R v O'Donnell No. Sccrm-01-328

R v O’DONNELL
[2002] SASC 183
Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ

DOYLE CJ. I would dismiss the appeal. I agree with the reasons given by Perry J.
PERRY J. The appellant was convicted of manslaughter following a trial in this Court before a Judge and jury on a charge of murder. By leave, he appeals against the sentence which was imposed upon him, namely a head sentence of 12 years imprisonment with a non-parole period of 8 years. Both were directed to run from 22 August 2000, when the appellant was taken into custody following a breach of bail conditions.
Initially, the appellant advanced one ground of appeal only, namely that the sentence was manifestly excessive. Subsequently, the appellant added a further ground of appeal:
“That the learned sentencing judge erred in his remark on sentence (9.8) that ‘whilst you are not to be positively penalised for exercising your right to defend the charge against you, you are nevertheless not entitled to any discount for a timely plea’.”
That ground of appeal was abandoned by Mr Stokes of counsel for the appellant on the hearing of the appeal and it is not necessary to refer to it further.
The offence occurred in the early hours of the morning of 30 June 2000. The appellant, then a young man of 18 years, had been drinking beer during much of the previous afternoon at a hotel at Reynella. Shortly before going to the hotel he had taken an Ecstasy tablet. At about 5.00 pm he visited his girlfriend, with whom he drank some more beer, before they travelled to a pool hall known as Sharkeys Cue Sports Centre at Reynella.
While there, the appellant took two more Ecstasy tablets and continued drinking, switching to Jack Daniel’s and Coke. He left the premises at about closing time, which was about 5.00 am, intending to obtain a ride with a friend to another venue.
As the appellant was leaving, a brawl erupted between two groups of people in the car park. Initially, it does not appear that the appellant was involved, but shortly after it broke out, the appellant saw the victim, Paul Stewart, a young man of 28 years, wielding what was described as a section of Club lock, in the midst of the affray.
Stewart struck another man with the section of Club lock. This provoked a reaction from the appellant. He approached Stewart and stabbed him three times in the back with a 12 centimetre long, double-edged broad-bladed knife which the appellant had been carrying. Stewart died soon afterward on the same day.
At his trial the appellant did not deny that he had stabbed the victim. The principal grounds of defence to the charge of murder which he raised were that he had acted in self-defence, or that there was a reasonable doubt as to whether he intended to cause grievous bodily harm.
During the course of his sentencing remarks, the learned sentencing judge stated that this was “a most serious case of manslaughter and you are fortunate that the jury did not return a verdict of murder”. He went on to observe that the verdict implied either that the jury was not satisfied beyond reasonable doubt that at the time of the stabbing the appellant intended to cause Stewart grievous bodily harm, or that it was reasonably possible that the appellant had acted in defence of himself or of some other person involved in the fracas.
The learned sentencing judge stated that he found the appellant’s account of the stabbing unconvincing, and rejected the suggestion that the appellant had stabbed Stewart in self-defence.
The learned sentencing judge went on to indicate that he sentenced the appellant on the footing that it remained a reasonable possibility that due to the appellant’s state of intoxication at the time, he may not have formed the specific intention of causing Stewart really serious bodily injury. He observed that the appellant was “... so hyped up and befuddled” that he may not have formed “any specific intent of that type and may have lost a reasonable appreciation of the enormity” of what he was doing. He further observed:
“The verdict was, in my opinion, a merciful one, which reflected that all of those involved in the melee that night had engaged in what was essentially a spontaneous drunken brawl, with little or no thought as to the potential consequences.”
The learned sentencing judge held that the appellant was “clearly very intoxicated” at the time of the stabbing, and noted that the victim was in a similar condition, in that he was found to have a blood alcohol concentration of 0.256%.
In his evidence at the trial, the appellant explained his possession of the knife on the footing that he carried it primarily for self-defence, having previously suffered injuries when confronted by a number of persons who had attacked him some eight to twelve months previously. He said also that he used the knife at his work.
The learned sentencing judge observed:
“The carrying of such an offensive weapon was plainly unlawful, and a circumstance of aggravation which must be taken into account. It is stating the obvious to say that, had you not deliberately breached the law by carrying the weapon the offence of which you have been convicted could not have occurred. The fact of the matter is that if a knife is carried, sooner or later it is almost bound to be used. A combination of intoxication and the carrying of such an offensive weapon is a classically lethal formula.”
At the time of his death, the victim was aged 28 years. He left a young widow and two young children, the eldest of whom was four years. A further child was born about three weeks after the offence was committed.
Victim impact statements from the family of the deceased are eloquent as to the catastrophic effect that the deceased’s death had on his widow, his children and his parents. The deceased’s widow relied heavily on the deceased for support, given that she suffers from a substantial hearing impediment and communicated with sign language.
