Stephenson v The Queen

[2008] NSWCCA 266

New South Wales
Court of Criminal Appeal

CITATION:	STEPHENSON v R [2008] NSWCCA 266
HEARING DATE(S):	13/11/08
JUDGMENT OF:	Bell JA at 1; Blanch J at 36; Hall J at 37
EX TEMPORE JUDGMENT DATE:	13 November 2008
DECISION:	1. Grant leave to appeal 2. Appeal dismissed
CATCHWORDS:	SENTENCE manslaughter - unlawful and dangerous act - domestic argument - punches to head
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	KT v R [2008] NSWCCA 51 Markarian v The Queen [2005] HCA 25; 328 CLR 357 R v Dodd (1991) 57 A Crim R 349 R v Ellis (1986) 6 NSWLR 603 R v Forbes [2005] NSWCCA 377 R v Gallagher (1991) 23 NSWLR 220 R v O'Hare [2003] NSWSC 652 R v Risteski [1999] NSWSC 1248
PARTIES:	Darren Robert Stephenson (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/00004279
COUNSEL:	C Steirn SC (Applicant) D Arnott SC (Respondent)
SOLICITORS:	Andrew O'Brien (Applicant) S Kavanagh (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2006/2881
LOWER COURT JUDICIAL OFFICER:	Hidden J
LOWER COURT DATE OF DECISION:	29/6/07

2006/4279005

BELL JA
BLANCH J
HALL J

Thursday 13 November 2008
Darren Robert STEPHENSON v R

Judgment

1 BELL JA: Darren Robert Stephenson pleaded guilty on 2 February 2007 before Justice Hidden to the manslaughter of his partner Jody Zaric on 25 February 2006. His plea was accepted by the Crown in discharge of an indictment for murder.

2 He was sentenced by Hidden J on 29 June 2007 to a non-parole period of three and a half years commencing on 25 February 2006 and expiring on 24 August 2009. A balance of term of two years and six months commencing on 25 August 2009, and expiring on 24 February 2012 was imposed.

3 By notice of appeal dated 8 August 2008, the applicant seeks leave to appeal against the severity of this sentence. The application was filed out of time and the applicant requires an extension of time in which to bring it. The grounds for the extension are set out in the document filed in support of the application by Mr Byrne SC. In light of the contents of that document there is no opposition to the extension sought, and it is appropriate that it be granted.

4 Hidden J set out the facts upon which the applicant was to be sentenced as follows:

“The victim Jody Zaric was born on 22 August 1978 and was aged 27 years at the time of her death. The offender was born on [xxx] 1963 and was aged 43 years at the time of the victim’s death.
The victim and the offender had been in an intimate relationship for approximately eight years prior to her death. The victim would spend some of her time living with the offender and the remainder of her time living with her mother. The relationship was a volatile one.
On Friday 24 February 2006 the victim won $10,000 in a competition run by a radio station.
From about 5pm that day the victim and the offender were spending the evening celebrating the win at 3 Asford Close, Hinchinbrook. This is the residential address of the offender. No one else was present during the evening.
Throughout the evening the victim and the offender consumed alcohol as well as some amphetamines and cannabis. The offender had consumed about six or seven beers. The offender consumed half of a fifty-dollar supply of speed and a couple of cones of cannabis. The victim also consumed some amphetamines and speed.
In the early hours of the morning on Saturday 25 February 2006 a verbal argument developed between the offender and the victim. During the argument the offender punched the victim several times to the head with a closed fist. As a result of the blows the victim lost consciousness. At the time of the assault the victim was sitting on the lounge in the lounge room.
Around the time that the victim was being punched by the offender, the victim scratched the offender on the cheek. The scratch was minor and in no way provoked the offender.
Shortly before 5am, about the time that the victim lost consciousness, the offender dialled 000. He was given directions to perform CPR by the operator and did so. He was not able to restart the victim’s breathing.
Ambulance officers arrived at 4.57am. The victim was unconscious, not breathing and had no pulse. The offender made admissions to the Ambulance officers that he had punched the victim in the head numerous times. The officers then called the police. The Ambulance officers were able to restore the victim’s pulse and transported her to Liverpool Hospital, arriving at 5.35am.
Sgt Brendan Bernie and Cst Kim Shepherd arrived at the scene at 5.18am. Sgt Bernie introduced himself and asked the offender what had happened. The offender admitted that he punched the victim ‘about four times’. He was then arrested and cautioned. Sgt Bernie asked where the assault occurred. The offender stood up and walked over to the two seat lounge opposite the television screen. He pointed to the headrest section of the lounge and said ‘She was laying, her head was there, and I was punching her.’
Sgt Bernie then removed a voice recorder from the police vehicle and, with the knowledge and consent of the offender, interviewed him.
The offender was arrested and taken to Green Valley Police Station. He participated in an ERISP interview and made admissions to assaulting the victim.
In the afternoon of 25 February 2006 the victim was pronounced dead at Liverpool Hospital.
A post-mortem was conducted. It was found that the direct cause of death was a traumatic basal subarachnoid haemorrhage.
The offender is not able to say whether the performance of CPR on the victim, by the offender under instruction, in any way contributed to the death of the victim.”

