Nelis v The King
[2023] VSCA 128
•29 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0045
| JOHN NELIS | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST AP, NIALL and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 May 2023 |
| DATE OF JUDGMENT: | 29 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 128 |
| JUDGMENT APPEALED FROM: | DPP v Nelis [2022] VSC 50 (Lasry J) |
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CRIMINAL LAW – Appeal – Sentence – Manslaughter by gross negligence – Pointing and pulling trigger of shotgun thought to be unloaded – Sentencing judge took into account standard sentence for homicide by firearm – Sentencing discretion miscarried – Appeal allowed – Resentenced to total effective sentence of 9 years’ imprisonment with 6 years non-parole.
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| Counsel | |||
| Applicant: | Mr D Dann KC with Ms S Lenthall | ||
| Respondent: | Mr C Boyce KC | ||
| Solicitors | |||
| Applicant: | Emma Turnbull Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST AP
NIALL JA
TAYLOR JA:
Introduction
On 4 July 2020, the applicant, then aged 36 years,[1] pointed a loaded shotgun at Christopher ‘Legsy’ Jacobs, aged 39.[2] Without first checking whether the shotgun was loaded, he pulled the trigger. The shotgun — which, regrettably, was indeed loaded — discharged, causing Mr Jacobs to suffer fatal injuries to the chest and abdomen.
[1]His date of birth is 15 October 1983.
[2]His date of birth was 7 November 1980.
As a result of these events, the applicant was charged with manslaughter,[3] the prosecution alleging that it was grossly negligent of the applicant to have pointed the shotgun at Mr Jacobs and pulled the trigger without first checking whether it was loaded.
[3]Manslaughter is a crime at common law. By virtue of s 5 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
On 13 October 2021, the applicant pleaded guilty to Mr Jacobs’ manslaughter before a judge in the Supreme Court. Following a plea conducted over two days on 2 December 2021 and 31 January 2022, on 28 February 2022 the judge sentenced the applicant to be imprisoned for 11 years, and fixed a non-parole period of eight years.[4]
[4]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to 13 years’ imprisonment and fixed a non-parole period of 10 years.
It appears that the applicant offered to plead guilty to negligent manslaughter at a relatively early stage. On 28 May 2021, the applicant made an offer to plead guilty to that species of manslaughter. At that stage, however, the offer was rejected. He was then committed to the Supreme Court by the Magistrates’ Court on 11 June 2021 in accordance with the Supreme Court’s ‘fast-track’ procedure; and, between 8 and 20 September 2021, witnesses were examined pursuant to s 198B of the Criminal Procedure Act 2009. The matter resolved on 13 October 2021 and, as we have said, the applicant pleaded guilty that day to negligent manslaughter.
The applicant now seeks leave to appeal against that sentence on two grounds:
1 The sentencing discretion miscarried as a result of the Learned Sentencing Judge’s original understanding that the Applicant was also guilty of the offence of Homicide by firearm which carried with it a standard sentence of 13 years imprisonment.
2 The total effective sentence and the non-parole period imposed on the Applicant are manifestly excessive.
For the reasons that follow, we would grant leave to appeal, allow the appeal and resentence the applicant in the manner set out below.[5]
[5]See [35].
The offending
It is necessary to say more of the circumstances in which the applicant killed Mr Jacobs.
In July 2020, Mr Jacobs resided in a caravan in the backyard of premises in Chaffey Square, Corio. Melanie Menzies, Kayla Collins and Joshua Hocking lived in the house at the address.
Around 4.10 am on 4 July 2020, Avril Ludlow drove the applicant — who had earlier consumed the drug ‘GHB’ — to the Chaffey Square address to visit Mr Jacobs. She was of the view that they were going to ‘have a plunge’ — that is, consume illicit drugs — with Mr Jacobs. The applicant was in possession of a double-barrelled shotgun in a bag, which Ms Ludlow thought the applicant was either going to sell to Mr Jacobs, or swap for drugs. When they arrived, Ms Ludlow stayed in the car while the applicant went to the caravan to see Mr Jacobs, who was in the company of a female, Cassandra Stegmann. The applicant gave Mr Jacobs some cash and then said, ‘I’ve got to go but I will be back, I’ve got a chick in the car’.
