R v Stefan John Doorey No. 4248 Judgment No. SCCRM 93/274 Number of Pages 8 Criminal Law and Procedure

[1993] SASC 4248

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MULLIGHAN(1), BOLLEN(2) AND DUGGAN(3) JJ

CWDS
Criminal law and procedure - Sentencing - appeal against sentence - appellant charged with murder - found guilty of manslaughter on ground of provocation - deliberate killing of friend by shooting with specific intention to kill - rifle introduced into the dispute by appellant - callousness in failing to seek assistance for victim before death - burial of body at house - elaborate deception of relatives and friends of the deceased to conceal the killing - previous involvement in drug trade reducing the weight of evidence of previous good character - sentence of imprisonment for 15 years with non-parole period of 12 years - sentence and non-parole period not manifestly excessive - appeal dismissed. Criminal Law (Sentencing) Act 1988 s 12(l) and
(2); R v Weinman (1987) 49 SASR 248 and R v Tilley (1991) 56 SASR 140 referred to. The Queen v Morse (1979) 23 SASR 98 and The Queen v Creed (1985) 37 SASR
566, applied.

HRNG ADELAIDE, 21 September 1993 #DATE 5:11:1993
Counsel for appellant:     Mr D F Stokes
Solicitors for appellant:    David Stokes and Assoc
Counsel for respondent:     Mr B J Jennings QC
   with Mr R N Jensen
Solicitors for respondent: Director of Public
   Prosecutions

ORDER
Appeal dismissed.

