R v Gordon
[2000] WASCA 401
•15 DECEMBER 2000
R -v- GORDON [2000] WASCA 401
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 401 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:272/1999 | 12 MAY 2000 | |
| Coram: | KENNEDY J ANDERSON J WHEELER J | 15/12/00 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE QUEEN NEIL GORDON |
Catchwords: | Criminal law and procedure Sentencing Manslaughter Aboriginal offender Alcohol abuse Killing of de facto wife Record of violence Crown appeal Sentence of 7 years' imprisonment without parole not set aside as inadequate |
Legislation: | Criminal Code (WA), s 287 |
Case References: | Everett v R (1994) 181 CLR 295 Griffiths (1977) 137 CLR 293 Lowndes v The Queen (1999) 195 CLR 665 Parfitt v The Queen, unreported; CCA SCt of WA; Library No 960140; 21 March 1996 R v Allpass (1993) 72 A Crim R 561 R v Clarke [1996] 2 VR 520 R v Osenkowski (1982) 30 SASR 212 Veen v The Queen (No 2) (1988) 164 CLR 465 Wicks v The Queen (1990) 3 WAR 372 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 508 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 Lambadgee v The Queen, unreported; CCA SCt of WA; Library No 8655; 19 December 1990 Minhaj v The Queen [2000] WASCA 52 Neal v The Queen (1982) 149 CLR 305 Punch v The Queen, unreported; CCA SCt of WA; Library No 930307; 31 May 1993 R v Fernando (1992) 76 A Crim R 58 R v Grein [1989] WAR 178 R v Iginiwuni, unreported; CCA SCt of NT; No 6 of 1975; 12 March 1975 R v Juli (1990) 50 A Crim R 31 R v Lupoi v The Queen (1984) 15 A Crim R 183 R v Peterson (1983) 11 A Crim R 164 R v S (No 2) (A Child) (1992) 7 WAR 434 R v Smith, unreported; CCA SCt of WA; Library No 980066; 17 February 1998 R v Woodley (1994) 76 A Crim R 302 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- GORDON [2000] WASCA 401 CORAM : KENNEDY J
- ANDERSON J
WHEELER J
- Appellant
AND
NEIL GORDON
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Manslaughter - Aboriginal offender - Alcohol abuse - Killing of de facto wife - Record of violence - Crown appeal - Sentence of 7 years' imprisonment without parole not set aside as inadequate
Legislation:
Criminal Code (WA), s 287
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 Inc
Case(s) referred to in judgment(s):
Everett v R (1994) 181 CLR 295
Griffiths (1977) 137 CLR 293
Lowndes v The Queen (1999) 195 CLR 665
Parfitt v The Queen, unreported; CCA SCt of WA; Library No 960140; 21 March 1996
R v Allpass (1993) 72 A Crim R 561
R v Clarke [1996] 2 VR 520
R v Osenkowski (1982) 30 SASR 212
Veen v The Queen (No 2) (1988) 164 CLR 465
Wicks v The Queen (1990) 3 WAR 372
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 508
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
(Page 3)
Lambadgee v The Queen, unreported; CCA SCt of WA; Library No 8655; 19 December 1990
Minhaj v The Queen [2000] WASCA 52
Neal v The Queen (1982) 149 CLR 305
Punch v The Queen, unreported; CCA SCt of WA; Library No 930307; 31 May 1993
R v Fernando (1992) 76 A Crim R 58
R v Grein [1989] WAR 178
R v Iginiwuni, unreported; CCA SCt of NT; No 6 of 1975; 12 March 1975
R v Juli (1990) 50 A Crim R 31
R v Lupoi v The Queen (1984) 15 A Crim R 183
R v Peterson (1983) 11 A Crim R 164
R v S (No 2) (A Child) (1992) 7 WAR 434
R v Smith, unreported; CCA SCt of WA; Library No 980066; 17 February 1998
R v Woodley (1994) 76 A Crim R 302
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1 KENNEDY J: The respondent was presented in the Supreme Court at Broome on 9 December 1999 on an indictment charging him with having, on or about 21 February 1999, at Halls Creek, murdered his de facto wife. On the application of the Crown, the charge was amended to one of unlawful killing, to which charge the respondent then pleaded guilty.
