Re Carroll, Juan

[1998] TASSC 90

90/1998

PARTIES:  CARROLL, Juan, Re

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  C60/1984
DELIVERED:  31 July 1998
HEARING DATE/S:  20 July 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Criminal Law - Particular offences - Offences against the person - Homicide - Murder - Practice and procedure - Sentencing - Disputed facts - Material to which the court should have regard on re-sentence.

Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 (Tas), ss9(3), 11(4).
Bresnehan v R (1992) 1 Tas R 234; Isaacs v R (1997) 90 A Crim R 587; Langridge v R (1996) 17 WAR 346, referred to.
Aust Dig Criminal Law [124]

REPRESENTATION:

Counsel:
             Applicant:  T L McDermott
             Respondent:  M A Stoddart
Solicitors:
             Applicant:  T L McDermott
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  90/1998
Number of pages:  7

Serial No 90/1998
File No C60/1984

IN THE MATTER OF THE CRIMINAL CODE AMENDMENT
(LIFE PRISONERS AND DANGEROUS CRIMINALS) ACT 1994
AND IN THE MATTER OF JUAN CARROLL

REASONS FOR JUDGMENT  UNDERWOOD J

31 July 1998

On 27 June 1984, the applicant was found guilty of murder and sentenced to prison for the term of his natural life.  He now makes application for re-sentence for the commission of that crime, pursuant to the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 ("the Act").

The applicant's case for re-sentencing

The applicant's victim was Elizabeth Stevens.  She was aged 33 at the time of her death.  She had two children, a boy and a girl, then aged 10 and 8 years respectively.  There was no dispute at the trial that on the evening of 7 March 1984, the applicant killed the deceased in a bedroom in her house by firing at least three bullets from a .22 rifle into her chest and abdomen.  She died shortly after the infliction of the fatal wounds.  The applicant was taken into custody the following day, 8 March 1984, interviewed and charged.  I infer that he has remained in custody ever since.

Although, of course, the jury had to be satisfied to the requisite degree of all the elements of the crime charged, the principal issue at the trial was whether the crime of murder should be reduced to manslaughter by reason of provocation.  At the conclusion of the evidence, the Crown submitted to the learned trial judge that there was insufficient evidence to leave the issue of provocation to the jury.  He overruled this submission and published written reasons for so doing (42/1984).  The following is taken from those reasons:

"The accused's evidence is that he had been living in a de facto relationship with the deceased for a period of 18 months or so prior to her death, that he loved her, that they got on well together, that he intended to marry her and that he normally gave her $120 per week.  There was other evidence to suggest that these statements may not have been true.  He was visiting another woman and having intercourse with her, although infrequently, his clothes were in a basement of the deceased's home, he parked his car some distance from her home when he visited her and he did not, for a time at least, have a key to her home.  He explained that he wanted to let the other woman down gradually and that he kept his clothes in the basement and parked his car where he did because he did not want the Social Services Department to know that he was living with the deceased because it would have affected her pension.  He said that the front door lock had been changed and he believed that there was only one key to it.  He never got around to having a key cut for himself.  As I say, it is a matter for the jury to evaluate this evidence.  They could accept his version.

The Crown has submitted that the events just before the fatal shooting could not amount to provocation.  If the jury accept the accused's version, which they could do, the following was the sequence of events:-

(1)He knew that Bellette had been visiting the home of the deceased on a number of occasions but, although suspicious, he was not certain that intercourse was taking place.

(2)On the evening of 7th March he parked some distance from her premises from where he could see Bellette's car at the premises.

(3)He took his rifle, with silencer and loaded magazine attached, with him and went to the premises.

(4)He said that was for protection.  He intended to fire a shot into the ground to frighten Bellette in the hope that he would stop seeing the deceased.  The silencer, according to him, was so that the neighbours would not be disturbed by this.

(5)When he got to the premises he looked through a gap in the window.  He saw Bellette touch the deceased on the breast and knee and then lead her into another room.

(6)He waited five minutes in the hope that Bellette would come out of the house.

(7)He knocked on the door and then heard the deceased say 'Get dressed Chris' or 'Get dressed quick'.

