R v PRFN

[2000] NSWCCA 230

CITATION:	Regina v PRFN [2000] NSWCCA 230
FILE NUMBER(S):	CCA 60308/99
HEARING DATE(S):	8 June 2000
JUDGMENT DATE:	21 June 2000
PARTIES :	Regina v PRFN
JUDGMENT OF:	Giles JA at 1; Grove J at 60; Greg James J at 61

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70012/98
LOWER COURT JUDICIAL OFFICER :	Newman J

COUNSEL :	M C Marien - Crown P R Zahra - Applicant
SOLICITORS:	S E O'Connor, Director of Public Prosecutions - Crown T A Murphy, Legal Aid Commission of New South Wales - Applicant
CATCHWORDS:	CONVICTION APPEAL - self-defence - sexual assault by deceased - profound psychological effect on appellant - belief that would be further sexual assault - appellant's later decision to kill - killing carefully implemented - role of immediacy of threat to accused - no realistic hypothesis that appellant could have believed on reasonable grounds that killing necesary in self-defence. Viro v The Queen (1978) 141 CLR 88, Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 considered - R v Rogers (1996) A Crim R 542 referred to. SENTENCE APPEAL - no error shown.
DECISION:	Appeal against conviction and sentence dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60308/99

SC 70012/98

GILES JA

GROVE J

GREG JAMES J

Wednesday 21 June 2000

R v PRFN

JUDGMENT

The restrictions on publication or broadcasting in s 11 of the Children (Criminal Proceedings) Act 1987 apply.

1    GILES JA: The appellant was charged with the murder on 1 November 1997 of Barry Walter Coulter (“the deceased”). Issues of provocation and diminished responsibility were left to the jury, but the trial judge ruled that the issue of self-defence should not be left to the jury. The appellant was found not guilty of murder but guilty of manslaughter, and was sentenced to imprisonment for a minimum term of three years commencing on 16 April 1999 with an additional term of three years thereafter. He appealed in relation to conviction and sought leave to appeal in relation to sentence.

2    The appeal in relation to conviction was on the sole ground that the issue of self-defence should have been left to the jury.

3    The appellant was born on 16 January 1982. His family farmed on properties near Mudgee, and he and his family came to know the deceased when the deceased’s son attended art classes conducted by the appellant’s father in Mudgee. A friendship developed between the appellant and the deceased’s son, and from time to time the appellant would visit the farming property conducted by the deceased. Sometimes the appellant would work at the property, sometimes he would stay overnight, and the deceased assisted him with his school mathematics studies. Quite a close relationship developed between the appellant, the deceased and the deceased’s son, notwithstanding that the deceased was aged in his sixties and the deceased’s son was considerably older than the appellant.

4    In April 1996 the appellant visited the deceased’s property on a weekend, staying overnight on the Saturday. During the overnight stay the deceased anally raped the appellant.

5    The appellant was then fourteen years old. The trial judge observed that “[t]he effects of that episode had devastating psychological effects upon [the appellant]”. His school work deteriorated: although an average student he had been determined to do well, but by the middle of 1997 there was doubt whether he would obtain the School Certificate for which he was then a candidate. He became withdrawn and suffered from recollections of the sexual assault, and was lethargic and subject to stomach cramps to the extent that it was suspected that he might have glandular fever. He carried out acts of self-harm including cutting himself with a razor and placing his hand on the hot plate of the family’s combustion stove, and he entertained thoughts of suicide.

6    In March 1997 the appellant’s sister-in-law Emily gave birth to a son, Jacob. The appellant was very fond of Jacob, and feared that the deceased might harm him. When his brother was away at night working shifts the appellant would go to the property occupied by his brother and sister-in-law in order to protect the baby.

7    The effects on the appellant could only have been exacerbated by the deceased’s subsequent conduct towards the appellant. On the day following the sexual assault the deceased drove the appellant home, indicating during the journey that he wanted to repeat the episode. From time to time the deceased would ring the appellant, making sexual overtures to him during the conversation, and on chance meetings in Mudgee he did the same. In fact there was no repetition.

8    In September 1997 the appellant revealed that he had been sexually assaulted, without identifying the person involved, and his family set about obtaining psychological assistance. This had not matured into counselling prior to 1 November 1997.

