JUDGES:	MAXWELL ACJ, TATE and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 March 2018
DATE OF JUDGMENT:	22 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 161
JUDGMENT APPEALED FROM:	[2016] VSC 767 (Croucher J)

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CRIMINAL LAW – Appeal – Sentence – Defensive homicide – Family violence – Applicant killed innocent victim – Excessive violence – Acting under threat from partner – Partner threatened to kill applicant’s family unless she killed victim – History of violent mistreatment of applicant – Judge accepted that applicant believed threat would be carried out unless she complied – Sentence of 10 years’ imprisonment with non-parole period of 7 years – Whether manifestly excessive – Relevance of family violence to offence gravity and culpability – Similarities to duress – Cooperation with authorities – Whether relevant that partner not prosecuted – Impairment of mental functioning – Appeal allowed – Resentenced to 6 years and 6 months with non-parole period of 5 years – DPP v Parker (a pseudonym) [2016] VSCA 101 applied – Crimes Act 1958 ss 9AG, 9AH.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Sleeth with Mr M Reardon	Victoria Legal Aid
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

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MAXWELL ACJ
TATE JA:

Summary

The applicant pleaded guilty to defensive homicide. On the facts of the case, she therefore fell to be sentenced on the basis that:

(a) she had killed the victim, Mr Nankervis, in the belief that it was necessary to do so to prevent her family from being killed; but

(b) she did not have reasonable grounds for that belief.[1]

[1]Crimes Act1958 s 9AD (‘Crimes Act’), as in force at the time. The section was repealed in 2014; see Crimes Amendment (Abolition of Defensive Homicide) Act 2014.

What makes this case unusual is that Mr Nankervis was not the source of the threat to the applicant’s family. That threat came, instead, from her partner, Phillip Mifsud (‘Mifsud’), with whom she had been in a violent and abusive relationship for 12 months. Mifsud threatened the applicant that he would kill her family unless she killed Nankervis, and she feared that he would carry out the threat.

The prosecutor told the sentencing judge that he could find no other instance of the offence of defensive homicide being committed when the threat came from someone other than the victim. The explanation is that the applicant’s defence to the original charge of murder was duress. If made out, duress would have been a complete defence to that charge, resulting in an acquittal. On the second morning of the trial, after a jury had been empanelled, the applicant abandoned the defence of duress and entered a plea of guilty to defensive homicide.[2]
[2]A question of the statutory interpretation of the defence of duress was referred to this Court during the proceeding in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sawyer-Thompson v The Queen

Details

AGLC: Sawyer-Thompson v The Queen [2018] VSCA 161
Case: [2018] VSCA 161
Decision Date: 22 June 2018

CaseChat Overview and Summary

In the matter of Sawyer-Thompson v The Queen, the Court of Appeal was tasked with reviewing the sentence imposed on Sawyer-Thompson, who had killed an innocent victim in what was deemed a defensive homicide case. The incident arose from a context of severe family violence, where the applicant had been subjected to a history of violent mistreatment by her partner. The partner had threatened to kill the applicant's family if she did not kill the victim. The trial judge accepted that the applicant genuinely believed that the threat would be carried out unless she complied. The original sentence was 10 years' imprisonment with a non-parole period of 7 years, which the applicant appealed on the grounds of being manifestly excessive.

The legal issues before the court involved the relevance of family violence to the gravity of the offence and the applicant's culpability, as well as the comparison of this situation to the defence of duress. The court also needed to consider the applicant's cooperation with authorities and the fact that her partner was not prosecuted. Additionally, the court examined whether the applicant's impaired mental functioning at the time of the offence should be taken into account. The appeal hinged on whether the original sentence was disproportionately harsh given the mitigating circumstances.

The Court of Appeal allowed the appeal, finding the original sentence to be manifestly excessive. The court held that the family violence context was crucial in assessing the gravity of the offence and the applicant's culpability. The similarities between the circumstances and the defence of duress were noted, along with the applicant's cooperation with authorities and the lack of prosecution of the partner. The court also considered the impact of the applicant's impaired mental functioning at the time of the offence. Applying the principles from DPP v Parker, the Court of Appeal resentenced the applicant to 6 years and 6 months' imprisonment with a non-parole period of 5 years. This decision underscores the importance of considering the full context of family violence and its impact on the offender's actions when determining an appropriate sentence.

Orders