2 The facts as outlined by the learned sentencing Judge were that the respondent had consumed a great deal of alcohol, leading up to the events which resulted in the death of his de facto wife ("the deceased"). He and the deceased were at home on the evening of 20 February 1999, when a domestic argument erupted. The respondent became extremely violent and inflicted multiple injuries to the deceased's upper body, consistent with a protracted and brutal flogging. His Honour indicated that it was "at least possible and probably likely" that a piece of angle iron which was recovered by the police was used by the respondent in his attack upon the deceased. There was no indication that the deceased had endeavoured to defend herself against the attack made upon her by the respondent. The injuries sustained by the deceased resulted in her ultimately bleeding to death internally, the cause of death being identified as multiple soft tissue injuries in association with multiple rib fractures. The evidence of the forensic pathologist was that the deceased could have taken up to six hours to die after the injuries were inflicted upon her.
3 Although the respondent tried unsuccessfully to revive the deceased, he failed to seek medical assistance for her. Such assistance could well have resulted in the saving of her life. Apparently, after her death, he undressed, showered and reclothed the deceased, having first washed her clothes. He later sought to explain to the police that she had taken a shower because she had vomited after he had given her some water. When he realised that the deceased was dead, the respondent severely mutilated his arms as an act of contrition.
4 Shortly after noon on 21 February 1999, the respondent contacted the police and told them that the deceased had died. He requested them to come to his house and they did so. He told one of the constables that the deceased had died from a heart attack, and that she had complained of a sore chest all the previous night. He said she had not wanted to go to hospital. He admitted only to having hit the deceased on her face a couple of times. He did not admit to the full extent of his attack upon the deceased and, it would seem, he even suggested that another person could have caused or contributed to her death.
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5 The respondent was aged 45 at the time of the offence. He has a history of offending, dating back to 1971, since when he has had convictions for manslaughter, two aggravated assaults, four common assaults, six assaults occasioning bodily harm, one offence of assaulting a public officer, two offences of resisting arrest and three offences of escaping legal custody. He has a long list of convictions for other lesser offences. His offences have generally been directly related to alcohol abuse.
6 The respondent's previous offence of manslaughter was committed in 1979. For that offence, the respondent was sentenced to a term of 3 years' imprisonment with eligibility for parole. This offence had been committed in alarmingly similar circumstances to the present offence, having been an attack upon his then de facto wife at a time when he was intoxicated. It involved the infliction of over 40 lacerations or abrasions to the victim's head and neck, and to her left flank. As his Honour correctly pointed out, however, the fact that the respondent was involved in a previous manslaughter did not mean that his sentence should be increased on that account, but only that mitigation had little role to play in the matter.
7 His Honour accepted that the respondent fell to be sentenced on the basis that this was a sustained beating over a long period of time with many injuries being inflicted upon the deceased. The sentence imposed, his Honour said, had to act as a deterrent in order to protect Aboriginal women who are otherwise powerless to protect themselves against such attacks. He noted that the respondent wanted, and was prepared, to face tribal punishment for what he had done. There is a strong possibility that he will face severe tribal punishment on his release from custody.
8 At the time of the present offence, the respondent was on parole for a number of other offences for which he had been sentenced to 4 years and 4 months' imprisonment. One of those offences had been an assault occasioning bodily harm to the deceased.
9 His Honour then proceeded to sentence the respondent to a term of 7 years' imprisonment, to be served cumulatively upon the respondent's existing sentence, under which, on the advice of the Community Corrections Service, he remained liable to serve 500 days in order to satisfy the cancelled parole order and the remission given on the original sentence. His Honour declined to make an order for parole, but pointed out that there remained at least the possibility of his release on parole, having regard to the period already "owed" to the Parole Board. The
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- sentence was dated back to 2 July 1999, and pursuant to s 8 of the Sentence Administration Act 1995, the prior sentence was suspended from that date until the later sentence was served.
10 The Crown has appealed against the sentence imposed by his Honour on the ground that it was, in all the circumstances, so inadequate as to manifest error in the exercise of the sentencing discretion in that it failed properly to reflect
(a) The serious nature of the offence, namely:
(i) the fact that the deceased woman would have taken a long time to die and medical attention could have saved her life;
(ii) the fact that the respondent tried to cover up his behaviour rather than to save the deceased woman's life;
(iii) the fact that the respondent was on parole at the time of this offence for offences which included violence against the same woman;
(iv) the fact that the cause of death, being multiple soft tissue injuries and fractured ribs leading to death by a blood loss due to internal bleeding meant that the deceased woman had sustained a prolonged beating exhibiting an extremely high level of domestic violence.
