Sherna v The Queen
[2011] VSCA 242
•23 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0914
| ANTHONY SHERNA | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and HANSEN JJA and WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 July 2011 | |
DATE OF JUDGMENT: | 23August 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 242 | |
JUDGMENT APPEALED FROM: | [2009] VSC 526 (Beach J) | |
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CRIMINAL LAW – Manslaughter – Sentence of 14 years imprisonment with non-parole period of 10 years – Whether sufficient weight given to offer to plead guilty to offence upon which applicant was convicted – Whether sentencing judge considered that abolition of partial defence of provocation meant that sentences for other kinds of manslaughter should be increased – Whether sentencing judge erred in determining that the nature and gravity of offence was at the serious end of the range of manslaughter – Whether sentence manifestly excessive – Sentence within permissible range – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Lewenberg & Lewenberg |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
The applicant, Anthony Sherna, now 46 years of age, was arraigned in the Supreme Court on one count of murder, to which he pleaded not guilty. On 31 October 2009, after a second trial[1] a jury returned verdicts of not guilty to murder, and not guilty to defensive homicide, but guilty to manslaughter. On 20 November 2009 the judge sentenced the applicant to 14 years imprisonment. He fixed a non-parole period of 10 years.
[1]The jury at an earlier trial had been unable to agree upon a verdict.
The applicant now seeks leave to appeal against his sentence on the following grounds:
1.The learned sentencing judge failed to accord any, or sufficient, weight to the fact that, prior to the commencement of the trial, the applicant had offered to plead guilty to the offence of manslaughter, the offence upon which the applicant was convicted. (Reasons for Sentence at para [23])
2.The learned sentencing judge failed to accord any, or sufficient, weight to the fact that, in her final address to the jury, counsel for the applicant invited the jury to convict the applicant of the offence of manslaughter, the offence upon which the applicant was convicted, and the circumstances in which that invitation was extended. (Reasons for Sentence at para [16])
3.The learned sentencing judge erred in determining that the nature and gravity of the offence committed by the applicant ‘[fell] at the serious end of the range [that is, at the upper or top end of the range] of the crime of manslaughter.’ (Reasons for Sentence at para [32])
4.The sentence imposed is, in all the circumstances of the case, manifestly excessive.
Circumstances of the offending
The applicant and the deceased lived together in a de facto relationship from the second part of 1989 until the date of her killing on 2 February 2008. When they met, the applicant was 23, and the deceased was 35.
It is now convenient to describe the nature of their relationship. It was vividly outlined in the applicant’s interview to the police, a part which was incorporated by his Honour in his sentencing reasons:
We lived together as de facto husband and wife. We had no children, we’ve
had no family or friends. We didn’t go out to restaurants, we had never had
a holiday and not many people can understand or believe that. We actually slept in separate bedrooms for between ten and 15 years. I can’t remember the exact amount of time. And the last time we had sex was three years ago. We never kissed open mouthed. It would just be a peck on the cheek. … We argued like all couples do, except other couples can go and talk to someone, a friend, family, et cetera, but because we had no friends or family that we could confide in, it just built up – built up years of abuse. Her favourite term was ‘low-life’. Used to call me low-life. …Susie was a mouth – really mouthy, none of the neighbours liked us at all.
None of the neighbours would talk to us because she was always mouthing off at them and when we got – Susie never ever had a licence. She never ever got it in her life. So I used to have to go and do all the shopping and everything and drive her around wherever she wanted to go and, of course, by doing all the driving, I couldn’t do the work at home because we didn’t have any family friends. … So for me, it was a – just every day was a pressure cooker day. A pressure cooker.
The applicant also gave evidence at trial about the nature of his relationship with the deceased. His Honour summarised it this way:
. . . you described your relationship with the deceased in greater detail. You painted a picture of the deceased as an aggressive, difficult and controlling person who completely dominated you – describing (amongst other things) incidents where she came at you with a knife (grazing you along the shirt and actually cutting you along the chest on one occasion), an incident where you said that the deceased ‘became very out of control and violent as well and tore my shirt’, extreme limitations that the deceased put on your social life, requiring you to sleep on a camp bed for many years, requiring you to change your name, limiting your use of the toilet at home, limiting your access to money, an incident when she threw full beer cans at your head, limits she imposed on your contact with your family, abusing you and making various threats.
The applicant spent the evening of 1 February 2008 at his home in Tarneit with the deceased. He consumed six to eight beers. She drank a number of glasses of red wine. They had an argument over a mobile phone bill.
Then the deceased had a lengthy telephone conversation with her mother in Tasmania.
On the applicant’s account it was almost midnight when the deceased approached him whilst he was in the laundry, rocking his dog to sleep, as he did each night. She was yelling and screaming and in doing so frightened the dog. The applicant was also upset by her behaviour. The deceased went to the kitchen, the applicant followed her. On his way he grabbed the cord out of his dressing gown, which was in the laundry.
In his record of interview, the applicant described what happened as follows:
I then lost my temper. I lost my temper and I strangled her with the dressing gown cord until she could no longer breathe.
I was real angry. What happened was I had left the laundry, my dressing gown hangs on the door, I grabbed the cord off the dressing gown - - I was just so angry I just – because I was drunk – that’s, I grabbed the cord to kill her. I was so angry.
The applicant’s response in the interview to the question whether the deceased said anything to him was that she said:
Tony, no. Don’t do it.
When asked about his intent at the time when he put the cord around her neck, the applicant responded:
I just wanted to kill her.
