R v TILMOUTH
[2013] SASCFC 107
•18 October 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TILMOUTH
[2013] SASCFC 107
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Peek)
18 October 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - PREMEDITATION AND METHOD OF EXECUTION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
The appellant pleaded guilty to one count of attempted murder. He had stabbed and cut the victim’s throat while the victim was handcuffed, gagged and blindfolded during a sexual bondage session prearranged between the appellant and the victim. The appellant was 19 years of age at the time of offending. The sentencing Judge imposed a sentence of 10 years with a non-parole period of 7 years. The appellant appeals on the grounds that the sentence and the non-parole period are manifestly excessive.
Held by Kelly J (Kourakis CJ and Peek J agreeing):
1. Given the inherent seriousness of the crime, the starting point of 14 years adopted by the sentencing Judge was within the range available to him (at [19]).
2. The sentencing remarks do not indicate that the Judge erred in his approach to the fixing of a head sentence. The sentencing Judge appropriately considered the appellant’s personal circumstances, including his youth at the time of offending (at [22]).
3. The discount of approximately 28 per cent for a guilty plea on the morning of trial was generous (at [21]).
4. While the non-parole period is a relatively high proportion of the head sentence, it was appropriate given the circumstances of offending (at [30]).
5. Appeal dismissed.
Statutes Amendment (Truth in Sentencing) Act 1994 (SA), referred to.
Munda v State of Western Australia [2013] HCA 38, considered.
R v TILMOUTH
[2013] SASCFC 107Court of Criminal Appeal: Kourakis CJ, Kelly and Peek JJ
KOURAKIS CJ: I would dismiss the appeal for the reasons given by Kelly J.
KELLY J:
This is an appeal against a sentence imposed in the Supreme Court on 21 June 2013.
The appellant pleaded guilty to one count of attempted murder committed on 19 March 2012. The appellant was 19 years old at the date of the offence, 20 years old by the time he was sentenced.
The sentencing Judge imposed a sentence of 10 years with a non-parole period of seven years.
The appellant appeals on the grounds that the sentence and the non-parole period are both manifestly excessive. Further specific complaints made are that the Judge inappropriately adopted a two tiered approach to the setting of the head sentence and that he failed to properly take into account considerations which flow from the fact that the appellant is a youth. Before dealing with those complaints it is necessary to set out the relevant background.
The victim was a man in his early thirties. He first met the appellant through his work as a counsellor with the American Field Service. The appellant won a scholarship at the age of 15 and a half years and in 2009 he was overseas on exchange as part of that scholarship. During that year there was regular contact between the appellant and the victim on Facebook. In 2010 when the appellant returned to a boarding school in Adelaide that communication continued by text message and Facebook communications.
The victim offered to allow the appellant to sleep over at his house during 2010 whilst the appellant was still a boarder. By this time the appellant had turned 18. The appellant did not accept any of those offers during 2010 however in early 2011 the two began to see each other socially.
From early 2011, there were occasions in which the appellant stayed over at the victim’s house and in the second half of 2011 there was some sexual contact between the two. Those sexual acts usually occurred in the context of the victim and the appellant going out together and the appellant becoming grossly intoxicated.
Text and Facebook messaging between the appellant and the victim continued throughout 2011 and up until the date of the offence in March 2012. Those communications revealed that the appellant encouraged the victim to purchase a number of items including a gag, handcuffs and a blindfold for the purpose of engaging in a bondage session with the appellant.
It is apparent that the nature of the friendship between both the victim and the appellant was perceived differently by each. The victim’s perception was of a consensual sexual relationship. Conversely, it is apparent from the appellant’s record of interview with the police and in the psychiatric report of Dr Raeside obtained for the purpose of sentencing submissions that the appellant’s perception of what was happening was very different.
In the weeks leading up to the offence on 19 March 2012, the appellant complained to one friend that he wanted to kill the victim because he found him so annoying. Writings found in the appellant’s belongings after the offence on 19 March referred to the death of the victim.
On the night arranged between the victim and the appellant for the bondage session to take place, the appellant went to the victim’s house and took with him a number of items including a knife and a meat tenderiser. Earlier he had texted the victim to say that he had burnt his hand. When he arrived at the victim’s house the victim noticed that he had his right hand taped up extensively with sticky gauze kind of tape.
During the bondage session and after the victim had been handcuffed to his bed with a gag in his mouth and while wearing a blindfold, the appellant stabbed him twice to the chest and cut his neck leaving a deep incisional wound. He then ran out of the apartment after the victim struggled free and chased him outside. The victim collapsed outside through loss of blood and was taken by ambulance to the Royal Adelaide Hospital where he received prompt medical attention.
It was plain from all of the circumstances that there was an element of premeditation involved in the appellant’s offending. He admitted to police that he had purchased the knife used to stab the victim about a week before 19 March for the purpose of using it on the victim. Although he denied to the police that he really wanted to kill the victim, he did admit that he wanted to hurt him, to inflict pain upon him and realised that the victim may die as a result of him doing so. Some of the writings authored by the appellant which police found later in his possession referred to the death of the victim.
A victim impact statement tendered reveals that the crime has had a devastating effect on the victim.
I turn now to consider each ground of appeal, the first being that the Judge erred in his approach to the setting of the head sentence by only taking into account the objective circumstances of the offending.