(b) The need for general and specific deterrence and in particular:
(i) the need to deter others from vicious and drunken violence against Aboriginal women;
(ii) the need to send a correct message to the community about the treatment of Aboriginal women victims in the criminal justice system.
(c) The need for punishment in this case.
11 It cannot, I think, be said that his Honour's sentencing remarks reveal any error on his part. All the significant factors were referred to by his Honour in the course of those remarks.
12 In particular, his Honour said:
"I also accept that you did not intend to do grievous bodily harm to the deceased. You are sentenced on the basis that this was a sustained beating over a long period of time with many injuries being inflicted upon the deceased. Importantly, as well, the sentence imposed upon you must be so structured as to act as a
(Page 7)
- deterrent and for the law to act in relation to people such as you and others to protect Aboriginal women who are otherwise powerless to protect such attacks upon themselves. They are otherwise unable to protect themselves, and white man's law has a singularly important role to play in protecting Aboriginal women, and that role is becoming more and more important in the modern world."
13 In the circumstances, the only question in this appeal is whether the sentence can of itself be characterised as being so inadequate as to justify the interference of this Court.
14 In Lowndes v The Queen (1999) 195 CLR 665, at 671 - 672, the High Court said:
"The principles according to which an appellate court may interfere with … 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 a 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."
15 In R v Allpass (1993) 72 A Crim R 561, at 562, the Court of Criminal Appeal in New South Wales (Gleeson CJ, Hunt CJ at CL and McInerney J) stated in a summary form a number of principles applicable in cases of this nature. They said:
"1. A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence if it considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact.
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- Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance.
- 2. Crown appeals against sentence are relatively infrequent. The High Court has said that such appeals "should be a rarity": Griffiths (1977) 137 CLR 293 at 310; Malvaso(1989) 168 CLR 227 at 234; 43 A Crim R 451 at 456. One reason for this is the element of double jeopardy that is involved in such appeals. Rules designed to safeguard against double jeopardy are deeply embedded in our system of criminal justice: eg Dodd (1991) 56 A Crim R 451; Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502. Thus, for example, there is usually no right of a Crown appeal against an acquittal at a trial.
3. ….
4 ….
5. An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown at the original sentencing proceedings may be a matter of significance."
16 In R v Clarke [1996] 2 VR 520, Charles JA, with whom the other members of the court, Winneke P and Hayne JA, agreed, said at 522:
"The relevant rules may be stated in the following propositions.
1. An appeal by the Crown should be brought only in "the rare and exceptional case (Everett v R (1994) 181 CLR 295 at 299) to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the
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- 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 R (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 v R (1994) 181 CLR 295 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 R (1977) 137 CLR 293 at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crimes; (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 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. ….
4. ….
5. …. "
17 It could very well be that another Judge would have imposed a higher sentence upon the respondent. The applicable principles to which I have referred, however, do not, in my opinion, warrant this Court's interfering in the sentence which his Honour imposed, particularly bearing in mind the need for this Court, in the event of its allowing this appeal, to impose a lesser sentence than might otherwise be justified having regard to the element of double jeopardy.
18 I would dismiss the appeal.
19 ANDERSON J: I have had the advantage of reading in draft the reasons of Kennedy and Wheeler JJ. For the reasons given by Wheeler J, the sentence in this case was very lenient. It is not a sentence which I would
(Page 10)
- have myself arrived at on a consideration of all of the material before the learned sentencing Judge. The nature and circumstances of the offence and the absence of any mitigatory features except for the plea of guilty, called for a sentence longer than 7 years, in my opinion. However, all of the relevant considerations appear to have been taken into account by the learned sentencing Judge and the sentence itself is not so manifestly inadequate as to authorise this Court to interfere with the exercise of the sentencing discretion.
20 I agree with Kennedy J that the appeal should be dismissed.
21 WHEELER J: The Crown appeals in relation to the sentence imposed on the respondent in respect of the manslaughter of his de facto wife. He was originally presented in the Supreme Court on an indictment charging him with having murdered her but on the application of the Crown the charge was on 9 December 1999 amended to one of unlawful killing, and he then entered a plea of guilty. The relevant events took place on or about 21 February 1999 at Halls Creek. I set out the greater part of his Honour's sentencing remarks, omitting certain references to the transcript of the respondent's sentencing on an earlier occasion and certain explanatory remarks addressed to the respondent about the sentence.
