R v Williams

[2005] NSWCCA 99

CITATION:	R v Anthony Robert Williams [2005] NSWCCA 99
HEARING DATE(S):	17/03/2005
JUDGMENT DATE:	24 March 2005
JUDGMENT OF:	Tobias JA at 1; Buddin J at 2; Hall J at 46
DECISION:	1 Grant leave to appeal. 2 Allow the appeal and quash the sentence imposed at first instance. 3 In lieu thereof sentence the applicant to 12 years imprisonment to commence on 24 December 2001 with a non-parole period of 9 years. 4 The non-parole period will expire on 23 December 2010 at which time the applicant will be eligible for release on parole.

CATCHWORDS:	Sentencing - challenge to trial judge's finding as to basis upon which jury returned a verdict of manslaughter - aggravating factors which are also an element of the offence
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act.
CASES CITED:	House v The King (1936) 55 CLR 499 R v Berg [2004] NSWCCA 300 R v Blacklidge (NSWCCA, 12 December 1995, unreported) R v Cramp [2004] NSWCCA 264 R v Isaacs (1997) NSWLR 374 R v Sandford (1994) 72 A Crim R 160 R v Wickham [2004] NSWCCA 193 Stingel v The Queen (1990) 171 CLR 312
PARTIES:	Regina Anthony Robert Williams
FILE NUMBER(S):	CCA 2004/2868
COUNSEL:	P Ingram (Crown) CB Craigie SC/Ms H Cox (Applicant)
SOLICITORS:	S Kavanagh (Crown) Nikola Velcic & Associates (Applicant)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70110/02
LOWER COURT JUDICIAL OFFICER:	O'Keefe J

2004/2868

TOBIAS JA
BUDDIN J
HALL J

THURSDAY 24 MARCH 2005

REGINA v ANTHONY ROBERT WILLIAMS

Judgment

1 TOBIAS JA: I agree with Buddin J.

2 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the Supreme Court on 22 March 2004. The applicant was presented for trial on a charge of having murdered Donna Pearce on 17 November 2001 at Kingswood. He was found not guilty by a jury of that charge but was found guilty of manslaughter. In respect of that offence he was sentenced to 14 years imprisonment with a non-parole period of 10½ years. Both terms were ordered to commence on 24 December 2001. The non-parole period is thus due to expire on 23 June 2012. The maximum penalty prescribed for the offence of manslaughter is 25 years imprisonment.

3 The facts of the matter were set out at some length by the sentencing judge. What appears below is his Honour’s analysis of the factual background to the offence.

As at 17 November 2001 the prisoner had been in a de facto relationship with Donna Pearce for approximately 6 months. They were living in a housing commission flat at Kingswood. The evidence reveals that their relationship was not tranquil, indeed on a number of occasions it had involved some degree of violence. The prisoner was a person who, even when unaffected by drugs, was short tempered. Donna Pearce had a history of drug abuse but apparently had been endeavouring to overcome this. The prisoner also had a history of drug abuse. The drugs he used had ranged from cannabis through to narcotics, but in the months before he killed Donna Pearce the prisoner had confined his illicit drug taking to amphetamines and cannabis. His drug intake of both these drugs was substantial and occurred over a protracted period. The effects of amphetamines include hostility and aggression and, where they are used regularly or in high quantities, may include violence.

On 17 November 2001 the prisoner and Donna Pearce had an argument. One of the neighbours, Mr Raymond Beard, who lived in the same block of units as the prisoner and Donna Pearce heard screaming and went out onto his balcony to see what was happening. He saw the prisoner and Donna Pearce down in the car park directly underneath his balcony. They were near the prisoner’s car. He went back inside his unit but the noise continued. He thought things were getting violent so he went out to have another look. He saw Donna Pearce fall to the ground after she had been hit by the prisoner with what Mr Beard believed to have been a metal pole or something of that description. That metal pole was undoubtedly exhibit O. It consists of a heavy steel bar that was over five feet, six inches (1.68 metres) in length, onto each end of which weights that are used in body building can be attached. It is an implement that is capable of inflicting serious injury on a person struck by it.

Mr Beard’s evidence was that after she had been hit Donna Pearce remained on the ground. As a result Mr Beard went inside his unit and phoned the police. He subsequently returned to his balcony by which time the victim was lying on the front seat of the car screaming. When Mr Beard saw Donna Pearce on the front seat of the prisoner’s car she was shaking in a way that he likened to a person who was having an epileptic attack. After that the car was driven off. Donna Pearce was still shaking as the vehicle was driven out of the driveway.

Mr Joseph Glover was also an occupant of the units in question. He gave evidence that on a day a few weeks before Christmas he had heard a female screaming in reasonably close proximity. He also heard a sound like metal hitting the ground. As a result he went out onto his balcony. He saw the prisoner and Donna Pearce in the prisoner’s car. She was crying. The prisoner apparently got out of the car, picked up the metal object, put it into the car which then drove off rapidly. He did not see Donna Pearce after the incident just described.

Another neighbour, Mr Glen Clarke also heard the sounds of an argument, which he fixed as occurring at about 1.00pm approximately one month prior to the date of making his statement on 19 December 2001. On the afternoon in question he was watching television in his unit, when he heard yelling and screaming coming from the driveway area of the units. He also heard the sound of steel hitting concrete. He recognised the voices as those of the prisoner and Donna Pearce. He heard the prisoner say “Get in the fucking car” and Ms Pearce’s voice swearing back at him. Having woken his flatmate, Ms Boileau, he went out onto his balcony in time to see the prisoner’s car at the end of the driveway, exiting the premises. However, he was unable to see anybody in the car.

After the prisoner’s car had left the premises, Mr Clarke went down to the driveway and garage area. There he saw a 10 kilogram weight, green in colour, lying to the left of where the car had been parked. The description was that of an exercise weight that could be fixed to a bar of the kind described by Mr Beard.

In the course of his evidence Mr Clarke said that the front driver’s side window has been smashed a couple of weeks before the incident just referred to. He was informed by the prisoner that Donna Pearce had smashed it.

