R v Rendle
[2005] VSCA 52
•24 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 45 of 2004
| THE QUEEN |
| v. |
| MATTHEW CHARLES RENDLE |
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JUDGES: | WINNEKE, P., CHERNOV, J.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 February 2005 | |
DATE OF JUDGMENT: | 24 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 52 | |
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Criminal Law - Murder - Sentencing - Appellant intellectually impaired - Whether sentencing judge failed properly to take into account the appellant's intellectual impairment - Finding that offence not a "spontaneous eruption of emotion" open on evidence - Head sentence of 14 years' imprisonment and non-parole period of 11 years' imprisonment not manifestly excessive - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr C.B. Boyce | Victoria Legal Aid |
WINNEKE, P.:
I will invite Chernov, J.A. to deliver the first judgment in this appeal.
CHERNOV, J.A.:
The appellant, Matthew Charles Rendle, who is now aged 41, pleaded guilty in the Supreme Court at Melbourne to murdering Craig William Bohn (“the deceased”) on 26 February 2002. The maximum penalty for murder is life imprisonment. On 27 April 2004, following a plea in mitigation made on the appellant’s behalf, the learned sentencing judge imposed a total effective sentence of 14 years’ imprisonment and directed that the appellant serve a minimum term of 11 years’ imprisonment before becoming eligible for parole. The appellant does not have any relevant prior convictions. On 22 October 2004 he was granted leave to appeal against his sentence by a single judge of this Court. The sole ground listed in his notice of application for leave to appeal against sentence, which was filed on 11 May 2004, is that the sentence imposed is manifestly excessive. On 9 February 2005, the Registrar of this Court granted the appellant leave to add two further grounds of appeal, namely, first, that the learned sentencing judge erred by failing properly to take into account the evidence of the appellant’s medical condition and secondly, that his Honour erred by imposing a non-parole period that is manifestly excessive, particularly when compared to the head sentence.
The circumstances of the offending and those pertaining to the appellant are set out in his Honour’s comprehensive sentencing remarks and I will not repeat them here. It is sufficient to note that the murder, which was committed at night whilst the victim was in his own home, was a violent and grossly exaggerated response by the appellant to a perceived slight against him by the deceased, who had stolen from him, the day before, a pair of electronic scales when he visited the appellant at his home. The appellant entered the victim’s home armed with a knife with a large blade and demanded the return of his property. He cut the deceased across the face when he attempted to stand from a sitting position on his bed before continuing to demand that the deceased return the scales. When the deceased admitted to taking them but said that he could not give them back because he no longer had them, the appellant jumped on top of him and stabbed him repeatedly before leaving the premises and returning home. Police and ambulance officers were called but the deceased died at the scene from multiple stab wounds and haemorrhage. The appellant was arrested at his home at approximately 7.10 a.m. the next day and, in January 2004, pleaded guilty to murder, having reserved his plea at the committal hearing so that his legal advisers could investigate the appellant’s level of mental impairment.
It seems plain that the appellant’s anger at the time of the offending was generated by the theft of his scales, about which he had been obsessed since the previous afternoon. On the morning of the day of the murder the appellant became angry when told by a friend that it was the deceased who had stolen his scales. He showed his friend the largest of the knife blades that he had in his possession and threatened to use it on the deceased saying “this is going to do the job. This is the only thing that is going to fix it.” That afternoon, however, the appellant formed the belief that another person, Wayne Jewell, had stolen his scales. Accordingly, he went to Jewell's house armed with a knife. When Jewell’s mother told him that her son was not at home, he showed her his knife implying that he intended to use it against the person who stole his belongings and he then left the premises. The appellant was later told by yet another friend that it was the deceased who stole his scales. It was shortly thereafter that he went to the deceased’s premises. Because the deceased was not at home, he waited for him to return. When he did, the appellant confronted him as I have described and killed him. His Honour recognised the build up of anger in the appellant over this period arising from the theft of his scales. The learned sentencing judge said: “It is apparent that for many hours prior to your attack upon the deceased man you had ruminated over the theft of the scales. At least an hour, if not more, before the happening of the incident, you took a knife from your place of residence with you when you left to find the person responsible for the theft.” His Honour went on to say that the deceased had been killed because of the appellant’s “inability over a considerable period to control [his] rage”.
