Mogilkoff v The Queen

[2010] NTCCA 10

Mogilkoff v The Queen [2010] NTCCA 10

PARTIES:STEVEN JON MOGILKOFF

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 6 of 2010 (20900614)

DELIVERED:  25 JUNE 2010

HEARING DATES:  9 JUNE 2010

JUDGMENT OF:  MILDREN, RILEY & KELLY JJ

APEAL FROM:  SUPREME COURT OF THE NORTHERN TERRITORY (SCC 292843)

CATCHWORDS:

CRIMINAL LAW – manslaughter ­– provocation – appeal against sentence – had sentencing judge erred – isolation of deceased’s conduct – cumulative course of deceased’s conduct – slight provocation – degree of provocation –gravity of the triggering act – appeal allowed – sentence imposed manifestly excessive- sentence set aside – appellant re-sentenced

East, Pleas of the Crown (1803)

Parker v The Queen (1964) 111 CLR 665; R v Alexander (1994) 78 A Crim R 141; R v Morton (2001) 11 NTLR 97; applied
Morabito (1992) 62 A Crim R 82; distinguished

R v Muy Ky Chhay (1994) 72 A Crim R 1; referred to

REPRESENTATION:

Counsel:

Appellant:S Cox QC

Respondent:  P Usher

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  16

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Mogilkoff v The Queen [2010] NTCCA 10

No CA 6 of 2010 (20900614)

BETWEEN:

STEVEN JON MOGILKOFF

Appellant

AND:

THE QUEEN

Respondent

CORAM:    MILDREN, RILEY & KELLY JJ

REASONS FOR JUDGMENT

(Delivered 25 June 2010)

THE COURT:

1. This is an appeal against sentence.  The appellant pleaded guilty to one count of manslaughter because of provocation.  He was sentenced on 11 February 2010 to a term of imprisonment for 10 years with a non-parole period of six years.

2. The homicide occurred on 4 January 2009 at the appellant’s one bed-roomed public housing unit rented by the appellant and situated in Nightcliff in the Northern Territory.  At that time, the appellant was aged 31 years.

3. The appellant was born in Victoria and struggled at school.  He experienced specific learning difficulties and was a loner who made no friends.  He had difficulty in expressing himself, being unable to talk about his feelings and experienced anger management issues.  As a young person, he got into trouble with the law and served a short time in prison which he hated and which made him determined to stay out of trouble in the future.  Notwithstanding his learning difficulties, the appellant completed a boilermaker’s apprenticeship in Geelong at the age of 21.  He set out to make his own way in life away from his family from whom he was estranged.  Until his family was informed that he had been placed in custody in respect of this matter, very little contact had occurred between them for a number of years.  Since then his family has made contact with the appellant and is providing him with significant support.

4. Although the appellant does not suffer from any intellectual impairment, he is of below average intelligence and from time to time experiences symptoms of depression.  He also exhibits a number of personality features which are very significant when considering the impact of events which led up to the homicide.  A psychologist whose report was accepted by the learned sentencing Judge described the features of his personality as follows:

   These features include poor social skills, an inability to make friends or have meaningful relationships, the inability to read social situations, minimal social or emotional reciprocity, with his impairment in reciprocal social interactions being lifelong.  He lacks flexibility and requires routine to function effectively, has poor eye contact and tells repetitive stories within conversations that are not in line with the conversation.

5. The psychologist reported that the appellant had limited capacity to cope with difficult situations and over the past 10 years, the appellant had worked hard to take care of himself and live a quiet, law-abiding life.  In the psychologist’s view, he requires a peaceful, clean and tidy home in order to function effectively.

6. The deceased was aged 35 at the time of his death.  He was also a person who suffered from learning and personality problems.  By the time he left school, the deceased was suffering from mood swings and a tendency to be aggressive.  He did not have a residence of his own and moved frequently between various friends and acquaintances.  The deceased’s personality was such that he had been blacklisted from rental properties and he regularly wore out his welcome in the homes of others.

