PARTIES: Regina (Appellant/ Crown) Leeanne TREVENNA aka Harris (Respondent/ Cross-Applicant)
JUDGMENT OF: Santow JA James J Barr J
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 70215/02
LOWER COURT JUDICIAL OFFICER: Buddin J
COUNSEL: R D Cogswell, SC/ D J Thiering (Appellant/ Crown) I H McClintock, SC (Respondent/ Cross-Applicant)
SOLICITORS: C K Smith (Appellant/ Crown) S O'Connor (Respondent/Cross-Applicant)
CATCHWORDS: SENTENCE - Crown appeal to increase sentence - Whether sentence manifestly inadequate - plea of manslaughter accepted - s421 Crimes Amendment (Self Defence) Act 2001 (NSW) unreasonable response in the way force used to inflict death - imminent threat to life from the deceased - Respondent's appeal against sentence - range of like-offence sentences considered - whether sufficient range.
DECISION: 1. Crown appeal to increase sentence dismissed 2. (by majority) Respondent's appeal against sentence dismissed.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
CCA 60232/03 CCA 60462/03 SC 70215/02
SANTOW JA JAMES J BARR J
4 MARCH 2004
REGINA v Leeanne TREVENNA aka Harris
Judgment
SANTOW JA:
INTRODUCTION
These proceedings began as an appeal against sentence as manifestly inadequate, brought by the Director of Public Prosecutions pursuant to s5D of the Criminal Appeal Act 1912 (NSW). The sentence was imposed by the trial judge Buddin J on 29 May 2003 upon the respondent Leanne Trevenna, aka Harris. The Crown ultimately accepted her plea of guilty to manslaughter.
This was in circumstances where the respondent accepted that her conduct, within s421 of the Crimes Act was not a reasonable response in the way she used force-inflicting death on the deceased, though she believed her conduct necessary to defend herself against an imminent threat to her life from the deceased.
Section 421 with its related provision of s418 came into force on 18 December 2001. I set out below the sequence of those and related provisions taken from the newly introduced Part 11, Division 3 of the Crimes Amendment (Self Defence) Act 2001 (NSW):
418 Self-defence---when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a)to defend himself or herself or another person, or
(b)to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c)to protect property from unlawful taking, destruction, damage or interference, or
(d)to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Trevenna [2004] NSWCCA 43
Case
[2004] NSWCCA 43
Decision Date
CaseChat Overview and Summary
In R v Trevenna, the respondent appealed against her sentence for manslaughter, while the Crown sought to increase it. The respondent argued that her sentence was manifestly excessive and disproportionate compared to similar cases. The Crown sought to argue that the sentence should be increased, contending that it was too lenient given the nature of the offence. The court needed to determine whether the sentence was manifestly inadequate and whether the Crown’s appeal to increase it was justified. The court also had to consider the range of sentences for similar offences to determine if the respondent's sentence was appropriate.
The court considered the respondent’s plea of manslaughter under s421 of the Crimes Act, which deals with self-defence where excessive force results in death. The court acknowledged the circumstances under which the respondent acted, including her perception of an imminent threat to her life and the threat to her son. The court balanced these mitigating factors against the objective seriousness of the offence, concluding that while the respondent’s actions were excessive, the perceived imminent danger she faced contributed to the circumstances. The court also noted the significant discount given for the plea of guilty and the expression of remorse. In light of these factors, the court found the original sentence to be excessive and reduced it accordingly. The court dismissed the Crown’s appeal, finding that any increase in sentence would be unwarranted given the appropriate range for this type of offence.
The court reduced the head sentence from seven and a half years to six years and six months, and the non-parole period from four and a half years to four years. The court concluded that the reduced sentence was more appropriate given the circumstances of the case and the principles of sentencing. The Crown’s appeal to increase the sentence was dismissed as it would not be justified by any conceivable range of sentences for the offence. The respondent’s appeal against the sentence was allowed, with the modifications to the sentence as outlined.