(8)The accused said that he knew then that she had been having intercourse with Bellette.  (There is in fact no doubt that she did have intercourse with him at this time.  Bellette said so and the scientific evidence was that a post-mortem examination revealed recent spermatozoa in her vagina.)

(9)The accused then lost his self control, smashed the windows, fired shots at Bellette inside and outside the house, and then returned to the house and shot the deceased in one of the bedrooms."

The dispute on re-sentencing

On this application, Mr McDermott, for the applicant, submitted that although the jury rejected provocation, nonetheless I should proceed to sentence on the version of the facts set out above, for those were his instructions and even though those facts were insufficient to constitute provocation in law, they were matters relevant to mitigation of sentence.  Mr Stoddart, who appeared for the Director of Public Prosecutions, did not accept as correct the account proffered on behalf of the applicant.  Mr Stoddart put to the Court that the applicant and the deceased had been living in a sexual relationship but it had come to an end about one or two months prior to the commission of the crime.  Mr Stoddart contended that sentence should be imposed on the basis that at the relevant time the deceased and the applicant had separated in acrimonious circumstances and were no longer living together.  He contended that the deceased was frightened of the applicant, that she had changed the locks on her door to prevent him from entering the house and that she had been forced to seek assistance from Mr Thomas, a family friend, to avoid confrontations by the applicant.  Mr Stoddart submitted that sentence should be imposed upon the basis that the murder was premeditated and committed by the applicant because he was angry with the deceased.  Mr McDermott submitted sentence should be imposed on the basis that the murder was not premeditated, but committed by the applicant in a sudden fit of jealous passion as he believed that the woman he loved was having a sexual affair with Mr Bellette.

Finding facts for the imposition of sentence

With respect to a trial judge's duty upon the imposition of sentence, Burbury CJ said this in Rowbottom v R (CCA, unnumbered 1960):

"A judge who has the task of determining the just sentence to be passed for a particular crime must consider for himself all the proved circumstances surrounding the crime which affect its gravity.  He must of course accept all the findings of fact necessarily involved in the jury's verdict.  And he is not entitled to proceed upon any view of the facts necessarily negatived by the jury's verdict.  But questions of premeditation, planning, motive, malignity, joinder with others, as well as a great variety of mitigating circumstances which a judge may have to consider in order to determine condign punishment may be left entirely at large by the jury's verdict. The verdict can only be taken logically to involve findings upon the bare essential legal ingredients of the crime.  As to all matters relevant to punishment but not logically the subject of findings of fact by the jury, the judge must judicially review the evidence for himself."

In Bresnehan v R (1992) 1 Tas R 234, I cited the above passage and referred to R v Chamberlain [1983] 2 VR 511. Zeeman J expressed his concurrence with my reasons for judgment, as did the other member of the Court, Crawford J, although the latter took a slightly different view of Chamberlain's case.  Nonetheless, Bresnehan appears to be authority in this jurisdiction for the proposition that when finding facts for the purpose of imposing sentence, the standard of proof will vary depending on the gravity and/or significance of the facts in issue.

Since Bresnehan was decided, the Court of Criminal Appeal (NSW) has expressed its view about the standard of proof for finding facts for the purpose of imposing sentence.  In Isaacs v R (1997) 90 A Crim R 587, the Court said at 592:

"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: 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: Lupoi (1984) 15 A Crim R 183 at 184."

This issue was considered by the Supreme Court of Western Australia, constituted by a Bench of five, in Langridge v R (1996) 17 WAR 346. In learned judgments the members of the Court surveyed the authorities in all States of Australia, including Tasmania. With respect to the standard of proof the majority reached the conclusion that if the facts in issue would be likely to result in the imposition of a more severe sentence than would otherwise be the case, the standard was proof beyond reasonable doubt.

Sitting at first instance, I am, of course, bound by the decision of the Court of Criminal Appeal in Bresnehan, but it seems to me that for present purposes there is very little difference between the approach in Bresnehan and the approach of the Western Australian Supreme Court in Langridge. 

