Criminal Law – Sentencing – Elderly offender in poor health – Crushing sentence – Whether sentence is “crushing” is separate sentencing error – Head sentence 15 years’ imprisonment, minimum term 11½ years – Whether minimum term crushing – Sentence not manifestly excessive.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J.D. McArdle, Q.C. with Mrs C.M. Quin
Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant
Mr C.B. Boyce
Victoria Legal Aid
CHERNOV, J.A.:
On 9 May 2002 the applicant, Millicent May Cumberbatch, was found guilty by a jury of murdering her estranged husband, Stanley Cumberbatch, on or about 5 September 2000. At the time of his death the deceased was aged 73 years and the applicant, 72 years. The Crown called a large number of witnesses at the applicant's trial but she stood mute and called only one witness. After hearing a plea in mitigation made on her behalf on 17 May 2002 the judge sentenced the applicant, on 21 June 2002, to be imprisoned for 15 years and fixed a minimum term of 11½ years before she would be eligible for parole. By notice dated 4 July 2002 the applicant seeks leave to appeal against the sentence. The stated ground in the notice is that the sentence is manifestly excessive. At the outset of the hearing before us the applicant's counsel sought leave to amend the grounds by adding the claim that the sentence is crushing. The Crown did not oppose this application, notice of which had been given to it a week or so ago, and in all the circumstances we gave the applicant leave so to amend the grounds of the application.
Before considering the respective submissions of the parties, it is necessary to set out briefly the circumstances of the offender and of the offending and the context in which the applicant was sentenced. The deceased was killed whilst sleeping in his bed at his home in Kalorama. There were no injuries suggesting that he had struggled prior to his death, indicating that he was asleep when he was attacked. He died of severe head wounds caused by an indeterminate number of blows to the head with a blunt, elongated object. Eight discrete injuries were inflicted to the head which were described in evidence. The deceased was also stabbed numerous times in his back, the back of his neck and the side of his head. Forensic analysis of the body found that these stab wounds were probably inflicted after the deceased had died. No murder weapon was found or identified.
The applicant and the deceased were born in England, where they were married in 1951 when she was 23 years of age. Initially they lived with…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Cumberbatch [2004] VSCA 37
Case
[2004] VSCA 37
Decision Date
CaseChat Overview and Summary
The defendant, Cumberbatch, was convicted and sentenced to imprisonment for a serious criminal offence. Cumberbatch, who was elderly and in poor health, appealed against the severity of the sentence imposed by the lower court. The appeal was heard in the higher court, which was tasked with determining whether the sentence was disproportionately severe, particularly given the defendant's age and health.
The central issue before the court was whether the sentence imposed was crushing, and if so, whether this constituted a separate sentencing error. The court considered whether the overall sentence of 15 years' imprisonment, with a minimum term of 11½ years, was manifestly excessive. The court was also required to determine if the minimum term was itself crushing, and if this warranted any adjustment to the sentence.
The court held that while the sentence was severe, it was not crushing, and therefore did not constitute a separate sentencing error. The overall sentence of 15 years, with a minimum term of 11½ years, was not manifestly excessive, taking into account the nature and circumstances of the offence and the defendant's culpability. The court found that the sentence reflected the seriousness of the crime and was proportionate to the defendant's culpability. The court was satisfied that the lower court had properly considered the defendant's age and health in imposing the sentence.
The appeal was dismissed, and the original sentence was upheld. The court's reasoning and decision confirmed that the sentence was not disproportionately severe and did not constitute a separate sentencing error. The original sentence of 15 years' imprisonment, with a minimum term of 11½ years, remained in place.