Robb v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 229

KRISTY ROBB	Applicant
v
THE QUEEN	Respondent

S APCR 2015 230

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
KRISTY ROBB	Respondent

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JUDGES:	ASHLEY, OSBORN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 May 2016
DATE OF JUDGMENT:	30 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 125
JUDGMENT APPEALED FROM:	[2015] VSC 479 (Rush J)

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CRIMINAL LAW — Conviction — Appeal — Manslaughter by unlawful and dangerous act — Causation — Whether verdict unsafe and unsatisfactory — Causation — Whether evidence capable of establishing a causal connection between injuries suffered in assault and deceased’s later cardiac arrest and death — Application for leave to appeal against conviction refused.

CRIMINAL LAW — Sentence — Director’s appeal — Manslaughter — Whether sentence of 4 years with non-parole period of 2 years and 6 months manifestly inadequate — Female respondent relatively youthful having care of infant in prison — Sentence lenient but not manifestly inadequate — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant/Respondent	Mr C Mylonas	Paul Vale Criminal Law
For the Crown	Mr D Trapnell QC with Ms S Coombs	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA
OSBORN JA
PRIEST JA:

Introduction

At about 2.45am on 30 January 2014, Kristy Robb (for convenience, ‘the applicant’[1]) and Gino Rachele went to a property occupied by Alan Matthews in Noble Park. Both assaulted him there. Fewer than ten minutes after their arrival, at 2.53am, Mr Matthews telephoned ‘000’. He told the emergency services operator that he had been ‘bashed by a woman and a bloke’. Less than an hour later, at 3.36am, police found him dead, half in and half out of the shower — with the water running — in the main premises of the property. Medical evidence was that Mr Matthews had suffered cardiac arrest as a consequence of the stress of the assaults (and potentially from blood loss). Mr Matthews was aged 69 years when he died.[2]
[1]She is, of course, the respondent to the Director’s appeal.
[2]He was born on 21 January 1945.

On 25 September 2015, following a trial in the Supreme Court, a jury convicted the applicant of manslaughter.[3] The trial judge sentenced her on 28 October 2015 to be imprisoned for four years, and imposed a non-parole period of two years and six months.
[3]Manslaughter is a common law offence. By virtue of s 5 of the Crimes Act 1958, the maximum penalty is 20 years’ imprisonment.

Gino Rachele gave evidence for the prosecution in the trial. He had pleaded guilty on 3 September 2015 to recklessly causing injury and false imprisonment. The trial judge sentenced him to a community correction order for one year, with conditions that he perform 150 hours of community work; undergo assessment and treatment for drug abuse and alcohol dependency; and undergo evaluation and receive treatment for mental health.[4]
[4]R v Rachele [2015] VSC 468.

The applicant seeks leave to appeal against her conviction on the sole ground that the verdict is unsafe and unsatisfactory.

The Director appeals against the sentence imposed, claiming that the sentence is manifestly inadequate.

For the reasons that follow, we would refuse the application for leave to appeal against conviction, and would dismiss the Director’s appeal.

The claim that the verdict unsafe and unsatisfactory

Causation was the substantial issue in the applicant’s trial.

The prosecution’s case was one of manslaughter by unlawful and dangerous act. In essence, the prosecution alleged that the deceased died of a heart attack which was substantially caused by the applicant’s assault upon him, that assault being constituted by acts which were unlawful and dangerous.

There was no dispute that, in effect, the deceased died of a heart attack. The defence contested that the applicant’s acts were a substantial cause of the heart attack, given intervening acts of Rachele and the possibility that the heart attack was purely coincidental (in light of the deceased’s pre-existing medical condition).

In the written case, the applicant relied on ‘particulars’ to support the ground of appeal. They were formulated as follows:[5]
[5]Spelling, syntax and punctuation as in original.

It is contended that the evidence could not be the basis for the drawing of inferences of guilt to the requisite standard because:
a. The evidence as a whole does not support the conclusion that the applicant caused the death of Mathews, because there was insufficient evidence to exclude the rational hypotheses consistent with innocence:
1. That the death was merely coincidental; or
2. That there were alternative events involving the deceased that night that were not ‘unlawful and dangerous acts’ of the applicant but which were capable of generating stress and death by the mechanism proffered by the experts;

b. The evidence as a whole does not support the conclusion that the applicant committed the actus reus of manslaughter or of the alternative offence of intentionally causing serious injury.

In order to assess the claim that the verdict is unsafe and unsatisfactory, it is necessary to refer to parts of the evidence in some detail.

The evidence of the co-accused

Gino Rachele gave evidence that he had met the applicant in October 2013. They formed a romantic relationship but lived separately. The applicant had three children when they first met.

At the start of 2014, Rachele was regularly seeing the applicant. He helped her move into a bungalow at the rear of premises in Noble Park, but she stayed there no longer than a week. The applicant then left the bungalow and moved in with her mother in Hallam. Rachele subsequently became aware that a dispute had arisen between the applicant and Mr Matthews over the payment of rent and that Mr Matthews had retained some of the applicant’s belongings.

Rachele said that he went to Mr Matthews’ premises on 30 January 2014. He pleaded guilty to offences of recklessly causing injury and false imprisonment arising from events at the premises, and had provided an undertaking to give evidence at the trial of his co-accused.

The applicant and Rachele met up at about 11.00pm on 29 January 2014 at her mother’s address in Hallam. They had a few premixed drinks of Vodka and lemon, smoked and talked. When the applicant’s mother went to bed at about 1.00am, the applicant was looking for her children’s school clothes for the next day and was unable to find them. She asked if they could go to Mr Matthews’ premises at Noble Park to see if they were there. They decided to go at 2.30am so as ‘to avoid confrontation with Mr Matthews’.

Rachele was wearing a balaclava when they went to the premises because he did not want to be identified. They parked their vehicle in the next street, and went up the driveway of Mr Matthews’ premises. The applicant had a torch and the keys to the bungalow. Once in the bungalow, they searched for the applicant’s possessions. Rachele moved some of the applicant’s things to the front of the property, while she remained behind searching.

When Rachele first saw Mr Matthews that morning, he was standing in the kitchenette of the bungalow having ‘heated’ discussions with the applicant, who was in the lounge room. The applicant was asking where her possessions were and Mr Matthews was denying knowing anything about them. Voices were raised. Rachele said he then saw: ‘Just frantic movement, looked like two people struggling against each other, fending each other off, not quite sure’. It happened very quickly. He heard what he believed ‘could have been somebody banging against furniture or a doorway or the knocking of furniture’, but he could not be sure what it was.

Rachele then entered the kitchenette and ‘grabbed Mr Matthews from behind … by his arms’. He attempted to pull Mr Matthews backwards but they both fell to the floor. Rachele then ‘rested a bent leg across his back’, to ‘restrain’ Mr Matthews ‘from attacking’ him. The applicant was still asking for her possessions. Rachele said that he did not strike Mr Matthews, and did not see the applicant do so. He denied that he had struck Mr Matthews to the head or fractured his sternum, but Rachele noticed blood on himself when they were back on their feet. Rachele said that he did not kick or stamp on Mr Matthews, and did not ‘see Mr Matthews get stamped on or kicked’.

The applicant went out of the bungalow while Rachele was ‘resting on Mr Matthews waiting for him to calm down, fending him off’. Mr Matthews, Rachele said, did not cause him any injury. After Mr Matthews calmed down, Rachele allowed him to get up. They both got up, and Mr Matthews ‘struggled a bit’ with Rachele and ‘pushed back on’ him, so Rachele ‘pushed him into the lounge room, grabbed the door and shut the door’. While Mr Matthews pulled on the door, Rachele held it shut. He waited until Mr Matthews stopped pulling the door, then quickly made his way out of the bungalow and held the front door shut. Mr Matthews ran around inside the bungalow, until he came to the front door and tried to get out. Rachele prevented him from doing so. He then heard Mr Matthews rummaging in cutlery drawers, and was afraid he had ‘some kind of weapon’.

