R v McDonald

[2000] WASCA 336

R -v- McDONALD [2000] WASCA 336

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 336
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:133/2000	Heard:	15 SEPTEMBER 2000
Coram:	PIDGEON J WALLWORK J PARKER J	Delivered:	8/11/00
No of pages:	12	Judgment Part:	1 of 1
Result:	Extension of time to appeal refused
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Parties:	THE QUEEN LISA MARY McDONALD
Catchwords:	Criminal law Sentence Manslaughter 3-1/2 years imprisonment suspended for 2 years Crown appeal Extension of time
Legislation:	Sentencing Act 1995, s 76(1)
Case References:	Bond v The Queen (1999) 74 ALJR 597 Dinsdale v The Queen [2000] HCA 54 Gavin v The Queen (1992) 6 WAR 195 Lowndes v The Queen (1999) 195 CLR 665 Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985 Nicolakis v The Queen, unreported; CCA SCt of WA; Library No 7184; 30 June 1998 R v Allpass (1993) 72 A Crim R 561 R v Aloia [1983] WAR 133 R v Churchill [2000] WASCA 230 R v Clarke [1966] 2 VR 520 R v Grein [1989] WAR 178 R v Peterson [1984] WAR 329 Anderson v The Queen (1997) 92 A Crim R 348 Boyle v The Queen (1987) 34 A Crim R 202 Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Kauhanen v The Queen [1999] WASCA 14 O'Brien v Ritchie, unreported; CCA SCt of WA; Library No 990123; 17 March 1999 O'Gorman v The Queen, unreported; CCA SCt of WA; Library No 980744; 18 December 1998 R v Delaurentis, unreported; CCA SCt of WA; Library No 950052; 14 February 1995 R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1998 R v Hallocoglu (1992) 29 NSWLR 67 R v Hodges [1999] WASCA 278 R v Marple, unreported; SCt of Vic; 27 April 1999 R v P (1992) 39 FCR 276 R v Partridge, unreported; FCA; 29 May 1998 R v Rushby (1977) 1 NSWLR 594 Rowe (1991) 52 A Crim R 1968 Thompson v The Queen (1999) 165 ALR 219

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- McDONALD [2000] WASCA 336 CORAM : PIDGEON J

WALLWORK J
PARKER J

HEARD : 15 SEPTEMBER 2000 DELIVERED : 8 NOVEMBER 2000 FILE NO/S : CCA 133 of 2000 BETWEEN : THE QUEEN

Applicant

AND

LISA MARY McDONALD
Respondent

Catchwords:

Criminal law - Sentence - Manslaughter - 3-1/2 years imprisonment suspended for 2 years - Crown appeal - Extension of time

Legislation:

Sentencing Act 1995, s 76(1)

Result:

Extension of time to appeal refused

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Representation:

Counsel:

Applicant : Mr G T W Tannin & Mr F Sunderland
Respondent : Mr S M Brennan

Solicitors:

Applicant : State Crown Solicitor
Respondent : Shane Michael Brennan

Case(s) referred to in judgment(s):

Bond v The Queen (1999) 74 ALJR 597
Dinsdale v The Queen [2000] HCA 54
Gavin v The Queen (1992) 6 WAR 195
Lowndes v The Queen (1999) 195 CLR 665
Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985
Nicolakis v The Queen, unreported; CCA SCt of WA; Library No 7184; 30 June 1998
R v Allpass (1993) 72 A Crim R 561
R v Aloia [1983] WAR 133
R v Churchill [2000] WASCA 230
R v Clarke [1966] 2 VR 520
R v Grein [1989] WAR 178
R v Peterson [1984] WAR 329

Case(s) also cited:

Anderson v The Queen (1997) 92 A Crim R 348
Boyle v The Queen (1987) 34 A Crim R 202
Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Kauhanen v The Queen [1999] WASCA 14
O'Brien v Ritchie, unreported; CCA SCt of WA; Library No 990123; 17 March 1999


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O'Gorman v The Queen, unreported; CCA SCt of WA; Library No 980744; 18 December 1998
R v Delaurentis, unreported; CCA SCt of WA; Library No 950052; 14 February 1995
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1998
R v Hallocoglu (1992) 29 NSWLR 67
R v Hodges [1999] WASCA 278
R v Marple, unreported; SCt of Vic; 27 April 1999
R v P (1992) 39 FCR 276
R v Partridge, unreported; FCA; 29 May 1998
R v Rushby (1977) 1 NSWLR 594
Rowe (1991) 52 A Crim R 1968
Thompson v The Queen (1999) 165 ALR 219

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1 JUDGMENT OF THE COURT: The respondent entered a plea of guilty to manslaughter. She had been originally indicted for murder but following discussions initiated by the Crown she entered the plea to the lesser alternative offence. The plea was accepted by the Crown in satisfaction of the indictment. On 2 November 1999 the respondent was sentenced to a term of 3½ years imprisonment. This term was ordered to be suspended for 2 years which is the maximum period for suspension provided by s 76(1) of the Sentencing Act 1995.