7. For approximately 18 months prior to his death, the deceased was in a relationship with a young woman who was aged 17 at the time of the deceased’s death.  The deceased’s girlfriend suffers from a significant intellectual disability.  In 2007, she was assessed as having an intellectual level less than half her actual age and lower across most cognitive skills.  The father of this young woman advised that she behaves like a six year old and that accommodation for her has always been an insurmountable problem.  She can be explosive and very aggressive.

8. The appellant met the deceased through his work during 2007 and over a period travelled to work everyday with him.  The travel arrangements lasted for about three months until the appellant was informed by the deceased that he would be ceasing work.  That resulted in the appellant also losing his job because he had no transport to the workplace.  Subsequently the appellant found work as a boilermaker with a concreting company.  He was partly motivated to take on that position in order to distance himself from the deceased, as he was aware that the deceased did not have the skills to undertake that type of work.  In about mid 2008, the deceased attended at the appellant’s workplace unannounced and asked if he and his girlfriend could stay with the appellant for three days as they had been “kicked out” of their accommodation.  Initially the appellant refused, but later the deceased and his girlfriend arrived at the appellant’s home with all of their belongings and pleaded to stay with him saying that they would stay for only three days.  The appellant relented, but after three days they had not moved.  The appellant was told that they would move soon and would contribute to the rent and food, but no contribution was subsequently made.

9. The appellant slept in a single bedroom whilst the deceased and his girlfriend occupied and slept in the small living area.  As the weeks went by, the situation became intolerable.  The deceased and his girlfriend were constantly arguing and fighting.  The appellant’s relationship with the deceased quickly became strained and was punctuated by almost daily heated verbal arguments.  The deceased and his girlfriend brought more property into the unit and the appellant’s orderly life, which was essential to his emotional wellbeing, was destroyed.  The appellant’s pleas to the deceased and his girlfriend to leave were ignored, as was an attempt to have the deceased and his girlfriend maintain the unit in a reasonably clean state.

10. Some weeks into this arrangement, the deceased started telling the appellant stories about his past history of violence.  He claimed he had killed people.  He gave accounts of involvement with a criminal element and went to the extent of making the appellant talk to “bikies in a pub” who told him that the stories were true.  The appellant was never sure if the stories were true and, plainly, they were not, but he believed that the deceased was capable of doing the criminal acts which he claimed to have done and was frightened of him.

11. From time to time, the appellant told the deceased and his girlfriend to leave the premises and did so angrily using colourful language.  On one occasion, the deceased became very angry when he was told to leave and threw two bullets at the appellant saying that he might survive the .22 bullet, but he would not survive the .223.  The deceased told the appellant that he would kill him if he went to the police in order to get him kicked out.

12. As the learned sentencing Judge found, the upshot of these three people, all with significant mental issues, living for some months in a tiny flat, was a recipe for disaster.  The appellant did not have the intellectual ability or capacity to deal with this situation and became increasingly frustrated and traumatised by it.  In addition to the threat to kill, both the deceased and his girlfriend were verbally abusive to the appellant over a significant period of time.  They bullied and harassed him in a way which he found very disturbing and with which he was unable to cope.  He was repeatedly called a “bum”, a “fuckhead” and a “fucking useless loser”.  The appellant reached the point where he was experiencing difficulty in concentrating and focussing at work and even began to wonder if the deceased and his girlfriend were poisoning him because he felt so unwell.  The learned sentencing Judge accepted that the appellant was in a “pressure cooker environment” in which he was experiencing a range of emotions including anger, fear, frustration and despair.  The appellant was overcome by a sense of powerlessness and was incapable of dealing with the emotional upheaval which he was experiencing.

13. During the afternoon of Sunday 4 January 2009, the appellant rode his scooter to a fast food restaurant where he purchased a meal after which he rode back to his unit arriving at approximately 5:45 pm.  The deceased and his girlfriend returned to the unit at about the same time.  Whilst the appellant was eating his meal on the balcony of the unit, the deceased walked up to him and questioned him about where he had got the money to purchase the meal.  He was abusive and swore at him, saying, “You’re a fucking loser, you can’t have fucking money”.  The appellant responded angrily, telling him that he had worked all week and questioning what, if anything, the deceased had done with himself during the week.