5 His Honour noted that in addition to the agreed statement of facts there had been tendered in evidence a transcript of the interview between the applicant and the police, and a transcript of the applicant's call to the 000 emergency service, and a statement made by the applicant in connection with the proceedings. His Honour observed that the applicant had given different estimates to different people as to the number of times he had struck the deceased. His Honour concluded that nothing turned on this, and that, "What matters is that however many times he punched that unfortunate woman he did so with such severity as to cause her death."

6 His Honour found that the assault was spontaneous and brief, and that at the time of it the applicant was significantly affected by alcohol and drugs. This contributed to his actions, and provided some explanation for them, although it did not excuse them.

7 The relationship between the applicant and the deceased was characterised by jealousy, each party had suspected the other of infidelity. There had been an obsessive quality to the relationship particularly on the applicant's behalf, and there had been many arguments. However, the applicant had not previously struck the deceased, although he had acknowledged to the Probation and Parole Officer that on a few occasions he may have pushed her. The argument that gave rise to the fatal assault arose in the context of the jealous relationship. The deceased had accused the applicant of intimacy with a woman with whom he had previously been involved.

8 His Honour found that the applicant was remorseful for his actions from the time he spoke with the emergency line operator to the time of sentence.

9 His Honour turned next to the applicant's subjective case; noting that the applicant was aged 44 years. He had a minor criminal record, but he had not previously been in custody. Significantly, he had no record for offences of violence.

10 The applicant had a satisfactory upbringing. He left school after Year 9, and had been consistently in employment since that time. The applicant's parents and one of his siblings attested to the applicant as being a responsible citizen; not known for violence; and that the offence was uncharacteristic. The applicant enjoyed his family's continuing support. The applicant had been in a long-term relationship prior to his relationship with the deceased, and he had a son by that relationship. A statement from his former partner also attested to his good character, and to the absence of any violence in that relationship.

11 His Honour found that the applicant's life had been marred by his substance abuse. This issue was addressed in the pre-sentence report, and in a report prepared by Dr John Roberts, a psychiatrist. The applicant had used illicit drugs since his late teenage years starting with cannabis, but progressing to amphetamines. He had consistently drunk alcohol, although normally not to excess. His consumption of alcohol would increase markedly with the use of amphetamines.

12 His Honour sentenced the applicant on the basis that this was manslaughter by unlawful and dangerous act. The act was one carried out without intent to kill, or to do grievous bodily harm. It occurred in circumstances in which there had been no violence of significance in the applicant's relationship with the deceased, or in his life generally. The conduct was entirely out of character.

13 His Honour went on to say:

“[16] I take into account his plea of guilty to manslaughter, although I do not find it necessary to quantify the leniency which that has earned him. He is also entitled to consideration for his prompt admissions to ambulance officers and police, for his obvious remorse, and for the fact that he has never done other than accept full responsibility for his crime.”

