R v Churchill
[2000] WASCA 230
•28 AUGUST 2000
R -v- CHURCHILL [2000] WASCA 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 230 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:271/1999 | 12 MAY 2000 | |
| Coram: | KENNEDY ACJ ANDERSON J WHEELER J | 28/08/00 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE QUEEN MARY ANNE CHURCHILL |
Catchwords: | Criminal law and procedure Sentencing Amendment of charge of murder to charge of manslaughter Plea of guilty Killing by stabbing once with knife Sentence of 3 and a half years' imprisonment with eligibility for parole Not set aside as being inadequate |
Legislation: | Nil |
Case References: | Lowndes v The Queen (1999) 195 CLR 665 Neal v The Queen (1982) 149 CLR 305 R v Clarke [1996] 2 VR 520 R v Fernando (1992) 76 A Crim R 58 R v S (No 2) (A Child) (1992) 7 WAR 434 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Badron v The Queen, unreported; CCA SCt of WA; Library No 990099; 4 March 1999 Cranssen v The King (1936) 55 CLR 509 Everett v The Queen (1994) 181 CLR 295 Game v The Queen, unreported; CCA SCt of WA; Library No 970113; 21 March 1997 Hodder v The Queen, unreported; CCA SCt of WA; Library No 950302; 20 June 1995 House v The King (1936) 55 CLR 499 Iginiwuni, unreported; SCt of NT; 12 March 1975 Lambadgee v The Queen, unreported, CCA SCt of WA; Library No 8655; 19 December 1990 Minhaj v The Queen [2000] WASCA 52 Punch v The Queen, unreported, CCA SCt of WA; Library No 930307; 31 May 1993 R v Juli (1990) 50 A Crim R 31 R v Lupoi (1984) 15 A Crim R 183 R v Osenkowski (1982) 30 SASR 212 R v Smith, unreported; CCA SCt of WA; Library No 980066; 17 February 1998 R v Woodley, unreported; CCA SCt of WA; Library No 940708; 16 December 1994 Veen v The Queen [No 2] (1988) 164 CLR 465 Wicks v The Queen (1989) 3 WAR 372 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- CHURCHILL [2000] WASCA 230 CORAM : KENNEDY ACJ
- ANDERSON J
WHEELER J
- Appellant
AND
MARY ANNE CHURCHILL
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Amendment of charge of murder to charge of manslaughter - Plea of guilty - Killing by stabbing once with knife - Sentence of 3 and a half years' imprisonment with eligibility for parole - Not set aside as being inadequate
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Ms E F Vicker
Respondent : Mr R W Richardson
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Aboriginal Legal Service of WA
Case(s) referred to in judgment(s):
Lowndes v The Queen (1999) 195 CLR 665
Neal v The Queen (1982) 149 CLR 305
R v Clarke [1996] 2 VR 520
R v Fernando (1992) 76 A Crim R 58
R v S (No 2) (A Child) (1992) 7 WAR 434
Case(s) also cited:
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Badron v The Queen, unreported; CCA SCt of WA; Library No 990099; 4 March 1999
Cranssen v The King (1936) 55 CLR 509
Everett v The Queen (1994) 181 CLR 295
Game v The Queen, unreported; CCA SCt of WA; Library No 970113; 21 March 1997
Hodder v The Queen, unreported; CCA SCt of WA; Library No 950302; 20 June 1995
House v The King (1936) 55 CLR 499
Iginiwuni, unreported; SCt of NT; 12 March 1975
Lambadgee v The Queen, unreported, CCA SCt of WA; Library No 8655; 19 December 1990
Minhaj v The Queen [2000] WASCA 52
Punch v The Queen, unreported, CCA SCt of WA; Library No 930307; 31 May 1993
(Page 3)
R v Juli (1990) 50 A Crim R 31
R v Lupoi (1984) 15 A Crim R 183
R v Osenkowski (1982) 30 SASR 212
R v Smith, unreported; CCA SCt of WA; Library No 980066; 17 February 1998
R v Woodley, unreported; CCA SCt of WA; Library No 940708; 16 December 1994
Veen v The Queen [No 2] (1988) 164 CLR 465
Wicks v The Queen (1989) 3 WAR 372
(Page 4)
1 KENNEDY ACJ: The respondent was initially charged with having murdered Gregory James Calwat. She was tried by a Judge and jury at Kununurra in August 1999; but the jury were unable to agree upon a verdict. She was then remanded in custody for retrial at the next sittings of the Court at Kununurra. When, on 9 December 1999, she appeared at the next sittings of the Court, before the indictment was put to her, the Crown sought, and was granted, leave to amend the indictment so as to charge the respondent with manslaughter. The respondent then pleaded guilty to that charge.