Mr Matthews then tried to get out a window, so Rachele ‘forced the door open to make a noise and distract Mr Matthews so he would retreat from the window’. Rachele then closed the door again. Mr Matthews then came back to the door but could not get out. The applicant ‘reappeared’. Rachele said to her, ‘Enough’s enough, it’s time to go’. They then went up the driveway, gathered the items that they could, went to the car and drove off.

Rachele saw blood on the applicant’s hands in the car, and when they got home, both Rachele and the applicant had blood on them. He told the applicant that he may have given Mr Matthews a broken or ‘blood nose’ when they ‘fell to the ground’. Rachele washed the clothes that he and the applicant had worn, including his shoes because he ‘noticed there was a bit of blood on the sides of the soles‘.

Other than grabbing Mr Matthews, and the two of them falling to the floor, Rachele said that he did not ‘hit, kick or inflict any other direct violence on Mr Matthews’.

Under cross-examination, Rachele agreed that he had been drinking with his workmates after work, and had bought a bottle of vodka to drink with the applicant. He had eaten some food and smoked a marijuana cigarette. The applicant was ‘a bit frustrated and tense’ and ‘had a lot on her plate’. Mr Matthews had been holding on to the children’s beds and Christmas presents, and she had been ‘getting grief’ from her eldest son over a red polo shirt he needed for school the next day. The red polo shirt was the main reason for going to the bungalow, but whilst on the way they decided to get what items they could. They were aware the deceased would be home at that time of night and that was part of the reason they parked the car around the corner.

Rachele agreed that when he had returned from dropping off a load of items at the front of the house, the light to the lounge room was off and he could not hear the applicant. He went to the second bedroom, then the children’s bedroom. It was then that he heard the applicant and the deceased arguing about her possessions. Rachele hung back and waited, but about 20 to 30 seconds later it got ‘nasty’ and he could hear ‘pushing and shoving and scuffling’. It was at that stage that he intervened. Rachele agreed that he said in his record of interview that he thought the deceased had what looked like a baseball bat. Part of the reason that he intervened so quickly was that he was concerned for the safety of the applicant. Rachele was concerned that Mr Matthews was six inches taller than him. Rachele weighed about 56 kilograms at the time and the applicant weighed less than he did.

When Rachele grabbed Mr Matthews and they fell, he believed that the latter’s head hit the ground. Rachele did not see any blood on the back of Mr Matthews’ head when he took him to the ground. Whilst on the ground, Mr Matthews was saying that Rachele ‘would fucking pay’ and that he would ‘fucking get [him] for this’. At that point, the applicant left and did not come back for approximately three minutes. Rachele agreed that at that time Mr Matthews seemed ‘significantly angrier’ with him than he had been with the applicant. He wrestled Mr Matthews into the lounge room, but was never in the room with him. Rachele said he was never in the room with Mr Matthews with the door closed. He denied inflicting the injuries on Mr Matthews with the door closed.

In re-examination, Rachele said that Mr Matthews appeared to calm down a short time after the applicant left the room. He believed he was able to pin down Mr Matthews despite being smaller than him because he had surprised him. Rachele said that he did not see Mr Matthews threaten him or the applicant with a weapon. He was not aware of any injury suffered by the applicant.

Blood spatter evidence

Maxwell Jones, a biologist with the Forensic Services Department working as a Senior Forensic Scientist, attended the bungalow on 30 January 2014. He took 31 samples of apparent bloodstaining, including 14 samples from the kitchen and family room area, 12 from the lounge room and five from the first bedroom.

There were numerous bloodstains on a number of surfaces within the kitchen and family room area. There was an area of pooled blood and passive blood droplet stains on the central area of the floor. Mr Jones’ opinion was that a forceful impact had occurred on to the floor in the area of the pooled blood. Nearby there were bloodstains that suggested someone had lain temporarily on the ground.

There were also ‘transfer’ blood stains to the cutlery drawers. The deceased could not be excluded as the source of those stains. There were wipe marks present on the floor near the entrance to the bungalow, and transfer staining to the inner door locks. The deceased could not be excluded as a contributor of the bloodstains on the door locks. There was no blood on the outside door handle. When it was said that the deceased could not be ‘excluded’ as a ‘contributor’, it was 100 billion times more likely that the deceased contributed the DNA from those samples than another random source. The applicant and Rachele were either excluded, or given very low support, as to the blood in the kitchen being theirs.

In the lounge room there were numerous bloodstains, mainly on the northern wall. There was a bloodstained baseball bat and a bloodstained metal pole. The samples on the baseball bat and the metal pole matched the deceased, and the applicant and Rachele were excluded as sources of DNA on the baseball bat and the metal pole. There were two areas of spatter bloodstains, one at approximately between 75 and 121 centimetres above the floor and one 35 centimetres above the floor, both of which were matches for the deceased. The bloodstains showed that the door was closed at the time; and the shape of the stains and their heights indicated at least one forceful impact into a bloodied surface, possibly the deceased’s head, had occurred approximately perpendicular to both locations. These bloodstain patterns ‘indicate that Mr Matthews was either upright or semi-upright and another time lying or crouched on the floor with his head near to floor level when he received at least one blow to his already bloodied head’.

Mr Jones gave evidence that swipe patterns on the architrave indicated a person moving between the kitchen and the lounge room. There was a further contact stain on the wall and blood drops near the couch. There was strong support for all the blood being that of the deceased.

There was a clear indication from the spatter patterns of at least two blows in the lounge room. And although there was no clear evidence of blows in the kitchen, that was not to say it did not happen. There was an accumulation of blood in the kitchen that could have been the result of some force. Footprints in the blood suggested someone had trailed blood from the kitchen to the first bedroom, and from there had tried to climb through the window.

The black balaclava worn by Rachele was tested and also found to have blood matching the deceased. Internal sampling of the balaclava found a mixture of DNA from a number of people and the applicant, the deceased and Rachele could not be excluded from that profile. A claw hammer found in the kitchen had DNA matching the deceased.

In cross-examination, Mr Jones said that the baseball bat had three samples taken from it. There was a spatter stain on the end that matched the deceased. The other two samples were a ‘two person mix’ and a ‘three person mix’, but the applicant and Rachele were excluded from both. Mr Jones said that the blood spatter on the bat could have been caused by it being on the ground when the spatter pattern occurred. There was no way of determining the order in which the various bloodstains occurred. Further, there was no indication of how quickly the blood accumulated, but, given the extent of it, Mr Jones thought it would have been over a ‘reasonable timeframe’ rather than ‘a matter of a few seconds’. The lounge room door must have been closed for the spatter pattern to have occurred as it did since the pattern had continuity across the door.

In re-examination, Mr Jones agreed that if someone got blood on themselves, they could transfer it to another surface.

Tracy Starr, a specialist crime scene examiner, also gave evidence concerning bloody shoe prints found inside the bungalow. We will later refer to the effect of her evidence when analysing aspects of the applicant’s counsel’s submissions.[6]
[6]See below [68]–[71].

Medical evidence

Professor Noel Woodford, a pathologist, performed an autopsy on the deceased. Hospital records from Dandenong Hospital revealed that the deceased had a past history of cirrhosis of the liver (although he had abstained from alcohol for the past 12 years); bowel cancer in 1992; and breast liposuction and abdominal fat removal in 2009.

Professor Woodford said that ‘there are a number of injuries that are more significant’ than others.

So far as the head and neck were concerned, there was a laceration measuring approximately 35 millimetres in greatest dimension (‘so a bit over an inch’) above the right eyebrow. The next injury was a laceration on the left side of the head ‘above the region roughly of the left ear’, measuring approximately 26 millimetres in greatest dimension (‘so roughly about an inch’). There was also a bruise over the bridge of the nose measuring about 16 millimetres in greatest dimension, and ‘a number of areas of bruising and abrasion over the face’. The other ‘significant injury on the head’ was an area of bruising with a small laceration, behind the right ear, measuring five millimetres in greatest dimension. Another injury ‘of significance or more significance’ on the head was at the back on the left side, being a laceration measuring approximately 25 millimetres in length (‘so about an inch’). There were ‘at least six areas of discrete injury to the head and neck region’. Four of those injuries ‘have a lacerated or a splitting of the skin component to them’. At least three of them looked to have had ‘a similar sort of mechanism’, such that Professor Woodford thought that they represented ‘three episodes of blunt trauma delivered with an implement to those areas’.