On any view, the murder was a heinous crime, but if the applicant's killing was premeditated and committed in anger after he and the deceased had separated in acrimonious circumstances, it is arguable that he would be likely to receive a more severe sentence than if the killing was the sudden, unexpected outcome of sexual jealousy.  This is so even though, consistent with the jury's verdict, the applicant's claim of legal provocation must be rejected.  Accordingly, I direct myself that I should proceed to sentence on the version proffered on behalf of the applicant unless I am satisfied beyond reasonable doubt that the version proffered by the Director of Public Prosecutions is correct.

The material from which the facts are to be found

The real problem on this application is that I was not the trial judge. I neither heard nor saw the witnesses. To what material should I have regard for the purpose of finding facts for sentence? Relevantly, the legislation only provides, by s9(3):

"For the purposes of subsection (1), the Court has the same powers and duties as it would have had if the application had been convicted by that Court of the crime referred to in that subsection after the commencement of this Act."

and by s11(4):

"A Court hearing an application under s8(1) is to proceed as if it was sentencing the applicant for the first time for the offence for which the applicant was originally sentenced."

It seems to me that I must:

(a)       obey the statutory obligations set out above as best I can in the circumstances;

(b)apply the standard of proof prescribed by the common law for finding facts for the purpose of imposing sentence; and

(c)have regard to the best material available of the evidence and the proceedings at trial, viz, a transcript of evidence prepared by the Court for the purpose of an appeal to the Court of Criminal Appeal against conviction.

The evidence

The accused gave evidence to the following effect.  He said that he loved the deceased and that there was no other woman in his life.  He said that he had lived with the deceased for about eighteen months or so and sexual relations took place between them regularly.  The applicant said that it was a loving relationship and they intended to marry.  He told the jury that he spent the night before the murder at the deceased's home and left about 7 o'clock the next morning.  He said there were very few nights during the eighteen months prior to the murder when he had not slept with the deceased at her home.  The applicant said that after Christmas 1983, he knew that Mr Bellette was visiting the deceased.  He said this made him jealous and he sensed a change in the deceased's attitude towards him about two months before her death.  He said that he asked the deceased whether she was having a sexual affair with Mr Bellette and she denied it.  The applicant said he accepted this denial, but he saw Mr Bellette leaving the deceased's home in the early hours of one morning and became suspicious about his relationship with the deceased.  He said that one night, about two months before her death, he rang the deceased and Mr Bellette came on the telephone and threatened him.  However, he said that the deceased never told him that she wanted their association to end.

There was a considerable body of evidence to counter the applicant's version of the events.  The deceased had changed the locks to her house.  As to this, the applicant explained that the locks were changed as a routine security measure and not to keep him from gaining access to the house.  He said that he had not "got round" to having a key cut for himself.  The applicant said that he and the deceased were concerned that officers from the Department of Social Security might find they were living together as man and wife and, accordingly, he took great care in the last two months before her death not to be seen near the deceased's home.  He always parked his car some distance away when he went there and his clothes were packed up. 

In his evidence, Mr Bellette described his relationship with the deceased as one of casual sexual connection occurring about twice a week.  He said these encounters occurred up to a dozen times in the deceased's home, as well as elsewhere.  He said he never stayed overnight at the deceased's home and usually left not later than 10pm.  He told the jury that the deceased had told him that her relationship with the applicant was over, but in cross-examination, Mr Bellette said that he did not really believe her as to that.  There was re-examination about this issue during which Mr Bellette said that he did not believe the relationship between the applicant and the deceased was over when he first started to have intercourse with her, but he believed that to be the case at the time of the shooting.  He added that the applicant did not believe the relationship was over at that time.  I interpolate here to observe that most of Mr Bellette's evidence about this aspect of the case may have been admissible to prove his state of mind, if that had been relevant, but certainly not admissible to establish the truth of the facts stated. 

Mr Thomas gave evidence.  He said that he had known the deceased for about seventeen years, ever since he took her and his eldest daughter to pony clubs and horse shows.  He said that in the few months prior to her death he saw the deceased three or four times a week or more, usually at his stables where the deceased kept her own ponies.  Mr Thomas gave some inadmissible evidence-in-chief to establish as a fact that in the weeks prior to her death, the deceased was not living with the applicant.  The following is typical:

"And for example in the last three or four weeks up until 7th March 1984 are you able to tell us whether Mr Carroll was living at Mrs Stevens' home? … No, he was not living there, not on a permanent basis, no."