2 The facts presented to the learned trial Judge were that, on 31 October 1998, the respondent, an Aborigine who was born on 26 June 1971, and the deceased, with whom the respondent had been involved in a loose relationship, had been drinking with other people at a hotel in Kununurra. The deceased later left the hotel in the company of a number of others. The respondent continued drinking with another woman, Valma Warra, and her de facto husband, Edward McCoombe, together with another man, who was described variously as "the stranger" or "the man in the black hat", who had met the three others only that evening.
3 The respondent, together with Warra, Warra's de facto, and the stranger, at approximately 11.00 pm, went to the respondent's home in Kununurra. On the way there, the stranger bought some food and some alcohol. The taxi driver who drove them to the respondent's home was of the opinion that, whilst they were affected by alcohol, they were not badly so affected. Once they arrived at the respondent's home, they drank some of the alcohol which had just been bought. At some stage in the evening, the respondent went to another house, where the deceased was drinking, and she invited those present to come back to drink at her home. They did so.
4 Later in the evening, Warra and her de facto went to bed, and most of the other people who were in the house went their separate ways. Ultimately, only the respondent, the deceased and the stranger were left drinking in the loungeroom. Some time afterwards, Warra woke up to hear the respondent shouting, "Get out of my house", and shortly afterwards she heard the stranger say that he was leaving. Still later that night, the respondent went into Warra's bedroom and told her that the deceased had stabbed himself. The deceased was then found in the respondent's bedroom. He had collapsed and was lying in a pool of blood.
5 The deceased had sustained a stab wound, which had entered his body at the base of his neck, on the left hand side, above the collarbone,
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- going down perpendicularly for approximately 9 cms, the length of the blade of the knife which was subsequently identified as the knife which had been used in the stabbing. There were "hilt" abrasions on the skin on either side of the entry wound. The knife had penetrated the deceased's left lung, his left subclavian vein and his aorta. There was extensive internal bleeding from the severed vein and artery, and his death must have occurred within minutes. The fact that the wound was perpendicular indicated that the deceased was either standing or sitting in an upright position when he was struck, and it was said that, due to the absence of defence wounds, it was likely that he had not seen an attack coming.
6 There is no clear statement as to what happened immediately prior to the stabbing and as to whether, as the respondent suggested, she, having found the knife in the backyard on the day before the killing, had put it in her brassiere. It was suggested that this was commonly done by Aboriginal women, sometimes for self-protection and sometimes for cutting up food.
7 Warra, her de facto and the respondent now called a taxi and were driven to the Kununurra police station. The time was then approximately 4.00 am. The taxi driver overheard the respondent talking to Warra, in the course of which she again suggested that the deceased had stabbed himself.
8 On their arrival, the three went into the police station. Warra and her de facto then left, and the respondent waited for the police to attend. When they did arrive, they went with the respondent back to her home, where they found the deceased's body still lying in the bedroom.
9 Initially, the knife used in the attack could not be located, but ultimately the knife was found behind a shed on a neighbouring property. It would have had to have been thrown there by somebody from outside the respondent's house. The knife was consistent with the nature of the wound inflicted upon the deceased, and it tested positive for traces of blood. The deceased's blood was found on the respondent's clothes which she had been wearing during the course of the evening.
10 Both the taxi driver, who had taken the respondent to the police station, and the police sergeant who first saw her at the police station, were of the view that, while she was affected by alcohol, "she was not that badly affected". The deceased's blood, however, had a very high level of alcohol, being 0.37 per cent, and having regard to the evidence of
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- drinking, it would be very surprising were the respondent not significantly affected by alcohol.