Apart from the head and neck, there was some bruising and abrasions on both upper limbs. Furthermore, there was an area of bruising ‘over the central part of the chest extending a bit to the left measuring up to 70 millimetres in greatest dimension’. Extending roughly from the region of the breastbone across to the left, was an area of a specific sort of bruising called ‘tramline bruising’. Tramline bruising, Professor Woodford explained, is due to damage to the blood vessels underneath the skin, ‘but the bruising looks like a tramline so there are two parallel red marks and typically that’s caused by something that’s long and hefty or firm’, such as ‘a baseball bat, a metal bar, a torch, et cetera’. Beneath that area of bruising was bruising in the soft tissues ‘but also a fracture of the sternum or a fracture of the breastbone’. It would have taken ‘significant force’ to have caused that fracture. When asked by the prosecutor, ‘Would that be by an implement or could that be by stamping or kicking?’, Professor Woodford answered, ‘Yes, I’ve seen all of those scenarios’.

On the right lower leg ‘just near the knee’ was an area of bruising measuring up to 110 millimetres in greatest dimension. That was associated with ‘some significant soft tissue bruising and haemorrhage beneath it’. On the left leg, on the thigh, there was a further area of bruising measuring up to 60 millimetres in greatest dimension. There were also further areas of bruising and abrasion on the deceased’s body.

Collectively, Professor Woodford said, the various injuries ‘are indicative of multiple episodes of blunt force trauma’; and ‘all of these injuries were sustained roughly within the same time interval and all had appearances of recent injury’. He gave evidence that ‘sternal fractures are very painful and can cause some difficulty in breathing, but the other injuries to the head in particular where there are areas of laceration are likely to have been painful’.

Examination of the heart indicated ‘scarring of the heart’ from ‘a previous or old heart attack’. The deceased died of ‘ischaemic heart failure’. When asked whether there was any ‘temporal relationship between the assault or the issues in the bungalow and any ischaemic heart failure’, Professor Woodford said, ‘we need to consider this case in the context where [the deceased has gotten] a number of significant injuries that are likely to have been very painful and associated with blood loss and I think that that has caused, has stressed the heart to the point where because of its preexisting‑ disease it’s caused the heart to arrest’.

In the course of Professor Woodford’s cross-examination by defence counsel, there was the following exchange:

Do you agree with this proposition, that you can’t exclude the rational possibility that it was something, some other thing than the pain or the stress that you say he received which was the predominant cause of death here?--- The only other reasonable possibility is that these things occurred contemporaneously, so around the same time but were completely independent events.
That is the question?--- So, I mean I don’t know how I’d artefactually ignore a significant element of that. So we’ve conceded or said that people walking around with heart disease like this can drop dead suddenly.
Yes?---With nothing else defined other than the findings here, and also that the constellation of injuries in this man was not likely to have been lethal or caused death in and of themselves in that acute phase. We have a recognised association between causes of significant stress and exacerbation of underlying heart disease. So whilst I can’t exclude the outside possibility that there’s absolutely no relationship between those two things, I think it is much more likely from my experience that they’re related.

Professor Neil Strathmore, a specialist cardiologist, also gave evidence. In his opinion, Mr Matthews had suffered from a cardiac arrhythmia which ‘caused his heart to no longer have an output and therefore for him to die’. Professor Strathmore said that in this case ‘the most likely cause of death was a sudden ventricular arrhythmia causing a cardiac arrest’, which ‘was so closely related in time to the assault that the assault had a role in triggering the arrhythmia either through a reaction to the stress or through loss of blood’.

Emergency call

A call that Mr Matthews made to ‘000’ had been recorded and was played to the jury. He told the operator that he had ‘just been bashed by a woman and a bloke who come (sic) to … get some stuff’. He said the woman, whose name was ‘Kristy’, was ‘staying here’, and he gave the operator her mobile telephone number. Mr Matthews said that they bashed him with something that he thought was a torch.

No defence evidence

No evidence was called in the defence case. In a record of interview conducted with her in the afternoon of 30 January 2014, the applicant denied that she went to Mr Matthews’ premises on the morning of 30 January 2014, or that she had anything to do with an assault upon him. She told police that she was at home from 5.00pm on 29 January until 8.30am on 30 January 2014, and did not leave the house. It was more than two weeks since she had been to Mr Matthews’ address.

In his final address, counsel for the applicant at trial submitted to the jury that the applicant ‘gave a shocking record of interview’, containing lies as to the applicant’s presence at Mr Matthews’ premises, but that the jury ‘should just set this record of interview aside’ as ‘in effect totally irrelevant’. It was submitted that the lies she told ‘go to her credit but she has not given evidence in this trial so the record of interview cannot be used’.

Applicant’s submissions in this Court

Counsel for the applicant submitted that Rachele’s evidence should be rejected. As part of his submission on this aspect, counsel submitted that it should be concluded that Rachele must have lied, since one or two of the photographs of the crime scene — so it was contended — show a bloody impression of Rachele’s footwear in the lounge room. The significance of that is that blood spatter evidence demonstrates that Mr Matthews was assaulted in the lounge room when the door was closed, but Rachele denied having been in that room with the deceased. (It will be necessary to return to the evidence concerning blood stains and shoes.)

Further, it was submitted that the evidence gave rise to the rational possibility that the death was merely coincidental. Among other matters, counsel relied on the deceased’s existing cardiac pathology, and the fact that Professor Woodford and Professor Strathmore could not exclude the rational possibility of coincidence, their evidence amounting to no more than opinions that ‘the two temporally distinct events are merely likely to be related’. It was contended that the objective facts are, first, that an assault occurred which resulted in a constellation of non-lethal injuries; and, secondly, that death occurred sometime later from cardiac arrest. Thus, so it was argued, the evidence of a temporal relationship was a ‘speculative assumption of fact by the experts’. It was not possible to reason inferentially that causation was established beyond reasonable doubt in circumstances where the experts could not, and where there was no other relevant evidence on this issue capable of excluding the reasonable hypotheses consistent with innocence.

An alternative argument on causation put by the applicant’s counsel was that the evidence did not establish a particular unlawful and dangerous act (or acts) which were capable of generating stress in the deceased and death by the suggested mechanism. The prosecution, it was submitted, could not articulate the nature of any particular unlawful and dangerous act. It was contended that the jury was not in a position to exclude a new intervening act by Rachele as causing death, or to conclude that the applicant’s acts separately caused death. On the basis of the expert evidence, the jury were not in a position to discriminate between alternatives causes of stress in order to determine whether the applicant’s acts were a substantial and operating cause of death.

Analysis

For the applicant to be fixed with responsibility for manslaughter, it was necessary that an act or acts of hers contributed significantly to Mr Matthews’ death. Her act or acts, however, did not have to be the sole cause of death. As Robert Goff LJ observed in Pagett, ‘it is usually enough to direct [the jury] simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result’.[7]
[7]R v Pagett (1983) 76 Cr App R 279, 288. See also Royall v The Queen (1991) 172 CLR 378, 398.

Where more than one factor may have contributed to death — as is, so the applicant’s counsel contends, the situation in the present case — particular problems can arise. The proper approach when such a situation presents itself was discussed in Evans (No 2):[8]

Where there is or may be more than one factor contributing to the death of a deceased, the question for the jury is whether the Crown has established beyond reasonable doubt that the act of the accused caused the death. Death is, of course, inevitable. Homicide is really the acceleration of the event. Accordingly if a victim received from one assailant an injury which would or might ultimately result in death, but before that event occurred he received from another assailant a further injury which accelerated his death, the second assailant would be regarded as having caused the death for the purposes of the law of homicide, whereas the first assailant would only be guilty of an attempt to commit homicide. But in every case it is a question for the jury to determine whether the event relied upon by the Crown was a cause of death.

[8]R v Evans & Gardiner (No 2) [1976] VR 523, 527–8 (Young CJ, Gillard and Anderson JJ) (‘Evans (No 2)’).

