supreme Court of Victoria, S CR 2015 0143, Beale J, 4 March 2016) 59.
Now, while neither of these matters alters the fact that the applicant did not formally offer to plead guilty earlier, there is, in my view, a certain artificiality in the prosecution’s submission that the plea was late when they would not have accepted it any earlier anyway; and, yet, had all that did occur at the trial occurred at the committal, there could be no doubt that the plea of guilty would be regarded as comparatively early.
Of course, none of this means that the applicant is to be treated as if he pleaded guilty to manslaughter, or that he offered to do so, at an early stage in the proceedings for both murder and manslaughter. He simply did not do so. But the fact that he pleaded guilty to manslaughter as soon as murder was taken off the indictment, and as soon as the prosecution agreed to remove the allegation that he wielded the metal bar, as well as the fact that he would have been exposed to significant forensic disadvantage had he pleaded guilty while still faced with a murder charge, do mean that the conclusion that he pleaded guilty to manslaughter at a late stage, without qualification, is not quite right.
Perhaps another way of testing the applicant’s argument is this: had he faced only a charge of manslaughter from the outset and had he pleaded guilty only after Mr Girgis’s cross-examination at a trial for manslaughter, it would have been open to say that his plea of guilty was late. But, for the reasons I have given, those circumstances are a far cry from the reality that faced the applicant before he pleaded guilty to manslaughter.
Accordingly, I am satisfied that error is demonstrated.
Whether error impacted on assessment of weight of plea or remorse
I do not, however, think that this error impacted on the judge’s assessment of the weight to be accorded the plea of guilty or to his consideration of remorse. There are several reasons for that conclusion.
Turning first to remorse, whether a plea of guilty was entered ‘early’ or ‘late’ or somewhere in between, it was still a matter for the judge as to whether he was satisfied of remorse. Given that the plea came after Mr Girgis was damaged in cross-examination, but not necessarily so damaged as to be ‘demolished’, and given the absence of any other potential evidence of remorse, it was well open to his Honour to treat the plea of guilty as springing from self-interest and not as indicative of remorse.
Secondly, another reason why his Honour’s conclusion as to remorse was open concerns the second branch of s 5(2)(e), which directs attention to ‘the stage in the proceedings at which [the applicant] … indicated an intention to [plead guilty]’. While some earlier informal overtures were made by counsel, the applicant did not indicate, in any formal way, an intention to plead guilty at any earlier stage. Instead, his intention was made clear only when the prosecution raised the matter following Mr Girgis’s cross-examination. Had he made an earlier formal offer, the judge might have had a different view of remorse. But, absent such an offer, the judge was left with nothing to act on other than the plea of guilty itself, and its timing.
Thirdly, I should add that the second branch of s 5(2)(e), like the first, suggests that the indication of an intention to plead guilty, like the fact of the entry of such a plea, is, or at least can be, a mitigating factor in and of itself. It need not be indicative of remorse in order that it might attract mitigatory weight. But, since there was no such offer earlier than the acceptance of the prosecution’s invitation to treat following Mr Girgis’s cross-examination, there could be no weight allowed in mitigation under this limb of s 5(2)(e).[24]
[24]In my view, yet again, this is a case that illustrates the potential advantage in putting a written – ‘without prejudice’ – offer to plead guilty, and the factual basis for such an offer, to a prosecuting agency at the earliest possible stage, when such instructions are given by an accused person. This Court’s remarks on the same issue, albeit in a different context, in the past might repay reading (see Ramjutton v The Queen [2015] VSCA 309 [45]–[50]).
The fourth reason I consider that the error did not affect the weight given to the plea of guilty is that it is plain from the judge’s reasons that he allowed a ‘not insignificant’ discount for the plea’s utilitarian considerations, including the finding that the plea was entered despite having a viable defence to the charge of manslaughter. While the use of reverse-mathematics on s 6AAA declarations is deprecated on occasions, that the total effective sentence was reduced by two years on account of the plea of guilty shows that his Honour considered the plea to be a significant mitigating factor.
Fifthly, it strikes me as notable that the judge also described the co-offender Mr Walker’s plea of guilty as ‘a late plea’, and ‘for similar reasons as for [the applicant]’.[25] Further, again, if the s 6AAA declarations are any guide, his Honour gave the same two-year discount for Mr Walker’s plea of guilty as was afforded to the applicant.[26] These facts, but particularly the first, are significant because Mr Walker offered to plead guilty following receipt of Mr Girgis’s statement but before the trial commenced, which offer was accepted. Mr Girgis’s statement, it seems, had placed Mr Walker in a less difficult position than he might have been before that statement was made. In other words, these matters suggest that the applicant’s plea of guilty, which came a bit later, was treated in much the same way as Mr Walker’s earlier plea.
[25]Transcript of Proceedings, R v Walker & Maybus (Supreme Court of Victoria, S CR 2015 0143, Beale J, 18 March 2016) 88–9.
[26]Ibid 94–5. That said, in percentage terms, the s 6AAA declaration in Mr Walker’s case suggests a slightly greater discount than does the declaration in the applicant’s case (ten years’ imprisonment down to eight, or a reduction of 20 percent; compared with 12 years’ imprisonment down to ten, or a reduction of 16.7 percent).
Whether, if error, different sentence should be passed
Finally, even if the judge’s error did impact upon his consideration of the weight to be given to the plea of guilty or as to whether the applicant was remorseful, I think that the appeal still should be dismissed. The offending was very serious and the applicant had concerning prior convictions. Allowing fully for the applicant’s pleas of guilty and all other matters put in his favour, like Osborn and Kaye JJA, were I at large to re-sentence, I would not reduce any aspect of the sentences imposed by the judge.
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