2 The Crown now seeks an extension of time within which to appeal against the sentence. Unusually, the application is brought by the Attorney General rather than the Director of Public Prosecutions. Although the respondent was sentenced on 2 November 1999, the notice of application for extension of time within which to appeal was not filed until 15 June 2000, being some seven and a half months after the date of sentence. The Criminal Code provides that an appeal, whether by a sentenced prisoner or the prosecution shall be instituted within 21 days of the sentence.

3 The Honourable the Attorney General in his affidavit in support of an extension of time says he was unaware of the decision of the Director of Public Prosecutions not to appeal against the sentence until after the expiry of the statutory time limit. He also says that since then he has received and considered submissions from the parents of the deceased man, Mr Wren, and other members of the community relating to this sentence and he says that it has taken him considerable time to assess those submissions and to acquaint himself with the precise circumstances of the case.

4 Where there has been a very lengthy delay such as this it is necessary for an applicant for an extension of time to demonstrate that there were exceptional circumstances which justified the delay or, alternatively, that there would be a miscarriage of justice if there was not an extension of time: Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985; Nicolakis v The Queen, unreported; CCA SCt of WA; Library No 7184; 30 June 1998; Gavin v The Queen (1992) 6 WAR 195 at 219. As was said by Burt CJ, Wallace and Kennedy JJ concurring, in Narkle v The Queen (supra) at 2:-

"This Court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the Court's discretion to

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extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the Court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. The discretion has always been exercised by this Court having regard to those two broad considerations and it would seem from the cases that a similar discretion vested in other Courts of Criminal Appeal in Australia and by the Court of Criminal Appeal in England has been exercised in the same way."

5 The objective circumstances relevant to the sentencing decision were known to the prosecution at the time of sentencing. The representations which were received by the Attorney General in this case no doubt indicate why the Attorney General has been persuaded to act in the matter even though the Director of Public Prosecutions did not do so, but this does not reveal that there were exceptional circumstances which prevented a decision being made earlier or which would justify such a very long delay.

6 A right of appeal against a sentence is not inherent. A right of appeal must be given by statute. Section 688 of the Criminal Code provides for a right of appeal to this Court "on the part of the prosecution". It is open to either the Director of Public Prosecutions or the Attorney General to institute an appeal on the part of the prosecution (see Director of Public Prosecutions Act 1991, s 10 and s 20). It is important to note, however, that there is only one right of appeal which is given to the "prosecution". There is not a right of appeal in the Director of Public Prosecutions and a distinct right of appeal in the Attorney General, the provision is merely for either the Director or the Attorney to institute the one appeal.

7 The inference necessarily to be drawn from what has occurred and from the affidavit of the Honourable the Attorney General is that the Director of Public Prosecutions decided against an appeal in the present

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case. There are obvious reasons for the Director to do so. In his quite detailed comments when sentencing, the sentencing Judge gave very careful consideration to the circumstances and seriousness of the offence and to the submissions in mitigation and the evidence in support of those submissions. It is not suggested that his Honour's comments on sentencing reveal any misunderstanding of the legislation relevant to sentence in this case or of the applicable principles. The Director would also be conscious of the restraint which must be exercised in respect of Crown appeals and the special considerations which apply to them to which we shall refer later.

8 It has been observed from time to time in this Court that it is an important factor weighing against a grant of extension of time that there has been an earlier conscious decision not to appeal. The present case comes within that category as the Director of Public Prosecutions who, as the officer having the conduct of the prosecution and the officer who would normally exercise the right of appeal, did not seek to do so. This factor not only weighs against an exercise of discretion to allow an extension of time but it also tells heavily against there being exceptional circumstances which could provide justification for the extensive delay that has occurred.

9 For these reasons it has not been shown that there are any grounds on which it can properly be concluded that there are exceptional circumstances which would justify an extension of time in this case.

10 It is necessary, therefore, to turn to the other possible justification for an extension of time beyond the 21 days determined by parliament, ie the Crown must show that there would be a miscarriage of justice if an extension of time were not granted in this case, a miscarriage so significant as to justify an exercise of the discretion to extend time by some seven and a half months so that it can be corrected.

11 It is necessary on any appeal in respect of sentence, whether by a sentenced prisoner or the prosecution, to show that the sentencing Judge acted on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence. The error may appear in what the sentencing Judge said or from the sentence itself which may be so excessive or inadequate as to manifest error; R v Grein [1989] WAR 178 at 180 and R v Peterson [1984] WAR 329.

12 As the High Court said in Lowndes v The Queen (1999) 195 CLR 665 at 671 - 72:

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"The principles according to which an appellate court may interfere with such 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 the 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."