But he also said that he had tried to compose himself after he had followed the deceased into the kitchen. It was then, he claimed, the deceased had again brought up the mobile telephone bill. She had ‘got [him] again’ and ‘it just triggered it.’
His Honour made the following observations about the applicant’s evidence regarding his intention at the time when he strangled the deceased:
In your evidence at trial, you admitted that when you got the dressing gown cord, it was to kill the deceased. However, you said that when you came into the kitchen area, you stopped on the other side of the kitchen bench from the deceased. After stopping, you calmed yourself down and you no longer had any intention to kill. You gave evidence that while standing at the kitchen bench, you made a conscious effort to control your anger and you calmed down.
You gave evidence that the deceased then taunted you about the mobile telephone bill, about which she had previously argued with you about – saying that you would never find it. You then described (and I use your words):
‘And at that inexplicable moment I had a surge of emotion. It’s impossible to explain. And I lost all rationality. - - - I didn’t decide anything. There was nothing in my head. … It was a complete surge of emotion. I had no rationality about it. The next thing I knew she was dead.’
However, you agreed that whilst this was now your evidence, you did not want to change the account you gave police that you took two to three minutes to strangle the deceased. Further, in your evidence you recounted how the deceased said “Tony, no, don’t do it” and you described the trickle of blood you observed coming from her mouth.
The aftermath
After the killing, the applicant left the house. He played poker machines for a few hours, and consumed alcohol. He then went to a brothel. He returned home at around 5.00 am.
On the Monday following the killing, the applicant contacted his workplace. He asked for a week off, saying that his wife had left him. He purchased a rope and two elastic straps. The next day he buried the deceased in the backyard.
As a result of things which the applicant told his mother, the police visited him at his home on 9 February to ask about the deceased’s welfare. He admitted to the police that he had strangled her.
Ground 1
The applicant offered to plead guilty to manslaughter before his first trial, and again before his second trial.
It is not in doubt that an offer to plead guilty to the crime of which the accused is convicted is a circumstance which goes in mitigation of sentence: R v
Heaney,[2] R v Bartlett,[3] R v Carradine.[4] The impact of such an offer mirrors the common law – now statutory – principle that a plea of guilty should attract a discount.[2][1992] 2 VR 531, 558 (Phillips CJ, Crockett and O’Bryan JJ).
[3]R v Bartlett [1996] 2 VR 687, 698–9 (Winneke P)
[4][2001] VSCA 163, [3] (Winneke P), [5] (Ormiston JA), [14], [15], [18] (Buchanan JA).
In the case of a guilty plea, the extent of any discount will be affected by the judge’s determination whether the plea simply has utilitarian value, or whether it also bespeaks remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice.[5] It will have the former value even if the Crown case was a strong one. The same considerations guide assessment of the appropriate discount for an offer to plead guilty to the offence of which the accused is convicted.
[5]See, for instance, Ciantar&Rose v The Queen [2010] VSCA 313, [31] (Nettle and Bongiorno JJA).
In the present case, the judge concluded that the applicant was significantly concerned about his position, and had significant regret for the position in which he found himself. This was not remorse. It was ‘possible’ that the applicant now had some remorse, but the judge was ‘unable to conclude that it was a significant mitigatory factor.’
Specifically concerning the offer to plead guilty to manslaughter, the judge said:
This is a matter which must be taken into account in your favour. However, any discount which this attracts cannot be particularly large. Given that there was no dispute that you killed the deceased with a dressing gown cord in the circumstances I have described, it was always most unlikely that you would not be convicted at least of manslaughter.[6]
[6]Sentencing remarks [23].
It appears to me that his Honour did treat the offer as attracting some discount. In light of his finding about relative absence of remorse, the discount presumably reflected the lost utilitarian value of the offer. The discount must have been less than would have been the case had the applicant’s offer reflected remorse, genuine contrition and so on. Maybe, for that reason, the discount could not be ‘particularly large’. But the reason why that was so was not that the Crown case, at least in respect of manslaughter, was a strong one. The lost utilitarian value of an offer to plead guilty, like the utilitarian value of an accepted plea of guilty, is unaffected by the strength of the Crown case.[7]
[7]R v Pajic (2009) 23 VR 527, 532 [20] (Redlich JA). See also R v Thomson; R v Houlton (2000) 49 NSWLR 383, 415-416, [136]–[137] (Spigelman CJ), R v Sutton [2004] NSWCCA 225, [11]–[12] (Howie J), R v Cameron [2005] NSWCCA 359, [20]–[24] (McClellan CJ at CL).
In the event, I consider that the judge’s remarks in the passage cited do reveal error. That does not necessarily mean that a different sentence must be passed. Nonetheless, the error is not irrelevant to resolution of the question whether the sentence imposed was, as the applicant claims, manifestly excessive.
Ground 2
Counsel for the applicant argued that his client’s case had been conducted at trial in ‘a particularly responsible manner’, and thereby, to some extent, had willingly facilitated the course of justice. He noted that no issue was raised at trial that the applicant had killed the deceased by strangling her; and that his acts were conscious, voluntary and deliberate. He referred to R v Jan Ha Le Trinh,[8] and submitted that the applicant had been entitled to some discount for the way in which the trial had been conducted.
[8][1998] VSCA 137, [28]–[29].
In my opinion, the submission was not well founded. It was not shown that the matters not put in issue made any difference to the evidence which had to be called – that the trial was made shorter. Moreover, the submission now under discussion was not raised on the plea.
In my view, there is nothing to this ground.
Grounds 3 and 4
These grounds can conveniently be considered together.
