Urlich v The Queen
[2019] ACTCA 30
•29 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Urlich v The Queen |
Citation: | [2019] ACTCA 30 |
Hearing Date: | 7 August 2019 |
DecisionDate: | 29 November 2019 |
Before: | Murrell CJ, Loukas-Karlsson and Bromwich JJ |
Decision: | Appeal allowed. Appellant resentenced |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – where appellant convicted of manslaughter – where appellant had made significant admissions in the course of the trial – non-compliance with s 37 of the Crimes (Sentencing) Act 2005 (ACT) – whether specific error – whether sentence was manifestly excessive – whether resentencing warranted |
Legislation Cited: | Crimes Act 1900 (ACT) ss 5, 48 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 35, 35A, 37, 78, 80D, 80J, 117 |
Cases Cited: | Arman v Wall [2008] ACTSC 61 Butler v Vickers [2011] ACTSC 134 R v Graham [2000] NSWSC 1033 R v Hansen [2011] SASCFC 10; 206 A Crim R 54 |
Texts Cited: | Explanatory Statement to the Crimes (Sentencing) Bill 2005 (ACT) ‘Guilty, Your Honour: Recent Legislative Developments on the Guilty Plea Discount and an Australian Capital Territory Case Study on its Operation’ (2014) 35(1) Adelaide Law Review 361 |
Parties: | Milan Urlich (Appellant) The Queen (Respondent) |
Representation: | Counsel R Davies (Appellant) S Drumgold SC (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 62 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 4 October 2018 Case Title: R v Urlich Citation: [2018] ACTSC 345 |
THE COURT
Introduction
Milan Urlich (the appellant) appeals against the sentence of his Honour Justice Burns (the sentencing judge) in R v Urlich [2018] ACTSC 345 (Urlich). The appellant was sentenced for the offence of manslaughter contrary to s 15 of the Crimes Act 1900 (ACT) (Crimes Act), and a transferred offence of improperly interfering with a dead human body contrary to s 48 of the Crimes Act.
On 4 October 2018, the sentencing judge made the following orders:
(a)for the offence of manslaughter, the appellant was sentenced to 10 years' imprisonment, commencing 27 April 2016 and expiring 26 April 2026;
(b)for the transferred offence of interfering with a dead human body, the appellant was sentenced to 12 months' imprisonment, commencing 26 October 2025 and expiring 25 October 2026; and
(c)a non-parole period of 6 years and 10 months' imprisonment was imposed, commencing 27 April 2016 and expiring 26 February 2023.
The overall period of imprisonment was 10 years and 6 months, commencing 27 April 2016 and expiring 25 October 2026 with an overall non-parole period of 6 years and 10 months, expiring 26 February 2023.
Grounds of Appeal
In the Notice of Appeal filed on 31 October 2018, the appellant relied on the following grounds of appeal:
(a)the sentencing judge erred in determining the facts for the sentencing process; and
(b)the aggregate sentence was manifestly excessive in all the circumstances.
Prior to the hearing of the appeal, the appellant abandoned the ground of appeal outlined at [4(a)] above.
In the course of the hearing on 7 August 2019, leave was granted for the appellant to amend the Notice of Appeal. On 12 August 2019, an amended Notice of Appeal was filed which included the following additional ground:
…
(c) The learned sentencing judge either failed to impose a lesser penalty for the appellant’s assistance in the administration of justice or if he did, he failed to state the penalty he would otherwise have imposed but for the appellant’s assistance in the administration of justice, as required by Section 37 of the Crimes (Sentencing) Act 2005.
The trial
The appellant was tried before a jury on an indictment dated 19 April 2017 which charged him with the murder of Mr Andrew Carville on the evening of 4 November 2015.
On 31 May 2018, the third day of the trial, an agreement as to facts was made pursuant to s 191 of the Evidence Act 2011 (ACT) which relevantly included the following:
(a)on 4 November 2015, at approximately 10:30pm, the appellant caused the death of Mr Carville;
(b)the appellant then wrapped the body of Mr Carville in a mattress protector, blue bath towel and floor rug and placed it on the tray of his Toyota Landcruiser utility;
(c)the appellant then drove his utility to 855 Sutton Road and left the vehicle there with the body of Mr Carville on the tray still wrapped in the rug;
(d)at about 11:45am on 5 November 2015, the appellant took a Ford Econovan belonging to an Andreas Bulba from the Australian War Memorial carpark;
(e)on the morning of 14 November 2015, the appellant returned to his Toyota Landcruiser at 855 Sutton Road, removed the body of Mr Carville and placed it in the location where it was later discovered; and
(f)the appellant drove his Toyota Landcruiser to the location where it was later set on fire.
It was the Crown’s case that the death of Mr Carville occurred as a result of strangulation, specifically, the appellant “gripping his throat in a pincer-like action which caused damage to his hyoid bone and thyroid cartilage”. However, it was the appellant’s account that the victim had attacked him with a knife, and that he acted in self-defence by placing the victim in an ‘arm-lock’ or ‘choke-hold’ in the course of which the victim died: Urlich at [5].
10. Also on 31 May 2018, a representation was made by the appellant’s counsel to the Crown in the manner described below by the appellant’s counsel in the sentence proceedings on 22 August 2018 (T 11.17-43):
I should indicate that on the morning of day three, I made an oral representation at the bar table to my learned friend’s leader as to whether a plea to manslaughter would be accepted. That was on the basis of pressure to the neck but not in the way as described in the Crown case
…
It was put to my learned friend’s leader that it be on the basis of something – pressure to the neck, not in the form of a choke-hold, but ultimately the discussions were short on the basis that my learned friend’s leader decided that he would progress with his case theory, that is that the mechanism of injury to the neck being by the pincer movement.