13 In addition, where the Crown appeals, particular considerations apply which were considered extensively in R v Clarke [1966] 2 VR 520 at 522 and R v Allpass (1993) 72 A Crim R 561 at 562 - 3. There is no reason to explore further these well known principles in these reasons as they are accepted by both sides and are settled. Their application in this State has recently been reaffirmed by the decision in R v Churchill [2000] WASCA 230 at [23] and [24]. In addition, reference may be made to the decision of the High Court in Dinsdale v The Queen [2000] HCA 54 at [61] and [62]. In particular, it should be noted that 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 in the course of the original sentencing proceedings may be a matter of significance; Allpass (supra) at 562 - 3.

14 It is not contended in support of the present application that the sentencing comments of his Honour revealed that he acted on a wrong principle. In one material respect, however, it is submitted that his Honour wrongly assessed a salient feature of the evidence in that it is submitted that his Honour wrongly concluded that the respondent showed genuine remorse. In order to understand this issue and the more general question whether justice may have miscarried it is necessary to make reference to some of the facts before the sentencing Judge.

15 The material facts relied on for the prosecution, and the matters relied on in mitigation which were not disputed by the prosecution, before the sentencing Judge reveal the following. The deceased man, Mr Wren, was 21-years-old. The respondent and Mr Wren had known each other

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for many years and they had been going out together for some time. He was her "best friend". The respondent lived with her grandmother in a retirement village in Augusta, sharing the second bedroom with her 15-year-old sister. On the evening of the offence the respondent and Mr Wren went to a birthday party. They were dropped off at the retirement village at about 1 am. They said goodnight outside and the respondent went into her grandmother's unit, closing but not locking the door. The respondent understood that Mr Wren was going home. On her account, however, he returned, opened the front door and entered the unit. By then the respondent was going into the bedroom she shared with her sister. Mr Wren said he wished to sleep there but she objected and she insisted that he leave. An argument developed to the point where she came under significant physical attack both in her bedroom and in the lounge room. His conduct was quite uncharacteristic and she was in fear of him. It was in these circumstances that she inflicted the fatal wound with a small kitchen knife which had been lying on a bench and which she picked up as Mr Wren advanced on her again.

16 By her plea of guilty the respondent accepted that despite Mr Wren's persistent physical aggression she was not justified in wounding with a knife by way of self defence; her sister and grandmother were in the unit and she could have sought help from them. By accepting the plea of guilty to manslaughter, the prosecution accepted, of course, that the respondent did not intend to kill Mr Wren or to cause him serious harm.

17 The depth of the wound to Mr Wren's chest was 6 - 7 cms. The medical evidence does not suggest that any significant force would have been necessary to cause the wound, especially given the size and sharpness of the knife. It had, however, penetrated his heart. Having been wounded, Mr Wren took the knife from the respondent and they both examined his wound. Initially it was not bleeding but a slight bleeding commenced. It worsened with time. At the respondent's request, Mr Wren then went outside carrying the knife to wait for his father. The respondent had telephoned Mr Wren's father shortly before the stabbing saying that Mr Wren had drunk too much and could not stay the night. His father had agreed to come and pick him up. When Mr Wren left the unit the respondent immediately shut and locked the door knowing that he still had the knife. She again telephone Mr Wren's home to be told his father was on the way. There was a brief conversation with her grandmother, in which the respondent warned her grandmother not to open the front door because Mr Wren had a knife and was being a nuisance and told her that his father was coming to get Mr Wren. The

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respondent then went into her bedroom with her younger sister, barricading the door.

18 The respondent's grandmother did open the front door and observing Mr Wren's deteriorating condition she rang for an ambulance. Mr Wren died shortly after his father arrived at the unit. The ambulance came after that.

19 The sentencing Judge was understandably cautious about too readily accepting the account of these events given by the respondent. Much of what was put to him in mitigation, however, was confirmed by other evidence and, apart from drawing the Judge's attention to some difference, not presently material, between her initial account to the police and the account given in the plea in mitigation, the Crown did not dispute or require further proof of the main facts submitted on behalf of the respondent in mitigation. In the end, after a careful analysis, his Honour found the facts to be substantially as submitted to him.

20 On any appeal it would not be open to the Crown, in these circumstances, to challenge the factual basis upon which his Honour sentenced the respondent; see R v Aloia [1983] WAR 133. Any appeal would have to be judged on the facts found by his Honour.

