(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Bampton)
13 October 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Application for permission to appeal against sentence for manslaughter.
In the early hours of the morning of 8 June 2012, the applicant, after attending various licensed premises the previous afternoon and evening, went back to a house with his niece and another young woman. He fell asleep on a couch upstairs but awoke to a scream from the garage. He entered the garage and saw a man (the deceased) indecently assaulting one of the women. The two women fled and the applicant inflicted at least 15 separate blows to the head of the deceased, some with a baton, causing his death.
A conviction of murder at the first trial was set aside on appeal. At the re-trial, the applicant was convicted by a jury of manslaughter. The Judge found that the basis of this verdict was “excessive defence” pursuant to s 15(2) of the Criminal Law Consolidation Act 1935 (the Act) and sentenced the applicant to 12 years imprisonment with a non-parole period of nine years, seven months and five days.
The applicant sought permission to appeal on the grounds that the Judge sentenced on the basis of a murder conviction and thereby infringed the De Simoni principle; and that the Judge failed adequately to take into account that the applicant's actions in self-defence were in response to a home invasion. The applicant also complains that the sentence was manifestly excessive and that the Judge erred in not finding that special reasons existed to lower the mandatory non-parole period.
Held per Peek J, Kourakis CJ and Bampton J agreeing (granting permission to appeal on certain grounds and dismissing the appeal)
(1) The Judge did not sentence inconsistently with a verdict of manslaughter based on “excessive defence” or infringe the De Simoni principle.
(2) Although the Judge did not use the words “home invasion”, his Honour had appropriate regard to the underlying circumstances favourable to the applicant, and no error is demonstrated.
(3) The sentence is not manifestly excessive. The Judge had appropriate regard to inter alia: the high degree of disproportionality of the extended beating; the applicant’s proven intent to inflict grievous bodily harm; his lack of contrition or remorse; and the fact that the applicant’s previous convictions indicated that little leniency could be extended to him.
(4) The Judge correctly directed himself as to the operation of s 32A(3) of the Act. It was open to find that special reasons to lower the mandatory non-parole period did not exist.
[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.
Continue reading R v McCarthy (No 2)
Sign in free to access the full text
Details
AGLC
R v McCarthy (No 2) [2017] SASCFC 132
Case
[2017] SASCFC 132
Decision Date
CaseChat Overview and Summary
The applicant, R v McCarthy, sought leave to appeal against a sentence imposed by the Supreme Court of South Australia. The dispute arose from the applicant's conviction for manslaughter following a violent confrontation with the deceased, Mr Varehov, in a garage. The applicant argued that the sentence was manifestly excessive, that the sentencing judge failed to adequately consider the jury's verdict of not guilty to murder and the applicant's actions in self-defence during a home invasion, and that the judge erred in refusing to find special reasons to lower the mandatory non-parole period.
The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge erred in his assessment of the sentence, particularly in relation to the grounds of appeal raised by the applicant. Specifically, the court had to determine if the sentence was manifestly excessive, if the judge adequately considered the jury's verdict and the element of self-defence, and if special reasons existed to depart from the mandatory non-parole period.
The Full Court rejected the applicant's contention that the sentence was manifestly excessive, finding no error in the judge's consideration of factors such as previous convictions, remorse, deterrence, and hardship. The court also found that the sentencing judge had adequately considered the applicant's position, acknowledging the difficult circumstances in which the applicant initially found himself and the mitigating effect of the deceased's conduct. However, the court held that these factors, while acknowledged, did not amount to "special reasons" sufficient to lower the mandatory non-parole period as required by s 32A(3) of the Sentencing Act. The court concluded that the judge correctly directed himself on the law and that the applicant's cooperation during the trial process was not sufficient to enliven the discretion to order a non-parole period less than the statutory minimum.