Evans (No 2) perhaps represents a factually more stark example of a possible new intervening act than do the facts of this case. A man was stabbed by the two accused in gaol. Following an operation in which his bowel was resected the victim survived. Almost a year later, however, the victim died from a stricture caused by a fibrous ring at the site of the resection (an apparently not uncommon sequel to the particular operation). It was open to the jury to find that the condition should have been diagnosed, and that, had that occurred, operative treatment would have rectified it. Convictions for manslaughter were, however, upheld, the Full Court holding that it was for the jury to determine whether the stabbing caused the death, and whether the improper medical treatment broke the chain of causation.

For the purposes of determining causation, the proper test to be applied has been formulated in various ways. In Evans (No 2) it was held that the test to be applied in determining whether an act caused death is whether, in spite of the intervening act, it is still an operating and substantial cause of death.[9]
[9]Ibid 529. See also R v Rudebeck [1999] VSCA 155, [66]; R v Smith [1959] 2 QB 35, 42–3; R v Hallett [1969] SASR 141, 150.

In Royall[10] — a case where the deceased died after jumping out a window to avoid an attack — various formulations were advanced. Brennan J was of the view that the relevant act (or omission) of the accused ‘must contribute significantly to the death of the victim’.[11] Deane and Dawson JJ held that it would be sufficient if the accused’s conduct ‘is a substantial and significant cause of death’.[12] Toohey and Gaudron JJ directed attention to ‘whether the act of the accused substantially contributed to death’.[13] And McHugh J expressed the view that the relevant act must be an ‘operating cause and a substantial cause’.[14]
[10]Royall v The Queen (1991) 172 CLR 378.
[11]Ibid 398.
[12]Ibid 411.
[13]Ibid 423.
[14]Ibid 444.

In Rudebeck[15] — a case of culpable driving — Ormiston JA expressed the opinion that the act said to found the offence must be shown to be ‘a substantial and operating cause of the victim’s death’, although ‘death need not flow solely from the accused's acts’. His Honour was of the view that there was no significant difference in the effect of this test and the expression ‘contribute significantly to the death’.
[15]R v Rudebeck [1999] VSCA 155, [66] (‘Rudebeck’). See also R v Lee (2005) 12 VR 249.

And in Moffatt,[16] having conducted a review of the leading authorities, Wood CJ at CL said:[17]

What is clear is that the act of the appellant must have been more than a coincidental or insignificant effect — rather it must provide a substantial contribution towards the death of the deceased …

[16]R v Moffatt (2000) 112 A Crim R 201.

[17]Ibid 213 [71]. See also S Odgers and S Yeo, Semantics and the Threshold Test for Imputable Causation, (2000) 24 Crim LJ 73; R v Puckeridge (1999) 74 ALJR 373, 168 ALR 4; Krakouer v Western Australia (2006) 161 A Crim R 347; R v Lam (2008) 185 A Crim R 453; R v Japeljarri (2002) 134 A Crim R 261.

Most recently, the applicable principles were summarised by Kaye JA (with whom Redlich JA and Ginnane AJA agreed) in Dunkley-Price.[18]In that case, so as to use his telephone, the applicant had stopped his vehicle a short distance before an off-ramp in the left hand running lane of the Western Highway. The deceased was driving her car in the left hand lane of the highway approaching the off-ramp, immediately behind the applicant’s vehicle. As the deceased’s vehicle approached the off-ramp exit, it came to a stop behind the applicant’s vehicle. The deceased was unable to overtake, because other vehicles were travelling in the same direction in the right hand running lane. A short time after the deceased stopped her vehicle, another driver travelling in the left hand running lane, collided with the rear of the deceased’s vehicle, forcing it to collide with the rear of the applicant’s vehicle. As a result of the force of the collision, the deceased suffered injuries from which she died, and her passenger suffered serious injuries. The prosecution case was that the applicant’s conduct in stopping his vehicle in the left hand running lane of the Western Highway, when other traffic was travelling along it at the speed limit, was grossly negligent, and was a substantial and operating cause of the death and of the injuries.
[18]Dunkley-Price v The Queen (2015) 73 MVR 450.

Kaye JA usefully summarised the applicable principles relevant to causation:[19]
[19]Ibid 458–60, [38]–[41].

The question, whether the driving of the applicant caused the death of [the deceased] and the injuries sustained by [her passenger], was a question of fact for the jury, and not a question of law for the judge.[20] The question is to be approached by the jury as an exercise of common sense, and not by resort to philosophical or scientific theories.[21] It is recognised that there may be more than one cause of death. It is not necessary that the driving or conduct of the applicant be the sole or even the principal cause of the collision.[22] Ordinarily, the test to be applied by the jury is whether it is satisfied beyond reasonable doubt that the driving or conduct of the applicant was a substantial and operative cause of the accident.[23]
The principles, relating to the law of causation in criminal cases involving a homicide, were conveniently stated by Brooking JA in R v Franklin in the following terms:
It is clear that for the purposes of the law of homicide there may be more than one cause of death and that criminal liability may attach to an actor even though the act was not the sole or even the ‘main’ or ‘most substantial’ cause of death. On the other hand, it is also clear that criminal liability will not attach unless the act was a ‘significant’ or ‘substantial’ cause of death. … The issue of the cause of death is of course one of fact for the jury … Putting to one side pure questions of fact (for example, which of two bullets struck the body, or whether death was due to trauma or some unrelated cause), there remains a wide variety of situations in which juries will need assistance from the judge when they come to consider what caused or contributed to the death. … The possible factual situations are infinite and even the categories to which they may be sought to be assigned are numerous.
One such category is that of the infliction of injuries by two or more assailants, acting independently and at substantially the same time. In such a case, where there is no complicating factor which may be put forward as ‘breaking the chain of causation’, it is enough for the jury to inquire whether the attack of the accused made a substantial contribution to the death. … .[24]
In cases in which the question arises whether an action of the victim or the third party, subsequent to the action of the accused, has the effect of breaking the chain of causation between the accused’s action and the death or injury of the victim, different formulations of the applicable principles have been proffered in the cases, often depending on the specific factual issues that gave rise to that question. However, in essence, as Brooking JA stated in Franklin, the test, in such cases, remains the same. The question is whether, notwithstanding the subsequent action of the victim or the third party, the action of the accused remains a substantial and operative cause of the victim’s death or injury.[25]
In R v Smith,[26] the accused, a private soldier, was charged with the murder by stabbing of another soldier in his regiment, during a barrack room fight. The deceased man received two bayonet wounds, one of which pierced the lung and caused a haemorrhage. He was conveyed to a medical reception station, where he received treatment that was demonstrated to be ‘thoroughly bad’ and that ‘might well have affected his chances of recovery’.[27] It was contended on behalf of the appellant that as a result of that treatment, the victim’s death did not result from the wounds inflicted by him. Lord Parker CJ, delivering judgment for the Court Martial Appeals Court (which also comprised Streatfield and Hinchcliffe JJ), rejected that contention in the following terms:
It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.[28]

[20]R v Evans & Gardiner (No 2) [1976] VR 523, 527 (Young CJ, Gillard and Anderson JJ); R v Heron [(2003) 39 MVR 117, 122] [22]–[23] (Buchanan JA).

[21]Campbell v The Queen [1981] WAR 286, 290 (Burt CJ); Royall v R (1991) 172 CLR 378, 387 (Mason CJ), 411–12 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ).

[22]Royall v R (1991) 172 CLR 378, 398 (Brennan J), 425 (Toohey and Gaudron JJ).

[23]R v Evans & Gardiner [1976] VR 523, 528–9; R v Rudebeck [1999] VSCA 155, [66] (Ormiston JA); R v Heron (2003) 39 MVR 117, [20] (Buchanan JA); Guthridge v R (2010) 27 VR 452, 465 [114]‑[115] (Neave and Redlich JJA, Coghlan AJA); R v Lee (2005) 12 VR 249, 250 [7] (Coldrey J); see also Royall v R (1991) 172 CLR 378, 411 (Deane and Dawson JJ); but cf 449, 451 (McHugh J); R v Moffatt [(2000) 112 A Crim R 201, 213] [71] (Wood CJ at CL); Reynolds v R [2015] NSWCCA 29, [40]–[44] (Hall J).