9    The appellant decided to kill the deceased. It is appropriate to go at this point to the evidence explaining why.

10    In a police interview after the killing of the deceased the appellant answered the question, “Why did you shoot him?” -

“I’d become basically scared of everything, heavy breathing where you, doing a long distance run at school and I had heavy breathing and, and threw up … a simple embrace made me feel sick. I’d break out in a cold sweat, started shaking, couldn’t breath, stomach twist up in knots. I’d lost all my friends from one. I started off fairly popular at school, but through becoming more and more aggressive, frustrated, I you know, people just didn’t want to be around me. My school marks had basically halved, and my parents couldn’t understand why I hadn’t, I told them but only fairly recently, I was very frustrated. I’d, I started having nightmares that Barry would come up to my baby nephew and I was finding it increasingly hard to sleep and concentrate. I also went into just reading continuously from book to book in an attempt to keep my mind occupied, building walls like I called it, so I wouldn't have stray thoughts of Barry and what he’d done to me which used to result in me being depressed or sick. I’d also start thinking heavily about suiciding, and I just didn’t want any more.”

11    The appellant gave evidence of going to the property of his brother and sister-in-law and spending part of the night in the house or outside the house near Jacob’s room, his attendance from time to time and protective attitude towards Jacob being confirmed in the evidence of his brother and sister-in-law. He said that he was “totally paranoid my nephew, my sister or somebody would be abused, or Barry would try and rape me again or, you know … ”, and that although the deceased had not made a threat towards Jacob he became “fixed on the idea that he was a threat”. He said, “I thought he would, its possible he’d put Jacob through the hell he’d put me through”.

12    The appellant’s father gave evidence that, following the killing, the appellant said to him that Jacob was safe.

13    Answering in his evidence the question why he’d shot the deceased, the appellant said -

“Basically, everything had escalated and the flashbacks and things like that, it was almost a continuous thing. And, yes, just being constantly down and feeling depressed all the time, I just had to do something. I was, you know, constantly worried that he would try and repeat what he had done or that he’d inflict that on someone else, some other kid. And I knew I just couldn’t, just couldn’t allow that. I couldn’t. I knew exactly what they would go through and I just couldn’t allow that. I had to do something.”

14    Then in his evidence the appellant amplified the statement in the police interview that he “just didn’t want any more”, saying -

“I’d been living my life continuously going over what had happened, reliving it and worrying that it would be inflicted upon somebody else, or me, and worrying that Barry would, he would come after me or my nephew or Emily or some other kid and, you know, just wanted to be able to have a night’s rest without waking up in the morning where I didn’t throw up. Just a normal day where I am not continuously worrying about what could be happening to kids that I love.”

15    At a later point in his evidence the appellant referred to “the idea of having the constant fear taken away, the idea of simply sleeping at night. I viewed the idea of living a normal life comfortably”; and to “the idea of being able to live a normal life”.

16    There was psychiatric evidence to the effect that at the time of the killing the appellant was suffering from post traumatic stress disorder and a major depressive disorder which were related to the sexual assault carried out by the deceased. The disorders included continual intrusive and intense thoughts in relation to the sexual assault and preoccupation with sexual abuse, manifesting in physical symptoms including nausea, trembling and difficulty in breathing and the thoughts of suicide earlier mentioned.

17    The appellant’s decision to kill the deceased was carefully implemented.

18    Early in October 1997 the appellant visited the deceased’s property in company with a friend, ostensibly to go hunting. He intended to use his rifle not for hunting but to shoot the deceased. However, the deceased’s son was at the property, and this caused the appellant not to carry out his plan.

19    On 1 November 1997 the appellant’s family was staying at one of the family’s properties attending to lambing, and the appellant said that he wanted to obtain a book and would do the night shift in attending to lambing at the other of their properties. He went to the latter property, from where he rang the deceased and invited him to the property. He said that his parents were away, and asked the deceased “if he would like to come over and fool around”.

