R v DJH
[1998] VSCA 108
•16 November 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 110 of 1998
THE QUEEN
v
"D.J.H."
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| JUDGES: | BROOKING, PHILLIPS and CHARLES, JJ.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 November 1998 |
| DATE OF JUDGMENT: | 16 November 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 108 |
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CRIMINAL LAW - Sentence - Murder - Execution of complainant by man charged with incest - 24 years with minimum of 19 - Not excessive - Life sentence appropriate - Life as appropriate sentence for wide variety of deliberate criminal killings.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.R. Flatman Q.C.(DPP) | P.C. Wood, Solicitor for |
| and Ms S. Pullen | Public Prosecutions | |
| For the Applicant | Mr P.F. Tehan, Q.C. | Victoria Legal Aid |
BROOKING, J.A.:
I shall not name the applicant, for one of the victims of his alleged sexual
predilections is still alive. The other is dead. He murdered her on 9 May 1997,
eleven months after he had, as a result of her complaints, been interviewed by police
about numerous - really I should say innumerable - sexual offences which she, his de
facto stepdaughter, said had been committed while she was a member of his
household between the ages of about nine and 25. Both the complainant and her
sister had made allegations to the police of sexual abuse by the applicant. The
complainant - as I shall continue to call the murder victim - had left home in January
1996. The applicant had denied all the allegations by both young women, saying
that no sexual activity had ever taken place. Between June 1996 and January 1997 he
had been charged with 40 offences - incest, rape, bestiality, gross indecency and
indecent assault, these charges relating both to the complainant and to her sister.
A contested committal was to begin on 22 May 1997. The applicant killed the complainant about a fortnight before that date. The killing was well premeditated. In September 1996 the applicant hired a private investigator to find the complainant. She claimed to have been subjected to much earlier violence at his hands, and many threats of violence, including threats to kill. She claimed - with good reason, as events proved - to be in fear for her life. The applicant's de facto wife told the police that she herself would never have disclosed the complainant's address to her husband because he could be very violent. As early as November 1996, after he was served with the hand-up brief, the applicant was trying to obtain .38 calibre ammunition. (He shot the victim with a .38 calibre pistol.) On 7 May 1997 the applicant hired a car, having first satisfied himself that it could outpace the complainant's own car. Having kept her place of employment under surveillance on that and the following day, on 9 May he lay in wait for her in his car and, overtaking it in his own, shot her in the head. Her car ran off the road and he walked over to her, put the pistol to her head and shot her twice more. Shortly after this he shot himself in the head in what was no doubt a genuine attempt at suicide, which resulted in an injury from which he has made a remarkable recovery.
The applicant pleaded guilty to the charge of murder as early as possible and on 30 April 1998 he was sentenced to 24 years' imprisonment with a non-parole period of 19 years. He was 52 when sentenced. A declaration was made concerning 356 days of pre-sentence detention.
His amended notice of application for leave to appeal against sentence in
form states six grounds, but largely by way of picking out certain matters in support
of the contention that the sentence is manifestly excessive. It is also said that the
non-parole period is too long in relation to the head sentence. The principal
submission is that this Court should reduce the non-parole period.
The account given by the complainant in her statements to the police strikes
me as uncommonly circumstantial and convincing. I cannot recall seeing a more
detailed version of events in a case of this kind. Her account was supported by DNA
testing which produced results consistent with the applicant's being the source of
seminal stains found on a number of items of her clothing. It was also supported by
her sister. Because the applicant has disposed of the one essential witness against
him, no jury will ever tell us whether he was guilty of the years of sexual abuse of
which she complained. But the nature of her allegations must be considered in
assessing the criminality of the applicant's conduct in killing her. For the question of
motivation is important in relation to culpability. To murder someone who has
made very serious charges against you but to do so for reasons unconnected with the
accusation is one thing; to murder the accuser because she has made those very
serious charges is another. The nature of the allegations made by the accuser cannot
be left out of account in considering what finding, if any, should be made in relation
to motivation. I do not wish to go into any more detail than is necessary with regard
to the complainant's allegations. In this Court, where we so often nowadays have to
deal with incest and other sexual offences against the young, bad cases are
commonplace and depravity all too familiar. But even to those accustomed to
dealing with depraved sexual offenders the present case, if the complainant was to
be believed, stands out as quite uncommonly bad. The complainant claimed to have
been subjected, over many years, to innumerable and varied forms of sexual abuse,
starting, as I have said, at the age of about nine, and bringing together in the one case
all the forms of abuse which, I regret to say, must be described as usual - including
of course vaginal, anal and oral intercourse - but with the addition of numerous acts
of intercourse with several dogs to which the complainant was forced to submit and
numerous other uncommonly depraved and deliberately degrading activities. In
recent years those who sexually abuse children and young persons and indeed
sexual offenders generally have received sentences which, not so very long ago,
would have been regarded as out of the question. This has, to a considerable extent,
been the result of legislative activity. The present case was, if the allegations were
made out, an outstandingly bad one, and notwithstanding his age the applicant
would, if convicted, inevitably have faced a very long term of imprisonment.