Mr Thomas said that at the request of the deceased, made two or three weeks before her death, he secured some louvre windows at her house and put bolts on several doors.  He said that on several occasions he accompanied the deceased home from the stables to check to see if the applicant was at her house.  He said he also telephoned her two or three nights a week between 10.30 and 11.30pm to see if she was all right.  Mr Thomas also gave evidence of a telephone conversation between him and the applicant, during the course of which, the former told the latter that he would break his neck if he did not leave the deceased alone.  Other evidence tending to indicate that the applicant's account may not be true was given by a former sexual partner of the applicant, Miss Lester.  She said that although they were no longer living together, in the weeks prior to the deceased's murder, the applicant visited her on several occasions, on some of which they engaged in sexual intercourse.

In summary then, there was a considerable body of evidence given at the trial which ran counter to the applicant's version of his relationship with the deceased at the time of her death, particularly that given by Mr Thomas.  However, much of his evidence is inadmissible on the issue I now have to resolve.  On the other hand, there were some small pieces of evidence that tended to support the applicant's account.

I have not heard the applicant speak a word, apart from his acknowledgement of his identity when this application was called on and, of course, I have neither seen nor heard any of the other witnesses.  Although I have carefully studied the relevant parts of the transcript, at the end of the day, I am unable to say that I am satisfied beyond reasonable doubt that the applicant's account of his relationship with the deceased at the time of her death should be rejected.  Accordingly, I shall proceed to sentence upon the basis that the murder was not premeditated and that the violence was born out of jealous rage upon the applicant discovering that the woman he loved had been engaging in sexual intercourse with Mr Bellette.

The immediate circumstances leading to the commission of the crime

On the evening of 7 March 1984, the applicant had dinner with Miss Lester at Rokeby.  About 7 o'clock, he left and went to the Rokeby Club.  From there he telephoned the deceased.  The applicant told the police that the deceased told him not to come out yet because Mr Thomas was there.  The applicant told police that he did not believe the deceased and suspected that Mr Bellette may have been at the house. 

The applicant drove to the deceased's house and saw Mr Bellette's car parked outside.  He then parked his own car some little distance away.  He decided to confront the deceased and Mr Bellette.  He took from his car a .22 rifle, a loaded magazine and a silencer.  With respect to this rifle and silencer, the applicant said in his evidence at trial that he bought both some years before, and that the silencer was useful when shooting in the bush, for if two or more rabbits were together, it was possible to shoot more than one with the use of the silencer.

Thus armed, the applicant approached the deceased's house and looked in the window.  There he saw Mr Bellette put his hand on the deceased's breast.  He saw them leave the room.  He believed that they had gone to another room to have intercourse.  It transpired that his belief was correct.  After a short time, the accused knocked on the door and altered his voice to pretend to be a neighbour.  He said that his intention was to frighten Mr Bellette and proposed to fire the gun into the ground if it was necessary to do so.  The applicant said that he heard the deceased say to Mr Bellette "get dressed quick", or "get dressed Chris, it's John".  The applicant said that these words enraged him and he wanted to get Mr Bellette.  He smashed his way into the house, discharging the .22 rifle.  The deceased called out to the applicant, "No John" and Mr Bellette ran through the house and out the back door pursued by the applicant.  As Mr Bellette was climbing a fence, he was shot in the leg by the applicant.  Mr Bellette gained refuge in a neighbour's house.  The applicant pursued him there and banged on the door, but was refused admittance.  The applicant returned to the deceased's house.  He found the deceased in her son's bedroom.  He hit her on the shoulder with the gun and struck her son Jason on the head, causing a fracture to his skull.  The applicant left the bedroom but returned shortly afterwards and shot the deceased in the chest and abdomen, causing her death.  The children fled the house and took refuge in a nearby house.  All together, eight shots were fired in the residence.  As well as being convicted of the crime of murder, the applicant was convicted of the attempted murder of Mr Bellette and sentenced to prison for five years.

The re-sentence

The killing of a mother in front of her young children in an outburst of unjustified sexual jealousy is a terrible crime.  The appalling consequences for the victim's family are detailed in the victim impact statements handed up upon the hearing of this application.  For the family, no punishment will be too severe.