20    In preparation for the deceased’s attendance the accused loaded a rifle and placed it in a cupboard. After the deceased had arrived he went forward with his arms up as if to embrace the appellant. The appellant asked the deceased to remove his jumper, in order that the deceased would have his vision impaired and his arm movements restricted. As the deceased did so the appellant retrieved the rifle. According to the appellant’s evidence -

“I turned around and Barry was just getting the jumper off and he said how sorry he was. And I said, ‘Yes, I bet you are’ and he said it would never happen again, and I said ‘No, no it won’t’. He then sort of became, well he sort of said, you know, in a challenging way, you are going to do it’, you know ‘You are not going to do it’ and things like that. I pulled the trigger but I put the safety on. When I flicked the safety off he took a dive for the door. I pivoted and followed. I am not sure where I hit him. I think I hit him in the ribs. I don’t remember going forward, but I must have done because he reached up just to snatch at the barrel of the rifle. I kicked him off and I fired. I am not sure how many times I fired. We ended up in the doorway between the bedroom and the lounge.”

In fact the appellant shot the deceased five times. He then telephoned his brother and the police were summoned.

21    It was not in dispute that the appellant intended to kill the deceased, and had devised the invitation to him in order to have the deceased alone at his parents’ property; this was a lure so that the appellant could kill the deceased. The appellant agreed that he had put considerable thought into “how you would carry out this execution”, and that there had been “perhaps several hours of planning on that particular day”. The appellant’s evidence in cross-examination included -

“Q. When you were in the process of making plans to kill the deceased, did you consider various options of the way in which you would carry out your plan?
A. I suppose so, yes.
…
Q. Ultimately on the plan you settled on, did you regard that as the best plan to carry out your intent?
A. I suppose so, yes.
…
Q. By 1 November 1997 immediately after the death of the deceased, did you feel satisfied?
A. No, I felt relief.
Q. You had put into operation your plan to kill the deceased, hadn’t you?
A. I had.
Q. In your opinion you had carried out that plan effectively?
A. I suppose so, yes.”

22    The trial judge noted that, the issue of self-defence having arisen, the Crown bore the onus of excluding self-defence beyond reasonable doubt. He said that he proceeded on the basis that the view of the evidence most favourable to the appellant should be taken, including the conclusion that the appellant believed on reasonable grounds that the deceased intended to sexually assault him again and was likely to sexually assault the appellant’s nephew Jacob or some other young persons. He said that, if in doubt, he should allow the issue of self-defence to go to the jury, and asked whether “there may be constructed a realistic hypothesis concerning the facts proved in evidence and available inferences which would give rise to the possibility of the defence being one for consideration (see R v Peisley (1990) A Crim R 42 at 51 per Wood J)”. It was common ground that his Honour directed himself correctly in these respects.

23    His Honour referred to the reconsideration of the law as to self-defence in Zecevic v Director of Public Prosecutions (1987) 162 CLR 645. He set out the statement in the judgment of Wilson, Dawson and Toohey at 661 -

“The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.”

24    His Honour said that the Court directed its attention to propositions set out in the judgment of Mason J in Viro v The Queen (1978) 141 CLR 88 at 146-7, and that the Court “substituted in lieu thereof the test I have already set out”. He referred to other aspects of the law as to self-defence considered in Zecevic v Director of Public Prosecutions and then said that in his view the reasons of the majority in that case did not cut down “the requirement of imminency as stated by Mason J” in the first of the propositions in Viro v The Queen, namely -

“1(a) It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.”

25    His Honour continued -

“The court’s statement relating to what should be directed to the jury, when dealing with the factual issue which has been referred to as calm deliberation on behalf of the accused, plainly enough goes to the events at the time, ie. the time when the killing took place.
It was submitted on behalf of the accused that even if it was a requirement that the threat needed to be immediate in time, as a matter of definition immediacy, picking up what is contained in the Oxford dictionary, involves a direct relationship between the threat and the actual shooting, a matter which counsel submitted was plainly enough the case here and thus, even if, as he submitted, it was not, the two concepts which Mason J mentioned in his first proposition in Viro were the law, then in any event the evidence was sufficient to allow a realistic hypothesis to be constructed.
The phrase used by Mason J in Viro did not use the word ‘immediate’, He said, as I have already set out, that the attack was one ‘about to be made upon him’. In terms of plain English, ‘about to be made’ in my view involves an attack which is very imminent indeed.
In the instant case the accused has said that the last time he saw the deceased was about a month before. There is in fact no evidence as to when it was that the accused last spoke to the deceased on the telephone other than on the fateful night. As I have already said, there was no issue that the deceased was at the property known as Iniminka on the night in question because the accused invited him to be there. That, I might add, on what also has fallen from the High Court in Zecevic , does not give rise to a matter going to the defence because the majority made it plain that (page 664):
‘A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.'
I make that quote in relation to the fact that the deceased was at Iniminka on the night in question and then, because the accused had invited him on the basis that sexual activity would take place.
In my view there is nothing in the evidence which could give rise to a realistic hypothesis that an attack was about to be made by the deceased on the subject night or, indeed, in the immediate future. In Regina v Rogers (1996) 86 A Crim R 542 at 545 Gleeson CJ, dealing with the question of self-defence, said:
‘Since the decision of the High Court in Zecevic , juries are instructed that the ultimate question is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. However, the imminence and seriousness of the threat to which the accused was supposedly responding are important, and often critical, factual considerations going to the accused’s supposed belief, and the reasonableness of his belief.’
As I have said, there is no question of any imminence of any threat being carried out arising from the evidence here.”