" … It appears that you had been drinking with a man who provided money for the alcohol. You had been drinking on and off throughout the day and you'd had a lot of alcohol to drink.
You and the deceased were at home in the evening when a domestic argument developed. You inflicted many injuries to the deceased consistent with a protracted and brutal flogging which injured her entire upper body. The injuries have been outlined by Ms Vicker and they do not need to be repeated here. They were many and they were extensive. Early on 21 February you sought aspirin for your wife, and in my opinion you undressed, showered and reclothed her. You washed her clothes. When you realised that she was dead you self-mutilated your arms as an act of contrition.
You also tried unsuccessfully to revive your wife and did not seek medical assistance for her. Your wife took about 6 hours to die, on the medical evidence before me, and medical assistance for her during that time may indeed have saved her life. When you did seek help you told the police that she died of a heart attack. You were interviewed by police on
(Page 11)
- 21 February 1999 at around about 4pm in the afternoon but did not admit the full extent of your attack upon the deceased. There was also a suggestion made by you that another person could have caused or contributed to your wife's death. That was not so.
It is at least possible and probably likely that a piece of angle iron later recovered by the police was used in the attack upon your wife. In addition to your self-mutilation I'm told that you face severe tribal punishment. I note that you are on parole in relation to offences committed in 1996 when you were sentenced to a total of 4 years and 4 months' imprisonment in the District Court with a parole order for a series of offences. I am told that you have some 500 days' parole outstanding in relation to that term.
I note that this is the second time you have unlawfully killed a de facto wife. The first was in 1979 when Jones J sentenced you to a term of 3 years' imprisonment with parole. …
… The fact that you were involved in a previous manslaughter does not mean that the sentence is to be increased, only that the mitigation that was then available to you by reason of it being the first offence of that description is no longer appropriate. I note that you've always been prepared to plead guilty to manslaughter, and I've allowed for that fact. I also note that you want and you are prepared to face tribal punishment for what you have done.
I also accept that you did not intend to do grievous bodily harm to the deceased. You are sentenced on the basis that this was a sustained beating over a long period of time with many injuries being inflicted upon the deceased. Importantly, as well, the sentence imposed upon you must be so structured as to act as a deterrent and for the law to act in relation to people such as you and others to protect Aboriginal women who are otherwise powerless to protect such attacks upon themselves. They are otherwise unable to protect themselves, and white man's law has a singularly important role to play in protecting Aboriginal women, and that role is becoming more and more important in the modern world."
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22 There are a number of matters which should be mentioned in relation to these remarks; two small matters by way of correction and others by way of amplification. By way of correction, it appears to me that the conclusion that the respondent sought aspirin for his wife was an assumption of his Honour's not supported by any evidence or indeed any assertion on behalf of the respondent. It should be noted that by the time the aspirin was sought the deceased would not have been in a state in which she was capable of requesting any treatment while the respondent, who had been drinking for a considerable period, may well have required aspirin himself. The other matter relates to his Honour's assertion that he was told the respondent faced "severe" tribal punishment. While it may not be necessary to go into great detail in every case, there is in this case no evidence and not even any assertion on behalf of the respondent as to what the tribal punishment would consist of.
23 By way of amplification, in relation to the reference to the development of a "domestic argument", it should be noted that while the respondent had been drinking for a long period, the post-mortem examination suggested that the deceased had not been drinking at all, and the injuries inflicted on her did not appear to have included anything of significance in the way of defensive injuries. It should also be noted that the respondent was accepted to be a large man, while the deceased weighed approximately 54 kilograms. Having regard to those facts, it would appear that any argument which developed must have been largely of the respondent's making, and that the suggestion of a dispute on an equal footing which is often implicit in the notion of "argument" did not apply in this case.
