Romero v The Queen
[2011] VSCA 45
•11 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0797 | |
| JAMES RONALD ROMERO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN, REDLICH and MANDIE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 February 2011 |
| DATE OF JUDGMENT | 11 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 45 |
| JUDGMENT APPEALED FROM | [2009] VSC 376 (Whelan J) |
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CRIMINAL LAW – Sentencing – Murder – Convicted following trial – Jury invited by applicant’s counsel to return verdict of guilty to defensive homicide – Relevance as mitigating factor to sentence – Borderline intellectual disability – No reliance on principles in Verdins and Tsiaras on plea – New ground of appeal that Verdins principles should have been applied – Circumstances in which an appellate court will entertain arguments abandoned or eschewed on the plea – No evidence of causal connection between intellectual limitations and offending – Whether sentence of 18 years with a non-parole period of 15 years manifestly excessive – Common head sentence for murder – Ratio between head sentence and minimum sentence common to lesser offences generally inappropriate in cases of murder and other very serious crimes attracting high head sentences – Non-parole period in excess of 80 per cent of head sentence not unusual for murder – Absence of reasons for non-parole period did not bespeak error – Application dismissed.
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Appearances: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC | Greg Duncan Court Lawyer |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Redlich JA to do the first judgment.
REDLICH JA:
On 19 August 2009 the applicant was found guilty by a jury of one count of murder. The facts of the applicant's offending are not in dispute and are set out in the reasons for sentence by the sentencing judge.[1] No more than a very brief summary need now be given.
[1] R v Romero [2009] VSC 376, [5]–[20].
On an evening in June 2008 the applicant went to a house rented by his cousin where approximately 10 to 12 young people were present. The applicant, who had been drinking during the night and had shown some signs of aggression, had some sort of verbal altercation with the deceased. When the deceased stood up from the couch on which he was seated and moved towards the applicant, apparently with the intention of shaking the applicant's hand, the applicant grabbed a kitchen knife that was sitting on a plate by the side of his chair and stabbed the deceased three times, twice on the front left side of his chest through his left lung and heart, and once on the lower front right area of his chest through his diaphragm and liver. Despite the attendance of ambulance officers, the deceased died of the stab wounds.
The applicant was sentenced to imprisonment for 18 years with a non‑parole period of 15 years. He appealed against his sentence on the grounds that the sentence was manifestly excessive and that the sentencing judge erred in failing to take into account the fact that the applicant was of borderline intellectual ability, which would make imprisonment the more burdensome for him.[2]
[2]The applicant had abandoned an application for leave to appeal against conviction on 9 March 2010.
The applicant sought to demonstrate before this Court that a sentence of 18 years' imprisonment with a non‑parole period of 15 years was not within the permissible range of sentences available to the sentencing judge by reiterating the list of mitigating factors applicable to the applicant, all of which were put before the sentencing judge and which were noted in his Honour's reasons for sentence. These factors were amplified before this Court. They include the applicant's deprived upbringing,[3] his functional illiteracy and borderline intellectual disability,[4] his relatively young age, his lack of any significant prior convictions or periods of imprisonment,[5] testimonials as to his honest character, his reasonable prospects of rehabilitation,[6] the lack of premeditation and planning in his offending,[7] his undoubted and explicit remorse for his behaviour,[8] and his cooperation with the police.[9]
[3]R v Romero [2009] VSC 376, [33]–[34].
[4]Ibid [34] and [37]. In relation to the applicant’s low IQ, his Honour specifically noted that counsel did not submit on the plea that this warranted the application of the principles in R v Verdins (2007) 16 VR 269 and R v Tsiaras [1996] 1 VR 398: ibid n 2.
[5]Ibid [36], [43] and [44].
[6]Ibid [44].
[7]Ibid [45].
[8]Ibid [37] and [46].
[9]Ibid [47].