26    His Honour then referred to other cases which he considered bore upon the importance of imminence, namely R v R (1981) 21 SASR 321, Lavallee v The Queen (1990) 4 WWR 1 and Regina v Secretary 107 NTR 1. He concluded -

“It is for those reasons that I am of the view that even taking the matters raised on behalf of the accused at their highest, it would not be open to the jury to conclude that there was an attack either (a) being made on the accused at the time or (b) that was about to be made upon him or others or to have a reasonable doubt that either circumstance existed. There is just no case in my view to go to the jury that the Crown may fail to establish beyond reasonable doubt that it has excluded that the killing of the deceased by the accused was excused by the accused in self-defence when he shot the deceased. The matter of self-defence will therefore not go to the jury.”

27    In Viro v The Queen a bench of seven justices was assembled to consider whether the law as to self-defence was controlled by the decision of the Privy Council in Palmer v The Queen (1971) AC 814, with which R v Howe (1958) 100 CLR 448 was said to conflict, “and, if not, what this Court says is the proper direction where self-defence is raised” (at 90). On the issue of precedent, it was held that the Court was no longer bound by decisions of the Privy Council. On the issue of the direction where self-defence was raised, Mason J stated the task of the jury in six propositions, with the concurrence of Stephen and Aickin JJ. While Gibbs J preferred a different view, his Honour said that in order to achieve a measure of certainty he was prepared to agree with Mason J’s statement.

28    The six propositions were -

“1(a) It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.

(b) By the expression ‘reasonably believed’ is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.
2. If the jury is satisfied beyond reasonable doubt that there was no reasonable belief by the accused of such an attack no question of self-defence arises.
3. If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced.
4. If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably proportionate it should acquit.
5. If the jury is satisfied beyond reasonable doubt that more force was used, then its verdict should be either manslaughter or murder, that depending upon the answer to the final question for the jury—did the accused believe that the force which he used was reasonably proportionate to the danger which he believed he faced?
6. If the jury is satisfied beyond reasonable doubt that the accused did not have such a belief the verdict will be murder. If it is not satisfied beyond reasonable doubt that the accused did not have that belief the verdict will be manslaughter.”

29    Mason J expressed the conflict between Palmer v The Queen and R v Howe as between “acceptance or rejection of the proposition that in cases of self-defence the jury should be directed that, if the defence fails only because the jury considers the force used to be excessive, a verdict of manslaughter should be returned” (at 137-8). In expressing his preference for the affirmation of the proposition in R v Howe, his Honour said (at 139) -

“The underlying rationale of Reg v Howe is to be found in a conviction that the moral culpability of a person who kills another in defending himself but who fails in a plea of self-defence only because the force which he believed to be necessary exceeded that which was reasonably necessary falls short of the moral culpability ordinarily associated with murder. The notion that a person commits murder in these circumstances should be rejected on the ground that the result is unjust.”

30    In the course of his discussion of R v Howe and what it decided, his Honour said (at 143) -

“A distinction is to be drawn between the accused’s belief as to the danger which beset him and his perception of the proportionality of his response to that danger. For the offence to be reduced from murder to manslaughter it must appear that the accused reasonably believed in all the circumstances in which he found himself that an unlawful attack which threatened him with death or serious bodily injury was being or was about to be made upon him. But when it comes to the accused’s belief as to the appropriateness of his response it is sufficient that he honestly believed that the force which he used was reasonably proportionate to the danger which he believed he faced. There is no additional requirement that his belief in this respect should be reasonably held or that it should be based on reasonable grounds. It is enough, as I have said, that the belief is held.”