Permission to appeal was refused on all grounds.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The applicant seeks permission to appeal against that sentence on the following proposed grounds (which will be considered in a different order):[1]1. The sentence is manifestly excessive.2. The Learned Sentencing Judge erred in failing to consider adequately or at all that the jury returned a verdict of not guilty to murder.3. The Learned Sentencing Judge failed to take into account adequately or at all that the Appellant acted in self-defence in response to a home invasion.4. The Learned Sentencing Judge erred in refusing to find that special reasons existed to lower the mandatory non-parole period.[1] A fifth proposed ground was abandoned.A summary of the relevant facts The Judge in his sentencing remarks accurately summarised relevant aspects of the evidence at the second trial concerning the events leading up to the confrontation between the applicant and the deceased thus:[9] I turn to briefly summarise the circumstances of your offending. You had been out socialising with friends and family at three different licensed premises in Norwood and in the city for virtually all of the afternoon, evening and night of 7 June 2012. In the very early hours of the morning of 8 June, rather than returning home you went with two of your companions, two young women well known to you, to the house which one was renting. You fell asleep on the couch upstairs. As the result of a rather detailed series of events of which you were entirely unaware and which do not need to be described, the two women had arranged for Mr Varehov to come to the house after you had fallen asleep in order to sell them methylamphetamine.[10] Soon after having fallen asleep you were awoken by a scream or screams coming from the garage below. You ran down a set of internal stairs to the garage and upon entering the garage you observed a man in the process of indecently assaulting one of the women. The other woman had run past you and raced up the stairs as you were coming down the stairs. The nature of the indecent assault as would have been observed by you was the man grabbing the young woman on the breast and on the buttocks while she was still clothed. The man was Mr Varehov who according to the evidence conducted a drug dealing business, at least at street level. His Honour went on to observe that, since the applicant elected not to give evidence and Mr Varehov was dead, there was no direct evidence of the subsequent course of the confrontation after the departure of the two women, but that much could be gleaned from the forensic evidence: [13] Nevertheless, the crime scene evidence, the forensic evidence, the expert medical evidence, the fact that a wooden baton was used by you to inflict many of the injuries, which baton was broken in two by the force of your efforts, the injuries suffered by Mr Varehov, including, in particular, to his head and the defensive wounds to his torso and the backs of his hands, including a broken knuckle, and the complete absence of any injuries or markings on yourself, not even a scratch to your hands, face or neck, which areas were not protected by your clothing, all in combination persuade me beyond reasonable doubt that you managed to subdue Mr Varehov very early in the altercation but that you continued with a protracted, cruel, brutal and vindictive beating of him, which persisted until he was unable to move.[14] The expert evidence was to the effect that you inflicted at least 15 separate blows just to the head of Mr Varehov and the circumstantial evidence as a whole demonstrates that the vast majority of these injuries would have been caused by you striking Mr Varehov’s head with the wooden baton. Mr Varehov suffered bleeding in the brain. The photographs of the multiple gashes and wounds on Mr Varehov’s head are shocking. One or more of the blows resulted in a patch of flesh, skin and hair being torn from the skull. Mr Varehov lost a substantial amount of blood.[15] The defensive injuries were such that Mr Varehov, to the extent he remained conscious, must have been solely intent on protecting himself, particularly his head and face, with his arms for a relatively extended period. The forensic evidence supports a finding that a number of the blows to the head would have occurred while Mr Varehov was on the ground. As I have said, the assault was protracted, vicious and brutal.