R v Weston
[2002] VSCA 121
•7 August 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 237 of 2001
| THE QUEEN |
| v. |
| WAYNE STANLEY WESTON |
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JUDGES: | BATT and EAMES, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 August 2002 | |
DATE OF JUDGMENT: | 7 August 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 121 | First Revision - 22 Aug 2002 |
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CRIMINAL LAW - Sentencing - Manslaughter - Son's ferocious attack on father - No weapon - Offer to plead guilty rejected - 8 years' imprisonment with 6-year non-parole penalty not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr G.J. Lyon | Victoria Legal Aid |
BATT, J.A.:
On 19 July 2001, after a trial lasting in total four days, the appellant, Wayne Stanley Weston, who is almost 46 years of age, was found by a Supreme Court jury not guilty of murder but guilty of manslaughter. The victim was his father. The maximum custodial penalty for manslaughter is imprisonment for 20 years. The appellant admitted 51 prior convictions from 31 court appearances between 1974 and 2000, though none was for personal violence. A plea in mitigation of penalty was heard on 23 August 2001, during which a victim impact statement and a report from the forensic psychologist, Mr Ian Joblin, were tendered.
On 13 September 2001 the appellant was sentenced to be imprisoned for eight years and a non-parole period of six years was fixed. A period of 547 days was declared to have been already served under the sentence.
The appellant now appeals against that sentence, by leave of a single Judge of Appeal granted on 9 November last, on the grounds, first, that the sentence is manifestly excessive and, secondly, that the sentencing judge failed to give due weight to the appellant's offer to plead guilty to manslaughter before the trial. That is a reference to the offer made on behalf of the appellant on 20 February 2001 to plead guilty to manslaughter by unlawful and dangerous act, which was rejected by the Solicitor for Public Prosecutions.
Before considering those grounds I must say something about the facts of the offence and the facts personal to the appellant. They are set out clearly and comprehensively in his Honour's sentencing remarks, to which reference should be made, and I do no more than summarise the salient features. The appellant's father was prone to drinking alcohol to excess and treated the appellant's mother and siblings, as well as the appellant, badly, though he treated the appellant least badly. The appellant's feelings towards him were ambivalent. His father had him work as a youth and young man for him at his factory in Sunshine, promising, at least in the appellant's view, that in time he could have the factory to do with it what he wanted. He allowed the appellant to occupy the factory in February 1994 in return for a monthly payment of $120. That arrangement worked well until 1997, when the father became displeased with renovations being made by the appellant, including turning part of the factory into a dwelling, and with the commencement of certain businesses at the factory. These the father required to be closed down. In November 1999 the father obtained an intervention order against the appellant and in February 2000 a Supreme Court order or judgment for possession of the factory. The appellant obtained a stay of the latter for one month, which was to expire on Friday 17 March 2000. He felt placed under great stress and anxiety by the order or judgment and thought that he would not be able to meet the deadline. In the early afternoon of Tuesday 14 March 2000 the appellant attracted the attention of his father as the latter was driving past the factory and indicated that he wished to talk to him about this matter. At the father's invitation he went to the latter's home, also in Sunshine, with a view to negotiating an extension of time. But the discussion turned to argument and became heated. What followed was stated by his Honour, addressing the appellant, as follows:
"Your father told you to get out of the house. He started to push you. He tried to punch you. You blocked his punches. You started hitting him. You were too powerful for him. For a time you tied his hands behind his back. After you untied him your father said he would call the police and went for the phone. That really caused you to lose control. With your hands and no weapon, you hit him hard and often to his head and elsewhere on his body. You then left him unconscious. He died of the injuries you caused in that final attack."
The appellant thought that he had hurt his father badly, but, according to what he told the interviewing police, thought that he was still alive, and indeed conscious, when he left the house. His Honour considered that the appellant had left his father unconscious and indeed had played down to police the ferocity of his final attack. The appellant went home and slept, but, obviously concerned by what he had done, went to see how his father was the following morning. He found him dead and called the ambulance and the police. He was interviewed in a number of segments that day by police and admitted assaulting his father. The police were unable to complete the interview to their satisfaction because the appellant was so overwrought and, it would seem, exhausted that he refused to answer further.
The appellant's childhood suffered from the separation of his parents and he was made a ward of the State for a time. I have already referred to his father's treatment of the family and indulgence in alcohol. The appellant's schooling was limited. In Mr Joblin's view he is in the low average or borderline category of intelligence, with limited literacy. His relationships with women have not been successful. He has had problems with alcohol and some dependency on cannabis and amphetamines. Mr Joblin, whose report his Honour appears to have accepted, did not consider him psychotic, but prone to depression and a degree of psychological agitation.
As Mr Joblin stated, the appellant had not achieved through his own resources in virtually any area at all except small businesses, and there only to be thwarted, as he saw it, by his father's attitude, giving rise in him to confusion, disappointment and a degree of aggression not characteristic of his overall psychological state. He did not, in Mr Joblin's view, have the resources to cope with the confusion.