31    In due course his Honour stated the six propositions. The framing of proposition 1 dealt with the conflict of authority in its explanation of the expression “reasonably believed”. In that context, the subject of the belief was described as an unlawful attack, and his Honour’s statement of the underlying rationale of R v Howe spoke of the person “who kills another in defending himself”.

32    Stephen J also spoke of a person who kills while defending himself, and of an accused who honestly believed that his response to aggression was a reasonable one (at 133). Aickin J used the language of self-defence against an attack (for example, at 177 and 180). Barwick CJ, who favoured Palmer v The Queen over R v Howe to the extent that there was conflict, also referred to that about which the accused had a belief as an attack, saying (at 97-8) -

“I turn now to consider the elements of self-defence as an excuse for homicide. I do so in relation to an indictment for murder and on the assumption that the act by which the deceased died was done with the requisite intent. It is quite possible, though perhaps in general unusual, that in defending himself an accused in some circumstances can reasonably form such an intent in the doing of an act in defence of himself against an attack by the deceased.
The first element is the existence of such an attack. Its nature and extent may vary infinitely. The occasion may not be used by the accused for an aggressive attack upon the deceased. His excuse for doing the fatal act is that it was done in the reasonable defence of himself against the attack made on him by the deceased. The basic principle is expressed as being that a person attacked may defend himself by the use of such force as is reasonable in the circumstances.”

33    In Zecevic v Director of Public Prosecutions the appellant submitted that Viro v The Queen was incorrect so far as it required an objective element in that the accused’s belief had to be a reasonable belief (see proposition 1(b)). The submission was unsuccessful. Mason CJ affirmed that self-defence included an objective element (at 652); Wilson, Dawson and Toohey JJ said that the history of the law as to self-defence served to explain why the requirement of reasonableness remained part of that law, and observed that what they had said “would be enough to dispose of the submissions made on behalf of the appellant which were directed against the first of the six propositions formulated by Mason J and accepted by a majority in Viro” (at 659); and Brennan J included reasonable belief in his formulation of the law (at 670).

34    But there was also a re-examination of all the six propositions, with recognition that difficulties had been experienced in instructing juries in accordance with the propositions. That re-examination led to the statement in the judgment of Wilson, Dawson and Toohey JJ which the trial judge set out, a statement which Mason CJ agreed (at 654) correctly stated the law as to self-defence. It should be seen with the surrounding passages (at 661-3) -

“It is apparent, we think, from the difficulties which appear to have been experienced in the application of Viro , that there is wisdom in the observation of the Privy Council in Palmer that an explanation of the law of self-defence requires no set words or formula.
The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary.
Murder consists of an unlawful killing done with an intent to kill or to do grievous bodily harm. Recklessness may be put to one side as having no apparent relevance in the context of self-defence. Manslaughter also consists of an unlawful killing, but without such an intent. A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say the killing will have been without justification or excuse and it will be for the jury to determine how it will be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter: see Viro .
When upon the evidence the question of self-defence arises, the trial judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.“

35    As the entirety of this shows, in answering the simple question it is still necessary to consider whether the accused was defending himself or herself and what it was that the accused was defending himself or herself from. As was said in relation to homicide, the accused can hardly believe on reasonable grounds that it is necessary to kill or do serious bodily harm in order to defend himself or herself unless he or she perceives a threat which calls for that response, being ordinarily a threat causing a reasonable apprehension on the part of the accused of death or serious bodily harm.

36    In R v Rogers (1996) 86 A Crim R 542, in the course of a discussion of the defence of necessity to which self-defence is closely related, Gleeson CJ said (at 545-6) -

“ … it was customary for juries in homicide cases, when being instructed on the elements of self-defence, to be told that the first thing to consider was whether, when the accused killed the deceased, the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him: see Viro (1978) 141 CLR 88 at 146 - 147.

Since the decision of the High Court in Zecevic , juries are instructed that the ultimate question is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. However, the imminence and seriousness of the threat to which the accused was supposedly responding are important, and often critical, factual considerations going to the accused's supposed belief, and the reasonableness of his belief.
…
The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.
This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant's submission that, consistently with the approach to self-defence taken by the High Court in Zecevic , it is now more appropriate to treat those ‘requirements’, not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.”