After discussing the circumstances of the offending and before imposing sentence the Judge said:
I turn to the specific question of sentence. This was a violent, serious and premedicated [sic] offence. There is no dispute that you had planned it for some weeks. Because of that a significant term of imprisonment is appropriate and, indeed, necessary. On the other hand, you are young, a matter that must be taken into account, and I do take into account. You are a first offender. I also take that into account. You have admitted your guilt and you have a high-achieving academic record and a supportive family. When released you intend going back to Alice Springs and have been told of a number of courses which are available but I must add, this is a most sad and disturbing case and having to sentence a young man in the position you are in gives nobody any gratification.
The Judge was correct to categorise the appellant’s offending as violent, serious and premeditated. It was plain from the appellant’s admissions that the offence had been planned for two weeks or more. The appellant stabbed the victim whilst he was in an extremely vulnerable position to the most vulnerable part of his body, namely his chest and neck. Some of the writings which police found in the appellant’s belongings afterwards to which I have already referred were quite disturbing.
Given the inherent seriousness of the crime, I consider that the starting point of 14 years adopted by the Judge was well within the range available to him. At the request of the Court during the hearing of the appeal, both parties later tendered a schedule of cases dealing with sentences for attempted murder from 1974 up to the present date. Even after taking into account that there were two different sentencing regimes applicable during the period of time surveyed,[1] it is readily apparent that a wide range of sentences have been imposed for the crime of attempted murder.
[1] Remissions for sentences having been abolished by the Statutes Amendment (Truth in Sentencing) Act 1994 (SA).
This is not surprising as the crime of attempted murder is not one which has attracted a recognisable tariff. The cases to which we were referred demonstrate that the circumstances in which this crime is committed can and do vary dramatically. I have not analysed in great detail the facts and circumstances surrounding some of the authorities to which we were referred as I do not consider it would advance the appellant’s submission that the sentence in this matter is manifestly excessive.
The discount given for the plea of guilty which was as late as the morning of trial was approximately 28 per cent. Given the timing of the plea, that was a generous reduction.
There is nothing in the sentencing remarks to indicate that the Judge erred in his approach to the fixing of the head sentence. Nor do I consider that there is any substance in the complaint that he failed to take into account the appellant’s personal circumstances including, in particular, the fact that the appellant was a 19 year old youth at the time of the offending. In fact the sentencing remarks point to the contrary. The youth of the appellant appears to have been a factor uppermost in the Judge’s mind. He said:
Let me go back to your personal circumstances. You are now aged 20. …
I have searched for an explanation of this offending to assist me in the sentencing process. How could a young, high achieving, well-educated young man, from a stable and loving family, behave in this way. …
It appears to me that the only plausible explanation now available on the material before me is that you were young, you were confused about your sexuality …
… On the other hand, you are young, a matter that must be taken into account, and I do take into account. … I must add, this is a most sad and disturbing case and having to sentence a young man in the position you are in gives nobody any gratification.
Not only was the Judge troubled by the appellant’s youth, the sentencing remarks also demonstrate that the Judge was at pains to try and find some explanation in the background and psychiatric material tendered which might mitigate the more disturbing aspects of the appellant’s offending.
The Judge in this matter was faced with a very difficult task. On the one hand he could not overlook the inherent seriousness of the circumstances surrounding the commission of the offence, particularly since he found that the crime was premeditated. On the other hand, there was plainly an element of predatory behaviour on the part of the victim towards the appellant which may properly be characterised as grooming the appellant for a sexual relationship over a considerable period of time. That grooming appears to have begun whilst the appellant was still under age.
The material tendered during sentencing submissions on the appellant’s behalf in particular the report of Dr Raeside reveals that the appellant was plainly confused and disturbed about his emerging sexual identity.
Against this background was the existence of the writings and other material located in the appellant’s belongings some of which revealed that the appellant had contemplated the death of the victim in the weeks preceding the commission of the offence.
In short the interplay of the considerations relevant to sentencing in this particular case were complex and difficult. The Judge was required to balance them all with the further requirement that in sentencing the appellant the court must give proper effect to the need to protect the safety of the community.
As counsel for the appellant endeavoured to point out during submissions the circumstances in which this crime was committed were indeed very unusual. Although the Judge did not say so explicitly, it is evident that he was concerned about the lack of any real explanation from the appellant as to why he committed this crime. That was a matter relevant to the Judge’s assessment of the prospects of rehabilitation as well as to the need for any sentence to reflect both general as well as personal deterrence.
The High Court has recently reaffirmed an important aspect of sentencing:[2]
First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence.
[2] Munda v State of Western Australia [2013] HCA 38 at [54].
The Judge could not ignore the fact that though the appellant was a highly intelligent young man with an impeccable record, no real explanation has ever been proffered for his actions on 19 March 2012. It is correct that the non-parole period imposed is a relatively high proportion of the head sentence, however in the particular circumstances there was good reason to justify setting a non-parole period of that proportion.
For these reasons I consider that the Judge discharged a very difficult task by striking a fair balance between the inherent gravity of the offending and the unusual circumstances in which the appellant was to be sentenced.
I do not consider that the appellant has demonstrated that the Judge acted on any wrong principle or that he made any error of law or fact which would justify the interference of this Court.
I consider that both the head sentence and the non-parole period are well within the range available to the Judge. For these reasons I would dismiss the appeal.
PEEK J. I would dismiss the appeal. I agree with the reasons given by Kelly J.