The prisoner gave evidence at the trial. He denied that there had been an “incident … argument or anything like that”. He said that on the afternoon in question he and Donna Pearce had had “only a disagreement” and that this occurred prior to 2.00pm on 17 November 2001. He said that after the disagreement he left the unit to take his son to his mother’s place. Having done so he returned to the unit, arriving back some time after 2.15pm. He claimed that Donna Pearce had left the unit at about 2.30pm and that while she was gone he packed his belongings and those of his son and carried them downstairs to put them in his car. He was leaving. His belongings included two 10 kilogram weight plates, a weight bar and two dumb bells. He took these downstairs and whilst he was packing the car Donna Pearce returned. Some obscenities passed between them and the prisoner’s evidence was that one of the dumb bells over balanced and fell onto the ground. He said that this was picked up by Donna Pearce who then, according to him, said “You’re not going anywhere cunt. I will smash every window in the car.” To which the prisoner replied “You smash my windows and I will smash you with this”, meaning the weight bar (exhibit O).

The prisoner then claimed that he put the weight bar through the back seat onto the front seat and got into the car. When he did so he said he felt a blow to the back of his right shoulder like a very hard punch. He spun around, whereupon he said that Donna Pearce struck him in the head with one of the dumb bells. He claimed that he grappled with her grabbing hold of her hand and trying to prize her fingers off the dumb bell. He said there was a short struggle in the course of which he hit her on the nose with the dumb bell and the other side of the dumb bell hit her in the temple but the blow “wasn’t very hard”. He claimed never to have actually had hold of the dumb bell but when trying to ward off further blows struck by her he struck her with the dumb bell in the left temple area. He thus claimed that there were only two blows sustained by Donna Pearce, namely one to the nose and left temple, another to the left temple. I did not find this account credible and do not accept it as a correct or truthful account of what occurred.

Having done this he claims that he said to her “it’s all right I will take you to the hospital”. The Nepean Hospital was located in the immediate vicinity of the block of units in which Donna Pearce lived. The prisoner said that he found that the victim “was unresponsive”. “I checked her pulse on that occasion and I couldn’t locate a pulse”. He also said that he drove to a spot opposite the hospital entrance checked her pulse again, was unable to find any and observed that she was not breathing. So instead to taking her to the hospital he covered her with a dressing gown and drove to Lapstone on the Blue Mountains, where he dumped her body in the bush.

After the prisoner had killed Donna Pearce and hidden her body in the bush he returned to Kingswood where he pretended that Donna Pearce was not dead, but was merely absent from her unit. He took her jewellery, which he later pawned.

Subsequently, in company with a female companion he drove to Queensland. In the course of that journey he confided to his female companion, Geraldine Boyle, that he and Donna Pearce had had a fight, she had threatened to smash his car window and he hit her with a dumb bell, splitting her skull. However, after the first hit he said she was still alive so he covered her with the dressing gown to hide her, played some music and watched her take her last breaths. Subsequently, he put her into the boot of his car.

Ms Boyle was cross examined at length and in relation to major parts of her evidence. The essential suggestion was that the evidence as summarised in paragraph 29 above should not be accepted. I am of opinion that her evidence as to what the appellant told her should in essence be accepted. She would not have known the details of the events involved in the death of Donna Pearce but for what she was told by the prisoner. Secondly, her evidence is consistent with that given by Mr Beard, who was a credible witness. Thirdly, her evidence is consistent with admissions made by the prisoner to a number of people after the killing, including certain of his friends.

After the prisoner had initially disposed of Donna Pearce’s body he drove to Hervey Bay, Queensland where he stayed with a friend of many years standing, Mr Mark Chinnery. The prisoner and Mr Chinnery were “good mates”. Whilst he was at Hervey Bay the prisoner confided in his friend. He told Mr Chinnery that Donna was dead and that he had killed her. He said that they had had some sort of an argument, and that he had hit her in the head with the dumb bells and as she was too badly injured to take to hospital and that he had to get rid of her. He went on to say that Donna Pearce had hit him with a shoe and that “he just snapped and hit her with the dumbbell”. The prisoner also told Mr Chinnery that he had hit her with the weight bar, that she then screamed so he “hit her again to make her stop screaming and she regressed into a child like state and did as she was told”. He also told Mr Chinnery that he had “wrapped … jumper leads around her head” and had used them to strangle her, because she was still alive. In cross-examination counsel for the prisoner suggested that the prisoner has said that “he had hit her 42 times with a dumbbell.” However Mr Chinnery was unable to remember any particular number. It was from the premises at Hervey Bay that the prisoner returned to Sydney to remove the body of Donna Pearce from Lapstone in order to hide it deeper in the bush at Wentworth Falls.

Mr Chinnery was cross-examined to suggest that the prisoner had said that Donna Pearce had hit him with a dumb bell. He denied this, adhering to his evidence that the implement that he had been told she had used was a shoe. He was also cross-examined about conversations that the prisoner had had with him concerning the events of 17 November 2001 from which it emerged that the prisoner had from time to time, in dribs and drabs, expanded upon, perhaps embellished, his account of the killing of Donna Pearce. The way in which these conversations took place and the exaggerations which I am satisfied were involved in some of them, clearly show that the prisoner was unrepentant and indeed tended to show off about what he had done. I am satisfied that Mr Chinnery accurately conveyed the essence of the admissions made by the prisoner concerning the way in which he hit Donna Pearce in the head with the dumb bell.

Another of the people to whom the prisoner spoke about the events of 17 November 2001 was Ms Windeatt. He told her that he had killed Donna Pearce. She asked him “Have you beaten her unconscious?”; to which he replied, “No, I’ve killed her.” He was then asked why. His reply was “She wouldn’t do as she was told and she wouldn’t get off the methadone”.

