Waddington v The Queen
[2003] TASSC 21
•30 April 2003
[2003] TASSC 21
CITATION: Waddington v R [2003] TASSC 21
PARTIES: WADDINGTON, Desmond John
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 69/2002
DELIVERED ON: 30 April 2003
DELIVERED AT: Hobart
HEARING DATE/S: 12 March 2003
JUDGMENT OF: Cox CJ, Underwood and Crawford JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Applications to reduce sentence - When refused - Particular offences - Offences against the person - Generally - Murder - Whether manifestly excessive imprisonment and non-parole period.
Pavlic v R (1995) 5 Tas R 186; House v R (1936) 55 CLR 499, applied.
Aust Dig Criminal Law [1015]
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Non-parole period or minimum term - Tasmania - Murder - Whether non-parole period manifestly excessive.
Gill v R 34/1990; Adams v R [1998] TASSC 41; Bugmy v R (1990) 169 CLR 525, referred to.
Aust Dig Criminal Law [880.5]
REPRESENTATION:
Counsel:
Appellant: J W Avery and M Ryan
Respondent: T J Ellis SC
Solicitors:
Appellant: Avery Partners
Respondent: Director of Public Prosecutions
Judgment ID Number: [2003] TASSC 21
Number of paragraphs: 31
Serial No 21/2003
File No CCA 69/2002
DESMOND JOHN WADDINGTON v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
UNDERWOOD J
CRAWFORD J
30 April 2003
Orders of the Court:
Order that the appellant not be eligible for parole for a period of 12 years from 15 September 2001, quashed.
Appellant not to be eligible for parole for a period of 10 years from 15 September 2001.
Serial No 21/2003
File No CCA 69/2002
DESMOND JOHN WADDINGTON v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
30 April 2003
For the reasons prepared by Crawford J, I agree with the orders he proposes.
File No CCA 69/2002
DESMOND JOHN WADDINGTON v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
30 April 2003
I agree with the reasons for judgment of Crawford J and the order that he proposes should be made.
File No CCA 69/2002
DESMOND JOHN WADDINGTON v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
30 April 2003
The appellant pleaded guilty to one count of murder. On 2 August 2002, he was convicted and sentenced to imprisonment for 17 years, commencing on 15 September 2001, being the date on which his custody commenced. It was ordered that he not be eligible for parole for a period of 12 years from that date. He has appealed on two grounds, that the sentence of 17 years' imprisonment was manifestly excessive and that the order fixing a non-parole period of 12 years was also manifestly excessive.
The factual basis for the sentence was as follows. The crime was committed on 15 September 2001. The appellant was born on 16 August 1955, and the victim, Diane Ellen Mudge, was born on 30 June 1949. They had lived together for about 10 or 12 years. His occupation was taxi-driving. She worked in a hospital kitchen. They had lived at a New Town flat for four years. On the day of the murder, a Saturday, the appellant was home. During the afternoon he watched his favourite football team on television and consumed about 10 cans of beer. His team won and he was in high spirits. He partly prepared their evening meal. The deceased had been working and, after she returned home, they began to bicker about the forthcoming meal. She complained that he had not prepared vegetables, and he commenced to do so.
A female friend of the deceased visited her, leaving a little before 6pm. The friend noticed no sign of tension between the appellant and Ms Mudge. At about 6.05pm, the deceased telephoned another friend, Georgina Males. It was her habit to spend a lot of time on the telephone talking to friends. According to the appellant's counsel, he would regularly come home and cook the evening meal, only to find that she would be on the telephone incessantly, with the result that her uneaten meal would become cold or be put to one side and perhaps not eaten at all. A further consequence was that he regularly ate on his own. Over the years he became increasingly frustrated about the telephone calls.
The appellant completed preparation of the meal. The deceased had been talking on the telephone to Ms Males for about five minutes when he told her that dinner was ready. She told him that she was not hungry and would heat her meal up later when she was hungry. At that point he became enraged. On the other end of the telephone line Ms Males heard him yelling:
"Get off that fucking phone … I've been putting up with it for the last ten years … I'm sick to death of the fucking phone."
Somehow the connection came to be broken. Shortly after, Ms Males rang back. The appellant answered, roared "fuck off" and hung up. It is not known whether he had killed the deceased by then or not. The portable telephone handpiece was later found in circumstances suggesting that it had been thrown. Its batteries had been dislodged from it.
