R v Bruvels
[2000] VSCA 207
•30 October 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 51 of 2000
| THE QUEEN |
| v. |
| MICHELLE JAYNE BRUVELS |
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JUDGES: | WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 October 2000 | |
DATE OF JUDGMENT: | 30 October 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 207 | |
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Criminal law – Sentencing – Manslaughter by unlawful and dangerous act – Plea of guilty – Service of sentence in protective custody – Ten years' imprisonment with non-parole period of 7 years not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R.A.R. Lewis | Peter Randles & Co. |
| For the Respondent | Mr P.A. Coghlan, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
WINNEKE, P.:
I agree, for the reasons given by Callaway, J.A., that the appeal should be dismissed.
CALLAWAY, J.A.:
The appellant, who is now aged 26 and was 24 at the time of the offence, pleaded guilty in the Supreme Court to one count of manslaughter. The circumstances of the killing and its aggravating features were so well and concisely described by the learned judge who granted leave to appeal on 19th June 2000 that I shall incorporate the relevant part of his reasons in this judgment. His Honour said:
"Some weeks before the commission of the offence the applicant was living with her co-accused, Charles McDonald, and her five-year-old son. McDonald was a dealer in drugs. At 10 o'clock one evening two masked men invaded their home and threatened the applicant, McDonald and the applicant's son with a sawn-off shotgun. Approximately $20,000-worth of drugs and cash were stolen. Prior to [the date of the offence], McDonald told one of his associates that he now knew who was responsible for the attack. The applicant obtained some steel-capped boots in order to assault the perpetrators of the break-in. On the evening of Wednesday 23 September 1998 three men, by arrangement, came to the applicant's flat. The trial judge found that, while the organiser of the kidnapping was McDonald, the applicant actively encouraged, assisted and supported him. On leaving the flat, McDonald took a gun and the applicant a baseball bat.
The deceased was seized by the four men as he returned to his house in Geelong. They lay in wait for him to return, the applicant keeping watch and maintaining contact with McDonald by mobile phone. The deceased was set upon by the three men and taken to a nearby paddock at gunpoint. He was then forced into a van and restrained with duct tape. As the van drove around Geelong the deceased was assaulted in the applicant's presence and threatened, including by the applicant. The deceased gave a name and address of another person as the other burglar. The van went to that address but no one answered the door. Outside the house the applicant assaulted the deceased. The kidnappers then drove the deceased to the countryside outside Ballarat. McDonald and the applicant led the deceased into the bush, accompanied by one of the other men. In a gully the deceased was violently assaulted by all three of them. The applicant hit him with the baseball bat and kicked him with her steel-capped boots. The victim was left at the scene, where he died.
The applicant was charged with murder. At the end of the committal she pleaded not guilty to murder and eventually pleaded guilty to a charge of manslaughter. The judge considered that there were aggravating features of the offences. One was the 'military operation' character, as he described it, of the offences, which were planned and premeditated. He considered that, while the planning was done by McDonald, the applicant assisted, encouraged and supported him in effecting the operation. Another aggravating feature was the fear and suffering inflicted on the deceased over a significant period of time, and that the criminal conduct was done to enforce other criminal behaviour, namely, the drug operation conducted by McDonald."
The appellant had no previous convictions. After hearing a plea for leniency on her behalf, the learned judge, who had also sentenced her co-offenders, sentenced the appellant to ten years' imprisonment, in respect of which his Honour fixed a non-parole period of seven years and made a declaration regarding pre-sentence detention.
McDonald, who was 37 at the time of the offence, was sentenced to 18 years' imprisonment with a non-parole period of 15 years. The other co-offenders, the three men who came to the appellant's flat on the evening of 23rd September 1998, were Barry Daniel, Ricky Moat and Simon Grandison, who were 30, 20 (nearly 21) and 20 respectively at the time of the offence. Daniel and Moat were each sentenced to six years' imprisonment with a non-parole period of three years. Grandison was sentenced to three years' detention in a youth training centre.