JUDGE1 MULLIGHAN J The appellant was charged with murder. It was alleged that on about 22nd May 1992 at Brooklyn Park he murdered Gary Sidney Brougham. He denied the charge and elected to be tried by a Judge without a jury. After the trial he was found not guilty of murder and guilty of manslaughter. 2. The basis of that verdict is that he had deliberately killed Brougham by shooting him with a rifle in the area of the temple with the intention to kill him but the Crown had not excluded beyond reasonable doubt as a reasonable possibility that, at the time of the shooting, the accused acted under provocation. He was sentenced to imprisonment for 15 years with a non-parole period of 12 years. He appeals against the sentence of imprisonment and the non-parole period on the ground that they are manifestly excessive. 3. The appellant is aged 28 years. Brougham was a few years younger. The two men were the joint occupiers of house premises at Brooklyn Park, although prior to the shooting, the girlfriend of Brougham, Stacey Flavel, spent most nights and weekends at the home. 4. The learned Judge found that the relationship between the appellant and Brougham was unusual. They had been friends for some years and had resided at the house for some months, the appellant having moved there late in the previous year. The learned Judge said:-
    "They were contrasting personalities. The deceased's
    disposition was aggressive, overbearing and violent. The
    accused was quiet and compliant. He has no prior convictions
    apart from the drug convictions to which I shall refer later.
    The deceased clearly exercised a dominance over the accused. He
    would order the accused about and the accused would comply with
    his wishes. The deceased displayed his dominance by goading and
    humiliating the accused. The deceased was stronger and bigger
    than the accused and he bullied him physically. Sometimes the
    physical contact was in the nature of 'play fighting' but at
    times the deceased struck the accused painful blows and caused
    him injury. .... Both men were engaged in growing and selling
    Indian hemp. They also sold drugs obtained from a supplier.
    The deceased was the dominant partner in this, as in all other
    things. He arranged the sales leaving the accused to deliver
    the drugs and doubtless incur any risk involved. In January
    1992 the police raided the premises and arrested the accused.
    On 19 May he pleaded guilty to charges of producing cannabis and
    possessing cannabis for supply. He did not implicate the
    deceased. Through his counsel he falsely asserted that there
    was no commercial element in his offending and that the only
    supply was to his friends." 5. The appellant did not work on the day of the killing. Brougham worked his normal shift and finished work at about 1.30 pm. He returned home. There was a verbal and physical altercation between the two men which involved loud yelling, screaming and abusive language which was heard by a neighbour and occupied five to ten minutes. During the course of this altercation, Brougham was shot with a bullet discharged from a single shot bolt action .22 calibre rifle which had been shortened. On testing it would not discharge unless pressure was applied to the trigger. 6. In evidence at the trial the appellant said that before he had gone to work on the day Brougham died, Brougham accused him of stealing marijuana from his room. He demanded money from him and threatened that if the appellant did not produce the money when he arrived home, he would harm, or perhaps kill, him. The learned Judge described, in the reasons which he expressed for the verdicts, the accused's version of what occurred when Brougham returned home as follows:-
    "He began to upbraid the accused for not cleaning up around
    the house as he had directed him. He then demanded the money
    for the marijuana. There was a loud argument which resulted in
    a fight in the carport. When they had been fighting for a while
    the accused received a punch in the stomach which doubled him
    over and when straightening from the crouching position he saw
    that the deceased had a gun which was aimed at his head. The
    deceased told him to get on his knees and that he was going to
    kill him. The deceased struck the accused on the shoulder with
    the gun which scraped his head. The accused said: 'He pointed
    the gun at me and something inside me snapped. I said "Well, I
    have been copping flak from him for quite some time and if I
    didn't stand up for myself now I would be dead." I leapt at him
    as well. He had hold of the rifle. I had hold of his arm and
    hand at the same time.'
     The accused described a struggle with the deceased in the
    course of which the gun, while still in the grasp of the
    deceased, discharged. The deceased collapsed." 7. The learned Judge did not accept this version in its entirety. He concluded that he could attach no weight to the oath or word of the appellant. He found that the appellant introduced the rifle into the incident, that it could not have been on Brougham's person during the fight and that the appellant deliberately shot him in the temple. He made no attempt to obtain help for Brougham and dragged his body to the shed. He rejected the alternative theory of accidental discharge and concluded that the shot had been fired after deliberate aim. Also, the learned Judge rejected that the appellant fired the rifle in self defence. As to provocation, the learned Judge said:-
    "The conduct of the deceased on the occasion in question
    must be viewed against the background of the relationship. The
    accused had been subjected to a long course of abuse, including
    physical violence, goading, mental and physical domination, and
    humiliation. He was subjected, on the instant occasion, not
    only to verbal abuse, but to a physical beating. I have no
    doubt that the altercation ended, once again, in the accused's
    humiliation. I reject the evidence that the deceased produced
    the gun, but I think that it is entirely possible that he
    demanded that the accused get on his knees. I think that the
    deceased's conduct, against the background of the previous
    course of conduct, might have caused an ordinary person to lose
    his self-control to the extent of killing his tormentor. I
    consider, therefore, that the deceased's conduct amounted, in
    law, to provocation. It remains to consider whether the
    provocation caused the accused to lose his self-control. He
    gave evidence that he snapped. It is true that he attributed
    that to the production of the gun. I think that, although there
    was no gun in the hands of the deceased, it is a reasonable
    possiblity that the accused did snap - that is to say, lose his
    self-control - as a result of the treatment he received." 8. The conduct of the appellant, after the killing, is of importance. He went to elaborate lengths to conceal the killing. He buried the body in the backyard beneath a path. Such a task involved considerable work. He removed a considerable number of paving stones, dug through the dolomite surface beneath them and removed a quantity of dolomite and soil. He dug a grave, tied the hands of the body together, buried it in the grave and then replaced soil, dolomite and pavers neatly. 9. A few minutes after the killing Miss Flavel arrived at the house. The front door was latched from the inside which was unusual. She was unable to gain entry with her key. She went to the roller door of the carport but it had been secured with a steel rod. The appellant opened it from the inside and Miss Flavel noticed that he was panting and perspiring. He claimed he had been working in the garden. She went into the house and enquired about Brougham. Far from telling what had happened which might be expected from a person who was genuinely contrite and remorseful at what he had done, the appellant embarked upon a course of deception and lies in order to conceal his wrongdoing. He told Miss Flavel that Brougham had left the house in a car with two men not known to him saying that he would return for the evening meal. Late in the afternoon two friends of the appellant and Brougham came to the house. The appellant told them the same story as he had told Miss Flavel. He was showing the signs of considerable exertion and the learned Judge concluded that, at that time, he was in the process of burying the body. When Miss Flavel returned to the home that evening the appellant reassured her by suggesting that Brougham was probably drinking. 