11. Following the 13-day trial, the appellant was acquitted of the murder of Mr Carville, but was found guilty of the alternative charge of manslaughter.
12. On 22 August 2018, the day of sentence hearing, the appellant pleaded guilty to the offence of interfering with a dead human body.
Sentencing disposition
13. In the course of his sentencing remarks the sentencing judge rejected the appellant’s account that he acted in self-defence, having regard to the lack of any prior relationship between the appellant and the victim, lack of motive for the victim to act in such a way, and the evidence of the character and habits of the victim. In his Honour’s opinion, “the jury rejected [the appellant’s] evidence in that regard”: [4].
14. With respect to the manner in which Mr Carville died, the sentencing judge summarised the expert evidence from the pathologists Dr Beng Ong and Dr Malcolm Dodd. His Honour concluded that the expert evidence was inconclusive. His Honour found that it was more probable than not that the injuries had been sustained by gripping the victim’s throat in a pincer-like action, but he was not satisfied of that finding to the standard of beyond a reasonable doubt. Nor was his Honour satisfied beyond a reasonable doubt that the injuries to the victim’s throat had been sustained before the victim’s death. His Honour concluded at [10]:
In the absence of truthful and reliable evidence from you about what occurred between yourself and the deceased in his house on 4 November 2015, I cannot make any finding of any greater particularity than that you deliberately applied pressure to the neck of the deceased with sufficient force and for a sufficient period to cause his death.
15. The sentencing judge also rejected the appellant’s account that he had attempted to revive the victim and concluded that the appellant’s actions suggested he was “not particularly perturbed by his death”: Urlich at [11].
16. His Honour then considered the report of Dr Owen Samuels, a consultant psychiatrist who was asked to prepare a report addressing the application of the principles from R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins). The conclusions of Dr Samuels’ were summarised by the sentencing judge at [24]:
Dr Samuels expressed the opinion that you are suffering from a substance use disorder and a psychotic disorder, namely, schizophrenia. Your predominant symptoms of schizophrenia include auditory hallucinations. You were also described as exhibiting pervasive paranoia and thought disorder. You demonstrated negative symptoms of schizophrenia characterised by your restrictive affect and emotionality and your history was suggestive of psychosocial decline. Dr Samuels believed that you were suffering with symptoms of your psychotic illness at the time of this offence, but he was unable to establish a clear causal link between your positive psychotic symptoms and that of the offence. You denied harbouring any paranoid beliefs about the deceased and told Dr Samuels that your only reason for your actions was self-defence. While you told Dr Samuels that you used methamphetamine on 4 November 2015 he was unable to establish any causal link between the use of that substance and the offence of manslaughter. Dr Samuels was unable to find any evidence that either the positive or negative symptoms of your untreated psychotic illness materially contributed to your committing this offence. Dr Samuels was unable to find evidence to show that you were so impaired that you did not appreciate the wrongfulness of your conduct.
17. The sentencing judge concluded there was no evidence that the diagnoses “contributed to the commission of these offences such as to reduce [the appellant’s] moral culpability”. He concluded the moral culpability was “high”: [26]. His Honour assessed the objective seriousness of the manslaughter offence as “in the upper range of such offences” and the interference offence as “in the mid-range of such offences”: [27].
18. With respect to the admissions and ‘offer’ by the appellant referred to at [8] and [10] above, his Honour noted at [29]:
[Y]ou did very early in your trial make significant admissions which greatly shortened the length of the trial and reduced the number of witnesses which the Crown needed to call. It is difficult to determine to what extent this may reflect remorse on your part, but it certainly indicated a willingness to facilitate the administration of justice. I was informed by your counsel that you offered to plead guilty to a charge of manslaughter on the third day of your trial, but that this was not accepted by the Crown. You certainly did not enter a plea of guilty to manslaughter at any time…
19. The sentencing judge also referred to the Victim Impact Statements tendered at the sentence hearing at [31]:
I take into account in sentencing you the victim impact statements that were tendered by the Crown. They speak of the distress and anguish suffered by the family and friends of Andrew Carville because of his death and the manner of his death. They speak of the deceased as a gentle person who disliked all forms of violence. It is clear that Andrew Carville's death has had a very deep and continuing effect upon his family and friends.
Specific error in relation to the admissions?
Submissions
20. In an assertion of specific error, the appellant submitted that the admissions made by the appellant, referred to at [8] above, warranted consideration and application of ss 35A and 37 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). It was submitted by the appellant that his Honour acknowledged the benefit of the admissions and that they indicated a willingness to facilitate justice. However, it was argued that the fact there was no indication in the sentencing remarks that the penalty had consequently been reduced meant his Honour had not in fact reduced the penalty. Alternatively, it was submitted had his Honour determined not to impose a lesser penalty, this should have been made express along with reasons for not doing so.
21. The appellant provided authority to support his concession that a failure to comply with the terms of s 37 does not invalidate a sentence: Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at [56]-[57] (Cotter); Ross v Mothersole [2010] ACTSC 125 at [67]-[68] (Mothersole); Miles v The Queen [2016] ACTCA 54 at [6]-[7] (Penfold J), [89] Burns and Wigney JJ (Miles).
