R v Brougham (No 2)

Case [2015] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BROUGHAM  (No 2)

[2015] SASCFC 127

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Parker)

8 September 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE - PARTICULAR CASES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence. The appellant was convicted of manslaughter after a trial by Judge alone on the charge of murder. The circumstances were that appellant and the deceased were together naked in a spa bath at the deceased’s house, both significantly affected by alcohol. After consensual sexual intercourse, the deceased grabbed the appellant’s foot and bit it, which may have caused the appellant to kick out at the deceased. The Judge found that the appellant then seriously assaulted the deceased by hitting her with a clenched fist in the head and face, and delivering deliberate blows to her ribs by either punches, kicks or stomps. After attempting to give CPR, the appellant fled the scene without seeking medical help. The deceased was found lying naked in the garden by her daughter the following day. The cause of death was a combination of blunt chest trauma and blunt head trauma. The appellant was sentenced to 15 years imprisonment with a non-parole period of 12 years.

In sentencing, the Judge held that the circumstances under which the appellant left the scene without summoning medical assistance for the victim was a factor aggravating the offence. The appellant contended that the Judge erred in that the prosecution had not disproven that the appellant may have left at a time when the deceased was already dead or that he may have left because of the combined effect of intoxication and panic.

The Judge was not satisfied that the circumstances surrounding the appellant’s offer to plead guilty to manslaughter at the committal stage, along with the manner in which the defence was conducted at trial, constituted special reasons pursuant to s 32A(3)(c), Criminal Law (Sentencing) Act 1988 to reduce the mandatory non-parole period. The appellant contended that the Judge erred in finding that the appellant’s offer to plead guilty to manslaughter did not constitute “co-operation” within s 32A(3)(c) and did not reduce the head sentence.

In addition, the appellant contended that the sentence imposed was manifestly excessive.

Held, per Peek J, dismissing the appeal (Stanley and Parker JJ agreeing):

1.       It is settled law that one is to assess whether conduct constitutes an aggravating factor in sentencing as a matter of degree and by reference to considerations of common sense and morality, rather than technical considerations.

2.       Even if the appellant thought that the deceased was apparently dead,…

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R v Brougham (No 2) [2015] SASCFC 127
Case
[2015] SASCFC 127
Decision Date

CaseChat Overview and Summary

The appellant, R v Brougham (No 2), appealed against a sentence imposed by a sentencing judge. The appeal concerned the sentencing for a charge of manslaughter. The appellant argued that the sentence was manifestly excessive, that the sentencing judge erred in finding that the appellant left the victim and that this was an aggravating feature, and that insufficient regard was given to an early offer to plead guilty to manslaughter.

The legal issues before the court were whether the sentence imposed was manifestly excessive, and whether the appellant's conduct after the death of the victim, specifically leaving the victim and failing to seek assistance, constituted an aggravating factor for sentencing purposes. The court also considered the weight to be given to an early offer to plead guilty, particularly when that offer was made in conjunction with attempts to mislead authorities.

The court affirmed the principle that conduct occurring after the commission of a crime can be considered an aggravating circumstance if it is so connected with the crime as to be properly viewed as one of its circumstances. The judges reasoned that leaving a severely injured victim without seeking assistance, and attempting to conceal involvement, are relevant considerations in sentencing. They distinguished this from an early plea of guilty, noting that an offer to cooperate with authorities must be an offer to give truthful evidence and that courts will not reward attempts to deceive by falsifying the role of others. The court found that the appellant's conduct of leaving the victim and failing to seek help was a relevant factor that aggravated the offence.