The maximum penalty for manslaughter is 20 years’ imprisonment.
The applicant fell to be sentenced for manslaughter committed by an unlawful and dangerous act.
The judge had to accept, and he said that he did, that at the critical time the applicant had no intention of killing or causing the deceased really serious injury, albeit that he had harboured such an intention a little earlier, and that such intention explained why he had the dressing gown cord in his hand at the critical time; and albeit that the killing took, on the applicant’s account, two to three minutes.
All cases vary in their circumstances, and comparisons are invidious. I should say that I have encountered worse circumstances, but that is a subjective reaction, and it is enough to say that the circumstances of this offending made it a bad instance of manslaughter by unlawful and dangerous act.
On the other hand, there were a considerable number of circumstances going in mitigation of sentence: the applicant’s blameless life hitherto, his very good prospects for rehabilitation, his early offer to plead guilty, the presence of a degree of mental upset which called for some moderation of general deterrence as a sentencing consideration. Further, though it gave some explanation for, rather than excused, what the applicant did, the evidence showed that the relationship between the deceased and the applicant had been a very unusual one, for a very long time.
Counsel for the Crown agreed that, absent the discount which the judge presumably allowed for the applicant’s offer to plead guilty, the manslaughter sentence must have been 15–16 years’ imprisonment. No sentence approaching that magnitude has been imposed on an offender in respect of manslaughter by unlawful and dangerous act in the periods embraced by Sentencing Snapshots 85 and 110 – that is, between 2003/4 and 2009/10. The heaviest sentence imposed for manslaughter in that period was on AB.[9] That was a case of provocation manslaughter which had gone to trial. So far as I can see, the sentence imposed upon the applicant was the next heaviest sentence imposed in that period. Further, out of 95 people sentenced to manslaughter in the period 2005/6 to 2009/10, only eight persons were sentenced to 11 years imprisonment, or more; and of these, only two – AB and the applicant – were sentenced to imprisonment for more than 12 years.
[9]R v AB (No 2) (2008) 18 VR 391.
Manslaughter is a crime which can be committed in ways the gravity of which much differ. For that reason, I have said nothing about the statistical ‘mean’ and ‘average’ sentence for the offence. Again, I should make it clear that the statistics which I have mentioned do not decide the fate of this appeal. On the other hand, they do reveal, I consider, that the sentence was an extreme one, and the extent to which it departed from sentences imposed even for those few worst instances of manslaughter. It cannot be doubted that the sentence considerably departed from current sentencing practices even for those few worst instances of the offence.
In all the circumstances which I have described, I am persuaded that the sentence imposed was beyond the permissible range. Strictly, it is unnecessary to attempt an explanation how that came about. But in view of the issue raised by ground 3, I should say something in that connection.
On the plea, the prosecutor referred to AB (No 2). Then he submitted:
It is a decision that would be well-known to you. Of course it was a case where the finding indicated the manslaughter verdict was based on provocation. That defence, qualified defence, or partial defence has been abolished, as we know, and it has been indicated in some authorities and is touched on in this particular one that cases of manslaughter where it’s a provocation type defence to a murder, that those are or may be at the top end of the range of seriousness for crimes of manslaughter. That’s changed. Unlawful and dangerous act and the serious or most serious examples of that crime are now at the very top of the spectrum. Even were that not the case, the fact is, Your Honour, this particular example of manslaughter by unlawful and dangerous act would have to be viewed as being very much at the upper end of the range, and indeed now, in the situation of that other form of manslaughter being in effect removed, this is at the top or close to it.
The submission appeared to contend, in part, that the elimination of the provocation defence meant that there was now a ‘void’ at the most serious end of the manslaughter spectrum, in consequence of which sentences for other crimes of manslaughter should be increased so as to fill the void. That submission should not have been accepted. Nothing said in connection with the legislation which abolished the partial defence of provocation suggests such an intention on the part of the legislature. Further, all that Nettle JA said about provocation manslaughter in AB (No 2) was that generally it was to be regarded as more serious than other forms of manslaughter; and that, in the instant case, it ‘indeed reach(ed) to the very confines of murder’.[10] But everything must depend upon the circumstances of the offence and the offender, regard being had to sentencing considerations made pertinent by the common law and by statute. That was the submission correctly made for the Crown in this Court. That is how the sentencing disposition should have been approached.
[10]Cited in R v AB (No 2) (2008) 18 VR 391, 400 [25].
The sentencing judge said this:
Short of murder, the unlawful killing of a human being by the deliberate placing of a cord around that person’s neck for some two to three minutes is amongst the most serious of offences against that person.
and
With the abolition of the rule of law that provocation reduces the crime of murder to manslaughter,6 the unlawful killing of a human being by deliberately strangling them falls at the serious end of the range of the crime of manslaughter. Further, as was said by the Court of Appeal in R v AB (No. 2), the maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed: it serves as a directive to the Courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of offences in question.
What his Honour said in the first of those passages was an apt description of the gravity of the offending, which was an important component – but not the only component – of the sentencing synthesis. But what he said in the second cited
passage suggests that his Honour may have been influenced in sentencing the applicant by the prosecutor’s argument that the abolition of the partial defence of provocation had left a void in sentencing which should now be filled by sentences for serious instances of unlawful and dangerous act manslaughter. If that were so – it need not be decided – it would provide some explanation for the sentence which his Honour imposed.
Order
I would grant the applicant leave to appeal against sentence, allow the appeal and re-sentence the applicant to 12 years’ imprisonment. I would fix a non-parole period of eight years’ imprisonment.