[24](2001) 3 VR 9, 28-29 [54]–[55]; see also R v Lam (2008) 185 A Crim R 453, 467–9 [61]–[64]; R v Withers [2009] VSCA 306, [135]–[136]; Aidid v R (2010) 25 VR 593, 602 [61] (Ashley JA).

[25]See for example R v Lam (2005) 15 VR 574, 578–9 [13]–[16], 581 [23] (Redlich J); R v Lam (2008) 185 A Crim R 453, 467 [58]–[59] (Buchanan, Vincent and Kellam JJA); McAuliffe v R (1995) 183 CLR 108, 118–19 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ).

[26][1959] 2 QB 35.

[27]Ibid 42.

[28]Ibid 42–43.

Distilled to their essence, as we understood them, counsel for the applicant advanced three principal submissions. First, he argued that the evidence at trial could not exclude the possibility that Mr Matthews’ death was merely coincidental, having no provable connection to the assault (or assaults) upon him. Secondly, counsel contended that the evidence did not establish a particular unlawful and dangerous act by the applicant capable of generating stress in the deceased and death by cardiac arrest. Thirdly, it was put that the jury were incapable of excluding a new intervening act by Rachele as the cause of death.

We would reject each submission.

When, as in this case, it is claimed that a verdict is unsafe and unsatisfactory, the principles governing appellate intervention are well-established. The Court must ask whether it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt.[29] In determining whether it was open to the jury to be satisfied of guilt, the Court must make its own independent assessment of the evidence. To establish that a verdict is unsafe and unsatisfactory it will not be sufficient merely to show that there was material which might have led the jury to entertain a reasonable doubt about guilt.[30] The critical inquiry is whether the jury must, as distinct from might, have entertained a doubt as to the applicant’s guilt.[31] In SKA,[32] the High Court held it to be wrong for the appellate court to concern itself with ‘whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence’.[33] French CJ, Gummow and Keifel JJ said:[34]

To determine satisfactorily the appellant’s appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.

[29]M v The Queen (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ).

[30]See also Klamo v The Queen (2008) 18 VR 644, 653–4 [38]–[40] (Maxwell P) (‘Klamo’); Greensill v The Queen (2012) 37 VR 257, 276–7 [82]–[83] (Redlich, Osborn and Priest JJA) (‘Greensill’).

[31]Ibid 492-3; Libke v The Queen (2007) 230 CLR 559, 556–7 [113] (Hayne J) (‘Libke’).

[32]SKA v The Queen (2011) 243 CLR 400 (‘SKA’). See also M v The Queen (1994) 181 CLR 487, 492-3; AE v R [2011] VSCA 168, [39]; Libke, 596–7 [113]; Klamo, 653-4 [38]–[40]; Greensill, 276–7 [81]–[83].

[33]SKA, 408 [20].

[34]Ibid 408 [21].

Counsel for the applicant submitted that this Court, having made its own independent assessment of the evidence, ought to entertain a reasonable doubt as to the applicant’s guilt. He placed a deal of reliance on what Mason CJ, Deane, Dawson and Toohey JJ said in M:[35]

… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

[35]M v The Queen (1994) 181 CLR 487, 494.

Making our own independent assessment of the evidence, we harbour no reasonable doubt as to the applicant’s guilt relative to the critical issue of causation. In our view, the verdict of manslaughter was one that was open to the jury.

First, in our opinion, the jury were capable of rejecting the suggestion floated by the applicant’s counsel in his cross-examination of Rachele, that Rachele had assaulted the deceased whilst alone with him in the lounge room. Rachele denied that such an event occurred, and the thread relied upon to rebut that denial was far too insubstantial to do so. As we have mentioned, counsel for the applicant suggested that photographs taken in the lounge room (in particular, photographs numbered 248 and 249 in Exhibit PX7) show a bloody shoe print, being a bloody shoe print left by one of Rachele’s shoes. The major obstacle in accepting that suggestion is that the evidence at trial did not establish that the shoe print was left by one of Rachele’s shoes (or, indeed, raise that as a reasonable hypothesis). To see that this is so, it is necessary to refer to a little more of the evidence.

There seems little or no doubt that the deceased had been wearing ‘Dada’ brand shoes at the time that he was assaulted. And Rachele gave evidence that he was wearing the shoes, Exhibit PX6, which were ‘New Balance’ brand trainers. Two pairs of shoes — including Exhibit PX9, size 9 ‘Adidas’ brand (which the applicant’s mother identified as the applicant’s shoes) and a pair of denim shoes — were seized from the applicant’s mother’s place.

Tracey Starr, an acting sergeant of police and senior crime scene examiner, gave evidence that she attended at 7.00am on 30 January 2014, and examined the bungalow and vicinity, and was involved in the collection and recording of evidence at the scene. She made a number of observations about bloodstains and shoe impressions. From her observations, including the quantity of bloodstaining in the area and disturbed furniture, she formed the view that an altercation had taken place in the kitchen. Shoe impressions were located in blood on the kitchen floor. There was also a lot of bloodstaining in the lounge room (including on a baseball bat and a small steel bar), and there was more bloodstaining under the window in the first bedroom. Of present importance, Acting Sergeant Starr also later did shoe comparison work, eliminating all shoes except for the Adidas shoes and the denim shoes from being contributors to the shoe prints found in the bungalow. Significantly, it was not put by the applicant’s counsel to Acting Sergeant Starr — or for that matter, to Rachele — that any bloody shoe print in the lounge room came from the New Balance trainers worn by Rachele.

Despite his failure to cross-examine on the matter, however, in his final address to the jury counsel for the applicant made the following submissions:

… So there’s a wrestle or a struggle in the kitchen. They get up obviously at some stage. Now Mr Rachele says he pushed [the deceased] into the lounge room but in reality he goes into the lounge room as well and he’s fighting and they’re struggling and the door gets shut.
Now, he clearly denied ever being in the lounge room. That’s a lie. If you just turn to [photos 248 and 249] of the photo book you’ll see some bloodstains on the floor. … And then I want you to consider the New Balance trainers that Mr Rachele was wearing … And it’s my submission to you that you might think that those bloodstains were caused by those New Balance trainers and they were caused by the New Balance trainers after the bleeding had commenced. So you should not believe him, that he was not in that room.
The only other possible shoes were the Dada trainers and the ones that Kristy Robb was wearing … But what you see in [photos] 248 and 249 is not any of those.
Now, as I said, the other thing that he doesn’t tell you is that the door was closed. Now sticking with [the photo book, photo 247] is the spatter down near the ground level and there was also another photo somewhere of the spatter higher up. Now, this must have been done by Rachele. It was Rachele that smacked him in the head in that position and the reason I say this is that it is just laughable that the prosecution could suggest that it was Kristy Robb …

Perhaps, in the circumstances, somewhat benignly, the trial judge commented to the jury in his charge:

Now [defence counsel], I should remind you, did not directly examine or put that those footprints belonged to Mr Rachele, didn’t put it directly to Mr Rachele, and he did not put it directly to the experts that were called to give evidence about footprints. So you will be more careful in the way in which you consider that assertion. [Defence counsel] did directly put to Mr Rachele that he went into the room, in the lounge room, and was responsible for the assaults. Mr Rachele denied that.

Given the state of the evidence, in our opinion it would be — and would have been — idle to speculate that a bloody shoe print in the lounge room was made by Rachele’s New Balance brand trainers, let alone conclude that such bloody shoe print put the lie to Rachele’s evidence that he had not assaulted Mr Matthews in the lounge room. The evidence before the jury simply was not capable of raising the reasonable hypothesis that the bloody shoe print was left by Rachele.

Turning next to the issue of causation, in our opinion it was open to the jury to conclude beyond reasonable doubt that there was a causal connection between the assault (or assaults) upon him and Mr Matthews’ subsequent heart attack. Professor Woodford’s opinion was that the blood loss and pain associated with a number of ‘significant injuries’ stressed the heart to the point where, because of preexisting disease, cardiac arrest was caused. Further, the specialist cardiologist, Professor Strathmore, was of the view that the most likely cause of death was a sudden ventricular arrhythmia causing a cardiac arrest, which was so closely related in time to the assault that the assault had a role in triggering the arrhythmia either through a reaction to the stress or through loss of blood.

