R v Mervyn Keith Hull No. SCCRM 97/2 Judgment No. 6097 Number of Pages 5 Criminal Law

[1997] SASC 6097

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

COX, MILLHOUSE AND LANDER JJ

Criminal law - jurisdiction, practice and procedure - judgment and punishment - sentence - factors to be taken into account - plea of guilty to murder of young son - appeal against sentence - effectiveness of deterrent value of higher non-parole period - special circumstances of the offence.

ADELAIDE, 4 April 1997 (hearing and decision)

#DATE 4:4:1997

#ADD 28:4:1997

Appellant R:

Counsel: Ms W Abraham

Solicitors: DPP (SA)

Respondent Mervyn Keith Hull:

Counsel: Ms M Shaw QC with Mr M Griffin

Solicitors: Mr J Kelly

Order: appeal allowed.

COX J

1. In my opinion the Crown should have leave to appeal and the appeal be allowed for the purpose of substituting fourteen years for the non-parole period fixed by the sentencing Judge. The sentence, including the non-parole period, should run from 24 August 1995. I agree with the reasons of Lander J.

MILLHOUSE J

2. I could scarcely bear to read these papers, what the respondent did was so dreadful. Yet how can one not feel deeply for a man who could sink to such depths of despair as to kill the young son whom he loved ?

3. Nevertheless what he has admitted doing was a serious crime and must be punished severely.

4. What is a severe punishment ? There is no standard to apply. The learned sentencing judge imposed a non-parole period of 9 years. I cannot say that he was wrong.

5. My brothers stress the need for deterrence. Of course they are right. I cannot think, though, that, in such circumstances as these, a period of 14 years will be a more effective deterrent to others than 9 years. I regret that I cannot agree with them that the appeal should be allowed to increase the non-parole period.

6. I think the appeal should be dismissed.

LANDER J

7. The respondent was convicted on his own plea of guilty of the murder of his son Cameron Hull who was then aged nine months. He was sentenced to life imprisonment and a non parole period of nine years was fixed to operate from the date of sentence namely 19 December 1996. In fixing the non parole period of nine years his Honour took into account that the respondent had been in custody since 24 August 1995, a period of some fifteen months.

8. This is an application by the Director of Public Prosecutions for leave to appeal against sentence upon the ground that the sentence is manifestly inadequate in that the non parole period fails to represent sufficiently the essential criminality of the conduct, fails to reflect adequately the necessary element of deterrence, and fails to maintain an adequate standard of punishment for offending of this kind.

9. The Director's right to appeal is governed by s352(1)(a)(iii) of the Criminal Law Consolidation Act which allows him to appeal against any sentence passed on a conviction, other than a sentence fixed by law, on any ground with the leave of the Full Court.

10. Notwithstanding that entitlement it is only in rare circumstances that the Director would be entitled to leave to appeal against sentence and: "... only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." Griffiths v The Queen (1977) 137 CLR 293 at 310.

"The reference to 'matter of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in point of principle'". Everett v The Queen (1994) 181 CLR 295 at 300.

11. The respondent, who was born on 5 May 1965, was married to his wife Valerie in March 1994, although they had lived together since May 1991. The prisoner was ten years older than his wife. The deceased was born on 1 November 1994 but even by that time the marital relationship had already deteriorated badly. After the birth of the child the relationship continued to deteriorate resulting in a lack of affection on the part of the wife to the respondent. Six months after Cameron's birth the wife left the matrimonial home taking Cameron with her.

12. She returned to Port Lincoln and the respondent followed for the purpose of trying to work things out. There were further heated arguments and all attempts at reconciliation failed. Indeed in due course the wife took out a restraining order directed to the respondent. The respondent experienced difficulty in obtaining access to Cameron. In June 1995 the respondent was involved in an altercation with his father in law as a result of which the police were called. The respondent told his brother what had happened and said to his brother "I've got to come back from Adelaide unannounced, snatch Cameron and do us both in." His brother said that the respondent was quite calm when he said that.

13. The respondent lost his employment a few months after the separation because of repeated absences from his employment, which were occasioned by his attempting to effect a reconciliation and to take access. At or about this time because of financial problems consequent upon the separation and his unemployment he began to live in his motor vehicle to save money.

14. In August 1995 he obtained access to his son and he was allowed access between 10.00 am and 3.00 pm on three days each week.

15. On 23 August 1995 the respondent's wife brought the deceased child to the respondent's mother's place where he was then residing. The respondent and his wife argued and she left the house crying, but she left the child with him.

16. A little later the respondent drove his mother and the child to the shops leaving his mother, arranging to meet her an hour later. He then drove out of Port Lincoln. He was probably then in breach of the order of the Family Court for access, in that the access was not being supervised.

17. He was by that stage particularly upset and was crying. He drove a distance from Port Lincoln and claims that during that time he smoked marijuana. He drove for two and a half hours to a point somewhere between Lock and Coulta. He fed the child and attended to its needs. Shortly before 3.00 pm he realised he was in breach of the Family Court order to return the child by 3.00 pm. He became more upset because he thought that the breach of those arrangements would disentitle him to further access.

18. He said he stopped on a dirt road, smoked some marijuana and decided to commit suicide by filling the car with carbon monoxide. He told Doctor Barbour, psychologist, that he thought about leaving the child alone in the bush but decided that he was too young, so he decided to kill Cameron as well. He told Doctor Lucas, psychiatrist, that he did not think that in having Cameron in the car he would "take his life as well". Doctor Lucas specifically rejected that explanation. I would also reject that assertion by the respondent. He could not have thought that he would be able to take his own life in the manner described, without taking the life of Cameron.