11 The only comments made by the respondent about the incident after the event were to another woman, in which she indicated that she had not meant to stab the deceased and that it had been an accident. The Crown case was that it had been the respondent's wish that she should stay with the stranger, and that the deceased should leave her home. When the stranger in fact left the house and the deceased did not, so it was put, she became angry and stabbed him.
12 The respondent was interviewed some time later by a clinical psychologist. Her evidence was that when she first saw the respondent, on 26 April 1999, she was still in a shocked and remorseful state. The psychologist found her to be somewhat reluctant to talk about her family history. She was told, however, that she had been born at Nicholson Station and had attended school in Halls Creek as a hostel boarder. She had happy memories of station life; but subsequently the family moved to Kununurra, where her parents took to heavy drinking, and fighting, and eventually they separated. The respondent's father died in a car accident when she was about 10, and her mother had died when she was about 15. She has effectively been on her own since the death of her mother.
13 The respondent started drinking with friends at the age of about 16 and she has remained a "committed" drinker more or less ever since. She has three children, each by a different father. The children have lived with various relations, her brother having looked after them all for some time at Warmun Community in Turkey Creek, where one of the respondent's children is still living. The other two are with the respondent's half brother and his family in Looma. The respondent has attempted to look after her children from time to time, and she had planned to take them to live with her at the Homeswest house in Kununurra which she had recently been allocated. The forced departure from Nicholson Station occurred before the respondent was old enough to have been aware of it; but she has shared in the dislocation of her people, and she has grown up in the midst of the turmoil which resulted from it and from which they have never recovered.
14 The respondent was seen to have cuts on her eyebrows which, she said, had been inflicted by the deceased during fights. They had lived together on and off. She told the psychologist that, at different times, the deceased had kicked her with steel capped boots and he had beaten her up, knocking her unconscious on at least one occasion.
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15 If what the respondent said to the psychologist was correct, the quantities of alcohol consumed by the group must have been "prodigious". According to the respondent, her argument developed with the deceased when he said he wanted to sleep with her. She told him to sleep on another mattress and he then accused her of having another man. The argument became heated, then, according to her, "everything went blank" and she found the deceased on the floor with blood pouring from his neck and a knife in her hand. She denied any recollection of stabbing him.
16 On the respondent's statements made to the psychologist, the deceased's death was the end point in a drunken and violent relationship and either partner might have been the victim.
17 The psychologist summarised the position as follows:
"Mary Anne Churchill is a young woman who does not show clinical signs of any mental disorder but who has grown up amongst chaotic and violent people. In many respects her life has been typical of the extreme of the heavy drinking sub-culture, which is characterised by sordid and violent relationships and lack of parental responsibility. Her offence is the seemingly inevitable yet almost chance outcome of an abusive and violent relationship with the deceased, in which Ms Churchill might as easily have been the victim as the perpetrator. Although she has many positive qualities and would like to be a good mother, her lifestyle will not change for the better unless she finds some way of overcoming her addiction to alcohol. I know from long experience of people from similar backgrounds how unlikely that is, but a sentence requiring a period of supervision in the community would give Ms Churchill an opportunity to consider making such an effort."
18 There was a suggestion that, on her release from custody, the respondent will receive a beating from the relatives of the deceased by way of payback, but there appears to be considerable doubt as to whether this is in fact a likelihood.
19 The respondent already had convictions for offences of violence; but she has never previously been sentenced to a custodial term. In November 1994 she was convicted of a common assault and placed on a $200 good behaviour bond for a period of 12 months. In April 1995 she was convicted of unlawful wounding, the offence involving significant violence and the infliction of severe lacerations. It resulted in the victim
(Page 8)
- being taken to hospital. The respondent was placed on probation for 12 months, with a 100 hours community service order. In September 1997 she was convicted of assault occasioning bodily harm, possession of an offensive weapon and threat to cause a detriment. A knife was used in the first of these offences, the victim having been sitting on the ground at the time when the respondent attacked her with an iron bar. For this offence, she was placed on a 12 month Intensive Supervision Order. Her conviction for threats to cause detriment related to her having produced a long-bladed knife. This attracted a further 6 months Intensive Supervision Order.