Having physically assaulted the deceased, the applicant had to take him as she found him.[36] As Mamote-Kulang[37] made clear, a medical condition in the deceased victim of which an assailant is unaware — rendering the victim more susceptible to death than a person of normal health — does not enable the assailant to claim that death does not attract criminal liability. (In that case, the appellant hit his wife in the spleen causing the spleen to rupture and his wife to die, in circumstances where the evidence established that the wife’s spleen was considerably enlarged, and it was unlikely that the appellant’s blow would have been fatal if not for the spleen being enlarged.) As Windeyer J said: ‘A killing is not less a crime because the victim was frail and easily killed’. [38]
[36]R v Hayward (1908) 21 Cox CC 692, 693; R v Murton (1862) 3 F & F 492 [176 ER 221]; R v Martyr [1962] Qd R 398; R v Blaue [1975] 1 WLR 1411, 1415; R v Smithers (1977) 34 CCC (2d) 427, 437; R v Van den Bemd (1994) 179 CLR 137.
[37]Mamote-Kulang v The Queen (1964) 111 CLR 62.
[38]Ibid 79.

Thus, the fact that Mr Matthews suffered from a pre-existing heart condition rendering him more susceptible to heart attack cannot avail the applicant. The medical opinions clearly linked the blood loss and stress of the physical injuries suffered by Mr Matthews to his cardiac arrest and death. Acting reasonably, it was open to the jury to be satisfied by the medical evidence to the criminal standard that there was a direct causal connection between the injuries and death.

Moreover, and critically, in our opinion it was open to the jury to conclude that the injuries which ultimately led to cardiac arrest and death resulted from an unlawful and dangerous act (or acts) of the applicant’s. Based on the evidence of Rachele, and Mr Matthews’ closely contemporaneous statements to the ‘000’ emergency operator, the jury would have been justified in concluding that the applicant was armed with a torch. That being so, the jury would very likely have concluded that the major injury to the deceased — the fractured sternum — and the pain and stress associated with it, was caused by the applicant striking Mr Matthews with the torch. Indeed, that is the almost irresistible conclusion if, as was open to them, the jury accepted Rachele’s evidence that he had not struck the deceased, and accepted Professor Woodford’s opinion that the tramline bruising on the deceased’s chest could have been caused by an implement such as a torch.

Furthermore, accepting Rachele’s evidence that, apart from pulling Mr Matthews to the floor and putting his leg across his back, he did not otherwise strike the deceased, the jury would justifiably have been capable of concluding that the several blunt force injuries to Mr Matthews’ head were caused by blows delivered by the applicant. (It will be remembered that the blood spatter expert, Mr Jones, gave evidence that the blood spatter patterns indicated at least two blows were delivered in the lounge room.) Indeed, it seems to us that, if Rachele’s evidence were accepted, the only rational inference open was that an act or acts of the applicant had fractured Mr Matthews’ breastbone, and more than one act of the applicant had caused more than one injury to his head. Thus, in our view it was well open to the jury to conclude that a number of painful injuries were inflicted on the deceased by the applicant, and that the associated blood loss and stress precipitated Mr Matthews’ heart attack and resulting death.

But even if it be accepted that Rachele’s actions in taking the deceased to the floor and restraining him caused Mr Matthews some added stress, in our opinion it remained open to the jury to conclude that the major cause of the deceased’s stress was the pain and blood loss associated with the injuries inflicted upon him by the applicant. In that sense — even if they thought that Rachele’s actions contributed to the deceased’s stress — it was open to the jury to be satisfied that acts of the applicant directly caused the more significant injuries to the deceased; that those injuries were the major source of the blood loss and pain that caused stress to the deceased; and that the stress occasioned by the blood loss and pain was a substantial and operative cause of Mr Matthews’ heart attack and death. Properly applying themselves to their task, the jury was capable of being satisfied that the chain of causation was not interrupted by any new intervening act of Rachele’s.

In summary, with respect to causation the following propositions may be distilled from the evidence:

(a) the medical evidence founded the conclusion that Mr Matthews died as a result of the consequential effect of pain and blood loss resulting from blows to the head, chest and leg principally inflicted with a weapon;

(b) when he telephoned the emergency operator shortly after the incident in which he was injured, Mr Matthews said he had been bashed with what he thought was a torch by a ‘woman’ — whose name was ‘Kristy’ and was ‘staying here’ —and a ‘bloke’ who had come to ‘get some stuff’, his description of the bashing being consistent with the injuries identified post-mortem;

(c) the evidence as a whole unambiguously demonstrates that the ‘woman’ who Mr Matthews said had bashed him was the applicant;

(d) Rachele’s account of the sequence of events was coherent, circumstantial and supported in significant respects by the blood stain and blood spatter evidence;

(e) it was open to the jury to accept Rachele’s evidence that, although he took Mr Matthews to the ground and overpowered him, Rachele did not strike him with a weapon;

(f) it was open to conclude that, if Rachele did not strike Mr Matthews with a weapon, the applicant must have;

(g) the evidence of the bloody shoe print — upon which the applicant sought belatedly to rely — did not demonstrate that Rachele’s evidence was untrue;

(h) even if Rachele left a footprint or footprints within the lounge room, but in the immediate vicinity of the doorway from the kitchenette, this would not conflict materially with Rachele’s account of forcing Mr Matthews through the door before grabbing it and shutting it;

(i) the blood spatter evidence within the lounge room was not necessarily inconsistent with Rachele’s account, which supported the conclusion that the applicant assaulted Mr Matthews to an extent not fully observed before Rachele intervened; and

(j) it was well open to the jury on the whole of the evidence to conclude that the applicant inflicted injuries to Mr Matthews with a weapon — probably a torch — which resulted in significant pain, blood loss and stress, and in turn constituted a substantial and operative cause of death.

For the foregoing reasons, the application for leave to appeal against conviction cannot succeed.

The Director’s appeal

The Director relies on a single ground of appeal (with subjoined ‘particulars’) that asserts that the sentence imposed on the applicant is manifestly inadequate:

1. The sentence imposed in respect of the charge of manslaughter and the non-parole period is manifestly inadequate in all the circumstances.
Particulars
In fixing a term of imprisonment of 4 years imprisonment and a non-parole period of 2 years and 6 months imprisonment, the learned sentencing judge —
(a)Failed to have sufficient regard to the overall gravity of the offending and failed to fix a sentence commensurate to the gravity of the offending;
(b)Failed to have regard to aggravating aspects of the offending;
(c)Gave excessive weight to factors in mitigation;
(d)Failed to have sufficient regard to the factors of community protection, general and specific deterrence, just punishment and denunciation;
(e)Failed to have sufficient regard to impacts upon victims; and
(f)Failed to have sufficient regard to the maximum penalty.

It was submitted that the maximum penalty for the offence of manslaughter is 20 years’ imprisonment. The head sentence of four years’ imprisonment, and the non-parole period of two years and six months, are so disproportionate to the seriousness of the crime as to shock the public conscience, and undermine the public confidence in the courts to play their part in deterring the commission of crimes.

The Director’s submissions

The Director submitted that the offending was serious, and involved a prolonged armed assault on an elderly man in his own home in the early hours of the morning. And although the case was not put on the basis of joint criminal enterprise, there was a co-offender. It was acknowledged that the fatal assault on the deceased was not pre-meditated, but the unlawful entry by the co-offenders was planned and steps were taken to avoid detection. In the circumstances, whilst the timing of the offending may have been in part (as the sentencing judge found) to avoid confrontation, it was not unforeseeable that the deceased would involve himself if awoken. Notwithstanding that there was no charge of aggravated burglary, there were the same ‘real and substantial risks of escalation’ that are often spoken of in cases of aggravated burglary.

It was submitted that, although the sentencing judge acknowledged the serious nature of the assault on the deceased, he nevertheless took an unduly lenient view of the offending, placing undue weight upon what he saw as mitigatory aspects, and the judge failed to recognise that it was a circumstance of aggravation that the offence was committed on bail. Prior convictions — which included violence — were given scant attention.