HANSEN JA:
I have read in draft the judgments of Ashley JA and Whelan AJA. My views may be shortly stated.
I agree that there is no substance in ground 2. I consider that ground 1 also lacks substance. Regarding the matter overall it seems evident that the judge dealt with the effect of the offer to plead guilty in a manner that was responsive to the way in which it had been dealt with on the plea. I agree with Whelan AJA’s analysis in this respect, and consider that the distinction drawn in the applicant’s oral submissions between the utilitarian aspect of the offer to plead guilty and other aspects, in particular remorse, suffered from artificiality in the circumstances. I do not consider that the judge’s reasons are fairly to be read as meaning that he did not give proper weight to the utilitarian value of the offer to plead guilty.
The real issue is whether the sentence is manifestly excessive, for which purpose grounds 3 and 4 are to be taken together. For if the sentence was open to be imposed I would consider that even if ground 1 were established no different sentence should now be imposed.
The question that the judge had to determine was what was the just and appropriate sentence in respect of the offending in the light of all the relevant circumstances. This was a discretionary judgment and if it is to be regarded as manifestly excessive it is because the judgment falls in the residuary category of error identified in House v The King.[11] In Wong v The Queen[12] Gaudron, Gummow and Hayne JJ stated that in that –
kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
[11](1936) 55 CLR 499.
[12](2001) 207 CLR 584, 605 [58].
In the plurality judgment in Hili v The Queen[13] their Honours, after referring to the above passage in Wong, observed that ‘what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence.’
[13](2010) 272 ALR 465, 481 [60].
In his submissions counsel for the Crown conceded, correctly, that as a matter of sentencing practice, the sentence imposed was at the high end of the range. Notwithstanding the matters raised in mitigation it was submitted that in light of the maximum penalty (20 years), the nature and duration of the attack and its aftermath, and the judge’s finding as to the applicant’s lack of remorse, the sentence was in the range available to the judge.
To the contrary, it was submitted by the applicant’s counsel that the sentence was beyond the range that might reasonably be imposed for the offending and in all the circumstances of the case. That is to say, the sentence was one that no reasonable sentencing judge could have imposed. In addition to what was revealed as to current sentencing practice by the Sentencing Snapshots, to which Ashley JA has referred, counsel relied upon a range of matters referred to in the judge’s sentencing remarks: the offence was committed in circumstances where the applicant was psychologically vulnerable and subject to extreme psychological distress, having been dominated and abused by the deceased for many years and which had involved many significant episodes of unpleasantness for him; he was a first offender and his previous good character told strongly in his favour; he had very good prospects for rehabilitation; and there was a limited moderation of general deterrence by reason of the applicant having suffered from both dysthemic disorder and a chronic adjustment disorder. Counsel also referred to sentences imposed in several prior cases.
Ground 3 contends that the judge erred in determining that the nature and gravity of the offence fell at the serious end of the range of the crime of manslaughter. It was said that the judge appeared to have accepted a submission of the prosecutor on the plea that the abolition of the defence of provocation had the effect that serious examples of manslaughter by unlawful and dangerous acts were now at the very top of the spectrum of manslaughter and, as a consequence, this case was to be viewed as being very much at the upper end of the range. The suggestion was that provocation manslaughter having been abolished, the subject case was at the top or close to the top of the range, as though it had moved up the ladder so to speak to fill the area vacated by provocation manslaughter. Counsel pointed out that the abolition of the defence of provocation was prospective and not retrospective so that it is possible that such a case may arise in the future. And such cases, involving an intention to kill or cause really serious injury, are more culpable than manslaughter by unlawful or dangerous act. Hence, it was submitted, the judge, apparently acting on the basis of the prosecutor’s submission, had erred in his assessment of the objective gravity of the applicant’s offending. More particularly, the judge erred in sentencing on the basis that ‘the unlawful killing of a human being by deliberately strangling them falls at the serious end of the range of the crime of manslaughter.’
I do not consider that, fairly read, the judge’s observation indicates that he fell into the error suggested by the applicant. I do not consider that he was saying in effect that the abolition of the defence of provocation meant that sentencing practice for manslaughter by unlawful and dangerous act was thereby, or was now to be, revised upwards. Rather, he was identifying, reasonably in my view, that provocation cases having vacated (or being in the process of vacating) the field of manslaughter, the offending in the subject case would fall at ‘the serious end of the range’ for the offence. I agree with that observation. This was death by strangulation which took some two to three minutes of deliberate force perpetrated against the plea of the victim not to do it. Notwithstanding the prior history of the relationship and all that is referred to by the sentencing judge this was most serious offending. Having anxiously considered the matter I am of the view that while being at the top of the range I do not consider that the sentence imposed was outside the range in the manner or extent that would be required to constitute a manifestly excessive sentence.
I would refuse the application for leave to appeal against sentence.
WHELAN AJA:
I have had the advantage of reading in draft the reasons of Ashley JA. He has fully and accurately set out the grounds of appeal, and the circumstances of the offending and of the aftermath. I would only add that the description of the relationship in paragraph [5] of Ashley JA’s judgment should be qualified by the sentencing judge’s finding that that account was an exaggerated one which over emphasised some of the negative aspects of the relationship.
I am unable to agree with Ashley JA as to the disposition of ground 1 and of grounds 3 and 4. I agree with him, for the reasons he has given, in relation to ground 2. My conclusion is that the application for leave to appeal the sentence should be refused.
