The Queen v Kolosovs, L.M

[1994] FCA 830

THE QUEEN v. LISA MAREE KOLOSOVS
No. ACT G38 of 1994
FED No. 830/94
Number of pages - 6
Criminal Law - Manslaughter
(1994) 75 A Crim R 265

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
BLACK CJ, GALLOP AND MATHEWS JJ

CATCHWORDS

Criminal Law - Crown appeal against leniency of sentence for manslaughter - assessment of the prisoner's culpability by reference to intention to cause grievous bodily harm or advertence thereto - whether appropriate and necessary

Manslaughter - range of sentences available

The Queen v Papazisis and Bird (1991) 51 A Crim R 242
Withers (1925) SR(NSW) 382
William Davey (1980) 2 A Crim R 254

HEARING

CANBERRA, 3 November 1994
#DATE 8:11:1994

Counsel for the Appellant: Mr M. Adams QC and

Mr A. Robertson

Solicitor for the Appellant: Director of Public Prosecutions

(ACT)

Counsel for the Respondent: Mr B. Salmon QC and

Mr T. O'Donnell

Solicitor for the Respondent: Legal Aid Office (ACT)

ORDER

The Court orders that:<:

(1) The appeal be allowed.

(2) The sentence imposed be set aside and in substitution therefor the respondent be sentenced to imprisonment for seven years' and that a non-parole period of three years, six months be fixed.

(3) The head sentence and non-parole period date from 18 May 1994.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BLACK CJ, GALLOP AND MATHEWS JJ This is a Crown appeal against the sentence imposed by Miles CJ on 19 May 1994 in respect of the respondent's conviction for manslaughter. The sentence imposed was four years' imprisonment with a non-parole period of two years to date from 18 May 1994.

1. On 18 May 1994 the respondent was arraigned on an indictment charging her with one count of murder at Canberra on 4 December 1993. Upon her arraignment the respondent pleaded not guilty. A jury was empanelled and the trial commenced. On the second day of the trial the respondent pleaded guilty to manslaughter and the Crown accepted that plea in full discharge of the indictment. By direction the jury then returned a verdict of not guilty of murder but guilty of manslaughter. They were then discharged as a jury. A conviction for manslaughter was recorded and the sentence imposed.

2. The facts giving rise to the offence as found by the sentencing judge were:
   

"The offender and the deceased were amongst those in attendance at the Cocktails nightclub in Phillip on the night of 3 and 4 December 1993.

The deceased was, in fact, a regular customer. She had come with a girlfriend at about 10.30 and the two of them met a couple of young men whom they knew, they drank and danced together. The offender, who had turned 18 on 11 August 1993, attended with a group of young women of similar age. They had previously been to a bar and a hotel in Queanbeyan. When they got to the nightclub they also drank and danced. There does not appear to have been any communication between the two groups until some time later after the offender and her friends arrived when the offender complained to her friend Brenda Christensen that the deceased had bumped her on the dance floor.

The dancing resumed and about that time the deceased's friend went off to the toilet. Whilst she was away an incident occurred on the dance floor. The deceased bumped the offender again, possibly twice. The offender pushed the deceased. The offender also remonstrated verbally and the two began abusing each other and trading insults. The deceased suggested that they settle their differences outside and they both left the dance floor. The deceased headed for the stairs followed by the offender. As the deceased passed where the doorman, Mr Towney, was seated at the top of the stairs she put a beer glass and bottle down on his table.

The deceased went down the stairs and out into the street followed by the offender a few steps behind at the most. They both passed out of Mr Towney's view and at this stage a number of other people pursued the two young women down the stairs. The order of progression is unclear and may not matter a great deal. It is likely that Mr Towney and Mr Caggiano, the proprietor, were first on the scene closely followed by Mr Hutchinson, a friend of the deceased, and a group of the friends of the offender. The spectators, or some of them, saw the two young women in the street fighting for a very short period of time estimated by Mr Towney to be no more than ten seconds. The fight may have started just before the spectators arrived. It may have commenced just after and that is an issue to which I will return. At any rate, the spectators saw the two young women swinging their arms in the direction of each other. Some of the blows of - directed in the - towards the deceased appeared to glance off her body. The deceased called out, 'She's got a knife' and some present observed a knife in the hands or in one of the hands of the offender and appearing to protrude from her fist. Mr Caggiano moved in to try to disarm the offender. As he did so the deceased collapsed on to the ground. Mr Hutchinson tried to catch her but fell over as well. Mr Caggiano persuaded the offender to give him the knife.

