Thrupp v The King - [2022] SASCA 97

Supreme Court of South Australia
(Court of Appeal: Criminal)
THRUPP v THE KING
[2022] SASCA 97
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Auxiliary Justice Buss)
12 September 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Following a trial before a jury, the appellant was found guilty of manslaughter. On 11 February 2022, the sentencing judge sentenced the appellant to a term of imprisonment of nine years and fixed a non-parole period of seven years, two months and 13 days.
The appellant appeals against his sentence on the sole ground that the sentence was manifestly excessive.
Held (the Court) granting permission to appeal but dismissing the appeal:
1. The sentence was not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 13; Sentencing Act 2017 (SA) s 47, referred to.
Barbaro v The Queen (2014) 253 CLR 58; Cheung v The Queen (2001) 209 CLR 1; Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Markarian v The Queen (2006) 228 CLR 357; R v Dawes [2004] NSWCCA 363; R v Forbes (2005) 160 A Crim R 1; R v Lavender (2005) 222 CLR 67; R v Piotrowski (1990) 156 LSJS 254; R v Wheeler [2015] SASCFC 83, considered.

THRUPP v THE KING
[2022] SASCA 97
Court of Appeal – Criminal: Livesey P, Doyle JA and Buss AJA
THE COURT (ex tempore):
Introduction

This is an application for permission to appeal against sentence imposed for manslaughter by unlawful and dangerous act, for which the maximum penalty was imprisonment for life; see s 13 of the Criminal Law Consolidation Act 1935 (SA).
The appellant had been charged with the murder of Mr Steven Hinrichsen, along with two co-accused. Following a trial before a jury, the jury found the two co-accused guilty of murder but acquitted the appellant of murder and found him instead guilty of manslaughter.
The sentencing judge sentenced the appellant to a term of imprisonment for nine years and her Honour fixed a non-parole period of seven years, two months and 13 days.[1] The head sentence was backdated to commence on 15 December 2018, when the appellant was taken into custody.
[1] Because the offending was a “serious offence against a person” s 47 required that her Honour fix a non-parole period of at least four-fifths of the head sentence: see particularly s 47(5)(d) of the Sentencing Act 2017 (SA).
The sole proposed ground of appeal is that the sentence was manifestly excessive. For the reasons that follow, permission to appeal should be granted but the appeal dismissed.
The circumstances of the offending
One of the co-accused, Ms Tanya Hinrichsen, had been married to the deceased since 2004. They had three daughters, all of whom had been removed from their care. Ms Hinrichsen was the deceased’s carer. The deceased suffered from several illnesses and was confined to a wheelchair. Ms Hinrichsen commenced a new relationship with the other co-accused, Mr Gavin Skinner. By the end of 2018, Ms Hinrichsen regarded her relationship with the deceased as an impediment to her new relationship with Mr Skinner.
During November 2018, Mr Skinner twice assaulted the deceased in his home. The appellant learned of at least one of these earlier assaults and knew of the significant animosity between the co-accused and the deceased.
In the early hours of 15 December 2018, Ms Hinrichsen, Mr Skinner and the appellant travelled to the deceased’s home. The deceased was present and awake but heavily sedated. Mr Skinner taunted and abused the deceased before all three left. Some hours later, Mr Skinner and the appellant walked back to the deceased’s home at which stage Mr Skinner murdered the deceased.
Because the jury’s verdict was inscrutable, it was necessary for the sentencing judge to make factual findings regarding the appellant’s role in the unlawful homicide.[2] The sentencing judge sentenced for the offence of unlawful and dangerous act manslaughter on the following basis:
You were party to an agreement with Gavin Skinner to commit an assault on the deceased. You participated in that agreement by going to the deceased’s home that night and being present with Gavin Skinner while he inflicted the fatal wounds to the deceased, intending to lend support to Gavin Skinner should that be required.
However, on the evidence, I am not satisfied that you inflicted any of the wounds to the deceased.