The learned sentencing judge set out in some detail in his sentencing remarks the appellant’s personal circumstances, including his long history of medical and psychiatric treatment as well as his long term substance abuse. The appellant, who has been diagnosed an epileptic, suffered his first convulsion when he was aged nine months. He was troubled by learning difficulties throughout pre-school and primary school but was not diagnosed as suffering from epilepsy until much later. He continues to take medication for this condition but unfortunately has, on several occasions, overdosed and required hospitalisation. At one point during his primary schooling, the appellant was placed in a school for children with learning disabilities, but it appears he rejoined mainstream schooling shortly thereafter, eventually commencing at a technical college. He has never, however, been employed and the medical evidence indicates that he is probably not capable of working outside a sheltered workshop.
Mr Jackson, who is a clinical neuropsychologist, examined the appellant on 22 March 2004 and prepared a report dated 4 April 2004 which was tendered. He also gave evidence before his Honour. He reported that testing indicated the appellant has an IQ of 64, meaning that 99.5 per cent of the population would perform better than him in such tests. Mr Jackson stated that the appellant had borderline pre-morbid intellectual skills and his thinking was “concrete and inflexible.” Further, he said that it was more likely that the appellant had sustained brain injury as a result of an epileptic seizure than due to substance abuse. Moreover, as his Honour observed, the appellant’s use of drugs has not helped his mental stability.
The appellant has received ongoing psychiatric assessment and treatment during his life. He was referred to a number of psychiatrists as a child but no diagnosis of any psychiatric condition was made. Although suffering from depression and having made suicide attempts at various stages of his life the appellant has not been diagnosed as suffering from a treatable psychiatric disorder such as depression or psychosis. Dr Lester Walton, a consultant psychiatrist, examined the appellant on 6 April 2003 and could find no evidence of personality disorder or psychotic disturbance. Similarly, Dr Douglas Bell, a consultant psychiatrist concluded in his report dated 21 September 2003 that, although the appellant has had one admission for three weeks for what may have been a psychotic episode on 2 April 1990, there is little evidence that he suffers from a mental illness.
On the basis of the considerable amount of psychiatric and other evidence that was before him, his Honour concluded that the appellant was able to distinguish between right and wrong at the time he committed the offence but that nonetheless, for the purposes of sentencing, the appellant’s “pre-existing intellectual and neuro-psychological disability [was] of relevance.” His Honour went on to refer, as applicable to this case, to what Batt, J.A. said in R. v. Yaldiz[1], namely, “… general deterrence is not eliminated, but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap”.
[1][1998] 2 V.R. 376 at 381.
I now turn to consider the appellant’s grounds of appeal and do so in the order in which they were argued.
Ground 2 – failure to take account of appellant’s medical condition
In his full and helpful submissions, Mr. Boyce for the appellant canvassed, in some detail, the evidence of the appellant’s psychological condition. On the basis of that material, counsel contended under cover of this ground that his Honour erred in not “fully accepting” the extent to which this evidence explained the appellant’s conduct. In particular, counsel submitted that the finding that the murder was not a “spontaneous eruption of emotion” was one that was not properly open to his Honour on all the evidence. It was said that this finding “seriously undervalued the evidence led of the appellant’s medical condition, which took on a special significance when viewed in the context of the events leading up to the commission of the offence”. Counsel referred in particular to the medical evidence to the effect that people who suffer from the appellant’s illness do “blow up” and that the commission of this particular offence exemplified the appellant’s low level of cognitive functioning. Given this evidence and the circumstances of this case, said Mr. Boyce, the judge could not have properly found that the commission of this offence was not a “spontaneous eruption of emotion” unless he undervalued the medical evidence.