The appeal against sentence was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant now appeals against sentence. The grounds of appeal are:(1) That the sentence was manifestly excessive;(2)The Honourable Sentencing Judge erred in finding that the Appellant left the victim and found that it was an aggravating feature;(3)Did not have due regard to the offer to plead guilty to manslaughter whilst the matter was still in the Magistrate’s Court.The facts and the prosecution and defence cases A brief overview of the facts and of the respective prosecution and defence cases is as follows. The appellant knew the deceased and his parents lived next door to her. On the evening of Thursday, 11 July 2013, he was celebrating his brother’s birthday at his parents’ house. While there, at about 6:40pm, he telephoned the deceased and shortly thereafter he went to her home. He was the last person to see her alive. On the morning of Friday, 12 July 2013, the deceased was found lying unclothed in the garden of her home at Whyalla by her daughter, Rebecca Rogan, who went looking for her mother when it was reported that she had failed to arrive at work. The cause of death was a combination of blunt chest trauma and blunt head trauma. Police officers attended at the appellant’s home on Sunday, 14 July 2013. He initially lied, telling them that he had been at his parents’ house on the evening of Thursday 11 July 2013, had left at about 7:00pm, and had gone to his home where he remained for the rest of the night. On Monday, 15 July 2013, police officers again spoke to the appellant and asked whether he knew the deceased and whether he had ever been in a relationship with her. He changed his initial story but again lied. He stated that he had telephoned the deceased and asked her for sex; that she had declined but had told him that her husband was away; that he had decided to go to her home to see “how things went”; that he had gone there at about 7:00pm and asked to have sex with her and that she refused. He further stated to police that she had then driven him to his home which, of course, was entirely untrue. The prosecution case at trial was that the accused and the deceased were together, naked in the spa bath in the deceased’s backyard, late in the evening of Thursday 11 July 2013; that the deceased rejected the appellant’s attempts to have sexual intercourse and that he had intercourse without her consent; that he killed her by various blows to the head and chest areas; and that he then departed, leaving her dead in the backyard of her house. The defence case was that the appellant did not intend to do the deceased any harm, that sexual intercourse was consensual, that her death was entirely accidental and that he was innocent of both murder and manslaughter. The appellant gave evidence that he and the deceased each consumed a large quantity of alcohol; that they engaged in consensual intercourse in the spa bath; that the appellant was then massaging the deceased’s upper body with his foot and while doing so he told her that he wished to terminate their relationship; that she then bit his foot to which he reacted by instinctively kicking out with his leg; that the deceased hit her head on the edge of the spa bath and lost consciousness; that the appellant then attempted to remove her from the spa bath, in the course of which she fell out of the spa; that he then dragged her on to the lawn area and she again fell from his grip; that he then applied forceful CPR but she did not respond; that he then left and walked to his home.The Judge’s reasons for conviction

Evidence

Evidence Before The Court

However, it was demonstrated that part of B’s proffered evidence was untrue, it being an attempt to lay an additional portion of the blame on the co-accused and to lessen that falling upon himself. The judgment of the Court is fairly lengthy and refers to a number of authorities; I reproduce a short extract only:[94][94] [2013] SASCFC 40.[44] It is the usual practice of courts to make a reduction in the sentence for an offender who has cooperated with authorities. The primary policies behind extending such leniency are twofold: to encourage offenders to cooperate with authorities and acknowledge the contrition and remorse of the offender.…[48] It is to be observed that an offender who cooperates with authorities may still receive a reduction in his or her sentence where there is no evidence of contrition or remorse. …[51] We accept the principle that the discount given is to encourage co-operation with the authorities by offenders and that in general such co-operation should be seen as being rewarded even though the offer is entirely out of self-interest and in fact manifests no contrition at all.[52] However, an offer to assist the prosecution and to give evidence must be an offer to give truthful evidence. The statements in Cartwright, to which we have referred, must be considered in the context of the principle that the courts are not in the business of rewarding offenders for attempting to deceive the courts by deliberately falsifying the role of a co-accused so as to improve their own position. This principle is reflected in the statement in Cartwright that what is to be encouraged is “full and frank cooperation” on the part of the offender.[53] We also note the observations in Cartwright which prefaced the passage set out above:[95]Of course, the last thing that should be laid down by any appellate court in relation to the sentencing process is some cast-iron code to be applied to every one of the multitude of different situations with which sentencing judges are concerned in individual cases. A sentencing judge has a very wide discretion indeed, and in no sense should any of the decisions of this Court be construed as intending to circumscribe the exercise of that discretion in the particular case.[54] The consideration of the additional complaint by B on appeal must pay close attention to the above matters.…[62] We conclude that B had gone through a very deliberate and active process of providing the police with a statement which contained a number of serious lies about the respective participation of himself and J-M. In our view, B’s offer to give evidence was made out of self-interest alone and did not manifest genuine contrition. The Judge was not obliged to treat B’s offer as evidence of his genuine contrition. (Emphasis added)[95] R v Cartwright (1989) 17 NSWLR 243, 252. The Court also decided that, in all of the circumstances, B was not entitled to credit for the giving of his statement on a utilitarian basis. Obviously, as the Court observed in a passage above, a “sentencing Judge has a very wide discretion indeed, and in no sense should any of the decisions of this Court be construed as intending to circumscribe the exercise of that discretion in the particular case.” But as to the general matters that should be taken into account in assessing what “co-operation” means, and how credit for it should be assessed, the decision in R v B, TB; R v J-M, AM[96] may be of some limited use.[96] [2013] SASCFC 40.GROUND 1 OF APPEAL – MANIFESTLY EXCESSIVE(1) That the sentence was manifestly excessive