37    The appellant submitted that the trial judge erred in applying a threshold test, taken from proposition 1 in Viro v The Queen, that before self-defence could be left to the jury there needed to be objective evidence of a threat of immediate harm. According to the submission, after Zecevic v Director of Public Prosecutions there was no longer a threshold test of immediacy of harm, and the immediacy of harm was but one of the matters to be considered in answering the simple question posed in that case. It was said that the question of the immediacy of a threat to the appellant should have been left to the jury to consider with all the other matters relevant to self-defence, and that the trial judge had wrongly perpetuated proposition 1, and had isolated immediacy of harm and, in the language found in Zecevic v Director of Public Prosecutions, elevated it to a rule of law rather than left it as a matter of evidence for the jury.

38    I do not think that his Honour erred in the manner suggested. He recognised the simple question from Zecevic v Director of Public Prosecutions. He considered that what he referred to as a requirement of imminency found in proposition 1 in Viro v The Queen continued, but I do not think that he treated it as a threshold test. Rather, as his Honour’s citation from R v Rogers demonstrates, he treated the imminence of any threat to the appellant as an important factual consideration relevant to whether, as a realistic hypothesis, the appellant could have believed on reasonable grounds that it was necessary in self defence to do what he did.

39    His Honour did say that there was nothing in the evidence which could give rise to a realistic hypothesis “that an attack was about to be made by the deceased on the subject night, or, in the immediate future”, and used equivalent language when stating his final conclusion. The language reflected the language found in proposition 1 in Viro v The Queen. But whether the appellant was defending himself and what it was he was defending himself from, including immediacy of harm, was in this case critical to whether the appellant believed on reasonable grounds that it was necessary in self-defence to do what he did, and reading the trial judge’s reasons as a whole he was saying that there could not be a realistic hypothesis of such a reasonable belief.

40    Even if there were infelicities in the way the trial judge expressed himself, it is necessary that the ruling that the issue of self-defence not be left to the jury was wrong. I do not think it was.

41    The appellant submitted that a realistic hypothesis supporting self-defence could be found in the evidence I have earlier summarised, from which it was said it was clear that the appellant perceived a continuous threat to himself and to others from the time of the sexual assault to the time of the killing. It may be noted that the trial judge proceeded on the basis of the conclusion that the appellant believed on reasonable grounds that the deceased intended to sexually assault him again and was likely to sexually assault Jacob or some other young persons. The submission described the threat as remaining immediate and not withdrawn, and it was said that the psychiatric evidence supported that the appellant’s perception of the threat and his ability to cope with it were compromised.

42    However, whatever the appellant’s apprehension of further harm to himself or others, the appellant had last seen the deceased early in October 1997 when he went to the deceased’s property ostensibly for hunting, and there was nothing beyond a generalised apprehension. While the appellant may have been, in his own eyes, protecting himself and others from perceived future harm, I do not think the matters on which he relied in the appeal could have supported a reasonable belief that what he did was defending himself and others. The appellant was not being attacked or anything like it, and to return to R v Rogers the critical element of imminence of a threat was lacking.

43    As part of his submission the appellant said that the issue of immediacy of threat is subjective not objective, to be considered as part of the circumstances as perceived by the appellant and not viewed objectively. Implicit in this was that the trial judge had erred so far as he approached the issue as a matter to be viewed objectively. However, as Zecevic v Director of Public Prosecutions affirmed, the belief of the accused to which the imminence and seriousness of the threat to which he was supposedly responding is material is objective, in that the accused’s belief must be on reasonable grounds. It is the belief of the accused, not that of a hypothetical reasonable person in the position of the accused, but the belief must be held on reasonable grounds. I do not think that the trial judge erred in the manner suggested.

44    In my opinion the appeal against conviction should be dismissed.

45    The sentence was backdated to the day on which the appellant went into custody. The trial judge directed that he is to serve the whole of the custodial part of his sentence in juvenile justice detention centre, and that he is not to serve any part of his custody in the adult prison system.

46    The application for leave to appeal in relation to sentence involves this Court’s jurisdiction to consider the exercise of discretion. In that regard the principles are clear. It is only in the case of relevant legal error that this Court may intervene.

