R v J No. SCCRM-98-42 Judgment No. S6656
[1998] SASC 6656
•17 June 1998
R v J
Court of Criminal Appeal: Prior, Olsson, Williams JJ
The Director of Public Prosecutions sought leave to appeal against a sentence imposed by a judge of this Court. On 13 May 1998 leave to appeal was granted and the appeal allowed. The court then substituted, for the non-parole period of ten years and nine months fixed by the sentencing judge, a non-parole period of fourteen years and nine months, saying that the non-parole period imposed was manifestly inadequate for this particular crime. The court saw it as very serious, if not one of the worst imaginable types of murder .
The court indicated that it would give its reasons at a later date. This we now proceed to do.
The respondent pleaded guilty to the crime of murder. A mandatory sentence of life imprisonment was imposed, with a non-parole period of ten years and nine months fixed from the date of the sentencing judge’s sentencing remarks. In fixing that period, the sentencing judge had regard to a period of fifteen months spent in custody. He also said that but for the respondent’s plea of guilty he would have fixed a non-parole period of sixteen years.
The crime was committed on 16 November 1996, when the respondent was seventeen years and seven months of age. The victim was a medical practitioner, Dr Goh. The respondent had been playing computer games with three other young men in a house at Elizabeth North. In the early hours of 16 November, the respondent decided to call the deceased to the house for the purpose of robbing him of drugs or money. He had made a house call there on an earlier occasion. The doctor had come in a four-wheel drive vehicle that the respondent found attractive. The respondent intended not just to rob the doctor of drugs and money but to steal his vehicle. The doctor did not respond to the first telephone call. The respondent rang again, about four and a half hours after the first call. A third call was made when the doctor did not arrive within the half hour of the second, this third call occurring some five hours after the first.
The doctor arrived at the house within half an hour of the third call. He was taken into a bedroom to examine a fourteen year old youth who had a severe rash and was feeling ill that night. As soon as the doctor began to examine this youth, the respondent hit the doctor with a club-lock. The respondent claimed that it was his intention to render the doctor unconscious and then rob him. The respondent said that he had gained information from the internet which suggested that it was possible to strike a person with a heavy implement at a particular point on the head so as to render a person unconscious, with no later recollection of the incident.
The doctor was not knocked out by the first blow. The respondent struck him again. The doctor remained conscious. He began walking to the door of the bedroom. He fell. The respondent struck him on the head again and then went in search of some rope to tie the doctor up. Whilst looking for it, he thought he heard noises from the bedroom. The doctor was conscious. Whether he was unconscious before that or not is not known. The doctor was then attempting to leave the house. The respondent took hold of the club-lock again, repeatedly striking the doctor on the head, using as much force as he could. A pathologist’s report speaks of thirteen blows to the head, three of which were delivered with severe force resulting in depressed skull fractures. Some of the blows to the head caused extensive contusions to the brain. The doctor was also struck about the neck on several occasions. The pathologist’s report refers to extensive bruising of the soft tissues at the front of the neck associated with a severe fracture of the cartilages which form the skeleton of the larynx. The neck injuries were consistent with being caused by blows from a blunt object, punching, kicking or stomping. There were a number of injuries sustained by the doctor from attempts to shield himself as well as blows to the upper back and abdomen. There was also a substantial blunt injury to his chest, which caused nine rib fractures.
As the sentencing judge put it, the doctor had been subjected to a savage and prolonged attack, with death being caused by a closed head injury associated with a skull fracture and contributed to by asphyxia resulting from the crushed larynx.
The respondent wrapped the doctor’s body in a quilt, ordering the others then there to clean up blood which was on the walls, carpet and furniture in the house. The sentencing judge accepted that the respondent thought that the doctor was still alive when he decided to dispose of the doctor’s body. The sentencing judge sentenced the respondent on the basis that he intended to dump the doctor’s body at a place where it would not be easily found. The body was driven to One Tree Hill and left beside a gravel road, some ten metres or so from the side of the road.
The respondent returned to the house, emptying the doctor’s wallet and distributing money from it amongst himself and the others then there. The respondent then decided to take the doctor’s vehicle to Eudunda, where the mother of the fourteen year old youth lived. On the drive to Eudunda, the mobile telephone in the vehicle rang. It was the doctor’s wife. She heard giggling before the telephone was cut off. The sentencing judge said that the giggling might be explained as a sign of an immature personality. He also said it spoke of a callous indifference at that time to the crime. The respondent took the deceased’s vehicle on a joy ride from Eudunda to Burra and back. The vehicle was damaged, no doubt from the way in which it was driven, particularly on rough roads in the area. Whilst the vehicle was being driven around in the Eudunda area, the respondent and his companion threw some of the deceased’s belongings from the vehicle.