Ground 1: the offer to plead guilty
The matter now said to constitute error under this ground is that the sentencing judge erroneously discounted the utility aspect of the mitigating effect of the offer to plead guilty to manslaughter by relying on the strength of the Crown case. This, it is said, was the error dealt with in R v Pajic.[14]
[14](2009) 23 VR 527 (‘Pajic’).
In the applicant’s written outline of submissions a broad attack was made upon what was said to be the ‘limited weight’ which the sentencing judge had given to the offer to plead guilty to manslaughter. No reference was made in that written submission to the decision in Pajic, or to the error now said to have been made.
The distinction now relied upon between utility and other mitigating factors such as contrition and remorse was not articulated before the sentencing judge. Brief reference was made by defence counsel to the offer as a matter that should be taken into account as a mitigating factor. The submission made was not related, expressly or by implication, to either utility or other considerations. Reference was also made to the offer by the prosecutor, and the matter was taken up again by defence counsel in reply. Again, in neither the prosecutor’s submissions nor in the submissions in reply was there any articulation of a distinction between utility and other mitigating considerations.
The submission that the sentencing judge erroneously discounted the utility aspect of the offer to plead guilty by reliance on the strength of the Crown case was raised for the first time in oral submissions by counsel for the applicant.
It is necessary to briefly review the history of the significance of guilty pleas as a mitigating factor in Victoria.
Prior to the decision in R v Gray[15] it was by no means an accepted position that pleas of guilty should be taken into account in mitigation of penalty. In Gray McInerney and Crockett JJ explained the many ways in which a plea of guilty might be a mitigating factor. It might evidence remorse. It might have saved a complainant from the ordeal of giving evidence. It might have saved a lengthy trial. They made clear, however, that, in their view, ‘a simple confession of guilt cannot, by its own force, operate so as to command that the sentence be less than that which it would have been had there been no such confession’.[16] They emphasised that the sentencing judge possesses a discretion of great width and, in that context, observed: ‘It is for the judge to interpret the quality and implications of the plea’.[17] They also identified the potential circumstance that a guilty plea could be motivated entirely by self interest on the part of the offender. Their observations in that respect were later interpreted as suggesting that such pleas would not ordinarily weigh heavily in the accused’s favour.[18]
[15][1977] VR 225 (‘Gray’).
[16][1977] VR 225, 231.
[17][1977] VR 225, 232.
[18]See: R v Morton [1986] VR 863, 867.
The next case of significance was R v Morton[19] which was decided after the passage of s 4 of the Penalties and Sentences Act 1985. That Act expressly provided that a judge could take into account the fact that a person had pleaded guilty and also provided that if it was taken into account to reduce the sentence the judge must state that fact.
[19][1986] VR 863 (‘Morton’).
The Full Court in Morton approved of the analysis in Gray, with the qualification that the suggestion made that a plea motivated solely by self interest would not ordinarily weigh heavily may be modified by the new section.[20] The Court observed that under the new legislation a court could always take a guilty plea into account and that Parliament was encouraging that course. The Full Court concluded:
Doubtless, however, a plea of guilty which is indicative of remorse or of some other mitigating quality will ordinarily carry more weight than a plea dictated solely by self interest.[21]
[20][1986] VR 863, 867.
[21][1986] VR 863, 867.
Section 4 of the Penalties and Sentences Act 1985 was replaced by s 5(2)(e) of the Sentencing Act 1991. Under that provision a court is required to have regard to whether the offender pleaded guilty to the offence.
The new provision was considered by Crockett and Southwell JJ in R v Hall.[22] Their joint judgment contained the following passage, which has been repeatedly quoted and cited in this State ever since:
Both provisions were obviously intended to act as an inducement to an offender to enter a plea, furthermore, an early plea, in return for a lesser penalty than otherwise might have been expected to have been passed [Morton cited]. A court may (although such a case would be rare) elect to give no weight to such a plea. For instance a plea which is no evidence of remorse, is entered at the “eleventh hour” and is made in a case of overwhelming strength may attract no reduction in sentence. But it will not fail to do so because it is cancelled or outweighed by other considerations of an aggravating nature. A plea of guilty is a mitigating factor. It cannot cease to be so because there are aggravating features. A court’s attitude towards the fact of a plea of guilty is expected to act as an encouragement to enter such a plea. The issue with which the court is to be concerned is what weight should be given to it in the circumstances. It is not a question as to whether the weight it has is to be cancelled out by other factors.[23] (Emphasis added)
[22][1994] 76 A Crim R 454 (‘Hall’).
[23](1994) 76 A Crim R 454, 469–70. In addition to the decisions which cite or quote Hall to which I will subsequently refer, the passage has been cited or quoted in many subsequent Court of Appeal decisions, including R v O’Brien and Gloster [1997] 2 VR 714, 719-20; R v Mulovski [2001] VSCA 244, [10]; R v Rainford [2003] VSCA 49, [19]; DPP v Cook [2004] VSCA 11, [40]; R v Beary (2004) 11 VR 151, 163 [43]; R v Quarry (2005) 11 VR 337, 349 [41]; WCB v R [2010] VSCA 230, [48].
Two matters should be noted from this ‘well known’[24] passage. First, the weight to be attached to a plea depends on the circumstances of each case. Second, in a rare case that weight could be nil.
[24]The passage was so described by Callaway JA in R v Rainford [2003] VSCA 49, [19].
In 1998 the High Court considered the significance of a plea of guilty in Siganto v The Queen.[25] In their joint judgment Gleeson CJ, Gummow, Hayne and Callinan JJ said that a guilty plea is:
… [O]rdinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and secondly, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.[26]
[25](1998) 194 CLR 656.