[16] At or about the time you finished assaulting Mr Varehov you shouted for the two women to come back to the garage and they did so. Somehow Mr Varehov’s body was placed in the boot of a hatchback car that was in the garage and you ordered the two women to drive the car away. They were terrified and abandoned the car in a nearby street with Mr Varehov’s body still in it. They ran off on foot.[17] Later that same day you located the motor vehicle. It was driven to the Kuitpo Forest, where you, with the assistance of at least one other person, buried Mr Varehov’s body in a shallow grave. This was a serious aggravating feature of the crime of which you have been found guilty.The basis of the jury verdict of manslaughter
Evidence
Evidence Before The Court
I will first refer briefly to the relevant evidence and then approach those complaints in the above order.A brief summary of the relevant evidence A brief summary of the evidence relevant to a “home invasion” issue (within the meaning of that term used in the Act or in a more general sense) is as follows. Ms Summerill gave evidence that she and Ms McCarthy drove to meet the deceased to purchase methylamphetamine. It transpired that they had no or insufficient money and the deceased drove the girls in his car back to their home to get the money. He drove into the driveway, parking near the garage. The roller door on the left side was open. She stated that the following then occurred:… I had walked into the garage and the – Michael had obviously gotten out of the car and still followed me in and there was no reason for that to happen at all, and he only I think – yeah, I only really realised I guess when he come up behind me in the garage and he had grabbed me from behind and, and I think I screamed or something, I can’t remember, but then he – I think I turned and he sort of maybe – it’s all really blurry, but he pinned me sort of against the car, I think, and maybe grabbed the front of me (INDICATES), and I was – there was a commotion at this point because I think Brooke was – Brooke had either come in or she – I think she had followed him behind because like I said, there was no reason for him to get out the car, and when I managed to get away, I just started running up the stairs and obviously Pat had woken up because of the screaming or he had obviously heard that something wasn’t right and heard us girls screaming and he – I ran up the stairs and at some point he had come down the stairs, or I think I passed him, I’m not sure, but he had woken up because it was, yeah, was, was pretty obvious that something wasn’t right, and I just ran up, up the stairs and ran straight into Bek’s room. … During cross-examination, Ms Summerill said she did not invite the deceased in:I don’t remember exactly what was said, but it was made clear that I would just run up and quietly, so that no-one woke up, or Pat didn’t wake up, and yeah, then we were just – I was just going to get the money and leave. She further elaborated:QDo you have a recollection now that he went to get out of the car and you said ‘No, I’ll go and get it’?AI do remember there being – I can’t remember the exact wording, but something to those effect, to that effect, yes.QAnd is it correct that in effect you didn’t, under any circumstances, invite Mr Varehov into your rental property?A No. He was – it was quite the opposite.Q Is it fair to say you didn’t want him anywhere near the house?A Yes.Q And is it the case that you made that clear to him before you left the car?AYeah. It – yes, definitely. I’m not sure exactly how it was put, but it was definitely strongly put across, that I would go up on my own. Ms McCarthy gave the following evidence:We just pulled into the driveway and then Tash got out of the car to go inside and then I just sat in the car because she was just going to go in there. Then he got out of the car after her and like to the garage. He just got out like really fast out of the car and walked inside and just yeah. I jumped straight out after him wondering why he was getting out of the car. He grabbed her head or hair. I think he just threw her into the car or something. Then I think I grabbed him or pushed him or something and he pulled my hair and ripped my top and yeah, just like attacked us, I guess. … I remember Tash getting out and then I remember him just getting out really quite fast after her and following her and then I got out because there was no reason for him to go into the house.