On the plea it was conceded by the applicant's counsel that part of the
motivation for the murder was the victim's complaints of sexual assaults. The judge
found that the primary motivation was the victim's sexual allegations against the
applicant. In my opinion the evidence made the conclusion inescapable that the
complainant was murdered because she had made these very serious allegations
against the applicant. The applicant's statement to his sister that he was "not going
to do 20 years because of her [his stepdaughter]" tells us something about what he
thought the consequences of conviction might be. He said to his de facto wife that
he knew he was going inside.
| 7 | On 22 March 1998, the day before he was to be arraigned on the charge of murder, the applicant was found unconscious in his cell, having the night before attempted suicide by injecting himself with heroin. When the plea was heard the following month, evidence was put before the judge on his behalf from a psychiatrist, Dr Walton, and a psychologist, Mr Healey. The judge found that at the time of the killing the applicant was suffering from severe depression. He had been treated by a general practitioner for depression from at least the time when the complainant left home. The judge found that the applicant had become much more depressed after he had been served with the hand-up brief in November 1996 and that his condition had worsened in April and May 1997 as the committal approached. It is clear that to a very considerable extent the applicant's condition by the time of the killing was attributable to the complainant's allegations and the resulting prosecution. |
| 8 | The applicant had one prior conviction, for dishonesty, which the judge rightly disregarded. He had a disadvantaged background, which his Honour summarised in his reasons for sentence but which I feel bound to say does not seem to me to be a matter to which great weight should be given in the circumstances of the present case. Neither the grounds of appeal nor Mr Tehan, who appeared for the applicant in this Court, placed any specific reliance on that matter. |
There is nothing in the material to suggest any true remorse, and so the judge
said.
Mr Tehan argued that the sentence was manifestly excessive having regard to the depression from which the applicant was suffering at the time of the offence and from which he was still suffering at the time of sentence, the fact that some part, at
| all events, of the sentence would be served in protective custody, the early plea of guilty, the lack of relevant prior convictions and the age of the applicant, an age which, Mr Tehan said, meant that the applicant would spend most, if not all, of his remaining life in custody. The reasons for sentence show that the judge took all these things into account. It is said that the judge gave undue weight to general deterrence. There being nothing in the reasons for sentence to support this view, the submission must depend on the impression which the Court forms of the sentence in the light of relevant matters. The same may be said of the things to which the judge is said to have given not too much but too little weight: since the judge mentioned them all and plainly took them into account, the real question becomes whether the sentence strikes the Court as manifestly excessive. | |
| 11 | I shall say a little about two or three of the matters specifically relied on. As regards the applicant's condition of depression at the time of the killing, it must be borne in mind that this was in large part due to the allegations and charges that had been made and laid against him. He had been brought to the state of mind that he "was not going to do 20 years because of her". It is unrealistic not to accept that the pending proceedings against him were the main external factor affecting his emotions. And the judge so found. As regards the applicant's present state, that must to a very considerable extent be the product of his own crime - by which I mean of course the killing - and the events which led up to that crime. As regards the plea of guilty, while the strength of the Crown case does not deprive the plea of relevance, it is none the less a material consideration. And, although the community has been spared the cost of a trial, and witnesses have been spared the pain often associated with the need to give evidence, the plea of guilty to this charge of murder cannot be compared in its consequences with the sparing of pain by such a plea in a case of incest. One comes back to the fact that the applicant's method of solving the problem of that criminal litigation was to shoot the one essential witness against him. (Of course I do not overlook that he then proceeded to shoot himself.) Still, the applicant is entitled to appropriate credit for his plea; but I myself would regard it as a matter of small weight. |
This was a dreadful crime. I am far from persuaded that the sentence passed was manifestly excessive. The head sentence was of 24 years. On the hearing of the plea the Crown suggested that consideration should be given to life imprisonment,
coupled with the fixing of a minimum term. I can perhaps best express the strength
of my view that the sentence actually passed was not manifestly excessive by saying
that, had I been the sentencing judge, I would have passed a sentence of life
imprisonment. It is not to be thought that a plea of guilty will necessarily and in all
circumstances save a murderer from life imprisonment. Of the correctness of that
proposition I have no doubt whatever. I will add that I also have no doubt that a
plea of guilty will not necessarily and in all circumstances save a murderer from a
sentence of life imprisonment without possibility of parole.