[26](1998) 194 CLR 656, 663–4.
In R v Donnelly[27] Charles JA considered at some length the significance of a guilty plea when dealing with a submission that a particular sentence was manifestly excessive. Winneke P and Hedigan AJA agreed with his analysis. Charles JA approved of and quoted the passage from Hall which I have quoted, and also approved of the observations in Gray as to the width of the judicial discretion concerning the weight to be given to a guilty plea in a particular case.[28]
[27][1998] 1 VR 645 (‘Donnelly’).
[28][1998] 1 VR 645, 648-649.
In 1999 in R v Giles[29] Batt JA delivered a judgment, with which Phillips CJ and Chernov JA agreed. The Court was determining an application for leave to appeal a sentence on murder and rape offences. There were a number of grounds, two of which were that the sentences were manifestly excessive and that the judge had given insufficient weight to (among other factors) the applicant’s plea of guilty.
[29][1999] VSCA 208 (‘Giles’).
The first matter of importance explained by Batt JA was the following:
Grounds going only to the weight given to factors or sentencing purposes are difficult indeed to make out having regard to the discretionary character of a sentence, and ordinarily will fall to be treated as particulars of an allegation of manifest excessiveness or, as relevant, manifest inadequacy.[30]
[30][1999] VSCA 208, [13].
Dealing with the suggestion that inadequate weight had been given to the guilty plea, Batt JA said:
Whilst the early plea of guilty is significant in the saving of costs and inconvenience and in the saving of family members from the ordeal of a
committal hearing and a trial, the Crown case was overwhelming.[31] (Emphasis added)
[31][1999] VSCA 208, [20].
His Honour then went on to refer to the offender’s youth and to another decision which, he said, showed how small the discount for the factors to which he had referred, including the guilty plea, may of necessity have to be in the light of the gravity of the offending. He cited the passage from Hall which I have earlier quoted.
In R v Lennon[32] Buchanan JA with whom Winneke P and Brooking JA agreed, dealt with an issue very like the issue arising in this application, namely the significance of an offer to plead guilty to manslaughter when charged with murder. Buchanan JA said:
The offer to plead guilty to manslaughter could not be described as a generous concession. It was not contested that it was the appellant who initially confronted the deceased and that the deceased died after being stabbed or slashed 13 times. The appellant in my view was in grave jeopardy of a conviction of murder and hardly likely to avoid conviction for manslaughter. Accordingly, I doubt the offer was to be taken to disclose remorse.[33]
[32][2001] VSCA 233.
[33][2001] VSCA 233, [9].
Buchanan JA did not find it necessary to make any reference to utility. The sentencing judge in that case had not referred to the offer in his sentencing reasons at all. The Court concluded that that did not mean he had failed to give the offer ‘proper weight’.[34]
[34][2001] VSCA 233, [8].
In that case Brooking JA raised a further relevant matter. He said:
I agree with what has been said by Buchanan JA. It is clear that this appeal must fail, whatever view should be taken of the fact of the appellant’s offer to plead guilty to manslaughter. I therefore say nothing about that point, beyond indicating my view that, had it become necessary to decide the point, I would have wished to consider whether, notwithstanding earlier decisions of this Court, there is, or should be, an inflexible rule that credit must always be given for an offer to plead guilty to the lesser offence of which the accused is in fact convicted, regardless of the circumstances, and even in cases in which it would have been quite wrong for the Crown to accept the plea of guilty of the lesser offence.[35]
[35][2001] VSCA 233, [13].
In 2002 in R v RND[36] Eames JA, with whom Vincent and Ormiston JJA, agreed observed:
… even where an accused person pleaded guilty solely out of self interest, in order to obtain a lesser sentence, and without any concern as to whether in so doing he was facilitating the course of justice, the sentencing judge was obliged to treat his plea of guilty as a mitigating factor, although the weight to be given to it may be limited.[37]
[36][2002] VSCA 192.
[37][2002] VSCA 192, [18].
The cases he cited in support of that conclusion were Hall, Donnelly and Morton.
In 2004 in R v El-Ahmad[38], the Court of Appeal was considering an application for leave to appeal against sentence. Eames JA, with whom Buchanan JA and Smith AJA agreed, said that the sentencing judge had:
… made allowance for the plea of guilty, albeit that the allowance he gave for the plea of guilty was reduced by the factors earlier described and also by virtue of the fact that the evidence against him was very strong.[39]
[38][2004] VSCA 93.
[39][2004] VSCA 93, [17].
As to that approach Eames JA concluded:
I discern no error in the weight the judge gave to the plea of guilty. The factors that a sentencing judge might take into account with respect to a plea of guilty are very broad and the discretion in assessing the weight to be attached to a plea of guilty is a wide one that will not be readily interfered with [Gray and Donnelly cited]. The assessment of the appropriate discount to be given for a plea of guilty will vary greatly according to the circumstances including the strength of the case against the accused [Donnelly and Hall cited].[40]
(Emphasis added)
[40][2004] VSCA 93, [31].
In 2006 in R v Guthrie[41] Chernov, Vincent and Redlich JJA proceeded on what was an agreed basis between the parties that the sentencing judge was ‘entitled, when addressing the weight to be given to the entry of a plea of guilty, to have regard to the stage at which the offer to so plead was made and the strength of the Crown case’.[42]
[41][2006] VSCA 192.
[42][2006] VSCA 192, [76].