47    There were four grounds of appeal against sentence -

(1) That the trial judge erred, when determining the basis upon which the jury returned its verdict of manslaughter, in finding that provocation was not established in law.

(2) That the trial judge erred in finding that the appellant’s act in killing the deceased was motivated by revenge.

(3) That the trial judge failed to give sufficient weight to the subjective factors which indicated that a sentence of imprisonment would have a destructive effect upon the appellant’s prospects of rehabilitation.

(4) That in all the circumstances the sentence is manifestly excessive.

48    In his remarks on sentence the trial judge referred to the psychiatric evidence and, having found that the appellant was suffering from post traumatic stress disorder, with a major depressive illness which constituted a sufficient abnormality of mind to make out the defence of diminished responsibility, continued -

“As I have said counsel for the prisoner urged that this is a case where I should also find provocation. While I certainly accept that the sexual assault and subsequent sexual suggestions made by the deceased to the prisoner were provocative I do not accept that at the time of the shooting the prisoner had lost self control.
On the contrary I am of the view that the careful planning and the mode of execution of the shooting were such as to demonstrate that the prisoner was in complete control of his actions at the time.
It was submitted that the embrace which occurred between the deceased and the prisoner immediately before the shooting and the deceased’s statement said in a challenging way ‘you are not going to do it’ constituted provocation sufficient for the prisoner to lose self control.
At the time it must be remembered that the prisoner had in fact lured the deceased to the property with a promise of homosexual activity. Thus the embrace which took place was hardly provocative but within the context of the prisoner planning to assassinate the deceased. The fact that the deceased attempted to talk the prisoner out of carrying out his plan cannot constitute provocative conduct but rather an act of self preservation. I thus find that provocation, in law, is to be excluded as a finding.”

49    It was submitted that, although the shooting of the deceased was planned, in the light of the appellant’s evidence of the persistence of thoughts of the sexual assault and his inability to avoid them, and in the light of the psychiatric evidence, the act of shooting “can be seen to be the ultimate loss of control upon the accumulation of the stresses upon [the appellant] over time”; even if provocation could not be established in law, the killing of the deceased could only be understood as an ultimate reaction to the acts of the deceased, and “significant weight should have been attached to this factor”.

50    In leaving the issue of provocation to the jury, as the Crown conceded should occur, his Honour must have been of the view that provocation could arise in the jury’s consideration. In his remarks on sentencing he accepted that the sexual assault and subsequent sexual suggestions made by the deceased to the appellant were provocative. But he considered that, while there was substantially diminished mental responsibility, there was no relevant loss of self-control, such as was necessary to a finding of provocation and the careful planning and execution of the shooting made that conclusion all but inevitable. Even if the lapse of time itself did not exclude a finding of provocation, it told against loss of self-control. That finding of fact was open to his Honour. I do not see any error in the trial judge declining to find provocation in that sense. It may be added that it is plain from other parts of his Honour’s remarks on sentencing that he had well in mind the psychological effects upon the appellant of the sexual assault and subsequent sexual suggestions made by the deceased, and as has been noted he accepted the provocative nature of those events.

51    In his remarks on sentencing the trial judge also said -

“As I have mentioned, counsel for the accused urged that I should find that the prisoner acted as he did out of a sense of self defence - to obviate the risk of the deceased again sexually assaulting himself or some other young person, particularly his nephew Jacob. At the trial I declined to put self defence to the jury for the reasons I then gave, and from which I do not resile. However, I am prepared to accept for the purposes of sentencing that his misguided concept of self defence on the prisoner’s part was one of the matters which motivated him to act as he did. However, I do not accept that this was the only matter which motivated the prisoner. His account of the shooting at the trial was given in a manner which I found to be, to borrow Dr Canaris’ description, chilling. Dr Canaris so described the manner in which the prisoner described that event to him. Furthermore, the prisoner now expresses no remorse for his actions. Whilst he denies that his acts were motivated by a desire for revenge, I am of the view that revenge was in fact one of the motivating factors which led him to act as he did.”

52    The appellant submitted that, while there was planning, in the light of the psychiatric evidence it could not be concluded to the requisite standard that he was acting in part in revenge.