The sentence of life imprisonment, even if a non-parole period is fixed, is a
dreadful one and one which will be passed only after the most anxious
consideration. I have long been of the view, however, that life sentences for murder
in this State have become more rare than they should be, having regard to the
number of dreadful murders which come before the court. Very early in the days of
the power conferred upon sentencing judges to pass finite sentences for murder the
new legislation was considered in a most authoritative decision, that of the Court of
Criminal Appeal in R. v. Dumas [1988] V.R. 65. I describe the decision as most
authoritative because the draft judgment was, some time before its delivery,
circulated to all members of the Court to give them an opportunity of making
observations upon it. The same course was adopted with the draft judgment in R. v.
Stone [1988] V.R. 141, which was delivered on the same day. This is the only
occasion of which I am aware in the history of the Court where such a course has
been taken. In Dumas, at 71, the Court said this:
"The crime of murder is a crime of the utmost gravity. In our opinion,
it does not admit of categorizing each offence into degrees of gravity.
While the new legislation will permit courts to sentence persons
convicted of murder to terms of years and even to fix relatively low
minimum terms in appropriate cases having regard to various facts
which may be taken into account in mitigation of the penalty,
nevertheless, the sentence of life imprisonment will still be
appropriate for a wide variety of deliberate criminal killings."
It seems to me, if I may say so, that on occasions sentencing judges have not
given sufficient weight to the observation that the sentence of life imprisonment will
still be appropriate for a wide variety of deliberate criminal killings. Of course the
Court of Criminal Appeal went on immediately to observe that the exercise of the
power to fix a minimum term was a means whereby an indeterminate sentence
might be converted into a finite one. The power to fix a non-parole period has more
recently been considered by this Court in R. v. Coulston [1997] 2 V.R. 446 and R. v.
Lowe [1997] 2 V.R. 465.
So far as the present case is concerned, reference to the Australian Life Tables 1990-92 prepared by the Office of the Australian Government Actuary (which reference counsel appearing before us accepted was permissible) shows, as a mere matter of statistics, the expectation of life of a 52-year-old male to be 25.71 years.
The Court will in general be more reluctant to pass a sentence of life
imprisonment on a young offender, for the obvious reason that, the younger the offender, the more severe that sentence will, speaking generally, be. I venture to repeat what was said by this Court in Lowe at 486:
"The younger the offender, the more severe a sentence of life
imprisonment will in general be, for the obvious reason that in the
ordinary course of events the length of the term of imprisonment to be
served depends upon the age of the offender. Accordingly it must be
and always has been recognised that in the determination of whether a
sentence of life imprisonment is appropriate the offender's age is a
relevant and indeed important consideration. It has similarly been
recognised that in the determination of whether it is inappropriate to
fix a non-parole period for a person sentenced to life imprisonment the
offender's age is relevant and important ... ."
The Court went on to observe in Lowe, at 490, that the age of the offender was
relevant not only to the determination of whether he or she should be denied the possibility of parole but also to the determination of the length of the non-parole period where one was being set.
Mr Tehan argued that there was insufficient disparity between the head
sentence and the non-parole period in the present case. He relied on what he
suggested was the "usual" proportion borne by the non-parole period to the head
sentence, and he placed much emphasis on the plea of guilty. He rightly pointed out
that the applicant's attempt at suicide immediately after the killing showed that this
was not to be equated with the killing of a witness by one who hoped to escape
conviction for the killing. Notwithstanding Mr Tehan's submission, I am, having
regard to all the circumstances of this case, not persuaded by his argument.
I would allow this sentence to stand.
PHILLIPS, J.A.:
| 20 | I agree that this application should be dismissed, and for the reasons given by the presiding judge. I express no opinion on what sentence I would have passed had I been the sentencing judge. It is sufficient that I am quite clear that the sentence imposed was not manifestly excessive and, despite the arguments of counsel, that the exercise of the sentencing discretion did not miscarry. In particular, I agree that there is no basis for disturbing the fixing of the non-parole period. |
CHARLES, J.A.:
I agree with all that Brooking, J.A. has said. I would add only that, in my
view, not only was the sentence imposed not excessive, it was a merciful one. Had I been the sentencing judge, I, like Brooking, J.A., would also have imposed a sentence of life imprisonment. This murder was long premeditated and carefully planned, in response to the victim's very serious allegations against the applicant and to avoid
having to face those allegations and due process of law. As the Director of Public
Prosecutions has submitted, the applicant's crime strikes at the very heart of the
criminal justice system.
The application should be dismissed.
BROOKING, J.A.:
The order of the Court is that the application is dismissed.
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