Nowoczynski v Tasmania - [2019] TASCCA 6

2019] TASCCA 6

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Nowoczynski v Tasmania [2019] TASCCA 6

PARTIES:  NOWOCZYNSKI, Russell John
  v
  STATE OF TASMANIA

FILE NO: 2569/2018

DELIVERED ON:  29 May 2019
DELIVERED AT:  Hobart
HEARING DATE:  29 May 2019
JUDGMENT OF:  Estcourt J, Brett J, Martin AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference –Sentence manifestly excessive or inadequate – Particular offences – Offences against the person – Murder – Particularly vicious and intentional killing – Whether sentence of 22 years' imprisonment with a non-parole period of 13.5 years manifestly excessive – Head sentence not manifestly excessive – Exercise of sentencing discretion with regard to parole – Non-parole period of 13.5 years not manifestly excessive

Adams v The Queen [1998] TASSC 41; Hill v Tasmania [2015] TASCCA 6; Butt v Tasmania [2018] TASCCA 3; Neill-Fraser v Tasmania [2012] TASCCA 2; Taylor v The State of Western Australia [2015] WASCA 72, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler, A McKenzie
             Respondent:  D G Coates SC
Solicitors:
             Appellant:  McLean, McKenzie & Topfer
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASCCA
Number of paragraphs: 25

Serial No 6/2019
File No CCA 2569/2018

RUSSELL JOHN NOWOCZYNSKI v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
BRETT J
MARTIN AJ

29 May 2019

Orders of the Court:

Appeal dismissed.

Serial No 6/2019
File No CCA 2569/2018

RUSSELL JOHN NOWOCZYNSKI v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
29 May 2019

The appeal

On the night of 11 June 2016 the appellant, Russell John Nowoczynski, murdered a man named Donald William Crow by beating and kicking him to death on a lonely country road between Interlaken and Oatlands. He was sentenced by Blow CJ to 22 years' imprisonment, with a parole ineligibility period of 13 years and 6 months. This is an appeal from that sentence. The appellant contended that the sentence was manifestly excessive on the basis that the non-parole period of 61% rendered it so.
The Court dismissed the appeal after the hearing on 29 May 2019. These are my reasons for so doing.
The task of this Court on an appeal of this nature needs always to be borne steadily in mind. It has been explained many times in this Court and in others. A succinct restatement of the relevant principles in relation to manifest excess may be found in Hall v Tasmania [2015] TASCCA 6 where Pearce J said at [51]–[52]:
"51 To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, per McHugh J at 306. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at [13]. Manifest excess must be plainly apparent: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The sentence must be 'unreasonable or plainly unjust': House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.
52 The appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. A wide measure of latitude should be accorded sentencing judges: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. There is no single correct sentence and a sentencing judge 'should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected': Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58]."
In a decision of the Western Australian Court of Appeal in Taylor v The State of Western Australia [2015] WASCA 72, McLure JA at [27]-[31] made the following helpful observations:
"Legal principles
27        This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
28        In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
29        Sentences imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect."