The grounds of appeal understandably concentrate on circumstances of mitigation. As amended by order of the Registrar made on 11th October 2000, they are, first, that the sentence is manifestly excessive and, in particular, that the learned judge failed to take account, or sufficient account, of the appellant's plea of guilty, the connection between the offence and her use of drugs on the evening on which it was committed[1], her age and her prospects of rehabilitation and failed to take into account the fact that she had not previously received a term of incarceration; and, secondly, that his Honour did not give proper weight to her alleged dependence on McDonald and her psychological circumstances.
[1]The appellant was a long-term cannabis user who had taken amphetamine intravenously on the night in question. Whilst not abandoned, this ground was not much pressed.
It will be observed that both those grounds say, in one way or another, that the sentence was manifestly excessive. That is not to criticize their particularity, which is to be encouraged: see paragraph 7 of Practice Statement C.A.1 of 1996.[2] I should say at once, however, that I am not persuaded that the sentence was outside the range properly available to the judge. This was a particularly vicious homicide, albeit manslaughter by unlawful and dangerous act and not murder. If that is borne firmly in mind, there is nothing in the sentencing remarks or on the face of the sentence itself sufficient to establish that his Honour gave no weight, or inadequate weight, to the mitigating factors to which the grounds of appeal refer.
[2][1997] 2 V.R. 61.
It has often been observed that the question whether a sentence is manifestly excessive does not admit of much argument, but I shall say something of the mitigatory factors that Mr Lewis emphasized in the course of his submissions. They included what was said to be an early offer, at the committal stage, to plead guilty. There was certainly an invitation to treat, but there was not an unequivocal admission of guilt, early remorse or an offer to give evidence for the Crown. It was said that the appellant could not be expected to give evidence against her lover McDonald, whose sister was looking after the appellant's child. That may be so, but a sentence is not lengthened because a prisoner does not give evidence against a co-offender. On the view most sympathetic to the appellant, it was simply a discount of which she was unwilling to avail herself.
It was also said that the appellant was beholden to McDonald. She had emerged from, and been emotionally scarred by, a long-term abusive relationship with another man. From that relationship she had moved to a shorter-term relationship that collapsed shortly before she fell in love with McDonald. Accordingly, counsel submitted, she was vulnerable and under his influence and, although that influence continued at the time of the plea, her prospects of reformation were good. A member of her family had begun to offer support and she was making a serious effort to improve her education and to stabilize her physical and mental health. When released, she would have the responsibility of her young son. Even if so much is accepted, it does not show that the sentence was outside the range.
I have mentioned the appellant's family. Her father, who died in 1994, was a retired prison officer. Her sister had joined the Victoria Police Force shortly before the plea and a brother, the member of the family who has offered support, is a policeman in Queensland. Because of her family connections, the appellant was in protective custody at the time of the plea. That was likely to continue and it has continued. (It is not the kind of protective custody that involves being locked in one's cell for 23 hours a day, but it does mean mixing with a restricted group of prisoners, limited access to some facilities and no access to others. There are also delays and impediments that do not affect prisoners in the mainstream.) That was a significant matter which his Honour expressly took into account. It was the aspect that troubled me most, but I cannot say that it was given insufficient weight.
A recurring theme of counsel's address was the contrast between the sentences imposed on McDonald, at one end of the spectrum, and Grandison, at the other end of the spectrum, and the sentence imposed on the appellant. I apprehend that it was the main part of Mr Lewis's submission – not as a parity argument, but in order to show that this sentence was manifestly excessive. Reference was also made to other sentences imposed for manslaughter over the last 15 years or so, but they must be received with caution. Not only is manslaughter an offence the nature and gravity of which varies considerably according to the circumstances but also, in 1997, Parliament increased the maximum custodial sentence from 15 years' to 20 years' imprisonment.[3]
[3]Section 10 of the Sentencing Act 1991 applied to the maximum of 15 years' imprisonment.
I do not derive any assistance from the sentence imposed on McDonald. It was for a different crime and he is a person of different, although not totally different, antecedents from the appellant. It is the argument based on the comparison with Grandison that does, I think, need to be answered.