In his sentencing remarks, the sentencing judge referred to a number of submissions put on the respondent’s behalf. The judge rejected a submission that when conceiving the plan to rob the doctor, the respondent was contemplating suicide by overdosing on drugs stolen from the deceased. The sentencing judge said that that was inconsistent with the respondent’s intention to use the doctor’s vehicle and with the respondent’s conduct after the crime had been committed. The sentencing judge also said that he did not believe it was appropriate to sentence the respondent as a youth. As to this, His Honour said:
"First, you were close to the age of 18 years when you committed this crime. Secondly, the nature of this shocking crime requires that you be sentenced as an adult. Thirdly, this was a premeditated act. You planned it and persisted in ringing the medical service to ensure that a doctor came. In addition, you specifically asked for Dr Goh because you coveted his car. Finally, although Dr O’Neill’s report speaks of your immaturity, it is apparent you fully realised the enormity of your crime. In deciding that you should be sentenced as an adult, I have had close regard to the provisions of s3 of the Young Offenders Act."
The respondent was a youth, found guilty of murder. By subs(4) of s29 of the Young Offenders Act, 1993, he was to be sentenced to imprisonment for life. He could not be sentenced as a youth might be sentenced for other offences pursuant to s23 of the Act. The sentencing options referred to in s29(1)(b) and (c) are not available with respect to the crime of murder because of the special provision in (4) of s29. Thus, it was not for the sentencing judge to decide that the respondent be sentenced as an adult. Section 29(4) demanded the imposition of the same sentence for this person as for an adult convicted of murder. That was a mandatory sentence of life imprisonment. In accordance with s31A of the Criminal Law (Sentencing) Act 1988 the appellant was sentenced as an adult is sentenced. Therefore the duty to fix a non-parole period with respect to that sentence arose. Section 32 of the Criminal Law (Sentencing) Act governed that process, not any provision of the Young Offenders Act. There was no power to sentence the respondent as a youth at all.
By s36 of the Young Offenders Act, a youth dealt with as an adult and sentenced to imprisonment serves such a sentence in a training centre subject to any direction of the sentencing court to the contrary. By subs(2) of that section, a youth serving a sentence of imprisonment in the training centre must have that detention reviewed by the sentencing court before the youth reaches eighteen years of age. The sentencing court must either direct that the imprisonment in a training centre continue or that the youth be transferred to a prison. Section 37 of the Act gives this Court a special power to authorise the release on licence of a youth sentenced to imprisonment for life if the youth be detained in a training centre. That power is a supplementary power to those otherwise conferred on this Court by s32 of the Criminal Law (Sentencing) Act. It arises only if, after a sentence of imprisonment is imposed, the Supreme Court is disposed, on the application of the youth, to authorise release from detention on licence. In this case, the judge excluded the potential application of s37 by the directions he gave pursuant to s36. On this approach it is open to argument whether the judge was correct to have close regard to the provisions of s3 of the Act when fixing the non-parole period.
After the passage quoted, the sentencing judge referred to a submission that the respondent was extremely remorseful for the murder. The sentencing judge said that the expressions of remorse had to be weighed with the respondent’s extremely callous conduct on the day of the murder. His Honour then referred to the way in which the body was disposed of, money distributed and the events which occurred with respect to the use of the vehicle. The sentencing judge was of the view that the respondent’s time in custody had provided him with an opportunity to appreciate what he had done. His Honour then said:
"There is a difference, perhaps a substantial difference, between remorse which immediately follows the commission of a crime and before arrest, and that which follows when the offender has been arrested when the feelings of remorse might, in part, be induced by a fear of the consequences. Nevertheless, I accept that you have had an opportunity to reflect upon the enormity of your crime and that your expression of remorse is genuine.
You have pleaded guilty at a relatively early stage and you must be given some credit for that. However, the benefit of that early plea was, to some extent, offset by a suggestion of a change of plea, which delayed the ultimate disposition of the matter. Mr Barrett said that you did not withdraw your plea. That is correct. But, in your latest long statement, you attempted to play down your role and implicate others to a greater extent. And on 31 October 1997, there was a clear suggestion that you might change your plea. All of this delayed the disposition of the matter. You are, therefore, not entitled to the full credit you might have otherwise received for your plea of guilty.
I have had regard to the victim impact statement. As one counsel noted, the victim impact statement prepared by Mrs Goh (a) very articulate and moving statement. The family has had to endure the shocking news of Dr Goh’s death and has had to come to terms with its consequences. I have regard to everything contained in that statement.