The facts

The following statement of the facts and circumstances of the appellant's offending appears in the learned sentencing judge's comments on passing sentence:
"The two men had worked together at a vineyard at Richmond for about two years. Mr Crow's family had a shack at Interlaken. Mr Crow offered to take Mr Nowoczynski and another man to that shack for an overnight trip on the Queen's Birthday holiday weekend. The other man had to pull out because of work commitments.
The two men were friends. The evidence suggests that they spent the whole day and part of the evening quite happily together in each other's company. They travelled to Interlaken on the Saturday morning in Mr Crow's vehicle, bought some alcoholic drinks at Oatlands on the way there, enjoyed themselves at Interlaken, and went back to Oatlands after sunset to buy more alcoholic drinks. Those drinks were purchased at 6.13pm. The two men headed back in the direction of Interlaken. Mr Crow had had a great deal to drink, and ran off the road. A passing motorist stopped and towed Mr Crow's vehicle back onto the road at about 8pm. Subsequently, the two men stopped at the place where the murder occurred, about 19 kilometres from Oatlands. No one else was present.
For reasons not known to me, a violent fight occurred between the two men. In his police interview, Mr Nowoczynski asserted that Mr Crow became aggressive and attacked him, and that he was taken completely by surprise. That may or may not be true. I do not regard Mr Nowoczynski's assertions to the police as reliable. He could well have lied in an attempt to shift as much blame as possible onto Mr Crow. It is true that Mr Crow had a very high blood alcohol concentration, and must have been quite intoxicated. It is also true that the motorist who encountered the two men at about 8pm gave evidence to the effect that Mr Nowoczynski was friendly and Mr Crow was not. However the Crown, quite properly, disputed the assertion that Mr Crow had physically attacked Mr Nowoczynski. In sentencing proceedings the defence bears the burden of proving mitigating facts on the balance of probabilities: R v Olbrich (1999) 199 CLR 270. I am not satisfied on the balance of probabilities that Mr Crow initiated the use of violence.
It is clear that Mr Nowoczynski very quickly overpowered Mr Crow. He told the police that he had trained in Tae Kwon Do for about five years when he was young, and that he ended up getting a black belt, one Dan, and instructing a class at a Police Boys' Club. He told the police that he struck Mr Crow to the neck with 'knife hand punches'.
The State Forensic Pathologist, Dr Ritchey, performed a post-mortem examination. He observed blunt force injuries to both sides of the neck, both sides of the face, each eye, the forehead, the scalp, and both ears. In his opinion Mr Crow suffered at least 12 blows or kicks to the head. He also found stones in Mr Crow's oesophagus, just above the stomach, as well as in his throat, and in the airways leading into the lungs. Mr Nowoczynski had forced gravel from the road surface into Mr Crow's mouth during the fatal attack. Dr Ritchey concluded that Mr Crow's death had been caused by the severe blunt force injuries sustained to Mr Crow's head and neck, and resulting injuries to the brain. He concluded that there was an asphyxial component to Mr Crow's death because stones and blood in his airways had interfered with his breathing. I accept Dr Ritchey's evidence unreservedly."

The basis of criminal liability

The learned trial judge made the following comments in reaching the view that the appellant intentionally killed Mr Crow:
"Mr Nowoczynski was interviewed by police officers on the morning after the murder and again five days after that. His accounts of what he did to Mr Crow were substantially consistent with Dr Ritchey's observations. It is clear from what Mr Nowoczynski told the police that he assaulted Mr Crow very viciously after overpowering him, when Mr Crow was lying on the ground, still conscious, but not getting up. At various times Mr Nowoczynski told the police that he panicked, that he 'went crazy', that he 'laid the boot in', that he did not want Mr Crow to get up, that he 'just kept making sure he wasn't going to get up', that he kicked him around the chest area, that he stomped on him, and that he kicked him in the head a number of times.
It is clear from Dr Ritchey's evidence that Mr Crow did not die immediately, but lived for possibly 15 minutes or possibly an hour after the attack. While Mr Crow was lying on the road and dying, Mr Nowoczynski took some 'selfie' photographs of himself with his mobile phone, recorded a short video of himself which he later deleted, removed Mr Crow's jacket, and put it in the vehicle. It was snowing. Mr Nowoczynski found Mr Crow's keys and drove off, leaving him there dying. He intended to go to Oatlands, but he went the wrong way. He returned to Interlaken, turned around, drove back past Mr Crow, and ran off the road a few minutes later. He was unable to reverse back onto the road. He phoned 000 on his mobile phone, asked for the police (but not for an ambulance), and told the police operator that he had killed a man. Police officers attended from Oatlands, Bridgewater and Hobart. They found Mr Nowoczynski and Mr Crow's body.
The Director of Public Prosecutions submitted that I should infer that Mr Nowoczynski intended Mr Crow to die. To reach that conclusion, one must rule out the possibility that Mr Nowoczynski was recklessly indifferent as to whether Mr Crow lived or died. A potentially fatal attack involving repeated blows, stomping and kicking could be consistent with such reckless indifference. However, when I take into account the fact that Mr Nowoczynski forced gravel into the mouth of his victim, and removed his jacket before driving off and leaving him in the snow, I do not think there is any room for doubt. I am satisfied beyond reasonable doubt that this was an intentional killing. It is a particularly bad example of an intentional killing because of the ferocity of the force used, the forcing of gravel into the victim's mouth, and the abandonment of the dying man on the road in the middle of nowhere, in the middle of the night, in the middle of winter."