Orders
Orders of the court
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Background
Background to the litigation
The respondent, shortly before the appeal commenced, sought leave to appeal out of time which was unopposed. This was against the severity of her sentence as manifestly excessive. The respondent placed major reliance upon the significantly heavier sentence received by the respondent compared to the lower sentence substituted on appeal in R v Cioban [2003] NSWCCA 304 (21 October 2003). The respondent however did so by reference to factors favouring leniency said to be largely absent in Cioban, but present in the respondent’s case. SALIENT FACTS The respondent accepts the Crown’s Statement of Background and Facts. What follows is largely taken from it. On 19 May 2003 the respondent pleaded not guilty to an indictment charging that on 1 July 2000, at Sutherland in the state of New South Wales, she murdered Terry Robert O’Brien. Under s19A of the Crimes Act 1900 the maximum penalty is imprisonment for life. The matter proceeded to trial. On 22 May 2003 the Crown accepted a plea of guilty to manslaughter in full satisfaction of the indictment. The jury was discharged. The substituted plea was under s421 of the Crimes Act, dealing with self-defence where excessive force inflicts death. This provision had only been in effect for a year at the time of sentencing. There were, and remain a paucity of cases on the statutory provision, though there were cases on the common law position from before the introduction of the new Part 11 Division 3. I shall refer to those cases later. On 29 May 2003 the trial judge sentenced the respondent to imprisonment for seven and a half years to commence on 7 December 2000 and expire on 6 June 2008. He imposed a non-parole period of four and a half years also to commence on 7 December 2000 and expiry on 6 June 2005. In imposing sentence, “special circumstances” within the meaning of s44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were found on the basis that this was the first time the respondent had been sentenced to a term of imprisonment. That was taken into account in her favour, as also her plea of guilty. Because it was “not in any sense timely”, she was given a discount at or towards the bottom of the range of 10% to 25% identified in R v Thomson & Houlton (2000) 49 NSWLR 383. Nonetheless, as the trial judge acknowledged, she entered that plea at an early stage of what was anticipated to be a four-week trial, so that she thereby “facilitated the course of justice”. He also took into account her expression of remorse. While therefore he concluded that the Crown’s case was assisted by there being powerful evidence that the deceased met his death at the hands of the respondent, he acknowledged the value of her plea in these terms: “It may be accepted however that a jury may not have been persuaded in all the circumstances of the case that the Crown had negatived self-defence and that it may accordingly have acquitted the offender altogether. In those circumstances some further discount should be allowed on account of the offender’s plea.” (at [40])
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In making these observations I must balance them against the objective seriousness of the offence, in particular that the respondent shot the deceased in the head when his head was turned, so making death almost inevitable as against a shot directed elsewhere. Without detracting in any way from the objective gravity of what she did, proper allowance must be made for the sense of imminent danger of death that the respondent considered herself to be in the split second in which she had to act; so much is apparent from the relevant parts of her statement to which I have earlier made reference. What she did in the circumstances as she perceived them was excessive. But it was in circumstances where her life was threatened by a man much more powerful than she, with a cricket bat with which he could have inflicted terrible injury upon the respondent. She was moreover faced with a threat not only of that kind but that “you will never see [your son] again”. This was when she had already a perception, though unfounded, that the deceased had interfered with her son. While these circumstances may fall short of provocation, they do bear upon the objective seriousness of what she did and ultimately upon the range of sentence appropriate for such an offence, serious as it undoubtedly was. SUMMING UP and CONCLUSION In all the circumstances, I would conclude that the head sentence should be reduced by one year to six years six months and the non-parole period reduced by six months to four years. I am conscious that sentencing is not an exact science and the trial judge’s sentence discretion is ordinarily to be respected the more so due to the variety of circumstances affecting culpability in manslaughter. But I am nonetheless strongly influenced by the significant divergence the present higher sentences and non-parole period has from that now reduced sentence in Cioban whose generic features would point if anything to a higher sentence, as also Nguyen, both s421 cases and to which Scott in particular may be compared. It must be remembered that s421 cases, though so far with this one only three, do have common generic features compared to manslaughter at large and a pattern or profile is starting to emerge capable of supplementation from those manslaughter cases sharing comparable, though necessarily not identical, features. I would therefore have allowed the respondent’s appeal against sentence accordingly though unfeignedly respecting the views of James J and Barr J to the contrary. I would join with them to dismiss the Crown appeal seeking to increase the sentence. As to the latter, there is no doubt in my mind that such increase would come close to tinkering but would, more importantly, involve an interference not justified by any conceivable range of sentence for the offence here in question, when its objective and subjective features are properly taken into account. JAMES J: I have had the advantage of reading in draft the judgment of Santow JA. I agree with Santow JA’s conclusion that the Crown appeal against sentence should be dismissed. However, I am unfortunately unable to agree that Ms Travenna’s appeal against sentence should be allowed. In my opinion, when due regard is had to relevant principles of sentencing and of determining appeals against sentences, it has not been shown that the sentence imposed on Ms Travenna was manifestly excessive.