22. The respondent conceded that the admissions had some utilitarian value in reducing the length of the trial and the number of witnesses to be called but submitted this came at a late stage after significant resources had already been deployed in the matter. The respondent also sought to clarify that, while there was an initial trial estimate of 6 to 8 weeks and a witness list containing 102 names, the reduction to 3 weeks and 70 witnesses respectively was not solely attributable to the admissions of the appellant, but also as a result of the evidence already given by the third day of the trial in respect of ruling out other potential actors.
23. It was accepted by the respondent that s 35A of the Sentencing Act was not referred to by the sentencing judge, but it was submitted that the power is discretionary for a sentencing judge who has the benefit of being across the “nuances” of a particular case. The respondent submitted that the sentencing judge had exercised the discretion not to apply s 35A, s 37 only being enlivened where that discretion is utilised.
The legislation
24. The relevant provisions of the Sentencing Act are set out below:
35A Reduction of sentence—assistance in administration of justice
(1) This section applies if—
(a) an offender is convicted or found guilty of an offence; and
(b) before or after the conviction or finding of guilt, the defence assisted in the administration of justice for the offence.
Example—par (b)
an admission made by the defence pre-trial or during a trial
(2) A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided in the administration of justice.
(3) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(4) For this section, assistance in the administration of justice—
(a) includes a pre-trial disclosure by the defence; but
(b) does not include assistance—
(i) consisting only of a plea of guilty under section 35; or
(ii) given to law enforcement authorities under section 36.
(5) In this section:
defence means—
(a) the offender; or
(b) any lawyer representing the offender
…
37 Reduction of sentence—statement by court about penalty
(1) This section applies if a court imposes a lesser penalty for an offence under section 35 (Reduction of sentence—guilty plea), section 35A (Reduction of sentence—assistance in administration of justice) or section 36 (Reduction of sentence—assistance to law enforcement authorities).
(2) The court must state—
(a) the penalty (including any shorter nonparole period) it would otherwise have imposed; and
(b) if the lesser penalty is imposed under section 35A or section 36—the reason for the imposition of the lesser penalty.
25. That s 37 requires the court to segregate one aspect of an offender’s conduct in the sentencing process has been described as “artificial and quite unsatisfactory”: R v Huat Phay [2009] ACTSC 130 at [26]. Nevertheless, it has been accepted there exists sound policy reasons for its existence: see Butler v Vickers [2011] ACTSC 134 at [84]-[86] (Butler).
26. Relevantly, the Explanatory Statement to the Crimes (Sentencing) Bill 2005 (ACT) provides as follows with respect to the operation of s 37:
Clauses 35 and 36 would be an important means to encourage offenders to plead guilty when appropriate and to cooperate with law enforcement agencies. To give the full-effect to these provisions clause 37 requires the sentencing court to state what the penalty would have been if the offender had not pleaded guilty or cooperated with police, as the case may be.
A consistent record of penalties imposed in sentencing decisions when clauses 35 or 36 apply will greatly assist defence solicitors, prosecution and police to demonstrate the utility of pleading guilty or cooperating with police.
Reductions for facilitating the ‘administration of justice’ in other jurisdictions
27. With respect to s 35A, as Wren and Bartels note in ‘Guilty, Your Honour: Recent Legislative Developments on the Guilty Plea Discount and an Australian Capital Territory Case Study on its Operation’ (2014) 35(1) Adelaide Law Review 361 at 373, s 35A has few direct counterparts in other Australian jurisdictions:
In the Explanatory Memorandum accompanying the Bill, the provision was described as being designed to encourage cooperation between the defence and prosecution, to ensure that a trial is focused on the real issues in dispute. The provision was specifically included to allow an accused to plead not guilty but still facilitate the administration of justice by making disclosures before or during the trial. This additional discount is similar in effect to provisions in New South Wales and Queensland sentencing legislation. The Explanatory Memorandum further indicated that the New South Wales case law regarding the equivalent provision would assist the ACT judiciary in the application of this discount.
28. The New South Wales and Queensland provisions referred to were noted in a footnote as being s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 13A of the Penalties and Sentences Act 1992 (Qld).
New South Wales
29. Section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides as follows:
22A Power to reduce penalties for facilitating the administration of justice
(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).
(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
30. By comparison, s 23 of that Act, regarding assistance to law enforcement, is drafted as follows:
23 Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
…
(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must—
(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and
(b) state the penalty that it would otherwise have imposed, and
(c) where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.
31. Section 23(6) expressly protects a sentence from invalidation if there is non-compliance with s 23(4).
32. In R v XX [2017] NSWCCA 90; 266 A Crim R 132, Beech-Jones J noted at [39] there is “no equivalent” of s 23(4) in s 22A. As to whether a failure to comply with the requirements s 23(4) is itself an error warranting intervention, see the discussion of conflicting authority in R v AA [2017] NSWCCA 84 at [44] and [49].
It appears that in NSW, in the absence of a statutory requirement to do so (as appears in s 23(4)), the failure to quantify a discount under s 22A is not an appealable error. Indeed, there is authority to suggest doing so would be an error.
34. In Cooper v The Queen [2009] NSWCCA 57 Grove J (with whom Blanch and Johnson JJ agreed) held at [82]:
It is contended that his Honour, having noted the application of Div 3 of Pt 3 of the Criminal Procedure Act, gave no discount for the applicant’s compliance and gave no reasons why he was not inclined so to do. His Honour did not state that he was not taking the applicant’s compliance into account in his favour and his inclusion of these observations when referring to mitigation indicates the contrary. He was not obliged to formulate some arithmetical or individually quantified discount and his purpose in mentioning this matter was obviously to include it as a matter of mitigation. The error asserted by this ground has not been demonstrated
(emphasis added).