Meanwhile, in New South Wales a guideline judgment had been handed down in the matter of R v Thomson; R v Houlton.[43]
[43](2000) 49 NSWLR 383 (‘Thomson’).
In the course of that judgment Spigelman CJ reviewed a number of authorities and referred to a number of practical aspects of the administration of justice in New South Wales at that time by reference, amongst other things, to a report on court delays in the New South Wales District Court. He then said:
In my opinion, the significant public interests served by encouraging early pleas are such as to justify this Court indicating to the participants in the criminal justice system the extent to which benefits will accrue for an early plea, particularly from the perspective of the utilitarian considerations.
Separation of the elements of contrition and utilitarian value in the plea of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made as limiting the value of a plea, should be attributed to both of the elements. The Attorney-General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission … [cases from South Australia, New South Wales, and Queensland were cited].[44]
His Honour made reference to a passage in one of those cited decisions and then went on:
In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse.
[44](2000) 49 NSWLR 383, 415-416 [135]–[137].
It has since been accepted in New South Wales that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of a plea of guilty. Thus, it is an error to describe a guilty plea as being of ‘negligible value’ because of the strength of the Crown case: see R v Cameron.[45]
[45][2005] NSWCCA 357 (‘Cameron’).
I come now to the decision relied upon by the applicant here, Pajic.
Pajic was decided by a bench of two in this Court. It was an appeal against sentence. The appellant had pleaded guilty. The sentencing judge had referred to that plea and to the fact that it evidenced remorse and that it facilitated the course of justice, and then added: ‘Your plea, however, was made in the face of a strong case and your admissions’.[46]
[46](2009) 23 VR 527, [17].
Redlich JA, with whom Ashley JA agreed, found that the sentencing judge had made an error. On the particular facts of that case, it could not be said that the plea was in response to a strong case and, in the particular circumstances, there was no basis for reducing the discount by reference to the admissions which the accused had made.[47] The result in Pajic is a consequence of the findings made about the facts of that case.
[47](2009) 23 VR 527, [20], [22].
In setting out the general principles to be applied, Redlich JA adopted the observation from Donnelly that one of the matters that may affect the appropriate discount for a plea of guilty is the strength of the Crown case, but he then also endorsed the New South Wales authorities, Thomson and Cameron, to the effect that the strength of the Crown case will never have any bearing upon the discount to be allowed which is referable to utilitarian considerations.
After Pajic, in DPP v Nguyen[48] the position as articulated in Hall and Donnelly was re-emphasised by this Court. Ross AJA with whom Maxwell P and Bongiorno JA agreed said:
A sentencing judge possesses a wide discretion in interpreting the quality and sentencing implications of a plea of guilty [Gray and Donnelly cited] and may take into account a range of matters including the strength of the Crown case; the fact that witnesses and the victim’s family and friends are spared the trauma of a trial; the community benefit in terms of the time, convenience and money saved; and the demonstrated remorse of the accused. [Donnelly cited]. These matters are particularly relevant where there is a plea of guilty to murder.[49] (Emphasis added)
[48][2010] VSCA 31 (‘Nguyen’).
[49][2010] VSCA 31, [28].
Not long after Nguyen, in Giordano v The Queen,[50] this Court expressed what I interpret to be misgivings as to Pajic’s adoption of the New South Wales position.
[50][2010] VSCA 101, [41]–[44] (Mandie JA, with whom Weinberg JA agreed. Bongiorno JA’s agreement was more limited).
The brief review I have set out raises some fundamental issues which were not raised in argument before either this Court or the sentencing judge. The first such issue is the correctness of Pajic’s adoption of the New South Wales position. The second is whether it is correct to assume that in every case an offer to plead guilty to manslaughter when faced with a charge of murder, where there is subsequently a conviction for manslaughter, is relevantly the same as a plea of guilty to manslaughter upon being charged with manslaughter. It seems to me that Brooking JA’s observations are most pertinent. In a particular case, it might be asked what utilitarian value there is in an offer which represents the best conceivable outcome for the offender and which the Crown could not possibly accept.
Counsel for the Crown on this application did not argue that Pajic’s adoption of the New South Wales approach is wrong. Whilst a vague reference to the second matter was made on the plea hearing by the prosecutor, it was accepted by all counsel before the sentencing judge that the offer was a mitigating factor. Those issues will have to be determined on another occasion.
What the review I have undertaken reveals which is relevant to the disposition of this application is that there is ample Victorian authority to the effect that the weight to be accorded to a plea of guilty (or for these purposes an offer to plead guilty) is a discretionary matter, and that the judge can take into account a wide variety of circumstances, including the strength of the Crown case. Separate identification of, or consideration of, utility has not been insisted upon. The possibility that, in a rare case, the weight given to a plea could be reduced to nothing, or almost nothing, has long been the accepted position in Victoria.
It is most important, it seems to me, that the principles in House v The King[51] be at the forefront of the consideration of issues of this kind. Those principles were no doubt what prompted Batt JA to say what he did in Giles.
[51](1936) 55 CLR 499, 504–5.
In oral argument, counsel for the applicant submitted that in paragraph [23] of his sentencing reasons the sentencing judge had made the error identified in Pajic. Counsel for the Crown submitted that paragraph [23] should not be interpreted as a decision to discount the utilitarian benefit because of the strength of the Crown case, but rather as a finding that the discount cannot be ‘particularly large’ because it attracts nothing but a discount for utilitarian benefit.