It was submitted that some allowance should have been made for the fact that the applicant had invited the jury to convict him of defensive homicide. Counsel for the applicant accepted that this was entirely different to the circumstance where an accused, who is convicted of a lesser offence, has offered to plead guilty to that offence before the trial commences. The offender is entitled, in that circumstance, to the full discount as though he had pleaded guilty. I agree with the submission made by senior counsel for the Crown that the acknowledgement by the applicant through his counsel during his trial that the jury should return a verdict of guilty to defensive homicide was a relevant mitigatory factor to be taken into account, as it contributed to some degree to the facilitation of the course of justice and because it may have evidenced the applicant's remorse.
The sentencing judge accepted that there was some goading between the applicant and the deceased, though none that could amount to any provocation offered by the deceased. His Honour found that the applicant believed there to be a threat, although that belief was unreasonable. Counsel for the applicant, in his outline of submissions to this Court, also referred to the fact that the applicant was drunk at the time that he stabbed the deceased as having some 'mitigating impact'. However, as the sentencing judge rightly stated, the fact that the applicant was intoxicated at the time of the offending was not a factor which reduced his culpability.[10]
[10]Ibid [48].
It is convenient at this point to digress and consider a new ground that counsel for the applicant indicated at the commencement of the appeal that he wished to argue. It was in these terms:
The plea and sentence had miscarried because no reliance was placed upon the principles in R v Verdins.[11]
[11](2007) 16 VR 269.
Counsel for the applicant in his outline of submissions had abandoned the second ground of appeal which was to the effect that the applicant's borderline intellectual disability would make prison more onerous. In that outline it was acknowledged that there was no evidence to support such a contention, and that on the plea no reliance had been placed upon the Tsiaras[12] principles, a fact which the judge had footnoted in his sentencing remarks.[13]
[12]R v Tsiaras [1999] 1 VR 398.
[13] R v Romero [2009] VSC 376, n 2.
Now, in support of the new ground, much was sought to be made of the applicant's borderline intellectual disability,[14] to show that his moral responsibility should be reduced, general and specific deterrence moderated and allowance made for the likelihood that imprisonment would be more onerous. It can be seen at once that the new ground sought, not only to enliven the substance of the abandoned ground, but to pursue a substantive argument that had been specifically eschewed by the applicant on the plea. The sentencing judge had been told that notwithstanding the applicant's IQ 'was at the lower end of the borderline range', the applicant did not seek to rely on the principles from Tsiaras. His counsel had also informed his Honour that it was conceded that he was 'an appropriate vehicle for general deterrence'.
[14]The Court was taken to Susan Hayes and Gerard Craddock, Simply Criminal (2nd ed, 1992) at 3-7.
In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.
I turn then to the substantive argument that such material was available on the plea concerning the applicant's borderline intellectual disability which demonstrated that the plea and sentence miscarried.
It is now sufficiently well recognised in this Court that an intellectual disability may attract the principles in Verdins,[15] as impairment of mental function sensibly encompasses intellectual disability.[16] But as this Court has cautioned in Ashe v R[17] and in Director of Public Prosecutions v Patterson,[18] it is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence, and how it is likely to affect him in the future. The question must always be whether, in the particular case, it has been shown that the offender's moral culpability or the significance of general or specific deterrence is reduced because of the intellectual disablement. It must therefore be determined whether the applicant's disablement had the effect, in the language of Verdins,[19] of impairing the offender's ability to exercise appropriate judgment, or impairing the offender's ability to make calm and rational choices, or to think clearly at the time of the offence.
[15](2007) 16 VR 269.
[16]R v McIntosh (2008) 191 A Crim R 370, [84]–[104]; DPP v Patterson[2009] VSCA 222, [43]; R v HJM [2009] VSCA 267.
[17][2010] VSCA 119, [14].
[18][2009] VSCA 222.
[19](2007) 16 VR 269.