24 Finally, in relation to the injuries sustained by the deceased, it is necessary for the purposes of this appeal to set them out in some detail. By doing so I do not intend to suggest that his Honour was unaware of them. They had been outlined to him in detail only the day prior to sentencing. There were at least 20 observable lacerations and abrasions to the head and neck area, 15 or more lacerations or abrasions to the back, at least 20 lacerations and abrasions on the left flank area and left side of the chest and on the chest and abdomen area 30 lacerations, bruises or abrasions at least. There were fewer injuries to the arms and legs. The total appears to be in the vicinity of 100 lacerations, bruises or abrasions. The evidence of the forensic pathologist at a preliminary hearing made it clear that the reason for the difficulty in counting was that some overlapped with others and that indeed the post mortem had revealed that some blows had been inflicted on top of others with the result that the
(Page 13)
- flesh under the skin had been pulverised. Some of the injuries appeared to have been inflicted with an object, and were consistent with a piece of angle iron which the police located after a search of the respondent's house on the instructions of the forensic pathologist. Although there appeared to be somewhat more significant injuries to the head and face, none of the injuries would have been likely on its own to have caused death. The cause of death was internal bleeding and shock resulting from multiple fractured ribs, and extensive subcutaneous bruising. It is immediately apparent that not only would the deceased have taken a considerable time to die, as his Honour noted, but also that the attack must have been carried out over a significant period of time.
25 The submissions made to his Honour, together with his remarks, suggest that it was largely common cause that the most appropriate view to be taken of the circumstances was that they revealed a prolonged and serious attack in relation to which, because of the respondent's very significant intoxication, he may not have been capable of appreciating that the injuries he was inflicting were likely to be such as to cause death or even grievous bodily harm.
26 The Crown does not suggest that his Honour erred in anything which he either said or omitted to say in sentencing the respondent. All the significant factors appear to have been taken into account by him. The sole ground of appeal is really that a sentence of 7 years imprisonment without eligibility for parole is so inadequate as to necessarily disclose error. Such a submission must be approached with caution. It is well recognised that a Court of Criminal Appeal may not substitute its own opinion for that of a sentencing judge merely because the appellate court would have exercised its discretion in a manner different from that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665. It is my view that notwithstanding the high barrier set by that test, the Crown has established in this case that the sentence is so inadequate as to manifest error. I attempt to explain my reasons for reaching that conclusion as follows.
27 First, it is to be appreciated that the maximum penalty for manslaughter is imprisonment for 20 years: s 287 Criminal Code. The maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Veen v The Queen (No 2) (1988) 164 CLR 465. A case which is not in the category of worst cases but which is nevertheless very high on the scale of criminality in relation to manslaughter will attract a lesser sentence, but a sentence of approximately 15 years imprisonment is not
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- unreasonable, although there is of course no tariff for sentences for manslaughter: Wicks v The Queen (1990) 3 WAR 372. Wicks also establishes, as one would expect, that the level of violence involved is very relevant to criminal culpability even where there is no intention to kill. A discount in the range of 25 per cent to 33 per cent for a plea of guilty at the earliest opportunity cannot be said to be appealably wrong: Parfitt v The Queen, unreported; CCA SCt of WA; Library No 960140; 21 March 1996. However, the particular discount to be fixed in any individual case for a plea of guilty is a matter of discretion, and there may be occasions on which a plea which is not considered to reflect any real remorse will attract a discount somewhat smaller than might otherwise be given.
28 Pausing there, a prolonged attack over a period of time resulting in at least 100 injuries inflicted upon a smaller person who was making no apparent attempt to defend herself, the only explanation being that in a drunken frenzy the respondent may not have realised that the injuries were likely to have the effect that they did, may well fall within the worst category of cases. It is difficult to imagine how a case of manslaughter - in which, leaving aside cases of provocation, there is necessarily no intent to kill or cause grievous bodily harm - could be worse. Even if it were not within the worst category of case, then it would at least be very high in the scale of criminality, so that it is difficult to see a starting point of under 15 years imprisonment. If full credit is given for the plea of guilty, and the assumption made that it reflects some remorse, that sentence could be discounted to one of 10 years imprisonment.
29 It is often appropriate to reduce a sentence somewhat to reflect the fact that an offender "owes" the Parole Board outstanding days, where an offence was committed while on parole. This is a reflection of the "totality" principle, and whether or not there should be some adjustment will depend on the circumstances of each case. His Honour did not expressly reduce the sentence to reflect this factor, although he did note the outstanding days in his sentencing remarks. Assuming for the present that some adjustment should be made in this case, then a sentence of 9 years imprisonment might be justifiable, although it would reflect a generous discount. I would not myself have reduced the sentence so far. A reduction, from a starting point of 16 years, to 11 years, would appear to me to be more appropriate. However, in order to determine whether his Honour erred, the question is what sentence could properly have been imposed, rather than what sentence an appellate judge would have thought preferable.