At about the time that the applicant returned to Ms Ludlow’s car, another male, Joe Jackson, arrived at the premises and went to the caravan. He lifted his top to show Mr Jacobs that he was wearing what he thought to be a bullet-proof vest. Mr Jacobs then tried on the vest.
A short time later, the applicant returned to the caravan with Ms Ludlow. The applicant put the bag containing the shotgun down on a bench. Mr Jacobs said ‘hi’ to Ms Ludlow and asked how she was going. Ms Ludlow recognised Ms Stegmann, whom she had known for about a year. Everyone was in good spirits.
Not long after they entered, the applicant said to Mr Jacobs: ‘What’s that? A bullet-proof vest?’. The applicant then turned from the bench, holding the grip of the shotgun in his right hand, with his left hand on the barrel, and fired it. Mr Jacobs fell to the floor holding his stomach.
Ms Stegmann saw the applicant holding the smoking gun, pointing it at Mr Jacobs. She heard the applicant say, ‘I didn’t know it was full’. Mr Jackson recalled the applicant say, ‘It wasn’t meant to be loaded’. The applicant then went over to Mr Jacobs and said, ‘Are you all right, bro?’.
The applicant then told Ms Ludlow to ‘get the fuck out the door’. Ms Stegmann remained, however, called an ambulance, attempted first aid, and waited with Mr Jacobs until police arrived. Mr Jackson panicked because he was on bail and fled the address.
After leaving the caravan, the applicant went to the house and started banging on the front door. When Ms Collins opened the door, the applicant demanded the CCTV system, but was told there was no system. The applicant and Ms Ludlow then left the property. Ms Ludlow drove the applicant to an address in Bell Post Hill, where the applicant disposed of the gun. She then drove him to see his mother and daughter. The applicant told them that he had accidentally shot Mr Jacobs, and that he wanted to kill himself.
At about 6.00 am, Ms Ludlow drove the applicant to the premises of Sherona Zanoni and Zak Warren, where they had consumed drugs earlier that morning before visiting Mr Jacob’s caravan. They stayed there for a few hours, and the applicant consumed a large quantity of GHB. The applicant and Ms Ludlow then went to an address in Norlane where the applicant purchased three ‘points’ of heroin. While they were there, they heard news that Mr Jacobs had died. They then went and stayed for a night with the applicant’s father near Ararat, before returning to the Geelong area.
On 24 July 2020, Ms Ludlow directed police to the Bell Post Hill address where she believed that the applicant had disposed of the firearm, but it was not located. The applicant was arrested on the evening of that day.
Ground 1: Judge’s error concerning homicide by firearm
Homicide by firearm is an offence by virtue of s 5B of the Crimes Act 1958. Although a person is guilty of the offence of homicide by firearm if, by discharging a firearm, he or she ‘causes the death of another person in circumstances that constitute manslaughter’, it is an offence separate from manslaughter. The offence retains all of the elements of manslaughter as the basic components of the offence, the sole addition being that death must be caused ‘by discharging a firearm’. Importantly, although it carries the same maximum sentence as manslaughter, unlike manslaughter — which has no standard sentence — homicide by firearm attracts a standard sentence of 13 years’ imprisonment.[6]
[6]See s 5B(2).
It appears that, when he commenced his sentencing remarks, the judge had not appreciated that manslaughter and homicide by firearm were distinct (albeit closely related) offences. Thus, early in his sentencing reasons he said:[7]
The maximum penalty for manslaughter is 25 years’ imprisonment. In addition, homicide by firearm is a standard sentencing offence pursuant to s5B of the Crimes Act 1958. The standard sentence for this offence is 13 years’ imprisonment which I must take into account as one of the factors relevant to sentencing. How the standard sentence is to be taken into account in the sentencing exercise is the subject of authority and it is not needed to be restated. It is now my responsibility to sentence you for this offence.
[7]Emphasis added to this and following passage.