The detailed description of the killing given by the prisoner to Ms Windeatt was that in the course of packing his possessions into his car he had a weight bar in his hands and Donna Pearce threatened to break a window of the car, removing her shoe for this purpose. The prisoner then told Ms Windeatt that he said to Donna Pearce: “You break this fucking window and I will cave your head in, cunt, with this bar” and he proceeded so to do when Ms Pearce (according to the prisoner) broke the window. The prisoner told Ms Windeatt that the killing was affected by striking her “three to four times with the weight bar in the head.”

According to Ms Windeatt’s evidence the prisoner told her that Ms Pearce was bleeding profusely and asked to be taken to hospital. He covered her with a dressing gown and said he was going to take her to the hospital but, according to what the prisoner told Ms Windeatt, once he had covered her head with the dressing gown he hit her several more times with the weight bar. He also told Ms Windeatt that he had placed a rope or wire around her neck and had driven around until he was satisfied that she was dead. He then took her to Lapstone, where he dumped her body in the bush.

Ms Windeatt was cross examined at some length. It was suggested to her that the prisoner had told her that the deceased had struck him with a weight whilst the two of them were in the car. She rejected this suggestion. It was also suggested to her that the conversation about the prisoner hitting Ms Pearce with the weight bar did not occur. Again, this suggestion was firmly rejected. It was further suggested that the conversations that she had with the prisoner did not include any discussion of his strangling Ms Pearce. This too was firmly rejected by Ms Windeatt. I thought Ms Windeatt was a credible witness. She had been a friend of the prisoner for almost 8 years and had been in a relationship with him at one time. Although she was estranged from him at the time of the conversations to which I have referred, she gave her evidence in a forthright, credible manner. I am of opinion that her evidence was credible and I accept the essence of it.

There was no forensic evidence that clearly established that Donna Pearce had been strangled. The state of her body when its whereabouts was revealed by the prisoner, did not permit of any such evidence being obtained. Whilst there were jumper leads and other items in the boot of his car that could have been used to strangle Donna Pearce in the way the prisoner told Ms Windeatt he had done, the forensic testing of this material did not produce a result sufficiently positive for the experts to state that such items had been used in the way stated by the prisoner. Notwithstanding this I have no doubt that the prisoner told Ms Windeatt that he had strangled Donna Pearce, but as the evidence stands and having regard to the standard of proof necessary to support a positive finding I am unable to make an affirmative finding that he did so. In my opinion the statements made by the prisoner in this regard may well have been braggadocio on his part to demonstrate his dominance and perhaps to instil some fear into Ms Windeatt so as to deter her from going to the authorities. The fact that he made a like statement to his friend Mr Chinnery adds to the strength of the conclusion that he claimed to have strangled Ms Pearce, but in the absence of positive scientific evidence I do not think it is appropriate to make a positive finding adverse to him in this regard.

Yet another person to whom the prisoner spoke after he had killed Donna Pearce was Christine Davis. She had known the prisoner for three years. At one stage she too had been in a relationship with him, as a result of which a female child had been born. The prisoner and she met at the Lake Haven Shopping Centre so that the prisoner could see his daughter. They then drove to Sydney and in the course of returning to the Central Coast, the prisoner stopped the car at Normanhurst and had a discussion with her about the killing of Donna Pearce. The version of the killing that he then conveyed to Ms Davis was that there had been an argument between the two of them and that he had told Ms Pearce to get into the car or “he’d put the weight rod through her head”. She continued yelling at him, but got into the car. Ms Davis said that the prisoner told her that “he screamed at her to shut up and Donna didn’t shut up and he then grabbed the dumb bell from in between his legs and struck her to the right side of the face”. He also told her that he had “struck her again and again and … that he couldn’t stop”. He also told her that he had wrapped thin wire around her throat twice and jammed it in the car door. He gave chapter and verse of Donna Pearce’s death, of his putting her into the boot of his car and playing music. He told her how he had taken her body to the Blue Mountains, left her posed with her legs splayed apart “so that the maggots and ferals would decompose her quicker”, how he had taken her jewellery, pawned it and drove to Queensland. He said that “the murder weapon, the dumb bell, was put underneath the Mark Chinnery’s house at Hervey Bay”. That is where it was found by police when those premises were searched at about the time of the arrest of the prisoner on 24 December 2001.

For the post mortem examination of Ms Pearce there were just bones. The forensic pathologist, Dr Ellis, said that there was insufficient evidence to definitely pinpoint the precise cause of death. There were, however, a number of fractures to the skull indicating trauma to the head. These fractures were extensive, one of them depressed, such as could have been caused by being struck by a dumb bell. Dr Ellis was able to point to the fractures to the skull as being a likely cause of death. They were to three main areas; just under the right cheek close to the right side of the nose; a number of fractures in the region of the left temple and the bones around that region; two small fractures at the back of the head. The blows necessary to cause fractures of the kind observed would have been sufficient to cause her death by one of several possible mechanisms. I am satisfied in accordance with the jury’s verdict, that the actions of the prisoner caused the death of Donna Pearce. He first hit her in the head with the weight bar. He later hit her repeatedly in the head with a dumb bell. These blows caused the fractures to her head.

4 The applicant was aged 35 at the time when he committed the offence in question and is now aged 38. He has a lengthy criminal history which commenced when he was only 16 years of age. He made frequent appearances before the courts as a young offender. He was committed to juvenile institutions on a number of occasions, mainly for offences of dishonesty. In 1986 he was sentenced to six years imprisonment for offences of armed robbery, being armed with intent to rob, assault occasioning actual bodily harm, steal from a dwelling and escape lawful custody. In 1989 he again received a substantial sentence of imprisonment for offences of malicious wounding, robbery in company, escape from lawful custody and a variety of offences of dishonesty. Further custodial sentences, albeit of short duration followed in 1990, 1992 and 1993 for offences of tampering with a witness, assaulting a prison officer and menacing driving, respectively.