[2] Cheung v The Queen (2001) 209 CLR 1, [55] (Gleeson CJ, Gummow and Hayne JJ).
The appellant was sentenced on the basis that he was party to an agreement or contemplated that the deceased may be subjected to serious injury, but not death or grievous bodily harm. Nonetheless, the sentencing judge found that the injuries to the deceased were consistent with no less than 65 applications of force, resulting in around 50 wounds to the head and body, including defensive wounds to the legs and arms. A bloodstained knife was found secreted behind the stove. The sentencing judge described what occurred as a “brutal and violent attack on a man who was partially incapacitated”. It will be recalled that the deceased was confined to a wheelchair and sedated by medication when attacked.
Following the murder, the appellant and Mr Skinner walked back to their premises where Ms Hinrichsen was sleeping.
The circumstances of the offender
At the time of sentence, the appellant was 48 years. Although the appellant had a close and loving relationship with his mother and a good relationship with his stepfather, their relationship ended when the appellant was around 12 and this led to a strained relationship with the new husband. The appellant’s relationship with his mother deteriorated.
The appellant had had several relationships. At the age of 19, he commenced a de facto relationship which lasted for around 16 years. There were three children born to that relationship and the appellant raised his domestic partner’s son from a previous relationship as his own.
In 2010, the appellant commenced a new relationship which lasted for nearly eight years. After that relationship broke down in early 2018, the appellant commenced leading a semi-transient life. At that stage, the appellant became more reliant on illicit drugs.
The appellant has been employed as a salesman, a casual employee on a production line, a seasonal grape picker, a shopfitter and an industrial cleaner. The appellant was unemployed throughout 2018.
Since remand in custody, the appellant had been prescribed antidepressants.
The appellant had prior convictions for building breaking and felony as a youth, as well as convictions for possessing cannabis and various driving offences. The sentencing judge regarded these as being of limited relevance to sentence.
A psychological report from Dr Lim dated 28 January 2022 set out a diagnosis of cannabis use disorder as well as severe, stimulant methamphetamine use disorder and substance abuse mood disorder. At the time of the offending, the appellant’s symptoms of depression were likely exacerbated by unstable living conditions, chronic unemployment and ongoing distress following a breakdown of a long-term relationship.
Dr Lim described several antisocial features to the appellant’s personality and predominant antisocial traits characterised by irresponsibility, egocentricity, poor emotional regulation and the propensity to disregard social and legal norms.
These were regarded by Dr Lim as some of the main contributing factors in respect of the appellant’s offending.
The appellant was described as being at low risk of reoffending. That, however, may change following release from prison. Dr Lim recommended referral to the Violence Prevention Program as well as participation in a substance use rehabilitation program. These were intended by Dr Lim to help the appellant with relapse prevention and emotional coping strategies before release on parole.
The offence of manslaughter
In R v Dawes, Dunford J explained that manslaughter is “always a most serious offence”:[3]
Manslaughter, whatever form it takes, constitutes unlawful homicide. It is always a most serious offence as it involved the taking of another human life and it is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it. All human life is to be protected including that of the disabled, the handicapped, the criminal, the derelict and the friendless.
[3] R v Dawes [2004] NSWCCA 363, [31] (Dunford J, with whom Hoeben J agreed).
In R v Forbes, Spigelman CJ emphasised the “almost unique” and protean character of manslaughter:[4]
As has frequently been stated, manslaughter is almost unique in its protean character as an offence. … In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder (R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]).
It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.
[4] R v Forbes (2005) 160 A Crim R 1, [133]-[134] (Spigelman CJ, with whom McClellan CJ at CL agreed).
The maximum penalty, here life imprisonment, is relevant to the assessment of any sentence imposed.[5] The High Court has emphasised that the penalty range in manslaughter cases reflects the “widest range of possible sentences”:[6]
For more than a hundred years, judges in all Australian jurisdictions, and in England, have observed that, of all serious offences, manslaughter attracts the widest range of possible sentences. The culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder or, …, it may be such that a nominal penalty would suffice.