14. Whilst the appellant remained on the balcony, the deceased walked back into the unit and the appellant heard him making a phone call during which he offered to sell a plasma television set which he had previously brought into the unit.  The appellant’s television set had been broken and the deceased had lent the plasma set to the appellant as a replacement.  The appellant was in the habit of going to his bedroom whilst the deceased and his girlfriend were in the unit to watch television in his bedroom as a means of escape.

15. Whilst the appellant had been eating his meal, he also had in his hand a folding filleting knife, which he was using to scratch his back from the lower part of his back upwards.  At about the time the deceased finished the telephone conversation, the appellant walked back towards the door to the unit and said in a raised voice, “You’re selling that just to piss me off, aren’t you”.  At that time, the appellant had the knife in his right hand.  In an aggressive manner the deceased replied, “Fuckin’ oath”.  When this conversation took place, the appellant was standing to the right side of the deceased.  The knife was in his right hand with the blade protruding from the thumb side of his clenched fist.  When the deceased replied, “Fuckin’ oath”, the appellant lost self-control.  In that spontaneous moment of loss of control, the appellant intended to smack the deceased in the head and intended hurting him badly enough so that he would stop antagonising him and would leave the unit.

16. In his words to the police, the appellant said, “I lost it man, I went fuckin’ bang”.  The appellant swung his right hand around in an arc, but missed the deceased’s head and struck him in the upper part of his body with the result that the blade of the knife entered the right side of the deceased’s chest between the fourth and fifth ribs.  The blade fully penetrated the deceased’s heart and lacerated his left lung.

17. The appellant pulled the knife from the deceased’s chest and, notwithstanding the fatal injury, the appellant and deceased began to struggle in the kitchen area.  During the struggle, the appellant dropped the knife, the blade of which became broken.  The deceased’s girlfriend, who had been lying on an inflatable bed in the living room listening to music on her earphones, began screaming out to the two men to stop fighting.

18. After the appellant pushed the deceased into the living area, the deceased fell on his back on to a blow up bed.  The appellant then leapt upon him, placing one knee on the deceased to hold him down and held his right forearm across the deceased’s face.  As the pair struggled, the deceased yelled out, “Get off me or I’m gonna fuckin’ kill you”.  The deceased also bit the appellant on the right forearm.  During the struggle, the deceased began experiencing difficulty in breathing and said, “Friends – friends all right?”, after which the appellant got off and saw that the deceased was in difficulty.  The appellant then left the unit and crossed the street to shops where he made an emergency 000 call informing the operator that he had stabbed the deceased.  The appellant gave the address together with his name and that of the deceased.  A second emergency call was also made.

19. The deceased died before the police and ambulance arrived.  Within about a half an hour of the call, the appellant was found at the shops and arrested.  He made spontaneous admissions to stabbing the deceased and gave his reasons for doing so.  He was observed to be distressed and remorseful for what he had done.  Later in a formal record of interview he made a full and frank confession and cooperated fully with the police.

20. The learned sentencing Judge accepted that the appellant was remorseful and had given the fullest possible cooperation to the police.  His Honour accepted that the appellant was driven to the point of despair and distraction and that the conduct of the deceased in saying he was going to sell the television set:

    … while not particularly provocative in itself, is accepted by the Crown as akin to the straw that broke the camel’s back.  It was the culmination of a lengthy period of harassment and bullying with which, because of your personality deficits, you were unable to cope and it resulted in you exploding and losing self control.

21. The learned sentencing Judge in his remarks on sentence said:

    Mr Mogilkoff, I have said quite a lot about your background and the circumstances leading to the commission of the crime in order to put the killing of the deceased in its proper context and to explain why you lost self control in the face of slight provocation.  Regardless of the context, however, it must never be overlooked that you killed an innocent person.  There should be no misunderstanding about the conduct of the deceased immediately before the killing.  He was unpleasant, but viewed objectively his conduct amounted to no more than slight provocation.  He was an innocent victim. 