5 In light of that history, the sentencing judge made the following observations:

The antecedent criminal history of the offender is prescribed in s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 as one of the aggravating factors to be taken into account in determining the appropriate sentence for the offence. However the prisoner has already served his sentence for each of the crimes to which I have referred and for others to which I have not referred but that did not appear to involve violence. It is inappropriate therefore to increase the penalty that should be imposed on him so as to lead to a penalty being imposed that is disproportionate to the offence of manslaughter for which the prisoner is to be sentenced. If it were otherwise the effect would be to impose a fresh penalty for past offences. However, as was pointed out in Veen v The Queen (No 2) (1987-1988) 164 CLR 465:
“The antecedent criminal history is relevant… to show whether the instant offence is an uncharacteristic aberration or whether he offender has manifested a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.” (at 477)
It is appropriate, in my opinion, to have regard to the antecedent criminal history of the prisoner in the present case as demonstrating that his brutal actions were not an uncharacteristic aberration. His criminal history indicates that he has yet again demonstrated disobedience to the law, a propensity for violence when he is crossed or thwarted and highlights the need to impose condign punishment to deter the prisoner and others from committing further offences of a like kind.

6 The sentencing judge was however prepared to accept a submission, made on the applicant’s behalf, that it was to his credit that he had successfully completed the period which he had spent on parole preceding the commission of the present offence, without committing any offences apart from a minor matter that had attracted a fine.

7 Material as to the applicant’s background and family circumstances was provided to the sentencing judge by way of a pre-sentence report, together with a report from a clinical psychologist, Mr Peter Champion, who also gave evidence during the course of the sentencing hearing. Ms Sue Jeffries, a clinical nurse attached to the Drug Court at Parramatta, also gave evidence on the applicant’s behalf.

8 His Honour summarized the effect of Mr Champion’s report in the following terms:

The prisoner gave a history to Mr Champion of poly-substance abuse, the principal drugs involved being amphetamines, heroin and cannabis. The history reveals that he had the benefit of a private school education, gaining the school certificate notwithstanding that he did not complete Year 10. A series of well recognised tests was carried out on the prisoner which resulted in him achieving an overall score in the top half of the average range, in the middle of the average range on the Verbal Scale but with a relative weakness in the area of social awareness. On the Performance Scale his score was just above the top of the average range into the high average range. As a result of these tests Mr Champion was of the opinion that the prisoner was “a man of upper average to high average intellectual potential” whose literary and numeracy skills were sound. Mr Champion’s conclusion was that there was no basis for considering lack of intelligence as a matter in mitigation.

The mental history of the prisoner did not reveal any antecedent psychiatric treatment or familial mental illness. However, he gave a history of what he described as “paranoia”, which he related in part to amphetamine use, but Mr Champion was not able to elicit any history suggesting systematised paranoid delusions. The prisoner denied any depression or current suicidal tendencies, although he did say that had he been convicted of murder he might have considered suicide. Recollections of the events concerning Donna Pearce were said by the prisoner to be troubling and saddening, but did not produce any clinical disorder.

The first conclusion arrived at by Mr Champion was that the history of the prisoner was consistent with some oppositional defiant and anti-social features in childhood and adolescence. In adulthood the history was suggestive of an anti-social personality disorder however, such a diagnosis was complicated by the prisoner’s drug abuse over time. The possibility of a paranoid personality disorder was raised and Mr Champion thought that the prisoner displayed a personality “with high levels of suspiciousness, distrust of others and alienation from others”.

The history of drug abuse given to Mr Champion by the prisoner revealed that after a short foray into sniffing glue at 15 he desisted, but that at 16 he became a regular user of cannabis. He proceeded to amphetamines at 17 and thereafter progressed to cocaine and heroin. Although the prisoner described himself as a “drug user” rather than a “drug addict” and denied being “drug dependent”, Mr Champion formed the view that he could not support such a distinction and that it represented a form of denial by the prisoner. Mr Champion described the prisoner as “tough minded” with “significant personality deficits the most common … being … paranoia.” His general appraisal was of a man who was strongly built and worked out to maintain his physique, was “articulate” and “precise” with a “lack of insight”.
…
Mr Champion was cautious in his assessment of the future of the prisoner. His previous history of aggression, chronic offending, problems with relationships, drug abuse, maladjustment and personality dysfunction together with questionable insight, negative attitudes and impulsivity were all noted as risk factors for the future. I am sure they are. Mr Champion’s ultimate conclusion was not reassuring. He opined that:

“While there is a risk of Mr Williams acting in an aggressive fashion in the future, it is not clear that this would necessarily end in a result such as in this case.” (italics added)

In my opinion the report reveals a series of risk factors that augur badly for the future. A high level of aggression, repeated criminality involving violence in a number of instances, long term drug abuse and personality disorders all indicate that when free of restraint the prisoner is likely to be involved in further violence. Whilst this may not “necessarily” lead to the death of another person, it could do so. In my opinion, the prisoner is a risk to society and will be so on release.

9 The sentencing judge concluded from all the evidence that the applicant had not demonstrated any contrition. In that context his Honour also made the following observations:

The details of the way in which the body of Donna Pearce was treated by him both in hiding it in the bush at Lapstone and later removing it from Lapstone and hiding it deep in the bush at Wentworth Falls are well after the fact of her death. They are too unpleasant to recount in these Remarks on Sentence. Furthermore to do so would be very distressing for Donna Pearce’s family. They are relevant to the question of sentence only to the extent that they demonstrate, in my opinion, a callousness on the part of the prisoner that is inconsistent with any genuine remorse at that time. I am satisfied that there was not then, and there is not now, any genuine remorse on the part of the prisoner for having killed Donna Pearce.

10 A little later his Honour said:

I have already dealt briefly with the refusal of the prisoner to reveal where Donna Pearce’s body was until many months after he had moved it to the bush at Wentworth Falls. The revelation was made to an investigator with the Police Integrity Commission. To that officer the prisoner asserted that he and Donna Pearce had been consuming substantial amounts of prohibited drugs prior to her death and that “she had in fact died of an overdose”. He denied beating Donna Pearce but did admit that he had “placed her body into his car and had driven to bushland where he dumped her body”. He further informed the investigator from the Police Integrity Commission that “on the instructions of his solicitor” he had not informed the police of the location of Donna Pearce’s body.