The appellant was born in Victoria. His parents separated when he was a young child and he was largely brought up by his father, who moved with the family to South Australia while the appellant was in his teens. At the time of the offence, the appellant was employed at a winery at Reynella.
Although the learned sentencing judge described the appellant as “... an immature young man of previously generally good character”, he appeared in 1997 at the Children’s Court in Frankston, Victoria, on a charge of theft of a motor vehicle, and about a year later in the Children’s Court at Adelaide on a charge of breaking and entering a building. In neither case was the appellant convicted, and he was released on a bond, which suggests that the offences were not regarded as serious.
The learned sentencing judge had the benefit of a report from a psychologist who examined the appellant while he was in custody. The psychologist described the appellant as being of average intelligence. He noted that the appellant’s childhood was disrupted by the separation of his parents and by the death by suicide of his best friend when he was aged 15.
The psychologist elicited that the appellant normally appeared to have a “good level of control” over his drinking, but had supplemented this with cannabis, which he had begun using at the age of 14, and experimentation with a number of other drugs, although he did not appear to have a drug dependency.
The psychologist concluded:
“Shaun O’Donnell does not have a history of psychological dysfunction such as impulsivity, difficulty controlling aggressive behaviour, personality or psychiatric disorder. He has not previously been convicted of an offence involving violence.
Your client ingested a quantity of alcohol during the course of the night and early morning prior to the commission of the offence. That, combined with the possible effects of ecstasy, particularly if the latter was not pure MDMA, could well have been sufficient to leave to impaired judgment on the part of Mr O’Donnell. His account is such that there is a suggestion he panicked in the face of, what he perceived to have been, a significant threat from the victim. The drugs ingested may have led to disinhibited behaviour on his part.
Mr O’Donnell continues to express the belief he acted in self defence at the time of the offence, although has accepted the verdict of the jury. He is deeply saddened by the death of Mr Stewart and is empathetic about the effect that may have on his relatives and friends.
I expect your client to complete his sentence without mishap, to utilise facilities within the prison system in a positive manner, and to establish himself in a pro social lifestyle free of offending behaviour following release.”
In his submissions for the appellant on the hearing of the appeal, Mr Stokes of counsel emphasised the fact that the appellant was only 18 years of age at the time of the offending, and that he had no relevant prior convictions. He did not challenge the basis upon which the learned trial judge pronounced sentence, namely lack of proof of intent rather than excessive self-defence. Neither did he challenge the finding that the appellant stabbed the deceased from behind.
Mr Stokes contended that the head sentence of 12 years imprisonment was manifestly excessive. While he conceded that it was difficult to formulate any “general tariff” for manslaughter or to make comparisons between penalties imposed in other cases, he referred to several decisions with respect to which he suggested that the penalty under appeal was inconsistent. I do not pause to deal specifically with those authorities as manslaughter may be committed in a variety of circumstances and there can be no specific sentencing standard to which a given sentence must conform. See, for example, R v Duke[1] per Martin J at 43:
“As to the adequacy of the head sentence and non-parole period, counsel for the Director acknowledged that there is no so-called ‘tariff’ for the crime of manslaughter because the crime is committed in a wide variety of circumstances. In R v Weinman[2] Matheson J referred to the sentencing remarks of Wells AJ in R v Shaw[3] in which his Honour had observed that at the lowest range of criminality manslaughter may be little more than a practical joke that went wrong, and at its highest it stops just short of murder. As King CJ said in Weinman, ‘the facts and circumstances of a crime of manslaughter are so varied that it is questionable whether decisions of an appellate court can establish any intelligible standards’ (p 248). Bollen J expressed the same view.”
[1] [2000] SASC 254, Court of Criminal Appeal (unreported) per Martin J at 43.
[2] (1987) 49 SASR 248 at 250.
[3] 27 March 1987 (unreported).
It has commonly been said that the introduction of a knife in the course of a struggle or altercation is a circumstance of significant aggravation.[4]
[4] See, for example, R v Bate (1988) 145 LSJS 329 per King CJ at 330.
I accept that bearing in mind the appellant’s age, the sentence under appeal might be regarded as severe.
But in all the circumstances, I am unable to conclude that a sentence of 12 years imprisonment with a non-parole period of 8 years is manifestly excessive.
I would dismiss the appeal.
LANDER J.            I agree for the reasons given by Perry J that this appeal should be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. [2000] SASC 254, Court of Criminal Appeal (unreported) per Martin J at 43.
2. (1987) 49 SASR 248 at 250.
3.   27 March 1987 (unreported).
4.   See, for example, R v Bate (1988) 145 LSJS 329 per King CJ at 330.

[2002] SASC 183

13 June 2002