10. In his reasons for the verdicts, the learned Judge describes the conduct of the appellant thereafter. It is unnecessary, for present purposes, to repeat all that he did. It is sufficient to say that he went to great lengths to conceal his killing of Brougham. He pretended to attempt to locate him by contacting friends and contacts of Brougham enquiring whether they had seen him and repeating the false story about his departure. He contacted police and hospitals. He telephoned Miss Flavel and pretended to be a man named Peter and told her that Brougham would ring her the following Tuesday. He continued to tell the same false story as to the disappearance of Brougham to many mutual acquaintances. He spoke to Miss Flavel on the telephone on the Tuesday morning and told her that Brougham had contacted him at work and had told him that he was lying low and going interstate and that when he was settled he would send for his belongings. He went on to say that Brougham had said that someone was watching the house and that he was to tell her that he, Brougham, was sorry. 11. Brougham's friends and acquaintances were deceived by the appellant's lies. In consequence of a missing person's report by Brougham's father, the appellant was interviewed by police on 10th July 1992 and maintained his false story about Brougham's disappearance. Police examined the house premises on 14th July 1992 and found the body in the grave. The appellant arrived home from work while the police were there and when told of the discovery he feigned astonishment. 12. The appellant is not a married man but did have a child, now aged 7 years, as a result of a past de facto relationship. He has only one previous conviction, for producing cannabis, but the evidence disclosed that his conduct, which was the subject of that charge, was not an isolated act as he and Brougham had traded in drugs over a period of time. 13. The learned Judge took a very serious view of the appellant's crime. He said:-
    "The crime is reduced from the crime of murder, which is
    the most serious crime known to the criminal law, to the crime
    of manslaughter because the prosecution did not prove, beyond
    reasonable doubt, that your conduct had not been provoked by
    conduct on the part of the deceased. You are therefore to be
    sentenced upon the basis that you lost your self-control in
    response to provocation proffered to you by the deceased. That
    provocation took the form of physical beating and humiliation
    against a background of a history of that type of conduct on the
    part of the deceased. Nevertheless, allowing yourself to lose
    your self-control as a result of provocation is a poor excuse
    for deliberately shooting a man dead. The crime of which you
    have been convicted is a very grave crime."; and later:-
    "I am left with what is a very grave crime, the deliberate
    shooting of a man with the intention of killing him, reduced
    from murder to manslaughter, as I have said, only by the fact
    that you allowed yourself to get out of control as a result of
    provocation; but, as I have said, that is a small excuse for the
    deliberate shooting of a man. It is a very grave crime, and the
    sentence which I must impose must reflect the gravity of that
crime." 14. He regarded what he described as the callousness of the conduct of the appellant in failing to seek assistance for Brougham after the shooting, dragging his body away for burial and his attempts to conceal the killing as permitting only limited weight upon the submission that the appellant had experienced remorse. Furthermore, he regarded the previous involvement in the drug trade as reducing the weight which he might have attached to the otherwise good character of the appellant. 15. Mr Stokes did not contend that the learned Judge made any error of law or fact in the sentence which he imposed or that he failed to take into account any relevant consideration. His argument, in brief terms, is that the sentence is simply too much, bearing in mind the circumstances of the crime and of the appellant. It must be acknowledged that the sentence is severe but the crime was very serious and this Court may not interfere with the sentence simply because its members would have imposed a lower sentence, if that is the case, "but only when they are satisfied that, having regard to all relevant factors, the sentence imposed is beyond the acceptable scope of judicial discretion": The Queen v Morse (1979) 23 SASR 98 per King CJ at p.100. 16. Our attention was drawn to the sentences imposed in various cases which need not be now discussed. These sentences for manslaughter were in a range of imprisonment for one year and imprisonment for ten years. They are of little assistance for present purposes because 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": R v Weinman (1987) 49 SASR 248 per King CJ at p.248. In the same case both Matheson J and Bollen J adopted the observation of Wells AJ in R v Shaw, unreported 27.3.87, that "... manslaughter is a very variable offence. In its lowest range of criminality, it may be little more than a practical joke that went wrong, and in its highest it stops just short of murder". We were also referred to Weinman's case as establishing some sort of maximum sentence for manslaughter. There, the circumstances of the offence were very serious. A woman died of head injuries inflicted during the course of, or shortly after, a degrading and terrifying sexual attack. The offender had failed to seek medical attention for her and there was an absence of remorse or contrition. On appeal a sentence of 10 years was increased to 15 years and a non-parole period of 10 years was fixed. This sentence was imposed at a time when the law required the possibility of remissions for good behaviour to be disregarded. Here, the learned Judge was obliged to have regard to any remissions to which the appellant may become entitled: s.12(1) Criminal Law(Sentencing) Act 1988. The maximum remissions which the appellant may earn is about one-third of both the sentence and the non-parole period. Of course, the extent of the appropriate adjustment will depend upon the circumstances of each case and is not to be made in any strict mathematical fashion, R v Dube and Knowles (1987) 46 SASR 118 and s.12(2) of the Act. In R v Tilley (1991) 56 SASR 140 King CJ, referring to the need to have regard to remissions, said, at p.146:-
    "The extent of the appropriate adjustment is discretionary,
    as R v Dube and Knowles makes plain. The appropriate course for
    a sentencing judge is to determine the period which the offender
    should spend in prison before parole and the period which he
    should spend in prison if he refuses the offer of parole, and
    then to make an adjustment to those periods in his discretion,
    having regard to the remission provisions, to arrive at a head
    sentence and non-parole period best calculated to produce the
desired result." 17. In the present case the learned Judge had to have regard to the remissions which the appellant could earn in order to determine the period which he should spend in prison and obviously he did so. Weinman's case was decided on a different basis and for that reason alone could not be regarded as establishing a maximum sentence for manslaughter. Also, it must be acknowledged that as serious as Weinman's conduct was, he did not intend to kill his victim. 18. Mr Stokes contended that the appellant's crime was much less serious than that in Weinman's case and that there were matters of true mitigation. There was the background of humiliation and physical abuse by Brougham. There was no prior history of violence on the part of the appellant and little by way of prior criminal conduct. The appellant had a good history of employment and is a comparatively young man. In killing Brougham he acted under provocation and he is a good candidate for parole. 19. There is no reason to suppose that the learned Judge did not have regard to all of the relevant mitigating circumstances as he found them to be but he was faced with the fact that the appellant intended to kill Brougham and that his subsequent callous and deceptive conduct detracted from remorse and contrition. 20. Given the obligation to have regard to remissions and the seriousness of the crime, a substantial sentence was required and it cannot be justifiably said that the sentence of 15 years was manifestly excessive. 21. In fixing the non-parole period, the learned Judge was obliged to have regard to the observations in The Queen v Creed (1985) 37 SASR 566. In that case King CJ said that the non-parole period, no less than the head sentence, must reflect the basic consideration of justice that the punishment should fit the crime, having regard to both the offence and the offender and must reflect the community's sense of justice. It must be proportionate to the severity of the crime and must reflect the punitive, deterrent and preventative purposes of punishment. Applying those principles and undertaking the task discussed in R v Tilley (supra), it cannot be said that the non-parole period is "beyond the acceptable scope of judicial discretion". 22. I would dismiss the appeal.