35. Similarly, in Whyte v The Queen [2019] NSWCCA 218 Simpson AJA makes mention of the sentencing judge not quantifying a s 22A discount, but there was no identification of this being a specific error: [20].
36. In R v Weismantel [2016] NSWCCA 204, R A Hulme J made the following comment at [15]-[17]:
There is one further matter that should not be allowed to pass without comment. R S Hulme AJ has noted that the learned sentencing judge allowed a discount of 15% for the respondent’s facilitation of the administration of justice pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
…
[Q]uantification of the extent to which a mitigating factor has been taken into account is encouraged in relation to pleas of guilty (R v Thomson; R v Houlton (2000) 49 NSWLR 383 ; [2000] NSWCCA 309) and statutorily required in relation to assistance to authorities (s 23 of the Act). It is otherwise regarded as an erroneous engagement in a two-staged approach to sentencing: see most recently Flaherty v R; R v Flaherty [2016] NSWCCA 188 at [76]–[77]. This is not an error upon which the Crown relied (indeed, it acquiesced in the judge’s approach) so aside from making the observation it is otherwise of no moment in determining the outcome
(emphasis added).
37. This statement was cited with approval in Siwek v The Queen [2017] NSWCCA 178 at [13]-[15], in the context of quantifying a discount for a different mitigating factor (repayment of money in the context of offences of appropriating funds), holding it would have been an error for a sentencing judge to have done so.
Queensland
38. The Queensland legislation referred to by Wren and Bartels at [27] above, anticipates a discount for future assistance and provides a scheme for undertakings and resentencing in circumstances where that assistance does not eventuate. As noted in R v MCY [2018] QCA 275 at [74]:
Not only does identifying the sentence which would have been imposed but for the undertaking allow an offender to appreciate the tangible benefit attaching to their promised co-operation; it also provides a tangible incentive to such an offender to adhere to their undertaking, and facilitates the resentencing anticipated by ss 188(2) and 188(4) of the PSA if an offender were to renege on their undertaking.
39. The legislation is not directly analogous in this case.
The ACT position: does non-compliance with s 37 invalidate the sentence?
40. As referred to above at [21], in the course of submissions counsel for the appellant conceded that a failure to comply with the terms of s 37 would not vitiate the sentence imposed.
41. In a number of provisions of the Sentencing Act, express preservation clauses are included such that where there is a failure to comply with a provision, the act is not invalidated. For example, failure to provide reasons for a particular sentence or sentencing option does not invalidate that particular option under ss 10(5), 78(7), 80D(7), 80J(6) or 117(5): see also Wilson v The Queen [2007] ACTCA 25 at [26]-[27]. For discussion of the operation of such preserving provisions with respect to ‘invalid’ sentences see R v Governor of Her Majesty’s Gaol at Pentridge; Ex parte Cusmano [1966] VR 583 at 585-586.
42. In McDonald v Vandervalk (No 1) [2014] ACTSC 67 (Vandervalk) Burns J observed of s 37 at [15]:
Section 37 remains silent as to the consequences for a sentence imposed in the context of a failure to comply with its provisions.
43. As Refshauge J observed in Cotter at [57], having regard to the maxim of expressio unius exclusi alterius est, the absence of an express preservation clause in s 37 might suggest the sentence would be invalidated. However, his Honour, although not deciding the question, tentatively suggested this would not be the case.
44. His Honour reiterated this view in Saga v Reid [2010] ACTSC 59 at [117] (Reid) and in Mothersole at [67]-[68]. Burns J agreed with this view in Vandervalk at [17] as did Murrell CJ in Chatfield v Badman [2015] ACTSC 209 at [17]. Indeed, in Vandervalk, Burns J at [17] considered that the express preservation clause in s 10(5), with respect to the requirement for reasons for a sentence of imprisonment, “should be read to apply to a failure to comply with s 37”.
45. The issue of discounts under s 37 was then considered by the Court of Appeal in Miles. There, referring to pleas of guilty, Burns and Wigney JJ held at [89]:
Failure by a sentencing judge to comply with s 37 of the Sentencing Act does not invalidate the sentence; it is simply a failure to comply with a procedure the object of which is to inform an offender, the prosecution, the community and, on appeal, the appellate court of the reduction in sentence attributable to a plea of guilty, so that the process of sentencing may be better understood. The failure of his Honour was not in failing to take into account the appellant’s pleas; clearly he did. The failure was in not specifying the reduction in sentence he allowed by reason of the pleas. The sentences imposed by his Honour were appropriate, so that no further action on this issue is required.
The ACT position: the nature and effect of the error
46. While not invalidating the sentence, a failure to comply with the terms of the Sentencing Act is not irrelevant on appeal: see s 138. However, whether the failure to comply with the requirements of s 37 is an appealable error has been the subject of some conflicting views.
47. In Reid, in the context of a discount for a guilty plea, Refshauge J stated at [121]:
Certainly, s 37 is an obligation on a sentencer and sentencers should discharge the obligation. If the failure does not invalidate the sentence, it is hard to see how it could be an appellable error, but I do not have to decide that.
48. Subsequently, in Butler, in the context of a discount for a guilty plea, Refshauge ACJ (as his Honour then was) noted at [90] with respect to s 37:
It seems to me that, standing alone, her Honour’s failure to express the discount she said she was providing, may not have amounted to an error justifying appellate intervention, though it was a breach of a well-known obligation on all sentencers and with good policy reasons behind it.