A little later in the course of the judge’s sentencing remarks, senior counsel for the applicant — unusually, but quite properly — interrupted the judge. There was then the following exchange:
[DEFENCE COUNSEL]: Pardon me, Your Honour. Sorry to interrupt, but at some stage prior to the conclusion of your sentencing remarks, could I seek the opportunity address you about the homicide by firearm offence and whether that is a relevant factor to take into account.
HIS HONOUR: You better do that now, [senior counsel], I think.
[DEFENCE COUNSEL]: Okay. In my respectful submission that it is an irrelevant consideration. That’s a separate offence for which he is not charged. And, as part of the negotiations and resolution in this matter, that was one of the charges under discussion. But the prosecution resolved the matter on the basis of manslaughter by criminal negligence rather than homicide by firearm. So that’s a different charge.
HIS HONOUR: So the fact that a firearm was used is not relevant, thus is not caught by that provision?
[DEFENCE COUNSEL]: No, unless charged – this is my submission – unless he’s specifically charged with that offence.
HIS HONOUR: Yes. Madam Prosecutor, do you agree with that?
[PROSECUTOR]: Yes, that’s the Crown’s position, Your Honour.
HIS HONOUR: All right. It will make no difference, I might say, [senior counsel], to the outcome. I was simply including it for what I thought was completeness, but if I am in error in including it then I will simply delete that from the sentence.
[DEFENCE COUNSEL]: Yes. (Indistinct words).
HIS HONOUR: No, thank you. No, I am grateful for your assistance, and I – as I say, it will not make any difference to the outcome.
[DEFENCE COUNSEL]: If Your Honour pleases.
HIS HONOUR: So I will formally delete those portions of the opening part of my sentence which deal with s 5B of the Crimes Act.
[DEFENCE COUNSEL]: If Your Honour pleases.
HIS HONOUR: And, therefore, in the circumstances, the standard sentence of 13 years imprisonment does not apply to this offence.
COUNSEL: As Your Honour pleases.
After the exchange set out immediately above, the judge continued with his sentencing reasons and ultimately imposed the sentence now impugned.
The applicant’s submissions in this Court
In this Court, counsel for the applicant submitted that when one reflects on all of the factors that would have been involved and required in sentencing for a standard sentence offence, the significant implications associated with the sentencing judge’s initial approach become apparent. Thus, it might be expected that, prior to imposing sentence, the judge would have approached this sentencing task in conformity with the legislative provisions governing the standard sentencing scheme. Counsel submitted that this exercise would have required the judge to take account of the standard sentence. And having taken the standard sentence into account, the judge would have arrived at what he considered to be an appropriate sentence and prepared his sentencing remarks accordingly.
Counsel for the applicant submitted that, in originally arriving at the sentence to be imposed, by taking into account the standard sentence for homicide by firearm, the judge must have taken into account an irrelevant consideration. Presumably, the judge had originally intended to explain how and why the sentence he was to impose differed from that standard sentence of 13 years imprisonment. Further, had the judge originally thought he was dealing with the standard sentencing scheme, it is very difficult to understand the way in which he could have had regard to current sentencing practices for manslaughter. Counsel submitted that, if a judge mistakenly engages in a standard sentencing exercise by reference to a different offence, the sentencing discretion has miscarried, and the Court of Appeal will not be concerned to try and unpick the error, or to assess whether and to what degree the error influenced the outcome.[8] Since the judge said, once his error in approach was pointed out to him, that ‘it will not make any difference to the outcome’ cannot be determinative, the judge must initially have arrived at the sentence to be imposed according to the wrong legislative guideposts.[9]
[8]Counsel cited Kentwell v The Queen (2014) 252 CLR 601, 617–8 [42] (French CJ, Hayne, Bell and Keane JJ) and Dimovski v The Queen [2022] VSCA 6, [37] (Niall JA).
[9]Counsel cited DPP v Amaral [2020] VSCA 290, [24]–[26] (Maxwell P, T Forrest and Weinberg JJA).
The respondent’s submissions in this Court
The respondent’s counsel acknowledged that the sentencing task may be re-opened on appeal if the sentencing judge allowed extraneous or irrelevant matters to guide or affect their determination. Before the sentencing discretion is vitiated, however, the error must be material. Misapplying a maximum penalty or a sentencing scheme will not always be productive of vitiating error. Furthermore, assuming an error vitiates the sentencing discretion, appellate intervention will not be warranted if no different sentence should be imposed.