19. He took a hose from the boot of the car which he connected to the exhaust and put in through the rear window of the car. He closed the windows and turned on the engine and lay on the back seat with Cameron in his arms. Apparently the exhaust system blew the hose off the system which woke the respondent. At that stage he was affected by carbon monoxide poisoning and believed his son was also. He said that he noticed that his son was listless and limp but was still alive. He thought that what he had done may have caused his son brain damage by carbon monoxide poisoning. He did not want him to suffer any pain so he got out of the car, took a tomahawk and struck him on the back of the neck and killed him. He killed him by laying the baby on the ground. He then struck him in the back of the head once with the tomahawk. The baby stopped crying and his body twitched once. To prevent any unnecessary suffering he struck Cameron in the back of the head a second time. At the time he struck Cameron he knew that his actions would result in the death of his son. I must say I find it difficult to understand how on the one hand he was keen for the child not to suffer pain but on the other hand struck him with a tomahawk and killed him.

20. The respondent then attempted to take his own life by making another attempt to poison himself by carbon monoxide gas but was unsuccessful. He then made a third attempt at suicide and took some forty tablets hoping that the tablets would kill him but again he was unsuccessful.

21. He slept on and off until daylight the next morning. He left the scene and travelled through Poochera. He telephoned his lawyer and told his lawyer what he had done. He was advised to either travel to Adelaide or Port Lincoln and give himself up. He telephoned his family from Kyancutta and another member of his family from Loch. Whilst travelling back to Port Lincoln he was stopped by the police and arrested. He has been in custody since 24 August 1995.

22. The respondent is thirty-one and has no relevant previous convictions. He is one of ten children who were brought up in circumstances of extreme hardship and poverty, although all of the children in the family have surmounted those difficulties and have achieved particularly well. The prisoner did not do well at school probably, because as psychological testing shows, his level of intelligence is in the lowest ten per cent of the general population of his age group, but until his marital problems he had been in regular employment and was apparently a conscientious worker.

23. Medical evidence suggests that the carbon monoxide which the respondent would have ingested would have impaired his ability to make rational decisions. The learned sentencing Judge accepted that at the time that he killed his son he was acting irrationally because his mind was by then affected by both the depression caused by the matrimonial difficulties and the inhalation of carbon monoxide. The learned sentencing Judge also took into account that the prisoner expressed both contrition and remorse, which he had evidenced by his surrender to the police and subsequent plea of guilty.

24. Whilst the Director accepted that this crime was carried out in the circumstances of an acrimonious break up of a marital relationship it was argued such events are not uncommon. Ms Abraham submitted, in those circumstances, that aspects of general deterrence must play a significant role in any sentence imposed for a crime of this kind, particularly so when the crime was visited upon a defenceless child.

25. Also whilst the Director was prepared to admit that there were mitigating factors operating in favour of the respondent, those being; the acrimonious relationship between himself and his wife; the loss of his job; the suffering of depression, and in respect of the particular incident itself the inhalation of carbon monoxide, none of those factors individually or collectively could, it was put, outweigh the necessity for a sentence which would reflect the community's abhorrence of crimes of violence directed toward defenceless children. In those circumstances it was put that the non parole period did not sufficiently reflect the criminality of his conduct.

26. In my view, even given all of the matters put in mitigation in support of the respondent, the non parole period fixed by the learned sentencing Judge was too low. I do not think given all that has been put on behalf of the respondent that a non-parole period of nine years can be said to be appropriate where a father murders his ten month old son.

27. I think the learned sentencing Judge gave insufficient weight to three matters two of them factual and one a matter of principle. First the threat that the respondent made in June of 1995. Whilst the making of that threat does not necessarily mean that the respondent had a fixed intention from thereon to do what he threatened, it indicates that the respondent considered killing himself and the child for the purpose, effectively, of punishing those with whom he was then in dispute, namely his wife and father in law. Secondly he did not give sufficient weight to the fact that the respondent tried to commit suicide and must have intended that Cameron die with him. In those circumstances he formed that intention absent any suggestion that his mind was affected by carbon monoxide poisoning.

28. The matter of principle to which I refer is that of general deterrence. This is a case where aspects of general deterrence are important. Many persons become involved in marital disputes and many of those disputes become heated and some unfortunately become violent. Too often, sadly, children become pawns in those marital disputes. That is bad enough. But those who do become involved in marital disputes must clearly understand that they cannot visit violence upon their children for any reason whatsoever but in particular for the purpose of upsetting or punishing their spouse. Such action it should be understood will attract very severe punishment. The community ought to be able to expect that the courts will be quick to protect the defenceless, particularly children.

29. Whilst I acknowledge that leave to appeal is only granted sparingly this is one of those few occasions where the sentence is in my respectful opinion so manifestly inadequate that the sentence would, if allowed to stand, be "so disproportionate to the seriousness of the crime as to shock the public conscience". R v Osenkowski (1982) 30 SASR 212 at 213.

30. I would grant leave to appeal and I would set aside the non parole period fixed by the learned Sentencing Judge and substitute for the period fixed a period of fourteen years, the sentence to commence from 24 August 1995.