49. By contrast, it has been assumed in a number of other cases that non-compliance with s 37 is a specific error which enlivens the resentencing power: see Mansour v Watkins [2014] ACTSC 361 at [33] (a guilty plea discount); Vandervalk at [26] (a guilty plea discount); Arman v Wall [2008] ACTSC 61 at [26] (a guilty plea discount); JDL v O’Mahony [2011] ACTSC 79 at [35] and [51] (a guilty plea discount); Irwin v Houlihan [2008] ACTSC 90 at [18] (a discount for assistance to law enforcement authorities).
50. Consequently, there were, it appears, two divergent views on this question in this jurisdiction. Most recently, however, the Court of Appeal in R v UG [2018] ACTCA 64; 14 ACTLR 70 (UG) held that non-compliance with s 37, in relation to assistance to law enforcement authorities, was a specific error, noting the policy rationales underpinning the provision at [48]-[49]:
The clear identification of an additional discount supports the public policy of encouraging confessions for the purpose of achieving these outcomes. Greater clarity about the extent of sentencing discounts also supports public confidence in the sentencing process. Of its nature, sentencing is opaque; to the extent that it is possible, transparency is desirable.
The failure to comply with s 37(2) is a specific error of significance.
Conclusion
51. The appellant asserts specific error in that the sentencing judge “failed to impose a lesser penalty for the appellant’s assistance in the administration of justice or if he did, he failed to state the penalty he would otherwise have imposed…as required by s 37 of the Crimes (Sentencing) Act 2005.”
52. The sentencing judge stated the following with respect to the impact of the admissions at [29]:
[Y]ou did very early in your trial make significant admissions which greatly shortened the length of the trial and reduced the number of witnesses which the Crown needed to call. It is difficult to determine to what extent this may reflect remorse on your part, but it certainly indicated a willingness to facilitate the administration of justice.
53. In this case, the sentencing judge did refer to the admissions and their impact on the administration of justice, finding that the length of the trial was greatly shortened and the number of witnesses therefore reduced, and thereby purported to exercise the relevant discretion. In doing so, however, he did not comply with the terms of section 37 and did not state the “penalty [he] would otherwise have imposed”. This is a specific error of significance as underlined in UG.
Manifest excess
54. Because we consider that there was a specific error and the question of resentence is therefore raised, there is no need to decide the ground of manifest excess. Nevertheless, the submissions on this ground will be outlined for completeness as the submissions are also relevant to resentence.
Objective seriousness and moral culpability
55. The first particularisation of the manifest excess ground by the appellant was that the sentencing judge erred in characterising the objective seriousness of the offence of manslaughter as “in the upper range”. It was submitted that features of the offending identified by the sentencing judge were “somewhat commonplace” (T 14.29) for such offences and the assessment by the sentencing judge failed to take into account:
(a)that, in the circumstances of: the conclusion referred to at [14] above, the lack of a motive and the rejection of the appellant’s evidence, there was insufficient evidence for this finding of objective seriousness;
(b)the offending involved no weapon;
(c)there was no premeditation or planning to the manslaughter offence;
(d)there was no evidence that the offence was accompanied by mistreatment of the body “other than the acts of moving it and concealing it”; and
(e)the offences were not committed in company.
56. No issue was taken by the appellant with the conclusion by the sentencing judge that the s 48 offence fell at the “mid-range” of objective seriousness (T 14.18).
57. The appellant also raised in this context the sentencing judge’s discussion of moral culpability. It was submitted that, despite discussion of moral culpability by the sentencing judge in the context of objective seriousness, the former is not to be regarded as an aspect of the latter (T 15.9). Nevertheless, it was submitted that as the appellant was suffering from a substance use disorder and psychotic disorder, the symptoms of which were present during the offending, a finding of high moral culpability was precluded.
58. The appellant noted in particular the sentencing judge’s reference to the conclusion of Dr Samuels outlined at [16] above and raised a further comment of Dr Samuels, specifically his view that:
Notwithstanding this opinion, generically speaking, patients suffering with schizophrenia might exhibit some deficits in social skills, judgment and planning. It could be argued that such deficits may have predisposed Mr Urlich to not thinking through all options available to him at the time. Unfortunately it is not possible for me to say with any degree of certainty exactly how much these, if any at all, might excuse the course of action that Mr Urlich took.
59. It was accepted by the appellant that a finding in mitigation in this respect would need to be established on the balance of probabilities (T 17.7).
60. In the respondent’s submission, the task of the sentencing judge is to determine where the offending lies on a spectrum of conduct: The Queen v Kilic [2016] HCA 48; 259 CLR 256 at [19], which is a discretionary assessment not ordinarily susceptible to interference on appeal: Mulato v The Queen [2006] NSWCCA 282 at [37], [46]. Accordingly, it was submitted that the question for the Court was not whether it would take a different view, but whether the conclusion was open to the sentencing judge. By reference to the following factors, the respondent submitted the conclusion was fairly open to the sentencing judge:
(a)the vulnerability of the victim, submitting the victim to be a frail 52-year-old barely known to the appellant. The victim was unarmed and in his own home: R v Pearson [2002] NSWCCA 429; 137 A Crim R 419 at [90]; R v Achurch [2004] NSWCCA 180 at [33]; R v Brett [2004] NSWCCA 372 at [46]; R v Hookey [2004] NSWCCA 223 at [18];
(b)that the act involved a deliberate, serious and sustained act of violence on a vulnerable part of the body: R v Smart [2008] VSC 155 at [16]. In oral submissions the respondent clarified that “sustained” could more accurately be replaced with “persistent application” of force producing suffocation (T 27.20);
(c)the disparity in strength between the appellant and the victim: R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 at [27]; and
(d)that the conduct, while not premeditated, was unprovoked, unjustified and senseless: Matzick v The Queen [2007] NSWCCA 92 at [23].