Analysis
It is difficult to escape the conclusion that the judge’s instinctive synthesis must have been influenced by an irrelevant consideration.
As his sentencing remarks make clear, the judge thought that he was called upon to sentence the applicant for the offence of homicide by firearm, which, unlike the offence of manslaughter by gross negligence for which the applicant was actually to be sentenced, has a standard sentence of 13 years’ imprisonment. Indeed, the judge said that it was his responsibility to sentence the applicant for the offence of homicide by firearm, and that he ‘must take into account’ the standard sentence of 13 years’ imprisonment ‘as one of the factors relevant to sentencing’.[10] Although, once his error was drawn to his attention, the judge said that ‘it will not make any difference to the outcome’, it appears likely that, when pondering the length of the head sentence to be imposed as a prelude to delivering sentence, the judge must have determined that a head sentence of 11 years’ imprisonment was appropriate in the erroneous belief that a standard sentence applied. The judge’s statement that the fact that the standard sentence did not apply ‘will not make any difference to the outcome’ tends to confirm that the judge had decided that a sentence of 11 years’ imprisonment was appropriate, intuitively synthesising a range of factors that wrongly included the standard sentence.
[10]See Sentencing Act 1991, s 5B; Brown v The Queen (2019) 59 VR 462.
For these reasons, we consider that ground 1 is made out and the sentencing discretion is reopened. We would grant leave to appeal on that ground, allow the appeal and re-sentence the applicant in the manner discussed below. Our conclusions with respect to ground 1 make it unnecessary to consider ground 2.
Sentence
As we have said, this was not a case of manslaughter by an unlawful and dangerous act. Instead, the applicant fell to be sentenced on the basis that he pulled the trigger of the shotgun deliberately, but in the belief that the shotgun was not loaded. It was grossly negligent of him to pull the trigger without first checking whether the firearm contained ammunition, but he bore no malice towards Mr Jacobs and had not anticipated that Mr Jacobs might be at risk of harm when he did so.
In Jagroop, Weinberg JA made the following pertinent observations concerning the offence of manslaughter:[11]
It is well established that although manslaughter is one of the more serious crimes known to the law, the circumstances of its commission vary greatly. This makes it impossible to accept any notion of a ‘tariff’ for this offence.[12] Manslaughter is a crime that attracts a wide range of sentences, which can vary from lengthy terms of imprisonment to non-custodial dispositions.
None the less, there are some principles that seem to emerge from the cases. In the first place, voluntary manslaughter is generally regarded as more culpable than involuntary manslaughter. In cases of voluntary manslaughter, the offender intends to kill or cause grievous bodily harm, not so in cases of involuntary manslaughter.
Manslaughter by unlawful and dangerous act is often regarded as one step down from manslaughter by provocation. Still further down the scale are those relatively few cases of manslaughter by criminal negligence that have been reported. The reason is plain. The moral culpability of an offender who has been convicted of manslaughter by criminal negligence is likely to be lower than that of an offender who has killed someone by an unlawful and dangerous act. There is, after all, in most cases of criminal negligence, no intent on the part of the offender to cause any harm whatever to the victim.[13]
The absence of intention to harm is, in my view, a significant factor in assessing the quality of an offender’s actions. The same point was made in R v Streatfield,[14] where the offender was convicted, after a trial, of the manslaughter of his wife through criminal negligence. He had discharged a gun while pointing it at her, mistakenly believing it to be unloaded. Thomas J, as his Honour then was, said:
In the present case stupidity is revealed rather than wickedness. Malice is nowhere to be found. In this respect the case must be less seriously regarded than the ordinary domestic killings where there is a distinct intention to harm, albeit a fleeting one which may have been provoked by the injured party.[15]
That is not to say that it is an inflexible rule that sentences for manslaughter by criminal negligence should be lower than those for other forms of manslaughter. Everything must turn upon the particular circumstances of the case. Some cases, of which the present is an example, have aggravating factors that make it appropriate to impose more significant punishment. A search of the literature indicates that sentences for manslaughter by criminal negligence, in Victoria, have generally been more lenient than those other forms of manslaughter. That has long been the case.[16]
[11]R v Jagroop (2009) 22 VR 80, 90–1 [63]–[68] (citations as in original; emphasis added).