The answer is to be found partly in his Honour's remarks when sentencing the appellant and, more fully, as might be expected, in his remarks when sentencing Grandison. Speaking to the appellant, he said:
"There are, however, very significant differences between the crime of manslaughter for which I sentenced the three men and the crime of manslaughter for which I sentence you, and between those offenders and you. First, your role in the planning of this offence was significant and continuous and central. The function of the other three men in the planning was peripheral. Second, your role in the infliction of injury to the deceased at Nerrina was much more significant than that of the three men. Mr Grandison contributed but to a lesser extent than you and the other two did not. Third, it was Mr McDonald and you who were giving orders to the other three men on the night. They of course are responsible for their own actions; but they were the hired help. Fourth, each of those three men pleaded guilty early to manslaughter and exhibited early and genuine remorse for their offence. Fifth, each of those men were prepared to and, indeed, did fulfil their duty of giving evidence truthfully concerning the offences. Sixth, that loyalty to the truth directly will involve those men in having a more burdensome quality of imprisonment by reason of that fact than they otherwise would have had, had they been convicted or even had they pleaded guilty and not given evidence in relation to other persons."
The reference to Grandison's having "contributed but to a lesser extent" includes the fact that Grandison was the man who accompanied McDonald and the appellant into the gully. He said that he saw them assault the deceased and admitted that he shone a torch to assist the direction of their blows. There were, however, seven mitigating factors that were identified by the learned judge in the course of his remarks when sentencing Grandison. First, he was young and, I interpolate, younger than the appellant. Secondly, like her, he had no previous convictions. Thirdly, he pleaded guilty at an early stage. Fourthly, he undertook to give evidence against the appellant and McDonald. Fifthly, he displayed what the judge described as "the earliest and fullest remorse". Sixthly, he was in a state of emotional dependence on McDonald, who was, in effect, his stepfather. Seventhly, he was eligible, as the appellant was not, for a youth training centre disposition and that was justified by his prospects of reformation and the risks he would face in the adult prison system.
It is apparent, therefore, that there were significant differences between the appellant and Grandison, albeit that they had some things in common, including absence of previous convictions and a measure of dependence on McDonald. Grandison's dependence was, however, of a different kind and of a different order. The distinctions between the two offenders, the fact that a youth training disposition was available in the case of one and not the other and the difficulties of commeasuring two different regimes of punishment make it hard to argue from Grandison's sentence that the appellant's sentence was manifestly excessive.
The learned judge said that the appellant's crime deserved an entirely different sentence from that which was imposed on Daniel, Moat and Grandison and that her conduct, "before during and since" the offence, pointed to much more serious criminality than in their case. I shall say no more about Grandison. His Honour stated that the sentences imposed on Daniel and Moat were reduced by one-half by comparison with the sentences that would have been imposed had they pleaded not guilty and been convicted by a jury, that is to say had they been entitled to no discount for either aspect of the plea of guilty[4] or for their preparedness to give evidence for the prosecution.
[4]Siganto v. R. (1998) 194 C.L.R. 656 at [22].
If those remarks are taken together, they are capable of suggesting that the appellant would have received a very severe sentence indeed had she gone to trial, even after appropriate allowances for her having to serve the sentence in protective custody and separation from her child.
So much may be conceded[5], but it does not sustain either of the grounds of appeal. No parity argument was advanced. It would have been doomed to failure. There were differences between all the offenders, of which the judge took careful account. Sentencing is not an exact science and, even with the information that Daniel's and Moat's sentences had been reduced by 50 per cent, one should not be too easily led into examining the sentence that might have been imposed on the appellant instead of the sentence that was. The only question raised by the grounds of appeal is whether that sentence was outside the range of a sound discretionary judgment. I do not think that question can be answered in the appellant's favour.
[5]That is not to say that a very severe sentence might not have been justified had the appellant gone to trial. This was a bad example of a serious crime. That is one of the reasons why ground 1(a), relating to her plea of guilty, cannot be upheld.
I would dismiss the appeal.
BUCHANAN, J.A.:
I agree that the appeal should be dismissed for the reasons stated by Callaway, J.A.
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