20 In his sentencing remarks, the learned trial Judge paid particular attention to the fact that the offence involved the use of a knife. He accepted that the report of the psychologist spoke "fairly well" of the respondent and he recognised that it was at least possible that she may be subject to payback by the relatives of the deceased. His Honour expressed the view that she would benefit from supervision in the community and assistance in her rehabilitation. He further recognised that she would suffer considerable hardship if she were to be taken away from her own community and her own people. His Honour regarded the appropriate sentence as one which would see the respondent released on parole fairly quickly and he indicated that it should be imposed in such a way as to avoid, if possible, her transportation to Perth which would put her into an environment which would be totally out of place for her. On that basis, he imposed a sentence of 3 years and 6 months' imprisonment with a parole order to run from 31 October 1998, the date upon which she was taken into custody.
21 The Crown has appealed against this sentence on the ground that the learned sentencing Judge erred in that he:
(a) failed to sufficiently reflect the serious nature of the offence and, in particular, the circumstances in which the offence was committed, involving the use of a knife;
(b) failed to adequately reflect the need for personal and general deterrence, and the need for condign punishment for those who commit offences of violence;
(c) had undue regard for matters personal to the respondent; and
(d) imposed a penalty which was, in all the circumstances, so inadequate as to manifest error in the exercise of the sentencing discretion.
(Page 9)
22 The offence of manslaughter can encompass a wide range of circumstances. The offence itself carries a maximum penalty of 20 years, but there have been a number of instances in which a custodial sentence has not been imposed, resort being had instead to intensive supervision orders. Each case must be determined on its own facts. There is no distinct tariff for sentences for manslaughter - see R v S (No 2) (A Child) (1992) 7 WAR 434. It is clear that in this case, as the Crown contended, significant force must have been applied to cause the wound which resulted in the death of the deceased. The use of the knife is no doubt an aggravating factor but, on the other hand, there is no evidence of premeditation. Furthermore, there was an apparent absence of immediate remorse.
23 The principles applying to Crown appeals were restated in Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672. In that case, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, in their joint judgment, indicated that s 89 and s 98 of the Sentencing Act 1995 involved the making of discretionary judgments. They continued:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] 2 VR 520. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [House v The King (1936) 55 CLR 499]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
24 In R v Clarke [1996] 2 VR 520 at 522 Charles JA, with whom Winneke P and Hayne JA agreed, stated the relevant rules which apply to Crown appeals in five propositions, the first three of which were as follows:
"1. An appeal by the Crown should be brought only in 'the rare and exceptional case' [Everett v The Queen (1994) 181 CLR 295 at 299] to establish some point of principle. The reason is that such appeals 'represent a departure
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- from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy' [Malvaso v The Queen (1989) 168 CLR 227 at 234].
- 2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons [Griffiths v The Queen (1977) 137 CLR 293 at 310]; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski [R v Osenkowski (1982) 30 SASR 212] at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306).
3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact [R v Allpass (1993) 72 A Crim R 561 at 562 - 563]."
25 So far as the issue of Aboriginality of the respondent is concerned, the position was well explained by Brennan J in Neal v The Queen (1982) 149 CLR 305 at 326 where his Honour said:
"The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing
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- sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group."
26 In R v Fernando (1992) 76 A Crim R 58, Wood J, in the Supreme Court of New South Wales, summarised the position in a number of propositions as follows:
"(A) [This proposition was taken directly from the judgment of Brennan J in Neal's case].
(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within
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- Aboriginal communities, and the grave social consequences faced by those communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
- (F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."
27 Although, on the face of it, the sentence imposed by the learned sentencing Judge appears to be excessively lenient, the learned sentencing Judge has had the advantage which this Court has not had of observing the respondent. Having regard to the principles which apply to Crown appeals I have reached the conclusion that it would not be appropriate for this Court to interfere with his Honour's exercise of his sentencing discretion. I would therefore dismiss the appeal.
28 ANDERSON J: I have had the advantage of reading in draft the judgment of Kennedy ACJ. I agree that the appeal should be dismissed for the reasons given in that judgment.
(Page 13)
29 WHEELER J: For the reasons given by Kennedy J, which I have had the advantage of reading in draft form, I too would dismiss the appeal.
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