The comments on passing sentence

In passing the sentence of 22 years' imprisonment, with a non-parole period of 13 years and 6 months, the learned sentencing judge made the following additional comments:
"Mr Nowoczynski must be given some credit, though not much, for immediately reporting the killing when he phoned the police. However there was no sensible alternative. He needed their help because he could not get the vehicle back onto the road, it was the middle of the night, the temperature was about 0ºC, there was no realistic prospect of another vehicle passing by, and he was a very long way from the nearest house. He had so much blood on him that the police inevitably would have searched for an injured person in need of medical treatment. It also counts in Mr Nowoczynski's favour that he co-operated with the police, participated in lengthy interviews, and made some damaging admissions.
Mr Nowoczynski was 46 years old on the night in question and is now 49. He has no significant prior convictions. He has been in steady employment at practically all times since leaving school. He worked as a horticulturist for a suburban council in Sydney for 7 years, and then as a greenkeeper at a suburban golf club for 23 years. After that he moved to Tasmania and found work at the vineyard where he worked with Mr Crow. He comes from a large respectable family. His counsel told me that he was conscious of having brought shame upon them. He is single and childless, but is close to his godson, aged in his early 20s. He has been highly respected by people he has worked with. The manager of the golf club in Sydney has stood by him and has been visiting him regularly in prison.
Since his arrest on the night of the killing, Mr Nowoczynski has worked industriously in various jobs in the prison. He has worked without supervision as a groundsman. That is a position that is available only to prisoners who are trusted by the authorities.
Mr Crow was 39 years old. He had been living with his fiancée for 16 years. She now has the responsibility of bringing up their three children as a single parent. Mr Crow had been the sole income earner in the household. His fiancée now has to work part-time.
I received victim impact statements from her and from Mr Crow's mother, father, sister and brother. It is clear that he came from a close and loving family, and that he was an industrious and sensitive partner, father, son and brother. His murder has had a terrible impact on all his family. They will miss him greatly for the rest of their lives.
Mr Nowoczynski was found guilty by the jury nearly seven months ago, on 19 February. There has been a delay in sentencing because of difficulties relating to the obtaining of a psychiatric report. I ordered one in February because I was concerned that Mr Nowoczynski might have some sort of mental health problem. I held that concern largely because of his apparent calmness during his two police interviews. I arranged for recordings of those interviews to be provided to a psychiatrist, Dr Kavanagh. She provided a report during March, but I discovered that she had not received the recordings that had been sent to her. Her report contained information attributed to Mr Nowoczynski that was inconsistent in some respects with the information that he provided to the police during the two interviews. I ordered a supplementary report but, for personal reasons, Dr Kavanagh was unable to provide that supplementary report for so long that arrangements were made for another psychiatrist, Dr Fernando, to provide a report. Both psychiatrists concluded that they were unable to find any evidence that Mr Nowoczynski was suffering from any form of mental illness.
The murder of Mr Crow was a vicious and intentional killing. There is no reason to think that it was premeditated. I do not understand why Mr Nowoczynski and Mr Crow started to fight, and I do not understand why Mr Nowoczynski, having overpowered Mr Crow, continued to assault him so viciously that, in the end, he murdered a defenceless man. The only appropriate penalty is a very long prison sentence. Because Mr Nowoczynski has no prior convictions, I will make provision for parole. However, because of the viciousness of this murder, I will fix a non-parole period that is significantly higher than the minimum permitted by law.
Russell John Nowoczynski, I convict you and sentence you to 22 years' imprisonment with effect from 12 June 2016. You will not be eligible for parole until you have served 13 years and 6 months of this sentence."