Decision
Reasons for decision
KOURAKIS CJ
(dissent)
PEEK J
(dissent)
BAMPTON J
(dissent)
The applicant asserts that the Judge unduly emphasised and relied on the applicant’s numerous previous convictions when imposing sentence. However, I find no error in the Judge’s approach. His Honour did not increase the sentence because of the convictions; if he refrained from granting the leniency he might have given to a first offender, that was an approach open to him.Conclusion concerning proposed ground 1 of appeal I conclude as to all of the matters put by counsel (including these matters of remorse and contrition; deterrence; hardship to the applicant and his family; and previous convictions) that, taken singly or cumulatively, they do not advance, let alone establish, the contention that the sentence is manifestly excessive. I would refuse permission to appeal on proposed ground 1 of appeal.Proposed ground 4 of appealThe Learned Sentencing Judge erred in refusing to find that special reasons existed to lower the mandatory non-parole period. The Judge correctly directed himself that he was required by the Sentencing Act to fix a non-parole period that is not less than four-fifths of the head sentence unless special reasons exist for fixing a shorter period. Section 32A(3) provides:(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:(a) the offence was committed in circumstances in which the victim’s conduct or condition substantially mitigated the offender’s conduct; (b) if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea; (c) the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation. Section 32A(3)(b) was clearly inapplicable. Section 32A(3)(c): Co-operation As to s 32A(3)(c), the Judge’s earlier discussion of asserted “co-operation” in connexion with the matter of contrition is reproduced above at paragraph [74]. His Honour had there rejected the main submissions concerning “co-operation”, although he did make some limited allowance for some utilitarian value. Later, in the context of fixation of the non-parole period, the Judge stated as to both s 32A(3)(c) and s 32A(3)(a):Given the type of offence committed and the fact that a life has been taken, the legislation ordinarily would require that I impose a non-parole period of at least 80% of that sentence. A non-parole period greater than 80% remains available but I am not persuaded that a greater period would be warranted in this case. However, there is a discretion to order a non-parole period less than 80% in limited circumstances. In order for that discretion to be enlivened I must be satisfied that at least one of the qualifying matters as prescribed in the legislation exists and if so, that any such matter or matters are such as to amount to special reasons sufficient to fix a non-parole period less than the statutory minimum. For reasons already given, I do not consider your cooperation during the trial process as sufficient to enliven the discretion. However, in my view the conduct of Mr Varehov is to be characterised as substantially mitigating your conduct, at least to the extent that it justified some action on your part. I have reached this conclusion after giving consideration to both your and Mr Varehov’s conduct as I have identified it and acknowledging the difficult position you initially found yourself in.
Ratio Decidendi
Legal Principle Established
Established by:
Still later, in the same context, his Honour at paragraph [49] referred to “… the difficult position you initially found yourself in”.Consideration I reject this third contention. The true meaning of the above passages from the sentencing remarks is clear, and especially so when they are considered in the context of the whole of the sentencing remarks. The Judge was in fact contrasting two sequential periods of the confrontation and emphasising that the applicant was to be sentenced on the favourable basis that, during the initial part of the confrontation, the applicant came within both limbs of the general defence provision, s 15(1)(a) and s 15(1)(b). Thus, the Judge stated:[11] You immediately reacted to what you heard and saw by pulling or pushing Mr Varehov away from the woman such that she also was able to make an escape up the stairs to the main residence. As to what took place thereafter, there is no direct eyewitness evidence. You did not give evidence, Mr Varehov is of course deceased and the two women who returned to the garage at some stage towards or at the end of your assault of Mr Varehov were either incapable of recalling or unwilling to tell the court what they saw. Nevertheless, there was substantial circumstantial evidence from which conclusions can confidently be drawn as to the nature and circumstances of the assault.[12] I accept that when you intervened Mr Varehov initially resisted your efforts to pull him away and that he turned his attention to you in a physically aggressive or threatening manner such that you were entitled to and did take defensive action. I draw these inferences in reliance on the evidence of the two women concerning Mr Varehov’s conduct whilst they were in his presence prior to him arriving at the garage and concerning his conduct when they and he entered the garage and in reliance on the expert medical evidence concerning the typical effects that methylamphetamine at the extremely high levels found in Mr Varehov’s blood would have had on Mr Varehov in terms of increased impulsivity, increased propensity for aggression and reduced concern for or capacity to properly contemplate the consequences of actions. In a number of ways, this was a favourable approach for the applicant. The applicant had elected not to give evidence and there was little evidence that the deceased “turned his attention to [the applicant] in a physically aggressive or threatening manner such that [he was] entitled to and did take defensive action.”[6] Nevertheless, in the light of the jury verdict, it was appropriate for the Judge to draw this favourable inference as a possibility reasonably open on the evidence.[6] The evidence as to “typical effects that methylamphetamine at the extremely high levels found in Mr Varehov’s blood would have had on Mr Varehov in terms of increased impulsivity, increased propensity for aggression and reduced concern for or capacity to properly contemplate the consequences of actions” was evidence of what could have happened as distinct from what did happen.