His Honour said that he was satisfied that the jury found that the appellant was provoked into attacking his father as he did. I am inclined to think that this is a reference to provocation in its technical sense, though I recognise that it can be read more generally, as, indeed, both counsel before us did read it. The judge said that this was still a serious example of manslaughter, as had indeed been accepted by counsel before him for the appellant. His Honour accepted that there was genuine remorse, said that he had weighed in the appellant's favour the fact that he had offered to plead guilty to manslaughter before the trial, and noted that the appellant had abandoned any claim he might have had to any part of his father's estate.
I now turn to the grounds of appeal, finding it convenient to take the second ground first. It was said for the appellant that in many cases, after a trial of a count of manslaughter, a sentence of eight years with a non-parole period of six would be appropriate, but that the sentence should be lower here especially in light of the "culture attending pleas of guilty". Since counsel for the respondent accepted that the appellant had offered to plead guilty to manslaughter at a time which would have saved a trial[1], it is unnecessary to consider either the reservation made in R. v. Lennon[2] or the fact that the plea of guilty was offered on a different basis from that on which, in my understanding of the judge's finding, the jury had found the appellant guilty of manslaughter. There was, then, subjectively a willingness to facilitate the course of justice[3]. It was said for the appellant that a deeper consideration of the issue by his Honour was merited than had been undertaken. His Honour said that he had weighed the offer in the appellant's favour and I can see no reason to think that he did not do so. Whether in all the circumstances the sentence is, despite this, manifestly excessive is another matter, to which I shall shortly come, but this ground fails.
[1]Compare Cameron v. The Queen (2002) 76 A.L.J.R. 382.
[2][2001] VSCA 233; compare R. v. Giakas [1988] V.R. 973 at 978.
[3]Compare Cameron.
In support of the first ground, it was submitted that the sentence, and particularly the minimum term, were manifestly excessive having regard to the concatenation of the following factors, namely: the context and circumstances of the offending; the appellant's admissions, co-operation with police, remorse and early offer of a plea of guilty; and his personal circumstances and psychological condition, as set out earlier. As regards the circumstances of the offence, reliance was placed upon its having been a spontaneous reaction to the deceased's initial hostile approach and not having been the result of a pre-planned attack; the lack of a weapon in its commission; the history of the appellant's relationship with his father; his explicable belief that his father was merely unconscious; and his call for an ambulance and help. It was submitted that, despite the relatively large number of prior convictions and the fact that the appellant has actually previously served a prison sentence, he has reasonable prospects of rehabilitation.
As has been stated many times, whether a sentence is manifestly excessive is a question which does not admit of much argument or elaboration. This Court does not sit to re-exercise the discretion vested in the sentencing judge unless a specific error or manifest excessiveness is shown. Its function is, rather, to review the exercise of that discretion. It is trite that there is not only one "correct" sentence. The question is, therefore, not whether the members of this Court would themselves have passed some lesser sentence, but whether the sentence in fact passed was within the range of sentences open to the sentencing judge in the exercise of a sound discretionary judgment. As has also been pointed out many times, manslaughter is par excellence an offence which may be committed in an extraordinarily wide variety of circumstances and which, accordingly, varies in seriousness from extreme to much less significant.
Having considered all the facts of this case, including those personal to the appellant, and the arguments of counsel, I am of the opinion that the sentence was not manifestly excessive, essentially for the following reasons. Although no weapon was used and the attack was spontaneous, I agree with his Honour that this was a serious example of manslaughter; for on the interpretation which I think his Honour placed, and was entitled to place, upon the jury's verdict, the attack upon the deceased was committed with the intention, at the least, of causing really serious injury. In any event it must necessarily have been, as the judge considered, ferocious, and it was committed by a stronger man upon a weaker and somewhat elderly man and moreover by a son upon a father. Whilst any penalty was to be arrived at after allowance for the mitigating factors relied on by counsel and in particular the early offer of a plea of guilty, the appellant's psychological condition and the history of his relationship with his father, the objective seriousness of the offence called for a substantial term of imprisonment, giving effect to the sentencing purpose of general deterrence. It must be made clear throughout the community by the courts, so far as they can, that criminal justice treats the protection and the vindication of the sanctity of human life as paramount. Furthermore, this offence shows that the appellant has continued his attitude of disobedience to the law
evidenced by his numerous prior convictions[4]. Accordingly, specific deterrence was required in the sentence. On the assumption that the attack on the head sentence fails, the minimum term is not, in my view, outside the range I have described.
[4]Veen v. The Queen [No.2] (1988) 164 C.L.R. 465 at 477.
For the foregoing reasons, I would dismiss the appeal.
EAMES, J.A.:
I agree.
O'BRYAN, A.J.A.:
I agree that the appeal should be dismissed, for the reasons given by Batt, J.A.
BATT, J.A.:
The order of the Court is:
Appeal dismissed.
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