I turn then to paragraph [23] of the sentencing reasons. His Honour said:
Thirdly, prior to trial (and, indeed, prior to the commencement of an earlier trial of this matter), you offered to plead guilty to manslaughter. This is a matter which must be taken into account in your favour. However, any discount which this attracts cannot be particularly large. Given that there was no dispute that you killed the deceased with a dressing gown cord in the circumstances I have described, it was always most unlikely that you would not be convicted at least of manslaughter.
His Honour refers to the offer to plead guilty. He finds that it is a matter to be taken into account in the offender’s favour. He does not differentiate the diverse ways in which a plea, or an offer, may mitigate. In that, he approaches the issue in the same way as counsel who were before him had approached it and in the same way it has often been approached in Victoria, including in the Court of Appeal.
His finding is that the discount which the offer attracts ‘cannot be particularly large’. He then refers to the fact that in the circumstances of the case it was always most unlikely Mr Sherna would not be convicted of at least manslaughter. In my view, this is a conventional and unremarkable observation to make in relation to the significance of the discount to be given. Similar observations have often been made in the Court of Appeal.
In order to construe paragraph [23] as a conclusion which is contrary to what was said in Thomson and adopted in Pajic, it is necessary to go further on in his Honour’s reasons, to find that he concludes that remorse was not a significant mitigating factor, and then go back and interpret paragraph [23] in the light of that finding as a paragraph which must be referring to only utilitarian value. This is unwarranted. In my view his Honour was referring to all aspects of the potential significance of an offer to plead guilty, without differentiation, as counsel had done in the submissions before him on the plea. In any event, the analysis for which the applicant contends is flawed because the judge does not later conclude that there is no mitigating remorse, he says it is not a significant factor.
The sentencing judge’s conclusion that the discount could not be ‘particularly large’ was correct, in my view, whatever view one takes as to Pajic.
Further, the only issue here is the weight given to this particular sentencing factor. Batt JA’s observations in Giles are applicable, reflecting as they do the principles in House v The King.
Ground 1 should be rejected.
Grounds 3 and 4: gravity of the offence and manifest excess
These grounds overlap.
The issue on ground 3, as argued orally, was whether the sentencing judge mischaracterised the gravity of the offence in reliance upon the abolition of provocation. The ground itself is that the judge erred in determining that this offence was at the serious or upper end of the range.
Ground 4 is that the sentence is manifestly excessive. Thus, the issue is whether the sentence is ‘wholly outside the range of sentencing options available’.[52]
[52]R v Boaza [1999] VSCA 126, [42] (Winneke P).
In the course of the plea the prosecutor referred to the fact that provocation had been abolished when making submissions as to the seriousness of this offence. The sentencing judge also referred to that matter in his sentencing reasons at paragraph [32]. The prosecutor made it clear in the course of his submissions, however, that regardless of the view taken as to the significance of the abolition of provocation this was a manslaughter of the most serious kind. The prosecutor submitted that it was hard to imagine another manslaughter equally as serious.
His Honour concluded that this offence was amongst the most serious of offences against a person, short of murder (paragraph [31]); and that this manslaughter fell at the serious end of the range of the crime of manslaughter (paragraph [32]). The relevant issue now is whether those conclusions were correct. The asserted significance of the abolition of provocation was not a matter relied upon on behalf of the Crown on this application.
It is necessary to review what Mr Sherna did to commit this manslaughter by unlawful and dangerous act.
Mr Sherna and his partner were in an unhappy domestic relationship. On the fatal night, after being verbally abused by his partner, Mr Sherna became so angry that he formed the intention to kill her. He took a dressing gown cord and walked out of the room that he was in and into a different room, intending to kill her.
He then had sufficient time to reflect and calm down. On his account, his intention to kill dissipated during this period. This must have been the basis for the doubt which the jury had as to his intention when he did kill her.
Mr Sherna was then subjected to further verbal abuse or taunting which resulted in renewed anger. He approached his victim. She was considerably smaller and weaker than him. She asked, perhaps more accurately begged or pleaded with him to desist.
Mr Sherna then performed what, on any view, must be a most extraordinarily dangerous act. He wrapped the cord around her neck and began strangling her. In DPP v Phillips[53] Nettle JA said of the act of presenting and firing a loaded rifle at a distance of some 30 metres that ‘the possibility of extreme harm and the potential for disaster are so obvious as to render the offence most heinous’.[54] This act was more dangerous than that, in my view.
[53][2009] VSCA 68.
[54][2009] VSCA 68, [35].
On his own account, Mr Sherna took two to three minutes to strangle his partner to death. During that time he saw a trickle of blood come from her mouth. It is instructive to pause for two minutes and consider that Mr Sherna held the cord around her neck, presumably watching her as she choked to death, for that period of time, at least. It may have been longer.
When he had finished strangling her, he sought no assistance for her. He left the house and went out to drink alcohol, play poker machines and visit a brothel. Over the ensuing few days he took steps to conceal his crime. He buried his victim’s body in the back garden.
I do not overlook the mitigating factors that were relied upon and which the sentencing judge and Ashley JA set out. I emphasise the matters which I have because it is said that the gravity of the offence was mischaracterised by the sentencing judge and that the sentence is manifestly excessive.
In R v AB (No 2)[55] the sentencing judge had imposed a greater sentence for manslaughter than the one imposed here (15 years). He had described what had occurred in that case as being a manslaughter which reached ‘the very confines of murder’. The circumstances of that case are entirely different to this one, but the description is accurate in relation to both crimes.
[55](2008) 18 VR 391.
I do not ignore the sentencing statistics. The sentence imposed here was at the very top of the range but in my view it was not outside the range.
The application for leave to appeal should be refused.
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