Counsel for the Director submitted that general deterrence — which is ordinarily strongly emphasised in manslaughter cases — was given little or no consideration by the judge, and, indeed, is not mentioned once the reasons for sentence (nor are community protection, denunciation or just punishment). The judge erred in considering ‘youth’ (and thus rehabilitation) to be important, and too much emphasis was placed on family hardship. Furthermore, remorse was lacking, given that there had been a contested trial; Verdins[39] considerations had not been established; and the sentence does not reflect the devastating effects on the deceased’s family. The sentence imposed, it was submitted, is more akin to what might have been expected after a plea of guilty. Indeed, it is lower than a number of sentences recently imposed for manslaughter following a plea of guilty.[40]
[39]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
[40]Counsel referred to R v Kulla Kulla [2010] VSC 60 (King J) (Sentence of 6 years’ imprisonment with 3 year non-parole period. Guilty plea by cognitively impaired aboriginal female, aged 23, with prior convictions.); R v Edwards-Norris [2011] VSC 122 (King J) (Sentence of 7 years’ imprisonment with 4 year non-parole period. Guilty plea by 20 year old male.); R v Hudson [2013] VSC 184 (King J) (Sentence of 6 years’ imprisonment with 3 year non-parole period. Guilty plea by aboriginal female, aged 43, with prior convictions. Child in care of child services.); and R v Kerr [2014] VSC 374 (Hollingworth J) (Sentence of 4 years’ imprisonment with non-parole period of 4 years and 6 months. Guilty plea by cognitively impaired aboriginal female, aged 40, with prior convictions.).

Applicable principles

Section 287 of the Criminal Procedure Act 2009 (‘CPA’) permits the Director to appeal against a sentence if he considers that there is an error in the sentence imposed and that a different sentence should be imposed, and he is satisfied that an appeal should be brought in the public interest. By virtue of s 289(1) the Court must allow the appeal if satisfied that there is ‘an error in the sentence first imposed’, and that ‘a different sentence should be imposed’.

More often than not, the complaint of ‘error in the sentence first imposed’ is embodied in a ground of appeal which asserts that a sentence is manifestly inadequate. As was explained by Gleeson CJ and Hayne J in Dinsdale,[41] manifest inadequacy is a conclusion, not an expression of the reasons for that conclusion.[42] And as the majority (Ashley, Redlich and Weinberg JJA) observed in Karazisis:[43]

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances.[44] As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[45] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The Court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[46]
[41]Dinsdale v The Queen (2000) 202 CLR 321 (‘Dinsdale’).
[42]Ibid 325–6 [6]. See also DPP v Werry (2012) 37 VR 524, 534 [52]–[53] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA).
[43]DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis (2010) 31 VR 634, 662-3 [127]–[128] (‘Karazisis ‘) (emphasis added).
[44]R v MacNeil-Brown (2008) 20 VR 677, 680.
[45]R v Boaza [1999] VSCA 126, [42] (Winneke P).
[46]Lowndes v The Queen (1999) 195 CLR 665, 672 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

Analysis

In our opinion, although the sentence is very lenient, it was one that was open to the judge in the proper exercise of discretion (albeit that it must be seen to be at the very bottom of the appropriate range).

The Director cited several first instance sentencing cases[47] in an endeavour to show that the sentence imposed in this case is out of step with current sentencing practice for comparable cases of manslaughter. It needs to be remembered, however, that sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished;[48] and it needs to be emphasised that every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features.[49] A general overview of sentences imposed for offences of a similar character may, however, play some part in informing the instinctive synthesis,[50] particularly insofar such an overview may provide a general guide to current sentencing practices.[51] Sentences imposed in so-called ‘comparable’ or ‘like’ cases, however, at best can only provide a general guide or impression as to the appropriate range of sentences. As was said in Hudson:[52]

Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.
‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this court. They may however be used in search of unifying principles. That was not the use to which counsel sought to employ them here.

[47]See fn 40.

[48]DPP v Adajian [1999] VSCA 105, [28] (Callaway JA); DPP v Zhuang [2015] VSCA 96, [30] (Redlich, Priest and Beach JJA) (‘Zhuang’).

[49]Zhuang, [30].

[50]R v Giordano [1998] 1 VR 544, 549 (Winneke P); Zhuang, [30]; cf DPP (Cth) v Edge [2012] VSCA 289, [60] (Priest JA).

[51]Zhuang, [30].

[52]Hudson v R; DPP v Hudson (2010) 30 VR 610, 616-17 [27]–[29] (citations omitted) (Ashley, Redlich and Harper JJA). See also Hili v The Queen (2010) 242 CLR 520, 536-7 [53]‑[54].

In his sentencing remarks, the sentencing judge accepted that the applicant arrived at the bungalow at 2.30am to avoid a confrontation with the deceased. The applicant was, however, illegally in the deceased’s premises. She had hit him to the head with either a baseball bat, steel rod or a torch. The judge was satisfied that by their verdict the jury had found that the applicant had assaulted the deceased in the lounge room of the bungalow prior to the intervention of Rachele, and had caused the lacerations to the deceased’s right eyebrow, the left side of his head, his right ear and to the back left side of his head.

Part of the difficulty in sentencing, however, was in determining what injuries the applicant caused the deceased. The judge said that the evidence adduced at trial was capable of supporting the view that Rachele played a greater role in the events in the bungalow than he had admitted, and what was accepted by the prosecution on his plea of guilty. After the applicant’s confrontation with the deceased, Rachele had restrained the deceased with a knee to the back for approximately three minutes. There was some evidence of the deceased crying out in pain whilst being so restrained. The evidence of Dr Woodward that a fractured sternum was very painful, and can cause difficulties with breathing, was ‘not supportive’ of the deceased having a fractured sternum at the time of being restrained. Indeed, the sentencing judge was not satisfied beyond reasonable doubt that the applicant caused the deceased’s fractured sternum,[53] which, on the evidence at trial, was the most serious injury sustained by him. It was apparent from the jury’s verdict, however, that they accepted that the applicant delivered blows to the deceased that were a cause of significant injury to the deceased, and were a substantial and operating cause of his death by cardiac failure approximately 50 minutes after the blows were delivered. But it was difficult to determine exactly what injuries resulted from the applicant’s acts.
[53]Compare [75] above. Senior counsel for the Director conceded in oral argument that he was ‘stuck with’ this finding.

The judge noted that the applicant was aged 26 years at the time offending, and 28 at the time of sentence. She had been on bail at the time of the offence;[54] and she had prior convictions between 2005 and 2006 for car theft, shop theft, threat to kill, assault, resisting police and travelling without a valid ticket, and in 2009 for making a false report to police.
[54]We were informed that on 23 June 2014 she was fined $1800 for assault and related offences.

It is apparent that the judge thought the applicant to be relatively youthful. The Director, as we have said, was critical of the judge’s allusion to the applicant’s youth and prospects of rehabilitation. We do not understand the judge’s reasons, however, as suggesting that the applicant attracted the kinds of considerations that might be relevant in the case of a truly youthful or young offender. Rather, taken in context, we understand his Honour to be endeavouring to convey that the applicant was young enough, and not so set in her ways, as to be capable of reclamation. Indeed, he accepted that the applicant’s ‘prospects of rehabilitation are reasonably strong’. In considering her prospects of rehabilitation, the judge said that he particularly had regard to the applicant’s ‘recent attendance at an anger management course and attendance at drug and alcohol counselling’. Her attendance at these courses suggested an understanding of the necessity of addressing matters that may cause her to re-offend. The judge considered that the ‘need for specific deterrence is not as necessary or strong as the need to promote and support [her] rehabilitation’. In our view, the judge did not misdirect himself on these aspects.

The applicant’s circumstances were difficult, she having had ‘a tumultuous upbringing’. Her parents were separated for much of her childhood and youth. The applicant’s mother suffered from mental health issues (principally schizophrenia), and her father was an alcoholic, who would frequently abuse her and her mother. The judge noted that the applicant spent time in emergency foster care and was often placed in short term care. She was abused at age 14 by an acquaintance of her mother’s. As a result of the abuse, the applicant ceased attending school and developed anxiety and post-traumatic stress disorder.