Sentencing for murder

In Neill-Fraser v Tasmania [2012] TASCCA 2, which involved an appeal against a sentence of 26 years with a non-parole period of 18 years in the case of what was described by the learned sentencing judge as an intentional and purposeful killing, deliberately committed for financial betterment by a 56 year old woman who had no prior convictions and had led a blameless life up until the murder, Crawford CJ, with whom Tennent and Porter JJ agreed, said at [220]-[222]:
"220     There are many variations between individual cases making it impossible to precisely calculate the appropriate sentence for most murders. However, since the abolition of mandatory life imprisonment in 1995, there have been a sufficient number of sentences and re-sentences for murder so as to enable a measure of consistency when sentencing for the crime. Generally speaking, a deliberate killing is more culpable than one that is not deliberate, and one that is provoked, committed because of a loss of self-control or through passion is not as culpable as a deliberate killing for personal greed. It may usually be expected that a sentence will be less severe for a person who is of good character compared to one who has a criminal record, particularly for violence.
221      Upon a consideration of other sentences for murder, and having regard to all the circumstances of the appellant's crime and the other relevant aspects of the case, I conclude that imprisonment for 26 years was more severe than I would have expected and the imposition of a non-parole period of 18 years was particularly so.
222      I would sentence the appellant to 23 years' imprisonment from 20 August 2009. Eligibility for parole should only be permitted when she has served the minimum term of imprisonment the Court considers to be required. In fixing it, account should be taken of her good character and record prior to the crime, and to her likely age when she may be released from prison. I would order that she is not to be eligible for parole until she has served 13 years of the imprisonment."
Cases involving murder for financial gain can be seen to attract a higher sentence than those that do not. See for example, Standage (18 August 2014), where the sentence was 48 years' imprisonment for two counts of murder for gain, committed 14 years apart. However it is also clear that vicious, intentional killings also attract very substantial sentences. See for example, Rusterholz (1 May 2015) where the sentence was 45 years for two counts of murder committed on the same day to impress another person and to visit retribution.
There are numerous examples of single count sentences for murder where the sentence and the non-parole period have been equal to or greater than those imposed by the learned sentencing judge in this case. See for example, Neubert (22 May 2017), where the sentence passed on a man who shot and killed his estranged wife was 25 years with a non-parole period of 15 years.
Counsel for the respondent, Mr Coates SC, points out that in her book, Sentencing in Tasmania, 2^nd ed: The Federation Press, 2002, Sydney, 269-271, Professor Kate Warner sets out the sentencing range for the crime of murder between 1995 and 2000. She notes that head sentences ranged from ten years to life imprisonment, with a median of 21 years and a median non-parole period of 14 years. It was noted that cases attracting a sentence at the lower end of the scale involved diminished responsibility or where death was not intended but ought to have been foreseen. Angry or jealous confrontations and domestic disputes attracted median sentences. Premeditated killing or excessive force during the commission of a crime attracted higher sentences.

Counsel also points out that the Sentencing Advisory Council database reveals that there have been 32 sentences imposed for a single count of murder between January 2001 and December 2014. Of those sentences the minimum period of imprisonment imposed was 15 years and the maximum (leaving aside life imprisonment) was 35 years, with a median of 20 years. The median minimum non-parole period imposed for this period of cases was 11½ years.