[12]R v Williscroft [1975] VR 292 at 299 and R v Papazisis and Bird (1991) 51 A Crim R 242 at 245.
[13]See generally Fox and Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed, (1999), [12.214].
[14](1991) 53 A Crim R 320.
[15]Ibid 326–327.
[16]See generally Carter, Australian Sentencing Digest, (1985), pp 268–75 and particularly 271 and 275. Carter refers to R v Redman (unreported, Court of Criminal Appeal, 14 December 1977), a case of criminal negligence where a sentence of five years with a three-year minimum was reduced to three years with a 12-month minimum. He also draws attention to R v Taylor (1983) 9 A Crim R 358, in which a sentence of 18 months with a non-parole period of six months was permitted to stand in a case where a mother had caused her six-year-old son’s death by overdosing him on a liquid sleeping medication.
The fact that the applicant handled the firearm whilst under the influence of drugs may be regarded as an aggravating feature of the offending (albeit might also be an aspect of the applicant’s negligence). That he was a prohibited person might also be regarded as an aggravating feature.[17] Further, as the sentencing judge said, his failure to assist Mr Jacobs after shooting him ‘does [him] no credit’. The judge also observed:
It is trite to say your offending is serious – of course it is; a life was lost as a result of your criminal negligence. Like so many similar cases, this death was not only tragic but totally avoidable. The mixture of drug consumption and firearms is obviously a lethal combination and anyone with a degree of common sense would realise that.
[17]See Firearms Act 1996, s 3(1).
As to his personal circumstances, the applicant’s parents separated when he was aged six years. His childhood was affected by violence and instability. He suffered at the hands of both his mother’s new partner and an uncle. As sometimes happens in such cases, the applicant has a history of substance abuse. He began using alcohol when he was 13 years old, and began using drugs of dependence — including dexamphetamine, amphetamine and methylamphetamine, ecstasy, GHB, cocaine and Xanax — in his early 20s, developing an addiction to methylamphetamine, which he was using regularly in the period leading up to the offending. On the night of the offending he used GHB and was also drinking vodka.
The applicant has a relatively limited criminal history commencing with burglary, arson and dishonesty offences in 2001. He received an adjourned bond in April 2006 for using a firearm in a dangerous manner, and was also sentenced to a suspended sentence of four months’ imprisonment (later restored) for making a threat to kill, being a prohibited person in possession of a firearm and using a firearm when under the influence of alcohol. He was fined in 2011 for recklessly causing injury, and has a number of convictions for other firearm and weapons offences, and for driving, drug and ‘street’ offences.
Dr Leon Turnbull, forensic psychiatrist, assessed the applicant. He considered that the cumulative effect of abusive events in the applicant’s life has led to Complex Post Traumatic Stress Disorder (‘PTSD’) which has resulted in mild to moderate mood disturbances, flashbacks and nightmares and other difficulties. He considered that the applicant’s PTSD will make his time in custody, past and present, more difficult.
The judge accepted that the applicant was remorseful, his plea at an early stage in proceedings and his attitude to the offending demonstrating as much. His prospects of rehabilitation are, as the judge observed, ‘almost completely dependent on [his] ability to defeat [his] addictive drug use’. As to that, we note that there is evidence that, whilst in custody, the applicant has successfully completed courses directed towards his rehabilitation from drug use, and returned urine screening tests negative for the presence of illicit drugs between October 2020 and October 2022.
Balancing all of these features, and paying due regard to the factors set out in s 5(1) of the Sentencing Act 1991, for the offence of manslaughter we would resentence the applicant to nine years’ imprisonment, and fix a non-parole period of six years. Pursuant to s 6AAA of the Act, we would declare that, but for the plea of guilty, we would have sentenced the applicant to 11 years’ imprisonment, with a non-parole period of eight years.
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