The applicant was aged 37 at the time of the commission of this crime. He has a prior record for unremarkable petty offences. There is no indication of mental illness or sub-normality which would diminish the applicant's responsibility for the commission of this heinous crime. On the other hand, there is nothing in the material before me to indicate that the general public is at any particular risk of harm at the hands of the applicant if he is released from custody. With respect to the purpose underpinning the provisions of the Act, I respectfully adopt the following passage from the judgment of Cox J (as he then was) in Re Clark 21/1996 at 1 - 2 when he said:

"The purpose of the Act in effecting these amendments is, clearly enough, to acknowledge that heinous though the crimes of treason and murder are, they may be committed in a wide range of circumstances which involve differing degrees of culpability. In respect of murder, the definition of the crime is set out in five separate paragraphs which contemplate a variety of different circumstances and states of mind on the part of the offender. Section 157(1)(a), for example, provides for culpable homicide to be murder if it is committed with an intention to cause death, while s157(1)(c) contemplates that an unlawful act causing death is also murder if the offender knew or ought to have known it to be likely to cause death in the circumstances, although he had no wish to cause either death or even bodily harm to any person. Then again the degree of danger such an offender may afford the public can vary from that presented by the psychotic hired killer to the greatly reduced risk presented by the misguided but well-meaning mercy killer. It was Parliament's intention to bring to an end the requirement of treating all alike with a mandatory life sentence, leaving their possible conditional release into the community in the hands of the Executive Government, and to substitute for that regime the court's normal exercise of judicial discretion in setting the appropriate punishment and determination by the court of the minimum period before which conditional release might be authorised by the Parole Board when the Board, as opposed to the court, had regard inter alia to the conduct of the prisoner during his incarceration."

In Re Kemp 143/1997, his Honour reviewed the majority of sentences that had been imposed since the amendment to the Criminal Code was enacted and said, at 3:

"Obviously the first consideration is to determine the gravity of the crime and to set a head sentence in respect of it.  Since the abolition of mandatory life penalties and the re-sentencing of those previously subject to the mandatory penalty, many convicted murderers have been sentenced to finite terms of imprisonment.  In some cases the prisoner has been regarded as having diminished responsibility due to mental retardation or significant immaturity (Scott, sentenced to sixteen years' imprisonment, Underwood J, 13 December 1996; Farrow, sentenced to nineteen years' imprisonment, Crawford J, 5 November 1996).  A youth who stabbed another in the throat in a drunken melee was sentenced to sixteen years' imprisonment (Simpson, Crawford J, 28 February 1996).  Other cases have been met with sentences of the order of twenty years' imprisonment where angry or jealous confrontations have got out of hand or where excessive force has been used in a robbery (Rudman, sentenced to twenty years' imprisonment, Wright J, 1 July 1996; Stingel, sentenced to twenty-one years' imprisonment, Crawford J, 30 August 1996; Clark, sentenced to twenty-one years' imprisonment, Cox CJ, 1 May 1996; and Williams, sentenced to twenty-one years' imprisonment, Wright J, 5 October 1995).  Premeditated murders in domestic situations have attracted higher penalties (Leaman, sentenced to twenty-five years' imprisonment, Cox CJ, 10 December 1996; Murphy, sentenced to twenty-four years' imprisonment, Zeeman J, 2 July 1996).  The murder of a child after sexual molestation resulted in the re-imposition of a sentence of life imprisonment and the setting of a non-parole period of twenty-five years in the case of Smith, who had previous convictions for offences of a sexual character involving young children."

Applying the above principles and having regard to other sentences, the appropriate order in this case is a period of twenty-one years' imprisonment to date from the time the applicant was first taken into custody, viz, 8 March 1984.

With respect to the question of a non-parole period, I direct myself in accordance with the law as set out in Deakin v R (1984) 58 ALJR 367; Bugmy v R (1990) 169 CLR 525. In the circumstances of this case, it is appropriate to set a non-parole period of fifteen years. Accordingly, it is ordered that the applicant be not eligible for parole in respect of the sentence just imposed before the expiration of fifteen years from 8 March 1984.