Upon inquiry from the presiding judge, counsel for the applicant was unable to point to any material before his Honour that established a sufficient causal connection between his intellectual limitations and the offending conduct. The psychologist's report tendered on the plea simply did not address that issue. The psychologist did not venture any opinion as to whether the applicant's ‘history’ which the psychologist opined ‘indicated a lack of sound judgment, consequential thinking and insight’, was due to his border intellectual disability or, if so, to what extent. He did not venture any opinion as to whether the applicant's intellectual limitations may have contributed to the commission of the offence.
Therefore, one can well understand why it was not suggested on the plea that there was a nexus between his offending and his borderline intellectual disability. Despite that, his Honour did make a finding that his borderline IQ went some way towards explaining and mitigating his conduct. It seems likely that his Honour was there giving recognition to the submission made on the plea that the applicant was quite immature.
Counsel for the applicant submitted that general and specific deterrence should be of reduced significance because of his intellectual disability, and referred to authority and legal text to support that proposition.[20] The principle that an intellectual disability will do so is not in doubt. Although the applicant was referred to by his counsel during the appeal as having an intellectual disability, that, it seems, overstates his intellectual deficit. The evidence does not suggest that the applicant's cognitive skills were impaired so as to require such an approach. It was not in issue that the applicant immediately recognised the quality and magnitude of his wrongdoing.
[20]Susan Hayes and Gerard Craddock, Simply Criminal (2nd ed, 1992) 3-7; R v Mooney (Unreported, Victorian Court of Criminal Appeal, Young CJ, Lush and Jenkinson JJ, 21 July 1978); Anderson v R [1981] VR 155; R v Roadley (1990) 51 A Crim R 336.
Counsel was driven to contend that as a matter of logic, the applicant's borderline intellectual disability must have contributed to a 'gross overreaction to a perceived threat'. The Crown rightly submitted that there were other explanations for his conduct. He had exhibited an angry disposition throughout the evening and was much affected by alcohol.
A logical explanation for relevant conduct is unlikely to satisfy the burden of proof that it is a mitigating fact if there are other logical explanations available and no evidentiary material which renders one more likely than another. That is why cogent evidence, normally in the form of an expert opinion, is ordinarily necessary if the principles in Verdins[21] are to be enlivened. A logical hypothesis advanced from the Bar table is not a satisfactory alternative. It would have been no more than guesswork to conclude that his conduct was materially affected by his disability. For these reasons the new ground must fail.
[21](2007) 16 VR 269.
I return then to the ground of manifest excess. The Crown, in making a submission on the plea as to the appropriate sentencing range, had suggested a head sentence of 20 to 22 years and a gap of four years between the end of the non‑parole period and the head sentence.[22] It is difficult to discern why such a high head sentence was being suggested. As the sentencing judge correctly observed in his sentencing remarks, the cases to which the prosecutor referred did not support a sentence in that range.
[22]Counsel had submitted that the range for the sentencing judge was 20 to 22 years’ imprisonment, with a non-parole period of 16 to 18 years: R v Romero [2009] VSC 376, [49].
The Sentencing Advisory Council in its report Provocation in Sentencing[23] notes that in the period between 1998–9 and 2006–7, the most common sentence for murder was a sentence of 18 years' imprisonment. The applicant referred the sentencing judge to other cases, many of which involved youthful (or relatively youthful) offenders.[24] Bearing in mind the limited purpose for which comparable cases may be used, as explained recently in Hudsonv The Queen,[25] the cases referred to tend to support the view that a sentence of 18 years' imprisonment was within the range of sentences available to the sentencing judge, albeit it was towards the top end of that range.
[23]Felicity Stewart and Arie Frieberg, Provocation in Sentencing: Research Report (2nd ed, 2009), 30.
[24]R v Athuai [2007] VSCA 2; R v Brooks [2008] VSC 70; R v Lam & Ors (2008) 185 A Crim R 453; R v Imadonmwonyi [2008] VSCA 135; R v Rattya [2008] VSCA 149; DPP (Vic) v Tran [2008] VSCA 158; R v Acuna [2008] VSC 351; R v Baker [2008] VSC 390.