It appears to me that the medical evidence on which the appellant primarily relied, and to which I have referred, as supporting his present contention, was of a general nature in the sense that it did not contain an expert opinion to the effect that the appellant’s killing of the deceased was the result of a spontaneous eruption of emotion. The totality of the medical evidence showed, as I have noted, that, although the appellant suffered from epilepsy and had a very low IQ, which could be characterised as a mild intellectual disability, he was not psychotic. Moreover, the medical evidence that those with psychological problems like the appellant “blow up” did not, it seems to me, amount to an expression of the opinion that the appellant’s killing was the result of a spontaneous eruption of emotion on his part. In any event, the sentencing remarks make it obvious that his Honour gave very detailed considerations to the appellant’s medical and psychological state and that he well understood that this might explain, at least in part, his shocking conduct. As he put it, “I accept that there is established by the evidence some association between these [intellectual] impairments and your conduct on the night of the offence”. But there were other considerations that bore on the issue whether the killing was a spontaneous outburst of emotion and his Honour had due regard to them in reaching his conclusion that the killing could not be so characterised. In particular, the relatively long period over which the appellant’s rage about the theft of his scales escalated was relevant to this issue, as his Honour correctly recognised.
I consider that his Honour’s impugned finding was well open to him on the evidence and thus, this ground should fail.
Ground 3 - non-parole period manifestly excessive
Under cover of this ground Mr. Boyce submitted that the non-parole period imposed by his Honour, being over three quarters of the head sentence, is, in the circumstances, manifestly excessive. In particular, counsel referred to the appellant’s plea of guilty, his confession, the fact that he reached middle-age without significant history of prior criminality and to the fact that his intellectual disability and cognitive impairment were caused by brain injury related to his epileptic condition. Counsel argued that the non-parole period of over three-quarters of the head sentence was unusual and invited scrutiny, particularly since his Honour did not, in terms, explain how he arrived at this period. In support of his claim that the non-parole period is unusually high, counsel referred, inter alia, to what Callaway, J.A. said in R. v. Bolton and Barker[2]. But this contention involves a misunderstanding of what his Honour said. His Honour made it plain on the very page to which Mr. Boyce referred that “there is no fixed ratio between a head sentence and a non-parole period”. His Honour made similar remarks in other cases.[3] Be that as it may, I consider that in this case there is nothing “unusual” in the length of the non-parole period that was fixed by his Honour. Moreover, that his Honour did not deal in terms with this issue in his sentencing remarks does not demonstrate error on his part. It is quite apparent from his reasons that he was well aware of, and took into account for the purposes of determining the non-parole period, the circumstances of the offending and that he was sensitive to the appellant’s personal circumstances and other matters relevant to this question, particularly, his prospects of rehabilitation which, on the material, could not be said to be considerable.
[2][1998] 1 V.R. 692. at 699.
[3]See, for example, R. v. Harkness & Ors [2001] VSCA 87 at [24].
The real question here is whether the non-parole period is manifestly excessive. That is a matter about which there cannot be lengthy debate. In my view, given the circumstances of this case, including the important sentencing principles that operate here, such as general deterrence (albeit appropriately moderated) and protection of the community, the non-parole period is within the range that was properly available to his Honour.
Consequently, I think that this ground too fails.
Ground 1 - head sentence manifestly excessive
In support of this ground, namely, that the head sentence is manifestly excessive, Mr. Boyce referred, with some particularity, to the presence of a number of mitigating factors relevant to the sentencing disposition. All of them, however, were clearly taken into account by the learned sentencing judge in the exercise of his sentencing discretion. Plainly, the head sentence is very low and this reflects his Honour’s recognition of the personal circumstances of the appellant. Nevertheless, his Honour was required, as he well appreciated, to impose a just sentence that reflected the gravity of the offence and of the offending conduct in light of the applicable sentencing principles, as well as taking into account any relevant mitigating factors. It is not necessary to labour the point that the offence in this case was very serious as was the offending conduct. Nor need I repeat the importance of the sentencing principles to which I have referred. In my opinion, the head sentence is well within the range properly available to his Honour and, therefore, I consider that this ground must also fail.
It follows from what I have said that I think that this appeal should be dismissed.
WINNEKE, P.:
For the reasons given by Chernov, J.A., I agree that the appeal should be dismissed.
CUMMINS, A.J.A.:
I likewise agree.
WINNEKE, P.:
The formal order of the Court is that the appeal is dismissed.
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