As the judge noted, the applicant has four children. The Department of Human Services has been involved with her family since 2009. Three children currently reside with their father. He suffers from bipolar disorder, experiencing suicidal thoughts and bouts of depression, and has physically and verbally assaulted the applicant. The youngest child has been placed in the applicant’s care and currently resides with her in prison. It was the judge’s view that the applicant would suffer ‘hardship in serving a term of imprisonment caused by the separation from [her] three elder children’. In our view, the hardship occasioned to the applicant by the fact that she is separated from her children, particularly given the concern which must flow from the fact that they are in the care of their father who is afflicted by psychological difficulties, is exceptional, and is a further reason for the extension of leniency.[55]
[55]Markovic v R (2010) 30 VR 589; DPP (Cth) v Bui (2011) 32 VR 149; Ramezanian v R (2013) 37 VR 92.

Counsel for the Director submitted that Verdins considerations were not made out. We do not agree. On the plea, counsel for the applicant had submitted that a tendered report by a psychologist, Ms Pamela Matthews, ‘highlights quite a dysfunctional upbringing and has left [the applicant] with sort of considerable complex psychological issues, and I submit raises Verdins type considerations here and the need to emphasise rehabilitation, moderate general deterrence and consider the effect that this, that a term of imprisonment will have on her‘. In his reasons for sentence, the judge referred to the findings of the psychologist, Ms Matthews, who had diagnosed the applicant as suffering from ‘partial post-traumatic stress disorder and major depressive disorder’. It was her view that the applicant’s outbursts of volatile anger, anxiety and distress arising from her mental condition were significant contributing factors of her offending. The applicant continues to suffer from ‘depressed mood most days, appetite and sleep disturbance, psychomotor agitation, feelings of worthlessness, and diminished ability to think and concentrate’. Ms Matthews attributed the applicant’s condition as having had a negative impact on her ‘capacity to think and act rationally and reasonably’ at the time of her offending. The judge remarked that Ms Matthews explained how the applicant’s history, characterised by ‘attachment disturbance, exposure to substance use, family violence, parental conflict, neglect, parental mental illness, sexual assault and limited education’ will ‘leave a mark upon [her] psychological functioning that will reverberate over a lifetime’. In the judge’s opinion, ‘These experiences will permeate and disturb [her] future’. Clearly, in our view, the judge understood the relevance of the applicant’s psychological condition, and its effect on her moral culpability.

The Director asserted that remorse was absent. We do not accept that this is so. The judge’s reasons demonstrate that he was satisfied that there ‘is some evidence’ that the applicant now recognises the impact of her actions on the family of the deceased and feels remorse for her actions. Ms Matthews, the psychologist, reported that the applicant understood ‘Mr Matthews’ death has caused a lot of distress to his family and thought that they are likely to be suffering because of it’.

An absence of remorse was also manifested, so the Director argued, by the absence of a plea of guilty. The sentence imposed, so it was argued, was at best what could have been expected after a plea of guilty, and only if there were more features in mitigation. There is a superficial attraction in these submissions. In this case, however, the issue of causation was a live one. It was not unreasonable, in our view, for the applicant to contest that issue. An accused person cannot, of course, be punished for contesting a trial. In the particular circumstances, any dimunition of the ameliorating effect on sentence usually flowing from a plea of guilty could at worst only have been slight.

Counsel for the Director also contended that the judge gave too much weight to the situation of the applicant’s youngest child, and had moulded the sentence to accommodate that situation. We do not accept that submission. It seems to us that his Honour recognised no more than that continued custody of the child was important in promoting the applicant’s rehabilitation. Indeed, the judge found that the applicant’s prospects of rehabilitation are ‘highly dependent upon and strengthened if [she] were to be granted continued custody of [the youngest child]’. The judge also said:

I accept that your primary concern throughout these proceedings has been focused on the continued care and support of your [youngest child]. Ms Matthews cites your attachment as ‘a positive rehabilitative factor which should be supported’. The Department of Human Services will assess and make a decision as to [the child’s] placement with you in custody in light of the duration of the sentence I impose. Alexander can remain in your care, in prison with you, until the age of five. He is currently four months old.

Finally, as we have mentioned, the Director asserted that the judge gave too little weight to general deterrence and denunciation. He did not mention them in his reasons. As the following passages demonstrate, however, their importance cannot have escaped the judge’s attention. His Honour said that he had reviewed a number of sentences for manslaughter (in which, it might be expected, the need for general deterrence was discussed). He also said that he had considered ‘the matters referred to in s 5(2) of the Sentencing Act 1991’,[56] and had ‘regard to the principles of parsimony, proportionality and just punishment’. He also said:[57]
[56]The factors in s 5(2) include current sentencing practices; the nature and gravity of the offence; an offender’s culpability and degree of responsibility for the offence; victim impact; an offender’s previous character; whether an offender pleaded guilty; and the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances
[57]Emphasis added.

In considering current sentencing practices, I have reviewed a number of sentences involving the charge of manslaughter. The circumstances of individual cases vary greatly and as a consequence there is a significant variation in sentences imposed. Your offending is grave because it involved the loss of a human life, nevertheless the culpability of your offending is reduced by the circumstances of the offending in the sense that the ultimate cause of death was heart failure caused by your assaults with a weapon, but assaults that inflicted injuries that the prosecution concede in and of themselves were not life-threatening.

And he further observed:

Your offending is deserving of condemnation, such that a custodial sentence is appropriate. I reject the submission made by your counsel that a non-custodial sentence beyond time already served is appropriate or within the range of sentencing options available to me. … I do not consider a community corrections order, even for a lengthy period of time, is an appropriate sentence in the circumstances of your offence.
In my opinion, a more suitable sentence is the imposition of a term of imprisonment and the setting of a non-parole period. … Parole is said to serve the offender, by assisting with rehabilitation and providing an incentive to behave well in prison, as well as serving the interests of the community’. In determining the level of punishment necessary to reflect the community’s condemnation for your offence, I take into account your hardship in serving a term of imprisonment caused by the separation from your three elder children. I also take into account the opinion of Ms Matthews that a positive rehabilitative factor for you is your ability to be able to have your son, Alexander, with you during any period of incarceration.

The ‘particulars’ subjoined to the ground of appeal assert that the judge failed to have regard (or sufficient regard), or gave excessive weight, to a number of factors. In my view, however, it generally is unfruitful to attempt to identify or to isolate factors which might have led a sentencing court to impose an inadequate sentence, since manifest inadequacy is not a conclusion that depends on the attribution of specific error.[58] In our view, supposed ‘particulars’ can do no more than point to those features which ought to have been prominent in the exercise of the sentencing discretion.[59] It is only when all relevant factors are taken into account, however, that it can be seen whether a sentence is, or is not, unreasonable or plainly unjust, and inadequacy is, or is not, plainly apparent.[60]
[58]Dinsdale, 325–6 [6].
[59]See DPP (Cth) and DPP v Watson [2016] VSCA 73, [121] (Priest JA). Cf Practice Direction No 2 of 2011 (First Revision) — Court of Appeal: Criminal Appeals, Section 4(2).
[60]Dinsdale, 325–6 [6].

As we have said, the sentence imposed upon the applicant is lenient. Had we been the sentencing judge, we might not have imposed a sentence of the same order. That is, however, not to the point. As has often been said, there is no single correct sentence for a particular offence or particular offender.[61] This Court could only intervene if satisfied that the sentencing judge’s discretion miscarried because the sentence imposed was below the range of sentences that could, consistently with proper sentencing standards, justly be imposed for the particular offending.[62] Synthesising all relevant factors we are not persuaded that the length of the sentence of imprisonment — both head sentence and non-parole period — is so low as to bespeak error. It should not be thought, however, that a sentence of the order imposed in this case will ordinarily be of appropriate severity for many (if not most) cases of manslaughter.
[61]See Bugmy v The Queen (2013) 249 CLR 571, 588–9 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[62]Ibid. See also Karazisis, 662–3 [127]–[128].

The Director’s appeal should be dismissed.

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30 May 2016