21 There was a submission in support of this application for leave, however, that there was no proper foundation for the conclusion of his Honour that the respondent had shown immediate genuine remorse. This appears to be an unfounded and misleading submission when the facts are reviewed impartially. It sought to rely on the actions of the respondent in locking the wounded Mr Wren outside the unit, in failing to call for an ambulance herself, and in barricading herself with her sister in their bedroom as Mr Wren was dying. The fallacy in the submission is that it assumes the respondent was aware, when she did those things, that Mr Wren was fatally or seriously wounded. Whereas there is sound reason to accept, as the sentencing Judge did, that she had no idea that the wound suffered by Mr Wren was serious and life threatening. When she locked Mr Wren outside and barricaded herself in her bedroom, it is apparent the respondent was still in physical fear of Mr Wren. The evidence of her conduct thereafter is strongly confirmatory of the genuineness of her distress and remorse.

22 For the Crown to succeed in the proposed appeal, therefore, it must establish that there was manifest inadequacy in the sentence by virtue of which it could be concluded there was some hidden error of principle. It

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is unnecessary to go further than the recent decision of this Court in R v Churchill (supra) to reveal the very considerable difficulty in the way of the Crown making good a submission that the term of 3½ years imprisonment determined by his Honour was manifestly inadequate. In R v Churchill the respondent had been sentenced to a term of 3½ years imprisonment for the unlawful killing by stabbing of a man with whom she had a relationship. In rejecting a Crown appeal against the inadequacy of that sentence Kennedy ACJ, Anderson and Wheeler JJ concurring, said at [22]

"The offence of manslaughter can encompass a wide range of circumstances. The offence itself carries a maximum of 20 years, but there have been a number of instances in which a custodial sentence has not been imposed, resort being had instead to intensive supervision orders. Each case must be determined on its own facts. There is no distinct tariff for sentences for manslaughter - see R v S (No 2) (A Child) (1992) 7 WAR 434. It is clear that in this case, as the Crown contended, significant force must have been applied to cause the wound which resulted in the death of the deceased. The use of the knife is no doubt is an aggravating factor but, on the other hand, there is no evidence of premeditation. Further, there was an apparent absence of immediate remorse."

In particular, it is to be remembered that in arriving at a term of 3½ years imprisonment in the present case, his Honour carefully identified and weighed a number of matters which favoured mitigation of sentence, including the plea of guilty and the absence of any record of violence or of serious offending by the 22-year-old respondent. His Honour also properly allowed a further reduction of 6 months because of the time the respondent had spent in custody after she was charged.

23 As the reasons of the High Court in Dinsdale v The Queen (supra) particularly at [78] - [79] per Kirby J, Gaudron and Gummow JJ concurring at [26], have recently confirmed, there were two distinct steps which his Honour was required to take by s 76 of the Sentencing Act 1995. First, there was the primary determination that a sentence of imprisonment (and not some lesser sentence) not exceeding five years was warranted. The second was to determine whether service of that term of imprisonment should be suspended for a period set by the Court, bearing in mind that a term of imprisonment to be served immediately should not be imposed unless the Court is satisfied that a sentence of suspended imprisonment is not appropriate, s 39(3). In that decision, particularly at

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[84] - [86] the wide nature of the discretion to suspend, and the considerations relevant to the discretion, were considered and identified. Particularly, in light of this decision, there is no justification in the present case for a grant of leave to enable further examination of the principles which ought to govern a decision to suspend a sentence of imprisonment.

24 This brief examination of the prospects of success of a Crown appeal indicate the considerable difficulties in the way of the Crown successfully demonstrating that the term of 3½ years imprisonment was manifestly inadequate. There may well be an arguable case whether a consideration of all the relevant circumstances did justify the exercise of the discretion to suspend service of that term of imprisonment. It cannot be said, however, that the Crown has a clear or obvious case that justice has miscarried by virtue of the sentence of imprisonment being suspended.

25 There are, however, further material considerations which tell against the exercise of discretion to grant an extension of time in the present case. The first is the factor of double jeopardy. This has been recently referred to again by the High Court in Bond v The Queen (1999) 74 ALJR 597 at 602 [27] where the court said that appeals against an alleged inadequacy of sentence have "long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed". Their Honours went on to say, in that case, that although such a jurisdiction has now become common place, in this country and elsewhere in the common law world, it is a jurisdiction the exercise of which is attended by some restraints. It is, therefore, an exceptional jurisdiction and in a class somewhat different from that of an appeal against sentence by a convicted offender; cf Dinsdale v The Queen (supra) at [61] and [62]. Secondly, in the present case this takes on an added significance because of the long delay before the Crown sought to appeal. A direct consequence of the substantial delay by the Crown in this case is that it was some ten months since the respondent was released into the community before this application could be heard. By then the respondent had taken significant steps to re-establish her life, having moved to live in another town and secured worthwhile employment. These matters provide quite telling reasons against an exercise of discretion to extend time to appeal even were the Crown's case on the merits quite compelling. That, of course, has not been shown to be the case.

26 For these reasons we consider that the application for an extension of time within which to appeal against the sentence must be refused.