22. His Honour also said in his sentencing remarks:

    In your case, at the time that you killed the deceased you intended to cause him serious harm.  The immediate degree of provocation, while sufficient for the Crown to accept your plea to Manslaughter, was slight and your violent response was way out of proportion to the provocative behaviour.  While you acted spontaneously and without any premeditation, you wielded a dangerous and lethal weapon with an intent to cause serious harm.  Your crime is a serious example of the crime of manslaughter.

23. His Honour indicated that had it not been for the plea of guilty he would have imposed a sentence of 14 years imprisonment, but after allowing for the plea he imposed a sentence of 10 years imprisonment commencing from 4 January 2009 and fixed a non-parole period of six years.

    Ground 1

24. The first ground of appeal is that the learned sentencing Judge erred in isolating the conduct of the deceased immediately before the killing from the cumulative course of conduct by the deceased leading up to the killing.

25. It was put that the learned sentencing Judge, whilst accepting all of the surrounding circumstances in which the offence occurred and which constituted the cumulative provocation, including the Crown’s description of the deceased’s final provocative act as “akin to the straw that broke the camel’s back,” minimised the deceased’s history of provocative conduct by isolating the conduct immediately prior to the killing saying, “He was unpleasant, but viewed objectively his conduct amounted to no more than slight provocation.”

26. The submission of Mr Usher for the respondent was that the learned sentencing Judge, when assessing the objective gravity of the offence, was obliged to consider the degree of provocation offered and that logically, in this case, that must be a reference to the provocative act that led to the stabbing of the deceased.  We were referred to the case of Morabito[1] as demonstrating that it is legitimate to look to the gravity of the triggering act even in cases involving cumulative provocation.  However, that was a case where there was in fact no triggering act at all and is to be distinguished from this case on its facts.  Although the applicant in that case had had a very difficult life with the deceased and it was to be assumed that the jury had placed great store on the accumulated violence and threats made by the deceased to the appellant and the risk of imminent return of the deceased as a final straw which led to the loss of self-control, the killing in that case involved a great deal of planning.  The applicant had picked up the deceased at a railway station at a time when he was on his way back to prison, having completed a day of work release.  She had planned this meeting as a means of luring the deceased with an offer of sex, to a nearby light industrial office area.  After arriving at the chosen spot, which had previously been reconnoitred with her co-accused, a degree of amorous activity took place.  The applicant then excused herself to go to the toilet.  While she was away, the co-accused emerged from a position of concealment and using a pistol, fired six shots at the deceased.  When this did not bring about the desired result, the co-accused obtained a knife from his own vehicle and stabbed the deceased repeatedly causing the deceased to eventually succumb.  Also, a significant aspect of the motivation of the applicant in that case to carry out the planned killing, was to enable the applicant to continue an extra-marital relationship with the co-accused and to protect both of them from the consequences of it.  Further, this was a case where there was no immediate trigger from the deceased to cause panic or sudden emotional reaction on the part of either.

27. The sentence imposed by the learned sentencing Judge in that case was effectively a head sentence of 10 years with a non-parole period of eight years.  We consider that as a very different case from the present.

28. We do not think it would be correct to approach the degree of provocation only by reference to the triggering factor.  Indeed, in R v Alexander,[2] Hunt CJ at CL said that the courts “must of course recognise the long course of conduct by the deceased may often be more provocative than an isolated incident”.  In the words of the Privy Council in Parker v The Queen,[3] “a jury might well consider and would be entitled to consider that the deceased’s conduct was such as might ‘heat the blood through a proportional degree of resentment and keep it boiling to the moment of the fact’”.[4]  In R v Muy Ky Chhay,[5] Gleeson CJ (with whom Finlay and Abadee JJ agreed) said:

    … people are becoming more aware that a loss of self-control can develop even after a lengthy period of abuse, and without the necessity of a triggering incident.  The presence of such an incident will assist a case of provocation, but its absence is not fatal.