She ignored several requests for her to do so before he relieved her of it. Before she gave up the knife the offender said to her friend Brenda Christensen, 'I think I've stabbed someone.' Mr Caggiano, in effect, overpowered the offender and took her upstairs. An ambulance arrived within five or 10 minutes and police arrived shortly after, or indeed almost at the same time. The deceased appeared clinically dead to the ambulance officer and efforts to resuscitate her were unsuccessful. She was pronounced dead on arrival at Woden Valley Hospital shortly after 2 am."

1. Medical evidence established that there were three stabbing wounds to the upper body. The fatal wound was to the chest and penetrated the heart. The respondent had gone to the nightclub with the knife in a small pouch attached to a belt. She said in evidence and to the police that she took it with her to protect herself when walking in the dark near her home. His Honour did not accept that she had the knife with her to protect herself. Nor was his Honour persuaded that the respondent had expressed contrition, although he noted that the plea of guilty on the second day of the trial was consistent with contrition but did not necessarily reflect it. Also his Honour found difficulty in accepting the respondent's account, given both to the police and in evidence at the sentencing stage, that she had no memory of the knife penetrating the body of the deceased.

2. By an amendment to the Crimes Act 1900 in its Application to the Australian Capital Territory effective on 15 June 1990, murder is restricted to an act or omission done or omitted with intent to cause death or with reckless indifference to the probability of causing death. In the Territory murder no longer includes an act causing death where the act is intended to cause grievous bodily harm only, whereas in other parts of Australia it does. His Honour found that the respondent's acts were of great seriousness, resulting in the unjustified loss of a human life. He found it unnecessary and undesirable to be more specific in relation to the categories of mental state such as intent and recklessness. We shall return to this subject because it is the central matter in this appeal.

3. His Honour then turned to the subjective features. The respondent was brought up as an only child in Queanbeyan by a single parent. She described herself to a probation officer as a school bully. She began drinking alcohol at the age of 12 and was using heroin at the age of 15. She acknowledged that she had an alcohol and drug problem. She was placed on a methadone program in early 1993.

4. On the day of the offence she went to see her probation officer, who stated that she was tearful and stressed by the fact that she lacked money for transport to the Woden Valley Hospital to get her methadone dose. Apparently the problem was sorted out and she got to the hospital for her methadone just before the clinic closed. That was some hours before she went out with her friends to the bar and tavern in Queanbeyan.

5. Since she left school she has had some success in her endeavours in employment but they have come to an end either because of her personality or her drug habits.

6. She was convicted in the Queanbeyan Local Court on 21 December 1993 for an offence of assault occasioning actual bodily harm committed on 5 October 1993 and was sentenced to imprisonment for one month. On the same day she was sentenced to imprisonment for a number of other offences, mostly for possession and drug abuse and goods in custody. A total term of three months' imprisonment was imposed and all sentences are the subject of appeals to the District Court.

7. The offence of aggravated assault committed on 5 October 1993 was committed in circumstances not entirely dissimilar to those in the case now under consideration. In the Queanbeyan matter she and a co-offender followed a female victim out of an hotel. The co-offender knocked the victim to the ground and the two of them set about attacking the victim, punching and kicking her in the head and face. She has another conviction for possession of an unlicensed firearm, recorded in the Queanbeyan Local Court on 11 April 1994 for which she was fined $700.

8. His Honour noted that while she was on bail for the aggravated assault in Queanbeyan she committed the offence of manslaughter, and while she was on bail to stand trial for that offence in the Supreme Court of the Australian Capital Territory, she committed the firearm offence. His Honour concluded that the respondent presents a danger to the community. He took into account her age and the support she had received from some quarters in the community, and the prospects of rehabilitation, noting how ironic it was that the Australian Capital Territory is obliged to accept the responsibility for the rehabilitation of the respondent who had hitherto had very little connection with the Territory. He then imposed the sentence referred to above.