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30 It is then, of course, necessary to turn to circumstances of mitigation, and in this case there were none. Any remorse which this particular respondent may have felt was already more than adequately dealt with in the discount for the plea of guilty. Further, the indications of remorse were slight, while there were a number of significant indications of lack of remorse. The respondent lied to police about the events which had occurred. He did not report the deceased's death until some considerable time after it appears to have occurred. His undressing, showering and reclothing her may be seen as in part an ill directed attempt to revive her, but when seen together with the respondent's washing of her clothes, it can be appreciated that there was at least a substantial element of desire to cover up what had occurred. Most importantly, the respondent had beaten a de facto wife to death in not dissimilar circumstances on an earlier occasion. In what must have been the full knowledge of the fact that a beating by him was likely to have that result, and in a situation where he had sobered enough at least to be capable of undressing, showering, reclothing his wife and going to the trouble of beginning to wash her clothes, he refrained from seeking medical assistance for her for many hours. That conduct is not consistent with a significant degree of remorse.
31 The respondents record for offences of violence was a very serious one and this offence was committed, as his Honour noted, while he was on parole in relation to a term of imprisonment, one component of the term being a sentence for assault occasioning bodily harm upon the deceased woman. The report of the Senior Community Corrections Officer which his Honour had before him reveals a number of breaches of parole and failure to comply with the terms of community release orders. The officer noted that the respondent has had the benefit of several programmes whilst in prison devised particularly for Aboriginal offenders, without any change in his behaviour.
32 The respondent was a mature man of 45 living in a stable Aboriginal community. It was a dry community which he apparently left frequently in order to be able to consume alcohol. The submissions made on his behalf at sentencing suggested that he had support available to him from members of his family, and there was nothing in the submissions made which revealed any particular social deprivation or disadvantage. He was not therefore entitled to the benefit of those principles which deal with youthful offenders, nor did there appear to be the mitigating factors often present in relation to Aboriginal offenders who have grown up in circumstances of severe deprivation and difficulty. Nor, having regard to the extensive criminal history of the respondent and his imprisonment on
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- other occasions, could it be said that imprisonment would bear particularly harshly upon him as an environment which was totally foreign to him.
33 Applying the principles to which I have already referred and taking the view most generous to this respondent, I am unable to see how a sentence of 7 years imprisonment could have been arrived at. It is, of course, always necessary to consider also the exercise of mercy. In R v Osenkowski (1982) 30 SASR 212 at 212-34, it was said that there must always be a place for the exercise of mercy where a judge's sympathies are "reasonably excited by the circumstances of the case". It was said that there must always be a place for the leniency which has traditionally been extended even to offenders with bad records "when the judge forms a view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform". However, in this case there is nothing in the materials before us or which were before his Honour which suggest that there is anything in the circumstances of the case to excite sympathy for the respondent. As his Honour recognised in determining that the respondent should not be made eligible for parole, the likelihood of reform was negligible. This was not a case in which the sentencing judge had had the advantage of seeing a trial, and of forming an impression of either the offender or the other participants which, although difficult to articulate, might have led to a more lenient sentence. Nor did his Honour suggest in his sentencing remarks that he was aware that he was taking a merciful view.
34 Finally, it is necessary to consider whether, notwithstanding that I am of the view that his Honour must have erred in arriving at the sentence which he reached, the appeal should be allowed. Crown appeals are exceptional and appropriate for particular and limited purposes: Everett v R (1994) 181 CLR 295. It has been said that appeals by the Crown "should be a rarity": Griffiths (1977) 137 CLR 293 at 310.
35 In this case, the offence is one of the most serious known to the law. The maintenance of adequate standards of punishment for a crime involving the taking of human life is an important consideration. While the role of the criminal law in deterring the commission of violent acts is problematic, and particularly so in relation to Aboriginal communities, it is important to indicate very clearly that drunken violence against Aboriginal women is viewed very seriously: see, for example, "Domestic Violence Amongst Aborigines" by M Tonkinson in "Break the Silence" report of the task force on domestic violence to the West Australian Government January 1986 and Bolger, Aboriginal Women and Violence,
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- Australian National University, North Australia Research Unit 1991. It is a principle of such significance that, in my view, the court should reinforce it in this case.
36 For the reasons which I have outlined, I would allow this appeal and substitute in lieu a sentence of 9 years' imprisonment without eligibility for parole.
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