1. We would reject Mr Usher’s submission.  In assessing the degree of provocation offered, it is quite artificial to isolate the triggering event as the means by which to assess the degree of provocation offered.  In the circumstances of this case, it would be quite wrong to find that the degree of provocation offered was only slight.  We do not overlook the fact that the learned sentencing Judge is a very experienced judge and the possibility that his remarks are taken out of context.  His Honour, after all, was fully aware of the extent of the provocation and it may well be that whilst he was attempting to characterise the triggering event as slight provocation, he nevertheless had in mind in assessing the degree of provocation all of the provocation offered.  However, it is far from clear that this is what his Honour in fact did.  Further, we note the submission made by the Crown in the court below by the prosecutor, Mr Karczewski QC:

   We would say that, although this might be regarded as a case which involves the concept of the straw that broke the camel’s back, that is an accumulation of instances.  We would say that the event giving rise to the stabbing, which was the purported sale of the television set by the deceased, was not a matter of great moment, that the provocation was not significant.

2. As Ms Cox QC rightly submitted, slight provocation would hardly amount to a defence to murder. 

3. We would allow this ground of appeal.

   Ground 3 – the sentence imposed is manifestly excessive

4. In our opinion, the amount of the provocation offered viewed as a whole was of a very high order.  Furthermore, the deceased deliberately manipulated the appellant from taking any steps to evict him or his girlfriend by the threats which he made which were designed to convey to the appellant that any attempts to have him and his girlfriend evicted would be met with violence.  Leaving aside for one moment the appellant’s personality traits, the situation, which the deceased engineered, amounted to a high degree of provocation indeed.  Moreover, the proposal to sell the television set to a drug dealer in order to purchase drugs in circumstances where neither the deceased nor his girlfriend was making any contribution towards purchasing food or paying any board was plainly manipulative and deliberately so as is evidenced by the deceased’s response to the question which the appellant asked, “You’re selling that just to piss me off, aren’t you”. 

5. Applying the criteria in R v Alexander,[6] which was adopted by this Court in R v Morton,[7] the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which, in short, has a tendency of reducing the objective gravity of the offence.  In this case, there was no significant gap.  This is not a case where the appellant went looking for a weapon.  He had the weapon already in his hand for a legitimate purpose. 

6. The third factor to be considered is the degree of violence or aggression displayed by the appellant, which when excessive has the tendency of increasing the objective gravity of the offence.  In this case, there was a single blow.  Of course, a dangerous weapon was used.  Nevertheless, the amount of aggression used falls far short of being in the worst category.

7. Taking into account all of the factors which his Honour identified including the appellant’s assistance to the police, his immediate remorse, his actions in attempting to obtain assistance for the deceased, his cooperation with the police and his plea of guilty, his lack of any convictions for violence of a serious nature and his clean record, except for some minor traffic offences for some 10 years, and, as the learned sentencing Judge found, his good prospects of rehabilitation, we think the sentence imposed was manifestly excessive. 

   Re-sentence

8. In our opinion, the proper sentence in this matter is imprisonment for six years with a non-parole period of three years.

   Orders

9. The orders of the Court are:

   1.   Appeal allowed.  The sentences imposed by the learned sentencing Judge on 11 February 2010 are set aside.  In lieu thereof, the appellant is convicted and sentenced to a term of imprisonment for six years commencing from 4 January 2009 with a non-parole period of three years also commencing from that date.

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[1] (1992) 62 A Crim R 82.

[2] (1994) 78 A Crim R 141 at 144.

[3] (1964) 111 CLR 665 at 679.

[4]        See East, Pleas of the Crown (1803) at 238.

[5] (1994) 72 A Crim R 1 at 13.

[6] (1994) 78 A Crim R 141.

[7] (2001) 11 NTLR 97.