9. It was submitted on the hearing of this appeal that the sentence is manifestly inadequate, that the evidence justified a finding beyond reasonable doubt that the injury causing death was inflicted with the intention to cause grievous bodily harm, or at least with advertence to the probability that such harm was likely, and that, accordingly, the offence was of the more serious, although not the most serious, class of manslaughter.

10. It was submitted that his Honour should have categorised the respondent's offence by reference to her intention to cause grievous bodily harm, or at least with advertence thereto, and that as he did not do so the head sentence and non-parole period do not, in the circumstances, reflect a sentence of the more serious category of manslaughter.

11. Manslaughter is a crime which attracts a wide range of sentences, perhaps a wider range than any other crime. The reason for this is simply that the circumstances in which the crime is committed can vary infinitely. Nevertheless, there are distinct categories of manslaughter within which varying patterns of factual situations may be identified (The Queen v Papazisis and Bird (1991) 51 A Crim R 242 at 245).

12. Street CJ had made similar observations many years earlier when considering the penalty for an offence of manslaughter in Withers (1925) SR(NSW) 382, at p 394:
    

"There is no offence in which the permissible degrees of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty."

That passage was cited by Muirhead J, as a member of a Full Court of this Court, in William Davey (1980) 2 A Crim R 254 at 258 and Muirhead J went on to say:

"This remains true today in the Northern Territory and offences embraced under the umbrella of manslaughter may range from events involving culpable negligence to situations where one may consider the margin between murder and manslaughter is a fine one."

1. Contrary to the submissions on behalf of the respondent, this offence was not, on any view, one of excessive self-defence or one involving any element of self-defence. The knife was at no stage carried by the victim. The victim was not armed with any weapon. The knife was produced by the respondent and deliberately used in an unlawful and dangerous assault resulting in the victim's death.

2. When giving evidence before the sentencing judge after her plea of guilty, the respondent said that, having been challenged, she did not hesitate to go outside to have a fight with the victim. She had no reason to suppose that she would not be able to handle herself quite well in the fight and that she would be able to take the victim on quite easily. As she went downstairs she was thinking about the fight. She remembered opening her bag, taking out the knife and opening the blade, but she did not recall actually using the knife. As we have already observed, his Honour did not believe her claim of not remembering using the knife in the fight. He found that the stabbing was a deliberate act on her part.

3. She may not have initiated the fight with the victim, but she willingly accepted the victim's challenge to fight and consciously took the knife into the fight. We agree with the submission on behalf of the Crown that the offence itself falls within the more serious category of manslaughter because on the evidence a finding that the respondent intended to inflict grievous bodily harm, or at least adverted to the probability that such harm was likely, would have been inevitable if his Honour had accepted the Crown's submission to make a finding to that effect.

4. His Honour did not think it appropriate to make that finding because he thought it unnecessary and, if made, would adversely affect the respondent by stigmatising her as a murderer if she had done what she did elsewhere in Australia, in particular if she had done it in New South Wales.

5. We do not think that his Honour can be criticised for approaching the matter in that way. The important matter in the sentencing exercise was to make an assessment of the respondent's culpability and his Honour appears to have done that by concluding that her acts were of great seriousness. Nevertheless, we are of the opinion that the sentence imposed is manifestly inadequate. It does not reflect the seriousness of the offence.

6. So far as mitigation is concerned, there is nothing about the facts of the offence which call for any mitigation of what would otherwise be an appropriate sentence for an offence of manslaughter of the more serious category. In relation to the subjective factors, the only circumstances giving rise to any mitigation of sentence are the respondent's youth, family background and her plea of guilty in response to a Crown offer to accept a plea of guilty to manslaughter at the end of the first day of the trial.

7. In all the circumstances we have come to the firm conclusion that the appeal must be allowed because the sentence is manifestly inadequate.

8. We allow the appeal, set aside the sentence imposed and substitute therefor a sentence of seven years' imprisonment. We fix a non-parole period of three years, six months. Both the head sentence and the non-parole period will date from 18 May 1994.