53    The appellant’s evidence included that he saw what he called “a glimmer of fear” in the deceased’s eyes. He agreed that he may have “smiled at that point”, and it was put to him that he smiled because he was taking revenge on the deceased for what the deceased had done to him. He denied this, saying “it was the idea of being able to live a normal life”. But the history given by the appellant to one of the psychiatrists, Dr Blinkhorn, included that he was very angry towards the deceased at the time of the shooting, and that he could recall shouting abuse at the deceased. Dr Canaris identified intense anger on the part of the appellant towards the deceased, one reason for his description of the appellant’s account of events to him as chilling. His Honour said no more than that revenge was no more than one of the motivating factors which led the appellant to act as he did, and while he must have taken this into account it was not thereafter referred to so as to be given prominence at the expense of the other motivating factor to which his Honour referred, the “misguided concept of self-defence on the prisoner’s part”. I do not think there was any error in his Honour finding partial motivation of a desire for revenge.

54    The third ground concerning the appellant’s prospects of rehabilitation was at the forefront of the appellant’s submissions. It was said that there was no need to protect the community and no need to deter the appellant from further violence, and that in giving weight to the other purposes of criminal punishment (see Veen v The Queen (No 2) (1988) 164 CLR 465 at 476) rehabilitation, in this case in the form of enabling adequate psychiatric treatment of the appellant to assist him to overcome the profound effects of the sexual assault and all that followed, had not been sufficiently recognised.

55    The trial judge was very conscious of the appellant’s youth, and described him as a person whose prospects of rehabilitation should be excellent. He referred to the earlier regular psychiatric treatment of the appellant, and to the fact that the treatment had been interrupted since the appellant had been in custody because Dr Blinkhorn was of the view that she could not carry out any appropriate treatment while he was in custody. His Honour referred to a report which conveyed that the psychologist at the Minda Juvenile Justice Centre considered that the appellant would need to be in an emotionally secure environment in order that he work through his emotional issues related to the initial sexual assault and the offence, and that Dr Blinkhorn was fearful that the appellant’s then good behaviour might eventually deteriorate to aggressive behaviour and at worst consideration of suicide. His Honour noted the principles relevant to sentencing children in the Children (Criminal Proceedings) Act 1987, and cited from observations of Hunt CJ at CL in R v JMR (28 November 1996, unreported) that “where a young offender is being sentenced the courts have laid down that the usually predominant consideration of the general deterrence of others against committing similar crimes is not as important as it would be in the sentencing of an adult”, and that “it is very important to consider the individual treatment of the offender directed to his or her rehabilitation”. Hunt CJ at CL had continued, however, and the citation continued, that general deterrence is not ignored entirely, particularly where a young person conducts himself in a way an adult might conduct himself and commits a crime of considerable gravity.

56    His Honour nonetheless considered that a custodial sentence was necessary. He referred to the judgment of Gleeson CJ in R v Chaouk (Court of Criminal Appeal, 17 August 1993, unreported), the facts in which were not dissimilar from the facts in the present case -

“The unlawful taking of another person’s life is a very grave matter. Whilst the prisoner acted under provocation and a loss of self control, and whilst his responsibility for his actions was diminished, his responsibility for those actions was not eliminated. Even allowing for the pressures under which he was acting and which reduced what would otherwise be murder to manslaughter, his actions involved taking the law into his own hands and to a degree consciously inflicting punishment upon the person who had wronged him. There is no place in our society for such acts of vengeance, and when they result in loss of human life, they are to be treated very seriously.”

57    After again acknowledging the appellant’s youth, his Honour said -

“I should add that whilst I have taken into account the fact that the prisoner’s psychiatric treatment will be hampered by the imposition of a custodial sentence, as I have said the objective facts of the slaying of the deceased are so serious as to warrant a custodial sentence.”

58    His Honour clearly gave weight to the effect on the appellant’s rehabilitation of a custodial sentence, in particular its impact on continuation of the appellant’s psychiatric treatment. I do not think there was any error in the way in which he directed himself, or paid regard to the importance of the appellant’s rehabilitation in exercising his sentencing discretion. In my opinion it was open to his Honour to arrive at the sentence he did.

59    No separate submission was made in relation to the sentence being excessive, the basis of that ground no doubt being found in the three other grounds of appeal. No legal basis to overturn his Honour’s views has been made out, and although leave to appeal should be granted, in my opinion the appeal on sentence should also be dismissed.

60    GROVE J: I agree with Giles JA.

61    GREG JAMES J: I agree with Giles JA.

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