[25][2010] VSCA 332.
This Court has said on many occasions that where the impugned sentence is said to be manifestly excessive this does not admit of much elaboration. The thrust of the comprehensive submission by counsel for the applicant was that the constellation of mitigatory factors present, and in particular his deprived background and intellectual deficit, made this an unusual case which called for a sentence lower than 18 years. But it is the regrettable fact that all too often offenders before this Court come from very deprived backgrounds and suffer from a mental disorder or intellectual deficit and while affected by alcohol or drugs, commit an unpremeditated, violent act. Reasonable minds may differ as to the significance of the mitigatory factors here present and whether they should be regarded as unusual, but it was the province of the sentencing judge to make that determination. The question is not whether, had this Court been exercising at first instance the power reposed in the sentencing judge, it would have reached a different decision, but whether it is persuaded that a sentence of 18 years’ imprisonment was beyond a reasonable exercise of the sentencing discretion.[26] Although I consider the head sentence a stern one, it has not been shown the sentencing judge fell into error in imposing such a sentence.
[26]Ibid [24].
The applicant also focused upon the non‑parole period and what was described as 'the slight disparity between the head sentence and the non‑parole period'. The applicant emphasised that one of the purposes behind fixing a non‑parole period is to provide for mitigation of the punishment of the prisoner in favour of his conditional freedom.[27] As the nature of the offence does not assume the same importance which it has when the head sentence is being determined and personal circumstances of the offender are generally given greater weight than when fixing the head sentence,[28] it was submitted that the mitigatory considerations should have received greater prominence and resulted in a considerably lower non‑parole period.
[27]Power v R (1974) 131 CLR 623, 629 (Barwick CJ, Menzies, Stephen and Mason JJ); R v VZ(1998) 7 VR 693, 697.
[28]Hudson v R [2010] VSCA 332, [37].
The sentencing judge found that the applicant had reasonable prospects for rehabilitation given his lack of significant prior convictions, his expression of genuine though rudimentary regret and remorse for his behaviour, and his family support.[29] Undoubtedly, an offender's prospects of rehabilitation are of great importance to the setting of the length of the non‑parole period.[30] There is a strong public interest in the rehabilitation of offenders,[31] especially youthful offenders, and where the offender has positive prospects of rehabilitation the community requires less in the way of protection by way of a lengthy period of incarceration without the possibility of parole.[32]
[29]R v Romero [2009] VSC 376, [37], [44].
[30]Mak v R [2011] VSCA 5, [32]. See also R v VZ (1998) 7 VR 693, 698 (Callaway JA).
[31]R v Detenamo [2007] VSCA 160, [27].
[32]Mak v R [2011] VSCA 5, [32].
In addition to the small gap between the head sentence and the non‑parole period, the applicant relied upon the absence of any reasons for the non‑parole sentence as disclosing error, given the mitigating factors present. Although the sentencing judge is required to reconsider all or most of the matters that were taken into account in determining the head sentence,[33] he or she is not bound to discreetly refer to such matters in considering the non‑parole period,[34] nor is it essential that he or she gives reasons for fixing the non‑parole period unless the sentence is of an unusual duration such as would invite appellate scrutiny. While it would have been preferable for the sentencing judge to have provided some reasons for the non‑parole period that he imposed, I do not agree that the absence of reasons bespoke error, as the non‑parole period was not one of an unusual duration as a ratio of the head sentence for murder.
[33]R v Mulvale (Unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Callaway JA and Hampel AJA, 20 February 1996).
[34]R v Bernath [1997] 1 VR 271.