But, it is not only Dr Goh’s family who will suffer and who are the victims of this horrible murder. Medical practitioners making house calls provide a very valuable service to the community. When doing so, they are potentially in a very vulnerable position. The circumstances of this crime speak volumes as to that. One consequence of this crime is (that) the Australian Medical Deputising Service, which is an after hours medical service and of which Dr Goh was a partner, is considering withdrawing its services in some areas. Among others to whom that service provides medical care are the poor, the very young and the old. The South Australian branch of the Australian Medical Association, reports that Dr Goh’s death has resulted in a reluctance, on the part of some medical practitioners, to make house calls after hours and that some medical practitioners have withdrawn that service. In spite of discussions with the Government, the police and the implementation of more extensive procedures for verification of calls, the Association is informed that locum services are facing difficulty in the recruitment of sufficient medical practitioners to provide adequate coverage to the community. The death of Dr Goh has been one of the causes of these present difficulties. Obviously, your own selfish and thoughtless act has placed the health of the community at greater risk. In a real sense, the community is the victim of your crime.
This court has often said, that in the case of an adult person, the murder of a person fulfilling an essential community function of this kind will be a crime that falls into the category of a very serious type of murder, calling for a longer, rather than shorter, non-parole period. Retribution has no place in the sentencing of young offenders, but s3 of the Young Offenders Act, empowers the court, when ordering a penalty for a youth who is being punished as an adult, to have regard to the deterrent effect any proposed sanction may have on other young people under the age of 18 years. That does not entirely equate to general deterrence, in the sense of deterrence to the whole of the community. It is general deterrence in the sense of deterrence to the young people under 18 years. The shocking nature of this crime and its impact on the Goh family and on the general community, requires that I have regard to the deterrent effect of any penalty upon other young people under the age of 18 years.
The Young Offenders Act also authorises the court to have regard to the deterrent effect the penalty may have on you, to make you aware of your obligations under the law and to have regard to the need to protect the community and the individual members of it, against violent or wrongful acts. At the same time, regard must be had to your rehabilitation. The Act requires that justice be tempered with mercy, so that whatever capacity you have to be a useful member of the community, has a chance of being realised.
I have regard to all of these factors, as well as to the contents of the reports tendered on your behalf and the submissions made on your behalf by Mr Barrett.
The sentence for murder is life imprisonment. My task is to fix a non-parole period. That is to say, the period of imprisonment which you must serve. The task of fixing a non-parole period in this case is difficult. All that can be said, in mitigation of the gravity of the crime, is that you did not initially intend to kill Dr Goh. However, after your first attempt to make him unconscious failed, you proceeded to batter him mercilessly with the club lock, even when he had fallen to the ground.
I have regard to your youth and to your immaturity. As I have already said, I have had regard to all that has been said on your behalf, both by Mr Barrett and in the reports submitted on your behalf. I have tried to be as merciful as the seriousness of this crime permits. But, I cannot disregard the callous way you left Dr Goh at the side of the road, knowing that he was dead, or if not dead, was dying. Further, medical practitioners performing house calls of this nature are, as I have said, vulnerable and the court must do what it can to protect them."
The sentencing judge then said that because of the plea of guilty, he reduced the sentence he would otherwise have served by about quarter, saying that but for the respondent’s plea of guilty he would have fixed a non-parole period of sixteen years. Having regard to the period of fifteen months spent in custody, the non-parole period fixed was ten years and nine months from the date of the sentencing judge’s remarks.
The sentencing judge made an order pursuant to s36 of the Young Offenders Act that the respondent remain at a training centre for another twelve months, to be transferred on 14 February 1999 to the Yatala Labour Prison.
In the application for leave to appeal, it was claimed that the non-parole period of ten years and nine months was manifestly inadequate in four respects. First, it was said that it failed to maintain adequate standards of sentencing. Secondly, that it was so disproportionate to the seriousness of the crime as to shock the public conscience. Thirdly, that it failed to represent adequate protection for the community, particularly those in vulnerable professions such as locum medical practitioners. Finally, it was said that it failed to reflect the extreme criminality of the respondent’s conduct.
On the hearing of the application for leave to appeal, the Director of Public Prosecutions submitted that the sentencing judge had erred in accepting that retribution had no place in the sentencing of young offenders. Legislative changes were referred to. It was also submitted that by virtue of s3A of the Criminal Law (Sentencing) Act 1988 and s3(2)(b) of the Young Offenders Act, general deterrence was not a proper consideration as it would be for an adult under par(j) of s10 of the Criminal Law (Sentencing) Act.
In Everett v The Queen , Justices Brennan, Deane, Dawson and Gaudron spoke of the grant of leave to appeal against sentence by the prosecution being exercised "only in the rare and exceptional case". This Court must give careful and distinct consideration to the question whether the prosecution has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the prosecution to appeal against sentence is justified. The prosecution is entitled to seek to have established some matter of principle, including the correction of manifest inadequacy in sentencing standards.