The submission on behalf of the prisoner that the prisoner’s refusal to reveal the whereabouts of the body should not be used to derogate from the prisoner’s right to remain silent is correct and I have not done so.

11 It is apparent from his Honour’s remarks that he assessed the applicant’s prospects of rehabilitation as bleak.

12 The sentencing judge concluded that the applicant was to be sentenced upon the basis that the jury verdict was founded upon manslaughter by reason of provocation. The first ground of appeal asserts that the sentencing judge erred in so concluding. Moreover, it is submitted that the sentencing judge ought rather to have found that the verdict of manslaughter was one based upon an unlawful and dangerous act on the part of the applicant.

13 The principles which govern a sentencing judge’s task in finding facts after trial are well established. In R v Isaacs (1997) NSWLR 374, this court said:

The following principles concerning the law and practice of sentencing in this State are well established:
1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury: R v Harris [1961] VR 236; see also Kingswell v The Queen (1958) 159 CLR 264 at 283, per Mason J.

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas v The Queen (1995) 183 CLR 1.

3. The primary constraint upon the power and duty of decision- making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury's verdict, and thus may be required to sentence on a basis different from the judge's personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury.

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris . However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency: R v Lupoi (1984) 15 A Crim R 183 at 184. (at 377)

14 In R v Sandford (1994) 72 A Crim R 160, Hunt CJ at CL, with whom Smart and Studdert JJ agreed, said:

The trial judge, when called upon to sentence the prisoner, is bound only by those facts necessarily found by the jury in reaching their verdict of guilty. All other facts against the prisoner must be found by the judge, provided that they do not conflict with the jury's verdict, and they must be found beyond reasonable doubt. The prisoner must be given the benefit of any reasonable doubt, but that does not mean that the judge is bound to take the most lenient view of the facts in favour of the prisoner; the judge must make his or her own judgment upon the evidence: Harris [1961] VR 236 at 237; Webb [1971] VR 147 at 152-153; Stehbens (1976) 14 SASR 240 at 245; O'Neill [1979] 2 NSWLR 582 at 588; (1979) 1 ACrimR 59 at 62-63; Martin [1981] 2 NSWLR 640 at 642-643; Mills (1985) 17 ACrimR 411 at 416; Savvas (No 2) (1991) 58 ACrimR 174 at 177, 188. (at 194)

15 The exercise upon which the sentencing judge embarked was a fact finding one. That being so, the applicant must demonstrate that his Honour’s finding was not open upon the evidence. See House v The King (1936) 55 CLR 499.

16 There were a number of aspects of the evidence to which it will be necessary to have regard in considering this ground of appeal. First, there was a body of material which revealed provocative conduct on the part of the deceased towards the applicant prior to the day on which the fatal incident occurred. Indeed, the applicant gave evidence of such conduct in his evidence in chief. The effect of that evidence which is set out below is taken from the written submissions which were filed on behalf of the applicant.

It was accepted that the relationship with Ms Pearce had been accompanied by a good deal of violence, most of it on her part. This had included some extreme instances, one in which applicants’ young son had been cut with a knife. The applicant gave evidence that Ms Pearce had struck him on a number of occasions. He had previously threatened to leave and this had provoked further violence from her. On one occasion he had to rescue his four and a half year old son from Ms Pearce’s violent rage and had made a complaint to police as to what had happened. The police asked him if he wanted her charged. He refused saying that he just wished to be out of the premises. On this occasion Donna Pearce had thrown his belongings off the balcony. Including the final incident, the applicant said there had been five violent outbursts by the deceased.
The first of the incidents described by the applicant involved an initial assault upon him with Ms Pearce striking him in the face with a closed fist. His four and a half year old son Blake was present and he attempted to leave with his property. Ms Pearce said: “you’re not leaving cunt” a struggle ensued in which Ms Pearce used a knife and the child was badly frightened. The applicant called police who assisted by escorting him back to the flat so that he could recover his keys.
On the second occasion the applicant said that Ms Pearce tracked him down to an access centre and after this he was apparently persuaded to move back into the premises with her. On the third occasion there was an incident involving a knife being wielded by Ms Pearce. This incident at least in part was witnessed by Mr Beard who was also a witness to the fatal altercation.
The fourth occasion appears to have been one on which the applicant again attempted to leave the premises and was interrupted by Ms Pearce. An argument and struggle ensued in and around his motor vehicle. The applicant gave evidence that in the course of this Ms Pearce whilst in the car kicked a window and as she was being dragged out cut her leg on the broken glass.
The deceased was in the habit of “king-hitting” the applicant without warning. The applicant was a physically fit man who worked-out with the weights and bar that figured in the facts surrounding Ms Pearce’s death. Despite the overly robust physical nature of the relationship the applicant explained in evidence that he had some sensitivity about being hit about the head area, as he had lost his right eye, which had been replaced by a prosthetic eye and obviously was concerned as to the vulnerability of his remaining eye.

17 The applicant’s evidence in that respect was confirmed by testimony given by neighbours of the deceased who observed that the relationship between her and the applicant in the weeks preceding her death was volatile. Those witnesses gave evidence that they had seen and/or heard altercations between them during that period. It featured arguments, yelling and screaming and sounds of glass smashing. One neighbour, Ms Boilean, was aware of an attempt by the deceased to slash the tyres of the applicant’s car. She also described a couple of “serious altercations” between the couple and said that she had witnessed “both parties physically assaulting one another”. She was of the view that, at least initially, the deceased was the aggressor. She had also seen the deceased “draw blood” during one such altercation. Another neighbour, Mr Beard, observed an incident in which the deceased, during the course of an argument with the applicant, had cut the applicant’s young son on the arm with a knife which she was carrying. The applicant had then managed to get the knife out of the deceased’s hands whilst Mr Beard ushered the young boy to safety. Mr Beard observed that the deceased was herself covered in blood at the time.