61. In light of the circumstances of the case, the respondent submitted this to be a serious example of manslaughter and submitted the sentencing judge’s conclusion was “entirely appropriate”.
62. With respect to the assessment of the appellant’s moral culpability as “high”, the respondent argued the appellant had failed to demonstrate that this finding was not open to the sentencing judge. It was submitted that the mere presence of symptoms of a mental illness does not compel a reduction in culpability. Instead what is required is an assessment of the extent to which such symptoms impact upon the insight and understanding by an offender of the act and its potential harm: Director of Public Prosecutions (Vic) v Weidlich [2008] VSCA 203 at [17]. In the present case, the respondent noted the sentencing judge had regard to the disorders of the appellant but found that they did not contribute to the offending. In the context of a deliberate, highly dangerous, unprovoked attack on a vulnerable victim and the subsequent disposing of the body in an attempt to conceal the act, it was submitted the moral culpability of the appellant should be considered “extremely high”.
63. Moreover, it was submitted that the absence of a motive did not reduce the seriousness of the offence or the moral culpability of the appellant. In that absence, the sentencing judge was required to sentence “on the basis that this was an inexplicable, violent attack on a vulnerable man in his home”.
64. In our view, the appellant has not established error in relation to this first particular of the ground of manifest excess. The sentencing judge did not err in characterising the objective seriousness of the offence of manslaughter as “in the upper range”. No proper basis for appellate intervention has been demonstrated.
Application of the Verdins principles
65. The appellant further submitted that a manifestly excessive sentence was brought about by a failure of the sentencing judge to take into account the Verdins principles. In particular, consideration of whether general deterrence should be moderated or eliminated in light of the “nature and severity of the symptoms exhibited by the offender, and the effect on the condition on the mental capacity of the offender at the time of offending or at the date of sentence, or both”. It was submitted this matter ought to have been addressed and it was not done so by the sentencing judge.
66. The respondent noted that this was not an issue ventilated or relied upon by counsel for the appellant at the sentencing hearing. Accordingly, it was argued that the Court should be extremely reluctant to entertain grounds of appeal which were not advanced, or resile from concessions made, in the court below: Romero v The Queen [2011] VSCA 45; 32 VR 486 at [11] (Romero). As such, it was submitted the sentencing judge could not have fallen into error by failing to consider this issue, particularly when the sentencing judge had due regard to the material before him and the conclusion was fairly open to him.
67. That the matter was not raised in the sentencing hearing was conceded by the appellant in the course of oral submissions (T 33.11).
68. The appellant has not established error in relation to this second particular of the ground of manifest excess. In our view, a finding was not available on the balance of probabilities on the evidence before the sentencing judge: see The Queen v Olbrich [1999] HCA 54; 199 CLR 270.
69. Nevertheless, it should be underlined that an argument not advanced at first instance can be entertained where there may have been a miscarriage of justice. The decision of Romero, relied upon by the respondent, was referred to in Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460 and the following was outlined at [82] by Johnson J:
At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance.
70. The same point was made by Simpson JA (as her Honour then was) in White v The Queen [2016] NSWCCA 190; 261 A Crim R 302 at [128] (White). Therefore, while an argument not advanced below is not necessarily precluded, in this case the ground put forward is not established.
The offer to plea
71. The appellant further submitted that the sentencing judge had not referred to, and therefore did not make, a reduction in penalty to which the appellant was entitled on the basis of the ‘offer’ referred to at [10] above: citing R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535 (Cardoso) at [19]-[20]. It was put that a reduction was to be made on the same basis as if accepted at the time it was made: Cardoso at [22]. While conceding there was “limited” utilitarian value (T 8.19) given the stage at which it came, the appellant submitted utilitarian benefit was nevertheless present.
72. The appellant submitted that it should be considered more than an “invitation to treat” as it “prescribes the basis upon which that plea was offered” (T 5.47), being pressure to the neck, albeit contrary to the prosecution case described above at [9]. It was submitted this was ultimately consistent with the sentencing judge’s finding of fact (T 6.23).
73. It was accepted by the respondent that an offender should be given the benefit of the utilitarian value of an offer to plead, but the bare fact of such an offer does not automatically attract a discount. In support of this submission, the respondent referred to the review of the authorities undertaken by White J in R v Hansen [2011] SASCFC 10; 206 A Crim R 54 where at [33]-[38] his Honour observed:
The authorities reviewed above indicate, in my opinion, that proper sentencing principle does require account to be taken in a mitigatory way of an unaccepted offer to plead to a lesser offence which matches the verdict at the trial. The application of that principle is subject to the existence of other relevant factors, including the timing of the offer (and in particular its proximity to the trial), any terms or conditions attached to the offer, the circumstances in which the offer is made, and the conduct of the accused in the trial.
…
I add that any offer to plead to a lesser offence which an accused wishes to have taken into account if convicted of that offence should be communicated in clear terms and preferably in writing. A sentencing court should not have to resolve disputes about whether an offer was made or the terms of any offer. In particular a sentencing court should not have to determine disputes between counsel as to the content or effect of their oral discussions.
I emphasise also that these reasons are directed to offers to plead to a lesser offence. Something less than a formal offer, such as a “sounding out” or an “invitation to treat” should not attract the allowance referred to in the authorities.