14 His Honour found that the applicant's prospects of rehabilitation were good, and that it was unlikely that the respondent would ever re-offend in any violent way. He found special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which justified a departure from the statutory proportion between the sentence and the non-parole period: this was to be the applicant's first experience of custody, and it was desirable that he continue to address the issue of his substance abuse on release.

15 His Honour was referred, in the course of submissions, to a number of cases dealing with manslaughter offences in a domestic context. He said this:

“[20] Like all sentence matters, those two cases turned on their own facts. I do not find them of any real assistance in resolving the present case. The breadth of the discretion in sentence for manslaughter, given the wide variety of circumstances in which that crime can be committed, has frequently been recognised in the authorities: see, for example, R v Forbes (2005) 160 A Crim R 1, per Spigelman CJ at [133] – [135] and Hall J at [190]. I must do the best I can to arrive at a sentence which reflects current standards, marking the offender’s criminality but extending to him the measure of leniency which he deserves. That sentence, I have decided, should be imprisonment for six years with a non-parole period of three-and-a-half years. He has been in custody since his arrest on 25 February 2006.

16 One ground of appeal was filed in support of the applicant's appeal:

"In all the circumstances of the applicant's case, the sentence imposed upon him is excessive, and above the discretionary range available, having regard to the relevant features of the case for the purpose of assessing an appropriate sentence."

17 Mr Steirn SC, who appeared on the hearing of the appeal, sought leave to rely on an additional ground:

“That his Honour erred in failing to give the applicant adequate credit for the full and detailed admissions and concessions about the circumstances of the death of the deceased, without which the prosecution would not have had sufficient evidence to establish the charge of manslaughter.”

18 The applicant was given leave to rely on the additional ground of appeal. Submissions had earlier been filed in support of the application by Mr Byrne SC, and Mr Steirn relied on those submissions, together with the additional oral submissions which he made on the hearing in support of the two grounds.

19 Turning to the second ground first, in Mr Steirn's submission his Honour erred in that he failed to give the applicant the benefit of a discount, reflecting the principle explained by Street CJ in R v Ellis (1986) 6 NSWLR 603. Mr Steirn noted that in the call to the emergency operator the applicant had made no admissions concerning the circumstances in which the deceased had come to lose consciousness. He pointed to the full and frank admissions made by the applicant in the course of his interview with the police. In the absence of these admissions it was submitted that it would have been difficult for the Crown to establish its case.

20 In assessing this submission it is to be noted that at the time of her death the 27 year old deceased was in the applicant's premises, and the only other person present was the applicant. The cause of death was trauma to the head causing a subarachnoid haemorrhage. In developing his submission Mr Steirn pointed out that had the applicant taken a different course, including by removing the deceased's body from the home and disguising the commission of the offence, he might not have been brought to justice.

21 It was against this background that Mr Steirn made the submission that the failure to refer to the principles in Ellis was an error in the exercise of the sentencing discretion. In my opinion had his Honour invoked those principles in the circumstances of this case it would have been a demonstrable error. Mr Steirn also relied on the decision in R v Dodd (1991) 57 A Crim R 349. In that case the respondent gave himself up to police, confessing to having killed a young woman 10 years earlier when he was a juvenile. He pleaded guilty to manslaughter and received a sentence of three years periodic detention, which was the subject of a Crown appeal. It is not necessary to refer to the circumstances, save to note that there was no connection between the respondent and the deceased in Dodd. He came to be sentenced in circumstances that bore relevant similarity to those in Ellis. Cases involving the voluntary disclosure of an otherwise unknown and unsuspected guilt are in a different category to the present. The applicant and the deceased were partners. Her disappearance would be likely to focus attention on him. In the event his call to the 000 line placed him as present at the scene.

22 In this case Hidden J sentenced the applicant acceptance that he was entitled to leniency stemming from matters, which included his remorse; prompt admissions to the ambulance officers and to the police, and his acceptance of full responsibility for his crime. His behaviour in making the admissions was bound up with the finding of remorse. They are inter-related factors which the sentencing judge was required to take into account in determining the appropriate sentence. It is apt, in light of the submissions advanced in support of this ground, to refer to the remarks of Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 228:

“In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.”