18 The applicant gave evidence to the following effect in relation to the events which immediately preceded the fatal incident:

Q Did an incident occur in the flat between yourself and Donna on that day?
A No incident, no, not – you mean argument or anything like that?
Q Are you saying can you tell us whether there was any argument in the flat on that day?
A No, there was only a disagreement and that was I had dropped my son off at my mother’s and I arrived back at Donna’s house at 2, quarter past 2, something like that in the afternoon and she had missed her methadone dose at Nepean Hospital and she wanted me to take her to Cabramatta to go and purchase heroin and I said, “Look, I am not driving to Cabramatta because I’ve got a smashed windscreen and they will defect it straight away. If you want to go to Cabramatta you catch a train to Cabramatta” and she said, “Well. All right, I will go and get Matt Appleby and if he’s not going I will catch a train to Cabramatta.” That was the only disagreement in the flat.
Q What do you mean when you say Matt?

A Matt Appleby.
Q Did she leave the flat?
A She left the flat about 2.30. While she was gone, I give her about half an hour, she hadn’t come back in about half an hour so I thought she had gone to Cabramatta and I packed my stuff up and Blake’s stuff up and carried it downstairs and put it in the car. I had packed up everything that I possibly could and the boot in the back seat and my last trip downstairs was, I had two ten kilo weight plates, I had a weight bar and two small dumbbells and I carried them all downstairs. I had the two weight plates against my hip with the two weight belts on top of it and the weight bar right side and I walked down to the bottom of the flat stairs and Donna walked in and she said, “What do you think you’re doing?” I said, “Look, it’s over. I’m finished, I’m going.” She said, “You’re not fucking going anywhere, cunt.” I said, “Donna, look, just calm down. It’s over. Just, it’s got to be done this way.”
HIS HONOUR: Q It’s what?
A “It’s got to be done this way” and she then ran to the car, seen my property in the car. I put my, the two weight plates and the two dumbbells on the weight plates, lifted them up, I put them on the boot of the vehicles and as I done that the dumbbells over balanced. One fell on to the ground. Donna picked up one of the dumbbells and she said, “You’re not going anywhere cunt. I will smash every window in the car,” and at that time I raised the weight bar what I had in my hand with one hand and I said to her, “You smash my windows and I will smash you with this” and she got in the car and at that time I forget she had the dumbbell in her hand at all. I opened the back seat, I put the weight bar in through the back seat on to the front seat – it had to be positioned in a special way or it would have tore the vinyl of the door trims, the weight bar doesn’t go in the car long ways, it’s got to be put in on an angle – and I put it on the front seat towards the back seat. I closed the back door and went around to the front door, the driver’s side front door, opened that, hopped in, closed the door, positioned – put my seat forward so I could get the weight bar behind the back seat, the back of the driver’s seat heading towards, pointing towards the rear of the passenger’s side of the vehicle and as I was positioning that weight bar behind the back seat I felt a blow to the back of my right shoulder which I thought was just a very hard punch because I had forgotten Donna even had the dumbbell in her hand. I spun around. I said, “What are you doing, what’s this for? She said, “You’re not leaving me, cunt. I’m telling you now you’re not leaving me.” I said, “Look, you know, I mean, what can I do?” and I put my hand in me pocket, got the keys out put the keys in the ignition. At that point she struck out with the dumbbell at me head. I put me arm up, I only seen it at the last second. I put me arm to cover meself and it smashed, hit me watch, hit me head, smashed me watch and cut here probably about 5 millimetres. It wasn’t a huge big cut, about 5 millimetres and I felt blood trickle down the back of me neck on to me chest. I thought, “By Christ, what am I going to do here?” I tried – and the next thing was just to get out of the vehicle. I though that was my only option. My door, my driver’s side of my door of my vehicle was faulty. You have to push the lock forward, open the handle and push hard with your shoulder to open it and to do those three manoeuvres in one go without taking my vision of Donna I couldn’t take that risk, the threat that she posed to me at that time and I put my left hand out the window and because of the faulty mechanism in the car door you’ve got to, lift the lever twice and ram it with me shoulder to open it. I had me hand over the door attempting to lift the handle of the car door and she leant forwards again with the dumbbell, it was in her left hand, not her right hand – it was in her left hand and I grabbed hold of her hand half way before it got to me with my right hand across and I spun around and her hand was still on the dumbbell. I tried prying her fingers off as hard as I could but she wouldn’t let go of it. There was a brief struggle.

19 As his Honour’s Remarks on Sentence make clear, the applicant then went on to describe how he had struck two blows to the deceased, one to the nose and one to the left temple, which he described as being not “very hard”. He claimed not to have actually had possession of the dumbbell and said that he had only been trying to ward off further blows from the deceased. This version appears to have been put forward in support of the proposition that the blows had occurred accidentally or in self-defence. The jury by its verdict clearly rejected those possibilities. His Honour also found, for sentencing purposes, that this aspect of the applicant’s evidence was not credible and accordingly rejected it.

20 There was however evidence in the Crown case which supported that part of the applicant’s evidence in which he asserted that the deceased had injured him during the course of the altercation. A number of droplets of blood were found where the applicant’s car had been parked at the time of the altercation. Two of them were subjected to DNA analysis. One disclosed a partial DNA profile only but the other had a complete DNA profile which matched that of the applicant.

21 The applicant gave evidence that after being struck with the dumbbell he had alighted from the car and had discovered that he was bleeding. He had then flicked his blood off with his fingers. That evidence, together with the forensic material located at the scene, provided powerful support for the proposition that during the course of the altercation the deceased had inflicted an injury upon the applicant which was sufficient to cause him to bleed.