See also: R v Franklin [2012] SASCFC 109; 114 SASR 206; R v Wheeler [2015] SASCFC 83; Merrick v The Queen [2017] NSWCCA 264.
74. In the respondent’s submission, the present case, described by the appellant’s counsel in the sentence proceedings as “a representation at the bar table…as to whether a plea to manslaughter would be accepted” bore more of a resemblance to an “invitation to treat” than a formal offer to plea.
75. Moreover, it was submitted the overture needs to be seen in the context of the sworn evidence of the appellant that he had acted in self-defence and the fact that excessive self-defence was not open to the jury. Accordingly, if the offer was to be on terms consistent with sworn evidence, it would have had to have been rejected (T 12.11-23).
76. The respondent reiterated that the utilitarian value of the offer was undermined by the late stage at which it came, the third day of trial, by which time a significant amount of resources had been deployed in preparation. The respondent noted the sentencing judge had regard to the representation but submitted that it was “difficult to see what, if any, discount was appropriate”.
77. We accept the submissions of the respondent as the submissions accord with our view of the facts of this case. Nevertheless, caution should be exercised in adopting contractual terms, such as ‘invitation to treat’, in the context of a criminal trial and plea negotiations. It is clear on the authorities referred to above, that account must be taken of an unaccepted offer to plead which matches the verdict at trial. Notwithstanding this, on the facts of this case, this was nothing more than a ‘sounding out’. The appellant has not therefore established error in relation to this third particular of the ground of manifest excess.
Comparable cases
78. The appellant submitted a number of cases for the Court to consider. In respect of the cases of R v Collins [2004] ACTSC 73 (Collins) and R v England [2001] ACTSC 33 (England), each was referred to by the sentencing judge at [32]-[34], but was distinguished on the basis of the greater objective serious of the appellant’s offending. In the appellant’s submission, while certain mitigating factors were present in Collins and England that were not for the appellant, the cases nevertheless were “equally if not more serious” than the appellant’s as, in Collins a weapon was used, and in England, the offender acted in company. In respect of R v Navin [2016] ACTSC 109, which the sentencing judge considered to be of closer relevance (at [34]), it was submitted that case was distinguishable as “significantly more serious” due to the presence of premeditation, the use of weapons and the fact that the offending involved prolonged stabbing.
79. The appellant then referred to a number of other cases by way of comparison from this jurisdiction: R v Singh [1999] ACTSC 66; 154 ACTR 62, R v Porritt [2008] ACTSC 71, R v Cassidy [2008] ACTSC 13, and from New South Wales: R v Graham [2000] NSWSC 1033, R v Gloginya [2009] NSWSC 1435, R v Patel(No 3) [2018] NSWSC 952.
80. With respect to the comparable cases referred to by the appellant, the respondent noted these demonstrated the wide range of circumstances and sentences that can be imposed in cases of manslaughter. It was submitted that Victorian authorities, that jurisdiction having the same maximum penalty as the ACT, would be instructive and referred in particular to the cases of Sherna v The Queen [2011] VSCA 242; 32 VR 668 and Vincec v The Queen [2018] VSCA 18.
81. While accepting that the sentence was stern, the respondent submitted that in the circumstances of the case the sentence was within the permissible discretion of the sentencing judge.
82. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili). The above cases provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54]. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428 at [4] that:
Considerations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
83. These cases will be taken into account in accordance with the above principles for the purpose of resentence.
Resentencing
84. If an appellate court identifies a specific error, the sentence imposed must be set aside and the appellant court is to exercise the sentencing discretion afresh, unless “in the separate and independent exercise of its discretion [the appellate court] concludes that no different sentence should be passed”: see Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35], [42] (Kentwell); Gillard v The Queen [2016] ACTCA 50 at [43]; McLeod v The Queen [2018] ACTCA 59; Linggo v The Queen [2017] NSWCCA 67.
85. As referred to above, non-compliance with s 37 is a specific error of significance and the Court’s power to intervene is enlivened. Whether resentence is required is a different question, in accordance with the principles outlined in Kentwell. In Kentwell, French CJ, Hayne, Bell and Keane JJ relevantly stated at [35]:
In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.
86. In White, Simpson JA emphasised the need to disregard the original sentence in carrying out the resentencing exercise, stating at [131]:
The necessity to re-exercise the sentencing discretion requires that I put out of my mind the sentence originally passed, and bring to the exercise a fresh mind, taking into account all relevant circumstances. That involves a genuine fresh approach to sentencing, uninfluenced by the selection of sentence at first instance. The duty is not discharged by starting with the original sentence, and reducing it by a margin, to accommodate what might be taken to have been the effect of the errors exposed. A genuine re-sentencing exercise might, in some cases, result in the imposition of a sentence longer than that originally imposed, although if that were to be done, it would be necessary to warn the applicant: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.
87. In other words, the Court of Appeal’s task is to re-exercise the sentencing discretion afresh and form its own view of the appropriate sentence, but not necessarily resentence: Lehn v The Queen [2016] NSWCCA 225; 93 NSWLR 205 at [77] (Lehn), citing Kentwell. The remarks in Lehn are equally apposite where the discretion miscarried in respect of a discrete component of the sentencing process, as in this case.
88. Neither party wished to adduce further evidence or make further submissions in relation to any resentence (T 34.12-21). It is well established that factual findings are binding on the appellate court unless they come within the established principles of intervention.