23 Ground 2 should be rejected.

24 In the written submissions supporting the ground that contends manifest excess, it was submitted that the sentence should have been at the lower end of the discretionary range for manslaughter. Allied to this was the submission that a sentence of six years should be reserved for cases involving substantial criminality, or offenders who do not advance a strong case in mitigation. It was noted that the sentencing judge may be taken to have had a notional commencing point in the vicinity of 8 years before making allowance for the plea of guilty.

25 It was submitted that a significant number of people receive either non-custodial sentences or sentences other than fulltime imprisonment in the case of conviction for manslaughter. The correctness of that submission was not supported by reference to statistical or other material. In any event, it was acknowledged that a non-custodial sentence would not have been appropriate in the circumstances of this offence.

26 In the written submissions that were adopted by Mr Steirn, a number of features were identified justifying leniency in this case: par 8 (i)-(v). It is not necessary to recite them. It is sufficient to observe that his Honour made explicit reference to each in his remarks on sentence.

27 Considerable emphasis was placed on the absence of the use of a weapon. The evaluation of the seriousness of the offence was a matter for the sentencing judge. Minds might differ about whether a manslaughter committed in a domestic context involving a knife picked up in the heat of anger and used to inflict a single stab wound is necessarily of objectively greater seriousness than one in which death is the result of a number of blows to the head. This was part of the evaluative judgment made by the sentencing judge. No error has been identified in the principles which his Honour applied (save for the question involving the Ellis discount to which I have referred) nor has it been said that he failed to take into account any relevant matter. His assessment of the seriousness of the offence was well open.

28 The maximum sentence for manslaughter is 25 years’ imprisonment.

29 In R v Forbes [2005] NSWCCA 377 Spigelman CJ discussed sentencing for manslaughter offences at [133] and [134]. He commented that the offence is almost unique in its protean character as an offence and went on to refer to the observations of Gleeson CJ in R v Blacklidge (unreported), Court of Criminal Appeal, 12 December 1995:

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances and culpability.”

30 Mr Steirn referred the Court to a number of the cases set out in the Crown’s written submissions. There included KT v R [2008] NSWCCA 51; a case involving the sentencing of a juvenile in which McClellan CJ at CL reviewed a number of sentences for manslaughter by unlawful and dangerous act: at [36]. It is sufficient to observe that that review does not support the contention that the present sentence is manifestly excessive.

31 Reference was also made to the decisions in R v Risteski [1999] NSWSC 1248, manslaughter involving the infliction of a single blow to the side of the neck, which resulted in death during a brawl at a casino after a televised soccer match. The 22-year-old offender pleaded guilty and was sentenced to a term comprising a three and a half year minimum term with an additional term of two years.

32 In R v O'Hare [2003] NSWSC 652, Whealy J sentenced the offender to a non-parole period of three and a half years with a balance of term of two and a half years after allowing a 20 per cent discount for the plea of guilty. The offender in that case was a person of good character aged 22 years. The offence involved a single punch to the head which caused the deceased to fall backwards and to crack his head on concrete. There had been an exchange of words between the two before the blow. The offender was affected by alcohol at the time.

33 None of the cases to which Mr Steirn referred supported the challenge advanced in ground 1.

34 In Markarian v The Queen [2005] HCA 25; 328 CLR 357 in their joint reasons Gleeson CJ, Gummow, Hayne and Callinan JJ emphasised the discretionary nature of the sentencing judgment (at 371, [27]) and again stated that there is no single correct sentence, and that judges are to be allowed as much flexibility in sentencing as is cognizant with consistency of approach and as accords with the statutory regime that applies.

35 In my opinion the challenge of manifest excess cannot be sustained. For these reasons the orders that I propose are:

ORDERS

1. Grant leave to appeal.

2. Dismiss the appeal.

36 BLANCH J: I agree.

37 HALL J: I also agree.

38 BELL JA: The orders of the Court will be the orders that I have proposed. The applicant may be returned to his custody.

oOo