JUDGE2 BOLLEN J I agree with Mullighan J that the appeal should be dismissed. I agree with His Honour's reasons. I would like to add a few remarks. I have, in deference to the argument for the appellant, considered the cases to which Mr Stokes referred. In a general way an idea of the range of penalty for an offence is useful. But, to state the obvious, each case depends on its own facts and on the circumstances of the offender. But I do not think that this Court should embark on a minute examination of the facts and offenders in other cases. For example, I do not think that we should regard the penalty in Weinman (1987) 49 SASR 248 as something near a ceiling for manslaughter. Mr Stokes did not submit that we should. But his argument went very close to such a suggestion. 2. It is very important indeed to remember that the learned Chief Justice found this:- "I am satisfied that you introduced the loaded gun into the incident and that you intentionally shot the victim dead." 3. It was an intentional killing albeit that the intention was brought about by provocation. As the learned Chief Justice said:- "...allowing yourself to lose your self-control as a result of provocation is a poor excuse for deliberately shooting a man dead. The crime of which you have been convicted is a very grave crime." 4. In addition there was a callous conduct immediately after the shooting and the attempt to conceal the shooting. The trading in drugs for a period of time could not be ignored. 5. The learned Chief Justice summed it up, if I may say so, accurately thus:-

    "I am left with what is a very grave crime, the deliberate
    shooting of a man with the intention of killing him, reduced
    from murder to manslaughter, as I have said, only by the fact
    that you allowed yourself to get out of control as a result of
    provocation; but, as I have said, that is a small excuse for the
    deliberate shooting of a man. It is a very grave crime, and the
    sentence which I must impose must reflect the gravity of that
    crime." 6. Taking everything relevant into account I think that the sentence and non-parole period, especially the non-parole period, are moderate.

JUDGE3 DUGGAN J. I agree that this appeal should be dismissed for the reasons given by Mullighan J. I also agree with the observations made by Bollen J and, in particular, the emphasis which he places on the finding by the learned sentencing judge that the appellant intended to kill the deceased.