89. It should be underlined, as was stated by the sentencing judge at [2]-[3]:
Every offence of manslaughter involves the death of a human being, so that to a great extent the objective gravity of the individual offence depends not upon the consequence of the offence but upon the particulars of the offence and the moral culpability of the offender. Whilst the objective gravity of the offence may vary greatly from case to case it is always a serious offence because it involves the taking of a human life.
…
No penalty that this Court can impose can equate to the loss of Mr Carville's life. We do not live in an age which seeks revenge for the unlawful taking of a life or where the credo is an eye for an eye. Our society, through the laws passed by the legislature and implemented by its courts, seeks to appropriately punish offenders based upon the culpability of individual offenders and not simply on the consequences of their actions. The maximum penalty prescribed by the legislature is an important yardstick in sentencing because it is an indicator of the penalty that the legislature has fixed for an offence that falls within the worst category of a particular type of offending.
90. We agree with the sentencing judge’s assessment of the objective seriousness of the offences, for the reasons stated by his Honour at [27], [32]-[34] of the sentencing remarks.
91. In relation to the report of Dr Samuels and moral culpability, the sentencing judge stated at [24]-[26]:
[B]ut [Dr Samuels] was unable to establish a clear causal link between your positive psychotic symptoms and that of the offence.
…
What I derive from Dr Samuels' report is that there is no evidence that either your underlying and then untreated psychotic illness or your substance use disorder contributed to the commission of these offences such as to reduce your moral culpability.
92. The appellant was 28 years of age at the time of the offences and 31 years of age at that the time of sentence. He had no relevant criminal history: Urlich at [28]. His subjective circumstances were set out at [28] of Urlich:
You are the youngest of six siblings and your parents separated when you were 12 years old. You stated, however, that this was an amicable split and did not cause any disruption to your childhood. You described your childhood to the author of the Pre‑Sentence Report in positive terms. You are single and have no dependants. You reported leaving the formal education system after completing Year 10, and initially working as a roofer. You qualified as a bricklayer and worked in that industry for a number of years. You are apparently able to obtain work with one of your brothers when you are released from custody. The Pre‑Sentence Report notes your lengthy history of drug abuse. You maintained to the author of the report the version of events of 4 November 2015 that you gave in evidence. You were assessed as at medium low risk of reoffending. Your main criminogenic risks were your mental health and drug use.
93. The sentencing judge at [29] indicated that the appellant had:
[D]emonstrated little by way of remorse for this offence, but it is possible that your apparent lack of remorse may be connected to your ongoing underlying psychiatric condition
94. The sentencing judge further indicated in relation to rehabilitation at [30]:
It is difficult to determine your prospects for rehabilitation. You have the support of your family and the availability of accommodation and employment. These are circumstances likely to improve your prospects for rehabilitation. On the other hand, the precise reason for killing Andrew Carville has not emerged in the course of these proceedings. It is therefore difficult to determine whether there is any likelihood of similar offending in the future. Although there is no evidence connecting your drug abuse or your mental illness to the commission of this offence, the likelihood of you successfully addressing these issues is still uncertain. There is certainly a need to consider protection of the public in passing sentence.
95. Relevant sentencing purposes under s 7 of the Sentencing Act include the imposition of adequate punishment, accountability, denunciation, the recognition of harm to the victim and rehabilitation. We have considered s 33 of the Sentencing Act; the relevant matters are referred to above.
96. We have had regard to the comparable cases referred to above at [78]-[80].
97. As outlined above, the sentencing judge referred to the admissions of the appellant “which greatly shortened the length of the trial and reduced the number of witnesses which the Crown needed to call”: [29].
98. The appropriate starting point for the sentence for manslaughter is 10 years, reduced by 5% for the appellant’s assistance in the administration of justice, to 9 years and 6 months, commencing 27 April 2016 and ending 26 October 2025.
99. With regard to the transferred offence, the appropriate sentence is one of 11 months, reduced by approximately 10% for the plea of guilty on the date of the sentencing hearing, to 10 months, commencing 27 June 2025 and ending on 26 April 2026.
100. The sentences should be partially accumulated to reflect the fact they were part of the same course of conduct but included separate criminality.
Non-parole period
101. The proper approach to fixing a non-parole period is well established and was summarised in Taylor v The Queen [2014] ACTCA 9 as follows at [19]:
The proper approach to fixing a non-parole period is well established and can be summarised as follows.
1.A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536.
2.An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
3.The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4.Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton vThe Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, [Kiefel] and Bell JJ observed:
... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
102. While the discount of 5% for the assistance in the administration of justice will perforce be reflected in the non-parole period, the lack of a relevant criminal history is also taken into account in relation to the non-parole period and is relevant to rehabilitation and to determining the proportion of the non-parole period. At the same time, the sentencing principles of punishment, general deterrence, protection of the community, denunciation, accountability and recognition of harm are reflected in the non-parole period.
103. The appropriate non-parole period is 6 years and 3 months.
Orders
104. The appeal is allowed.
105. For the sentences imposed by the sentencing judge, we substitute the following:
(a)For the offence of manslaughter, the offender is sentenced to 9 years and 6 months’ imprisonment, commencing 27 April 2016 and ending 26 October 2025;
(b)For the offence of interfering with a dead human body, the offender is sentenced to a period of 10 months’ imprisonment, commencing 27 June 2025 and ending 26 April 2026.
106. There will be an overall sentence of 10 years’ imprisonment and an overall non-parole period of 6 years and 3 months, commencing 27 April 2016 and ending 27 July 2022.
| I certify that the preceding one hundred and six [106] numbered paragraphs are a true copy of the reasons for judgment of the Court. Associate: Date: 29 November 2019 |
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