[5] Markarian v The Queen (2006) 228 CLR 357, [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[6] R v Lavender (2005) 222 CLR 67, [22] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Because the spectrum of culpability for this offence is so wide, it is difficult to point to sentences in other cases as providing any real yardstick against which to examine a proposed sentence or a sentence which has been imposed.[7]
[7] R v Wheeler [2015] SASCFC 83, [31]-[33] (Stanley J, with whom Gray and Peek JJ agreed).
The appellant’s contentions
The complaint of manifest excess emphasises the following features of this case:[8]
1.There was no animus between the appellant and the deceased.
2.There was no evidence that the appellant went inside the premises.
3.Mr Skinner inflicted all of the deceased’s injuries.
4.The appellant’s prior convictions were of limited relevance.
[8] See Dinsdale v The Queen (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J); Hili v The Queen (2010) 242 CLR 520, [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) and, generally, House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
The appellant submits that the sentence which was imposed did not reflect that the appellant’s conduct was limited to attending, intending to take part by agreement to commit an assault only if required, and without any contemplation that Mr Skinner would commit any acts intending to cause death or grievous bodily harm.
Determination of the appeal
Two preliminary points may be made about the approach to sentence in this case of manslaughter.
First, there is no sentencing standard for manslaughter because of the great variation that occurs in the circumstances of the offending and the offenders. The range of potential aggravating and mitigating features is substantial. However, in deciding upon a sentence for manslaughter, it is important to know what sentences are imposed in similar circumstances to obviate any risk that sentencing for manslaughter may become idiosyncratic or arbitrary. The sentencing judge must formulate the sentence in a particular case having regard to the individual circumstances of the offending and the offender and all other relevant sentencing factors, including the maximum penalty and, to the extent they are of any assistance, sentences customarily imposed in similar circumstances.
Secondly, we have considered numerous previous sentencing decisions for manslaughter. It is unnecessary to recount the facts and circumstances of those previous cases or the sentences imposed. There are some comparable features between some of those cases and the present case, but there are also distinguishing features.
Whilst the role of the appellant was in this case peripheral, he agreed to participate in a planned physical attack, knowing that it was intended to cause harm to a man who was vulnerable to the point of being helpless. The appellant’s role in that joint enterprise was, essentially, to provide support if necessary. The appellant was prepared to provide that support knowing that the deceased had previously been assaulted by Mr Skinner. This was not a case involving an agreement or contemplation of an assault that arose spontaneously with the assault; rather it was an agreement or contemplation that arose while walking to the deceased’s home and while Mr Skinner was putting on gloves.
The appellant has emphasised those aspects of his conduct which differentiated his involvement from that of Mr Skinner. His penalty nonetheless needed to reflect that his crime, like every manslaughter case, resulted in the loss of a human life.[9] When told of the death, the appellant was heard to say “every dog has his day” and later, when interviewed by police, he denied having attended at the deceased’s home with Mr Skinner. The sentencing judge found, correctly, that it was difficult to give any weight to the appellant’s later expression of remorse.
[9] R v Hill (1981) 3 A Crim R 397, 402 (Street CJ, with whom Nagle CJ at CL and Lee J agreed).
The High Court has emphasised that there will be no error in the exercise of the sentencing discretion where the sentence, even if high within the available range, is nonetheless neither unreasonable nor plainly unjust.[10]
[10] House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ); Dinsdale v The Queen (2000) 202 CLR 321, [6] (Gleeson CJ and Hayne J).
Given the nature of the offending, the vulnerable position of the victim and the importance of both specific and general deterrence in this case, it cannot be said that the sentence which was imposed is manifestly excessive.
Conclusion
In all of these circumstances, permission to appeal should be granted but the appeal dismissed.