22 A significant part of the Crown case depended upon admissions which were subsequently made by the applicant to various witnesses. It is unnecessary to refer to that evidence in any detail as it was comprehensively reviewed by the sentencing judge in the passages from the Remarks on Sentence which were extracted earlier in this judgment. Suffice it to say that four different people, all of whom were associated with the applicant, each gave evidence of having been told by the applicant of the circumstances in which he had killed the deceased. Although it would appear that the version of events provided by the applicant to those witnesses varied in some respects, there was nonetheless a consistent theme which ran through that evidence to indicate that the applicant had admitted having killed the deceased by striking her in the head on more than one occasion with the dumbbells and/or the weight bar. The sentencing judge accepted the evidence of each of those witnesses.

23 The Crown also relied upon the evidence of Mr Beard, who was an eyewitness to the incident although his view was partly obscured. He said that he had heard the pair arguing and that it sounded to him “like it was getting violent” and a “bit heavy”. He said that the deceased was struck by the applicant with what he believed to be a metal pole. He said that it had been swung “like a cricket bat”. After the deceased had been hit, he said that she had fallen to the ground where she had remained. Mr Beard then went into the unit to make an emergency call and upon his return, said that he saw that the deceased was lying in the front seat of the applicant’s car and was screaming. She was in the foetal position and was shaking in such a manner as to suggest, to him, that she was having an epileptic fit with froth coming from her mouth.

24 The Crown tendered in evidence the metal pole to which Mr Beard was undoubtedly referring. It consisted of a heavy steel bar which measured over 1.68 metres in length. The dimensions of the weight bar and the dumbbell, upon each of which the deceased’s blood was located, together with the nature and extent of the skull fractures suffered by the deceased as described by Dr Ellis who conducted the post-mortem, as well as the blood spatter pattern in the car, was all material which was consistent with the evidence given by witnesses to whom the applicant had made admissions.

25 The applicant pointed to various passages in the Remarks on Sentence in support of a submission that the sentencing judge had not applied the proper test for provocation and had thus erred in concluding that the jury’s verdict of manslaughter could be explained on that basis. For example, his Honour referred at one stage to the evidence having revealed that the applicant was a “hard man, readily aroused, lacking in self control and quick to inflict injury on another”. The submission was advanced that the sentencing judge’s observations were at odds with the ordinary person test. In that context reference was made to Stingel v The Queen (1990) 171 CLR 312, to support the proposition that the ordinary person was a person with ordinary powers of self-control falling within the common range of human temperaments. It was submitted that for the purpose of assessing whether an ordinary person could have reacted in the same way as the accused, the personal characteristics of the accused, such as a particularly excitable temperament, must not be considered and that the sentencing judge had erred in doing so.

26 The short answer to this submission is that the sentencing judge, in the passages to which the court’s attention was drawn, was not dealing with the question of what constituted the basis for the jury’s verdict. On the contrary, his Honour appears to have been simply making an assessment of the objective gravity of the applicant’s criminality, which he regarded as being “very high”. I am not persuaded that the sentencing judge fell into error of the kind asserted. Even if I am wrong in so concluding, the matters to which his Honour referred were plainly relevant matters by reason of s 23(2)(a) of the Crimes Act, which is not concerned with the ordinary person test, as well as being relevant to the question of provocation as a mitigating factor within the meaning of s 21A(3)(c) of the Crimes (Sentencing Procedure) Act.

27 It is necessary to briefly consider one other matter which was raised by the applicant. The sentencing judge referred to the fact that shortly before returning its verdict the jury had asked the following questions:

Your honour,
Can you please reconvene the court and walk us through the issue of provocation again?;

and

“If an event or action is provoked, can a subsequent action or inaction that is still part of a chain of events be separately considered as murder?”;

and

“Your honour,
Does not seeking medical attention negate provocation if the deceased was not dead when they reached the hospital?”.

28 His Honour then said:

From the foregoing it is, in my opinion, clear that quite late in their deliberations the jury had come to consider the issue of provocation. This is consonant with the sequence of the written directions that were given to the jury and went into the jury room with them. My conclusion that Donna Pearce was killed by the prisoner as a result of provocation was arrived at independently of the foregoing examination of the questions asked by the jury. Those questions however, in my opinion, tend to support the conclusion at which I have arrived.

29 Complaint is made that the timing and content of the questions did not “necessarily provide support for his Honour’s view that provocation was the basis of the verdict”. So much may be accepted. I do not understand the sentencing judge to have thought otherwise. In any event, his Honour clearly appreciated that his fact finding role was to be performed “independently of the ….questions asked by the jury”. I discern no error in relation to this aspect of his Honour’s reasons.

30 In my view, the evidence to which I have referred, amply justified the conclusion that in inflicting the fatal wounds to the deceased, the applicant acted with either an intention to kill or an intention to do grievous bodily harm. Accordingly, there was no legitimate basis, in my view, upon which the sentencing judge could have concluded that the killing was unintentional, that is that death resulted from an unlawful and dangerous act on his part. Moreover there was, given the evidence to which reference has been made, an entirely proper basis upon which it was open to the sentencing judge to find that the cumulative effect of the deceased’s conduct both prior to and at the time of the fatal incident amounted to provocation within the meaning of s23(2) of the Crimes Act. In all the circumstances I would reject this ground of appeal.

31 The second ground of appeal asserts that the sentencing judge erred in the way in which he dealt with various matters of aggravation which are identified in s 21A(2) of the Crimes (Sentencing Procedure) Act.

32 In support of this ground of appeal, the court’s attention was drawn to the following passage which appears in the sentencing judge’s Remarks on Sentence:

The Crimes (Sentencing Procedure) Act 1999 (the Act) makes provision for regard to be had to a number of considerations. The primary obligation of the Court is to impose a sentence that is appropriate in all the circumstances of the case (s 21A(1)). In determining the appropriate sentence for the particular offence the Court is required to take into account certain specified aggravating factors and certain specified mitigating factors that are relevant and known to the Court as well as any other objective or subjective factors that affect the relative seriousness of the offence (s 21A(1)(a), (b) and (c)). The aggravating factors in the present case that are known and relevant are those specified in s 21A(2)(b)(c)(d)(g) and (l). The mitigating factors in the present case that are known and relevant are those specified in s 21A(2)(b) and (c).