Discussion and disposition

In my view this appeal is wholly without merit. I have considered all sentences for murder passed by this Court and its judges since 1995 when mandatory life imprisonment was abolished, and it is quite apparent from that analysis that it cannot be said that the head sentence imposed by the learned trial judge of 22 years was manifestly excessive.
The learned sentencing judge was justified, in my view, in commenting that this was a particularly bad example of an intentional killing. As submitted by counsel for the respondent it involved a vicious assault where the deceased was lying on the ground, still conscious, and not getting up. By the appellant's own admissions to police he panicked, "went crazy", "laid the boot in" and did not want the deceased to get up. He just kept "making sure he wasn't going to get up", and to that end he kicked him around the chest area and stomped on him, and kicked him in the head a number of times. The deceased did not die immediately but lived for possibly 15 minutes up to an hour after the attack. And the appellant did not instantaneously contact police and seek assistance. It was not until his vehicle ran off the road and became immobile that he contacted triple zero and spoke to police, reporting the killing. The forcing of gravel into the victim's mouth, and the abandonment of the dying man on the road in the middle of nowhere, in the middle of the night, in the middle of winter, all justify his Honour's assessment
As to the non-parole period, in Butt v Tasmania [2018] TASCCA 3 Pearce J said at [68] :
"68 I have a different opinion about the non-parole order. Because one year of the three year sentence was suspended, the combined effect of s 17(3) and (8) of the Act was that the sentencing judge could have ordered that the appellant be eligible to apply for parole after having served 12 months of the sentence. His Honour ordered eligibility for parole only after 18 months had been served. A parole ineligibility period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances: Power v The Queen (1974) 131 CLR 623 at 629; Carr v The Queen [2002] TASSC 60, 11 Tas R 362 at [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5. There is no presumption that the non-parole period should be the minimum: Pickrell v Tasmania [2011] TASCCA 13 at [13]. However, a long parole ineligibility period may make a sentence manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7 per Porter J at [56]-[59]. In Gill v The Queen [1990] TASSC 37, Crawford J (as he then was), with whom Neasey J agreed, commented on the effects of not making an order that a defendant be eligible for parole at the earliest possible time:
'The making of an order by a sentencing judge extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effects, or the possibility of them or the object of achieving them, or some of them, should be considered by the sentencing judges before making an order extending the non-parole period.'"
In the present case however, it is clear to my mind, and from a review of the work of this Court and its judges in the last 24 years, that it cannot be said that the length of the non-parole period imposed by the learned sentencing judge rendered the sentence as a whole manifestly excessive.
It was more than open for the learned sentencing judge to conclude that, in view of the viciousness of this murder, the minimum period that justice required the appellant to serve before being eligible for parole was 13 years and six months.
His Honour was aware of the appellant's industry and trusted status in prison, and he gave express consideration to the balancing exercise required of him. He said:
"Because Mr Nowoczynski has no prior convictions, I will make provision for parole. However, because of the viciousness of this murder, I will fix a non-parole period that is significantly higher than the minimum permitted by law."
Moreover, it is apparent from my own analysis of sentences for murder since 1995 that it is not uncommon in sentencing for this crime to fix a non-parole period that is appreciably higher than the minimum permitted by law, even where the defendant has no prior convictions. Neill-Fraser (above) and Neubert (above) are examples.
As Cox CJ, with whom Underwood J (as he then was), said in Adam v The Queen [1998] TASSC 41 at 2:
"Where the crime is of a particularly serious nature, as in the case of murder, a sentencing court can be expected to give very careful consideration to the question whether the minimum period of 50 per cent of the finite term provided for by the Act in the absence of a direction from him to the contrary will represent the minimum term justice requires that the prisoner must serve and not be released even on parole. The figure of 50 per cent is an arbitrary one and may be appropriate in many cases; but each case must be individually considered.
In that case, in his dissenting judgment, Crawford J (as he then was) described the crime as a murder in the form of a deliberate stabbing of a defenceless householder in the course of a burglary late at night, committed by the burglar out of a concern that the householder might recognise him and that he may consequently be charged with burglary. While his Honour noted that as such it was an appalling crime demanding a significant term of imprisonment, the Court nonetheless held that the non-parole period was found to be manifestly excessive. However, the Court still imposed a sentence in excess of the statutory minimum. The original head sentence was 25 years with a non-parole period of 18 years. The Court reduced the non-parole period to 15 years, that is to say 60% of the head sentence.
In the present case, the crime was also appalling. I accept, as Crawford J said In Adams (above) that prima facie a person who has been sentenced to a finite term of imprisonment is eligible for parole at the expiration of the period fixed by the Act and that the power to limit that eligibility should only be exercised when the judge imposing sentence is affirmatively satisfied that there exists sufficient reason why the accused should be deprived of his right to have the Parole Board consider his parole. And I also accept, as his Honour said, there is no statutory warrant or principle for excluding a particular crime from that prima facie position. However, I am of the view that any adjustment by this Court of the non-parole period of 61% of the head sentence would amount to "tinkering". It was open to his Honour to reach the view that such a non-parole period was the minimum period required to achieve goals of punishment, deterrence and prevention.
For the foregoing reasons I joined in the order of the Court dismissing the appeal.

File No CCA 2569/2018

RUSSELL JOHN NOWOCZYNSKI v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J
29 May 2019

I agree with Estcourt J.

File No CCA 2569/2018

RUSSELL JOHN NOWOCZYNSKI v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARTIN AJ
29 May 2019

I agreed that the appeal should be dismissed and I agree with the reason given by Estcourt J.