For offences that do not attract the sort of sentences reserved for murder and other very serious crimes, non‑parole periods between 60 and 66 per cent and up to 75 per cent of the head sentence are not regarded as uncommon. Where the ratio of the non-parole period to the head sentence exceeds these figures, the absence of an explanation may invite appellate scrutiny.[35] Even then, the fact that the non-parole period exceeds 80 per cent of the length of the head sentence does not inevitably lead to the conclusion that the sentencing judge made an error, because there is no set formula or fixed standard that applies to the fixing of a non-parole period.[36] Moreover, counsel for the applicant appeared to accept that the common ratios applicable with respect to lesser offences are not particularly instructive in the case of very serious crimes where the head sentence is much higher. That concession, in my view, was rightly made. The ratio between the head sentence and non-parole period more commonly found for lesser offences and lower sentences are generally unlikely to be appropriate for murder and other serious crimes attracting similarly long head sentences, as they would create inordinately long parole periods and the non-parole period would not then, as it must, also reflect the gravity of the offending.[37] The non-parole sentence would be shortened beyond the lower limit of what might be reasonably regarded as condign punishment.[38] Other purposes of sentencing that are relevant to fixing the non‑parole period as well as to fixing the head sentence, such as deterrence and protection of the community, would not then have been given their necessary weight.
[35] R v Bolton & Barker [1998] 1 VR 692; R v Detenamo (2007) VSCA 160; R v Krasnov and Shlakht (1995) 125 FLR 120, cited in Ashe v R (2010) VSCA 119, [33] (Neave and Redlich JJA, Coghlan AJA).
[36]R v VZ (1998) 7 VR 693, 700 (Batt JA); R v Detenamo [2007] VSCA 160, [26]; R v Bertrand (2008) 20 VR 222, 248.
[37]Bugmy v The Queen (1990) 169 CLR 525, 532.
[38]R v Shrestha (1991) 173 CLR 48, 63 (Brennan and McHugh JJ).
This approach to non-parole periods for murder and other very serious crimes attracting very lengthy sentences accords with the information contained in the Sentencing Advisory Council’s recent report Provocation in Sentencing. It shows that within the period to which I have already referred, the most common minimum sentence for murder was a non-parole period of 14 years, being a ratio in the main of 77.8 per cent of the head sentence.[39] Of the 246 sentences for murder in this period, only nine sentences had a ratio of 67 per cent or under, and 40 per cent of all sentences had a ratio greater than 75 per cent.[40] The report also notes that the non-parole periods for 33 of the sentences for murder were at a ratio of 80 per cent or above in relation to the head sentence. From the bare statistics it can be seen that the non-parole periods for murder sentences are very rarely of a length that is less than 67 per cent of the head sentence, and a non-parole period for murder that is in excess of 80 per cent cannot be viewed as out of the ordinary.
[39]Felicity Stewart and Arie Frieberg, above n 23.
[40]Note that this figure does not include sentences of life imprisonment without parole. Also, during this period there were 44 convictions that resulted in either life sentences or sentences of 25 years to life. In these cases, it is not possible to quantify the percentage of the non-parole period in relation to the head sentence. These sentences did result in some extremely lengthy non-parole periods, including one sentence of life imprisonment with a 14 year minimum.
Just as for the head sentence, the minimum sentence for murder must adequately reflect the community's paramount concern for the sanctity of human life and its abhorrence of deliberate acts which destroy life and have devastating consequences for those close to the deceased. The gravity of the applicant's vicious
and wholly unjustified offending, and the need to deter the applicant and other young offenders from such violent behaviour towards a fellow human being, required the imposition of a substantial non-parole period. The applicant has not demonstrated that it was beyond a reasonable exercise of the sentencing discretion to conclude that the minimum period of imprisonment that justice required the applicant serve before he became entitled to conditional freedom, was 15 years. I would refuse leave to appeal.
BUCHANAN JA:
I agree.
MANDIE JA:
I also agree.
BUCHANAN JA:
The order of the Court is that the application for leave to appeal against sentence is dismissed.
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