The killing of Donna Pearce involved the actual use of violence. She was beaten to death. The attack on her was cruel. Her death was caused by a man who has a long history of previous criminal convictions, a number of which involved violence. The outcome for Donna Pearce was fatal. The prisoner was a powerful man. Donna Pearce was vulnerable. However, her killing was not planned. It was a consequence of a man who was bad tempered by nature and who had made matters worse by his persistent and high level use of illicit drugs, being provoked by her. What she did was not all that provocative but it was sufficient, consistently with the jury’s verdict, to meet the criteria of provocation. Although the killing did not amount to murder, it was a very bad case of manslaughter in the high, indeed very high, levels of culpability for such crime.

33 Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 lists the aggravating factors that are to be taken into account in determining the appropriate sentence for an offence. Of particular relevance for present purposes are:

(b) the offence involved the actual or threatened use of violence; (g) the injury, emotional harm, loss or damage caused by the offence was substantial;
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bank teller or service station attendant.

34 It will be necessary to deal with each of these matters in turn. So far as (b) is concerned, it is common ground that the actual use of violence by the offender is an element of the offence of manslaughter. That being so, it is submitted that the sentencing judge erred in taking into account this aspect of the matter as being an aggravating factor. In doing so it is submitted that his Honour contravened the injunction which appears in the concluding words to s 21A(2), namely that “the court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence”.

35 The applicant relies, in support of his argument, upon what was said by Howie J, with whom Bell and Hislop JJ agreed, in R v Wickham [2004] NSWCCA 193. His Honour said:

When a sentencing court is about to consider matters of aggravation or mitigation under s 21(A) it is important that it recognises the limits upon the use to be made of those factors. The first is that found in relation to factors of aggravation in s 21A(2) which, after listing a number of aggravating features, provides:

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence. (at para 22)

36 To similar effect are this court’s decisions in R v Cramp [2004] NSWCCA 264, particularly at paras 53-58 and R v Berg [2004] NSWCCA 300.

37 I am persuaded that the sentencing judge did fall into error of the kind asserted. His Honour referred to s 21A(2)(b) in the first paragraph of the extract which appears above. In the next paragraph his Honour made specific reference to the fact that the killing of the deceased “involved the actual use of violence. She was beaten to death”. The only matters to which reference was made in that latter paragraph were matters said to be factors of aggravation. Indeed, his Honour’s conclusion that this was a “very bad case of manslaughter in the high, indeed very high levels of culpability for such crime” was clearly influenced by the factors which he identified in that same paragraph, including the fact that the killing “involved the actual use of violence”.

38 It is difficult in the circumstances to avoid the conclusion that his Honour has had “additional regard” to that factor of aggravation in imposing sentence. Nowhere, for example, does his Honour make any reference to the concluding words of s21A(2). Had his Honour done so, that may well have provided an indication that he had not infringed that requirement. In fairness to his Honour he passed sentence in this matter without the benefit of this Court’s decisions in Wickham, Cramp and Berg.

39 A similar submission is made in relation to s 21A(2)(g). It is plain enough that the sentencing judge, in considering that provision, considered that the relevant injury, harm, loss or damage was the death of the deceased. Indeed his Honour specifically said that “the outcome for Donna Pearce was fatal” and that “she was beaten to death”. As death is obviously an element of the offence, it is apparent that the injunction has again been overlooked: See also R v Berg (supra).

40 The sentencing judge also relied, as an aggravating factor, upon s 21A(2)(l). The argument in respect of this matter was put somewhat differently because plainly enough it could not be suggested that this was an element of the offence. The sentencing judge concluded that the deceased was vulnerable, as I understand his Honour’s reasons, upon the basis that the applicant was a powerful man who had violent tendencies, whereas the deceased did not have those characteristics. That was clearly a matter that was relevant to an assessment of the objective gravity of the offence. It should not however have been treated as a factor which further aggravated the offence.

41 In any event all victims of a homicide can be said to be vulnerable. In my view, s 21A(2)(l) is not directed to vulnerability in that generalized sense. Indeed, the examples set out in the subparagraph suggest that it is vulnerability of a particular kind that attracts its operation.

42 In my view, the accumulation of errors identified leads to the conclusion that this ground of appeal must be upheld. I have also come to the view that some other lesser penalty was warranted in law and should have been passed. That being so, it is unnecessary to consider the further ground of appeal which asserts that the sentence was manifestly excessive.

43 In re-sentencing the applicant it is necessary to have firmly in mind the maximum penalty which is prescribed by the legislature. Furthermore, as this Court said in R v Blacklidge (NSWCCA, 12 December 1995, unreported):

The courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is a starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case.

44 At the forefront of an assessment of the objective gravity of the offence is the fact that there has been a taking of human life with either an intent to kill or an intent to inflict grievous bodily harm. The gravity of the offence is moderated by the fact, as the sentencing judge found, that the death was not planned and that there was a measure of provocation offered by the deceased in the period prior to, and including the day on which the fatal incident occurred. Those considerations must all take their place, amongst other factors, in the sentencing process. There was little however that the applicant could advance of a subjective nature which would ameliorate the otherwise appropriate sentence. Furthermore, the applicant was hampered by his criminal history and by the other adverse findings of the sentencing judge to which there has been no challenge. As the sentencing judge’s recitation of the facts makes clear, this was an offence of considerable objective gravity. That being so, nothing less than a sentence of appropriate severity can be countenanced. Nothing has been advanced which would warrant a finding of “special circumstances” and I decline to make such a finding.

45 I would propose the following orders:

1 Grant leave to appeal.

2 Allow the appeal and quash the sentence imposed at first instance.

3 In lieu thereof sentence the applicant to 12 years imprisonment to commence on 24 December 2001 with a non-parole period of 9 years.

4 The non-parole period will expire on 23 December 2010 at which time the applicant will be eligible for release on parole.

46 HALL J: I agree with Buddin J.

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