Decision

Reasons for decision

PEEK J
After reviewing numerous authorities, his Honour observed:[26][35] What should be regarded as the circumstances of an offence is best left to the good sense of sentencing judges, without any attempt to lay down principles or rules, which are all too common in the criminal law nowadays and which are particularly to be avoided in a matter of this kind. I have no doubt that in this case the judge was wrong in failing to characterise as a circumstance of the crime the facts that the murderer had capped the homicide with a sexual assault upon the body from which life had just departed and then burnt what he had just defiled. Cases may arise in which, for example, the murderer, who has allowed the victim’s body to lie concealed for a long time, then dismembers it with a view to disposing of it by some different means; and it may be argued that, having regard to all relevant matters, the dismemberment should not be regarded as so connected with the crime as to be viewed as one of its surrounding circumstances. When such a case arises, it can be left to the good sense of the sentencing judge. As was said in the South Australian decisions mentioned earlier, what is a surrounding circumstance may be a question of degree. … [37] … If conduct, notwithstanding that technically it follows the crime, is so connected with it as properly to be viewed as one of its circumstances, that conduct, if it aggravates the crime, must be placed in the scales. … (Emphasis added)[26] [1999] 2 VR 258, 267-268. R v Wilkinson (No 5)[27] is a New South Wales authority dealing with sentencing for homicide, again capturing many other authorities. The defendant killed his pregnant lover, whose body was never found. A few weeks later he set fire to his home, pretending that intruders had tied him up and set the fire, but he had escaped. Johnson J found that the defendant’s motive in setting the fire was to deflect police investigation into the woman’s disappearance. His Honour stated:[61] Care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. However, the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime: Director of Public Prosecutions v England [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: Director of Public Prosecutions v England at 263-264 [18]. The dumping of a body by a murderer constitutes an aggravating circumstance of the offence itself, and such concealment of the body is not limited in its significance to the absence of remorse: Director of Public Prosecutions v England at 266 [27]; Bell v R [2003] WASCA 216 at [23]-[25]; Colledge v State of Western Australia [2007] WASCA 211 at [16]; R v Cavkic (No. 2) [2009] VSCA 43 at [134].[27] [2009] NSWSC 432.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

I cannot agree. The Judge said this during the sentencing submissions:[12] HIS HONOUR: What relevance does his conduct have after? He walked away from this woman, he left her there. He clearly understood that she had been severely injured because, on my findings, the likelihood was he did apply some CPR. How much that had to do with the chest injuries or not is another issue. He clearly understood that she was in deep difficulty. He walked away and he left her there. He made no attempt to seek assistance for her and he, in effect, hid his involvement in the whole affair until it was inevitable that the investigation would reveal that he had been there that evening. That conduct is something to which is relevant to my considerations. Even if he wanted to avoid his involvement he could have rung 000 from a phone booth. He could have done a number of things to attempt to save this woman. It may have been an attempt which was not going to be successful but there was no attempt. He just left her there. He left her there for her family to find her the following morning. That conduct is really something that I would regard as relevant.MRS SHAW: Certainly I agree with your Honour, nothing I could say could in any way mitigate that.HIS HONOUR: I am not asking you to mitigate that but it is a relevant factor.(Emphasis added)[12] Sentencing Submissions, 4 February 2015, AB 243. It is obvious that the Judge was here expressing a provisional view that the stated conduct (in italics) was a factor relevant to sentencing. It is also obvious that he was highly critical of that conduct and was definitely not approaching it as a mitigating factor, but rather as an aggravating factor. Senior counsel, immediately following the above passage, went on to make submissions that the conduct should not be treated as part of the manslaughter offence for which the appellant was to be punished. This was an attempt to dissuade the Judge from treating the conduct as an aggravating factor even though the words “aggravating factor” were not used. Was the conduct of the appellant an aggravating factor? As I understand it, the appellant contended that the conduct was not an aggravating factor at all because the prosecution did not disprove an hypothesis that the appellant may have left at a time when Ms Rogan was already dead or that he left because of the combined effect of intoxication and panic. There are really two submissions here which were put together. However, they need to be separately considered for the sake of clarity of analysis. In overview, the first submission is that as a matter of law, the existence of an aggravating factor in a homicide case depends upon a strict temporal test of whether the relevant fact occurred before death; here there can be no aggravating factor if the appellant may have left at a time when Ms Rogan was already dead. (Counsel also stressed more than once that the burden is upon the prosecution to prove an aggravating factor; however, that is a matter of onus of proof and must not be confused with the delineation of the aggravating factor itself.)