We were satisfied that the prosecution discharged the onus of persuading this Court that the circumstances in this case were such as to bring it within the rare category in which a grant of leave to appeal against sentence is justified. In arriving at that conclusion we had regard to the four grounds raised in the application for leave to appeal, to non-parole periods fixed in other cases involving young offenders over the years and to the discussion of the proper approach in fixing a non-parole period for the crime of murder. Particular reference was made to R v Stewart ; R v von Einem ; R v Fowler and Hart ; R v Jarrett ; R v Walker ; R v Murphy ; R v Moyle and R v Winters .
In Moyle, Cox J pointed out that the principle that the relatively youthful age of a person convicted of murder will tend to lengthen the non-parole period does not negate altogether an offender’s comparative youth. The courts will often take that into account in fixing a sentence or non-parole period for a serious crime. As His Honour put it, "The von Einem factor" can be set off, at least to some extent, by a person’s relatively young age. In that case, with a wanton and horrifying and cruel murder, a majority of the Court of Criminal Appeal declined to reduce a non-parole period of nineteen years. Cox J dissented, indicating that a non-parole period of seventeen years was more appropriate. The appellant in that case was twenty-four years of age at the time of the offence. In this case, the respondent was almost eighteen. In Fowler and Hart, both offenders were eighteen years of age at the time of a double murder. King CJ referred to the need for a non-parole period to hold a fair balance between the demands of punishment and deterrence and of rehabilitation . Hart’s plea of guilty was recognised. A non-parole period of sixteen years was seen as appropriate for a single murder . In Murphy, the appellant was nineteen years of age at the time of another double murder . This Court intervened and increased the non-parole period from eighteen years to twenty-five years. The offences charged were found proved before a jury. In Walker, a non-parole period of fourteen years was held not manifestly excessive for an admitted crime of murder committed many years before.
It is often said that it is difficult to make useful comparisons with other cases. However, after carefully considering this case and non-parole periods fixed for persons of or about the age of eighteen years, the court felt bound to intervene to correct a manifest inadequacy in the non-parole period imposed. The crime was very serious, if not one of the worst imaginable. It was not one of the least serious categories of murder but one aggravated by the circumstances referred to by the sentencing judge. We therefore granted leave to appeal, allowed the appeal and substituted for the non-parole period of ten years and nine months, a non-parole period of fourteen years and nine months. We arrived at this period having regard to the time spent in custody and the plea of guilty. But for the plea of guilty a non-parole period of about twenty years was called for.
On this approach it was not necessary to consider the submission that the sentencing judge had erred in accepting that retribution had no place in the sentencing of young offenders. Nonetheless, we consider that the submission is correct. Retribution had no place in the sentencing of persons under the age of eighteen years under the Children’s Protection and Young Offenders Act, 1979 . However, the combined effect of the provisions of s3 of the Young Offenders Act and s3A of the Criminal Law (Sentencing) Act is that, certainly with respect to the crime of murder, the observance of a proper proportion between the gravity of the crime and the severity of the punishment is a relevant factor. That being said, of course the approach identified by Cox J in Moyle nonetheless prevails. Similarly, whilst it could be said that general deterrence is a factor with respect to the crime of murder notwithstanding the present provisions in s3 of the Young Offenders Act and s3A of the Criminal Law (Sentencing) Act, there can be little doubt that the deterrence of other youths from committing this kind of crime is little different from general deterrence if it be the fact that the restraint now identified in s3(2a)(b) of the Act applies to the crime of murder. We are inclined to think that whilst that restraint attaches to sentences of imprisonment and non-parole periods with respect to youths and other crimes, it does not operate to fetter the sentencing discretion applicable to the fixing of a non-parole period for the mandatory sentence of life imprisonment imposed by s29(4) for the crime of murder.
Again it was not necessary to distinguish general deterrence from the deterrent effect on other youths in this case. We would not read anything in s3 of the Young Offenders Act as fettering the power of a sentencing judge to take into account general principles of public deterrence when fixing a non-parole period with respect to a mandatory sentence of life imprisonment for the crime of murder. This matter is different from the situation considered recently by this Court in R v N & P .
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDMENT OWING TO FAILURE OF FOOTNOTE TRANSFER TO JURIS
R v Stewart (1984) 35 SASR 477 at 478-479
(1994) 181 CLR 295 at 299 and 300
(1984) 35 SASR 477 at 478-479
(1985) 38 SASR 207 at 218-220:
(1986) 127 LSJS 329
(1994) 74 A Crim R 121;
(1994) 178 LSJS 271
(1996) 66 SASR 406;
(1996) 186 LSJS 462;
(1997) 192 LSJS 350
(1986) 127 LSJS 329 at 334
(1986) 127 LSJS 329 at 335
Hallam v O’Dea (1979) 22 SASR 133; The Queen v S (1992) 31 SASR 263 at 266; The Queen v Amanatidis (1983) 34 SASR 129
(CCA, 26 February 1998, unreported)
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