In his rage, the appellant killed Ms Mudge. He held a pillow over her face, smothering her until she died. There was a struggle between them. He grazed his legs on a small table or other object and suffered scratches to his chest, arms, hands and face. It is not known whether the scratches were inflicted on him by Ms Mudge as he was smothering her. Counsel for the appellant informed the learned judge that the appellant had little recollection of the precision with which he killed her, or the time span of the events, and no real recollection of the telephone call from Ms Males when she rang back. The forensic pathologist who conducted a post-mortem examination of Ms Mudge's body, found bruising on her shoulder, neck and arms, suggestive of her having been restrained whilst being asphyxiated. He believed that the appellant smothered her for as long as three to four minutes before she died, and she would have been conscious for part of that time.
Because of her concern, based on what she had heard on the telephone, Ms Males arrived at the flat at about 6.40pm. The appellant met her at the door and without letting her in, falsely told her that Ms Mudge had gone to the Talbot Hotel. He claims to have no memory of Ms Males coming to the door.
He then took the deceased's credit union transaction card and went to the Queen's Head Hotel. While there, he attempted to use the card, but in a state of confusion he gave an incorrect PIN number three times and the automatic teller machine retained the card. His counsel said that the appellant's intention was to become blind drunk and do himself in. However, after one drink he changed his mind. He telephoned his sister and arranged for her to take him to the Liverpool Street Police Station. He told the constable on duty at the enquiry counter that "I've just killed my fucking missus" and gave some further details, including the address, as a consequence of which police and an ambulance went to the scene. After taking legal advice, he declined to respond to questions in the course of a video-recorded interview. He was arrested and thereafter remained in custody.
The learned judge was informed that the deceased was survived by her elderly mother for whom the events and the legal process had been a great strain, and by a daughter for whom the circumstances were particularly sad. She had been given up for adoption soon after her birth in 1972, and had only been reunited with Ms Mudge nine months before her death. They had maintained a warm relationship during that time.
The appellant had relevant prior convictions, although they were quite old. In addition to five offences of dishonesty committed when a child, in 1977 he was convicted in New South Wales for wounding and sentenced to imprisonment for 18 months, and in 1980 he was convicted in South Australia for armed robbery and sentenced to imprisonment for three years.
At the time of sentencing, the effect of the Corrections Act 1997, s68(1), was that if the sentence was one of imprisonment for a finite term of years, it would have been subject to a non-parole period equal to one-half of the term, unless the sentencing judge made an order under the Sentencing Act 1997, s17(2), extending the non-parole period, or barring parole altogether. On 12 July 2002, less than one month prior to the sentencing of the appellant, the Sentencing Amendment Act 2002 was enacted, but it did not commence until 1 October 2002, after the appellant was sentenced. One of its prospective effects was to remove the basic eligibility to apply for parole after serving one half of a sentence of imprisonment, and to provide that in every case there was to be no eligibility for parole unless the sentencing judge otherwise ordered, in which case the order could not provide for a non-parole period of less than one-half of the term of the sentence. (See now Sentencing Act 1997, s17.) In response to a question from the learned sentencing judge in this case, the Director said that he sought no order concerning parole, indicating that he was content with the basic non-parole period of one-half of the sentence. Nevertheless, the learned judge was entitled to exercise his own discretion concerning the matter.
In the course of a plea in mitigation, the appellant's counsel provided much of the appellant's life history. He experienced a difficult upbringing in Tasmania. His mother died when he was 13 years of age. He had a poor relationship with his father. When aged 14 he went to New South Wales, where he came to the notice of authorities and was placed in a boys' home for about 11 months. He returned to his father's home, but their relationship remained a poor one. His education achievements were poor. In his mid-teens he commenced unskilled manual employment, usually of short duration. However, in 1989 he commenced work as a taxi-driver and continued that occupation, with three different employers, for most of the time until the crime. He came to dislike the work, but felt unable to find different employment. Nevertheless, having regard to the relationship he had formed with the deceased, it proved to be a relatively stable time in his life, although not one he enjoyed very much.
At an early age he developed an addiction to alcohol, and later an addiction to gambling. He sought help through the Salvation Army, eventually with some success. At the time of the murder he believed that his alcohol consumption was under control, although he felt liable to relapse. His counsel explained that he committed the crime of wounding and armed robbery, for which he was sentenced to imprisonment in 1977 and 1980 respectively, at a time when his addiction to alcohol had got the better of him. After the second of those crimes, he resolved to change and had been reasonably successful in achieving that object, particularly so far as committing crime was concerned. In recent years his alcohol use had declined, a consequence of reduced tolerance.
He suffered from periods of depression associated with suicidal thoughts in recent years. In 1997 he was admitted to the Royal Hobart Hospital for about three months following a suicide attempt. He spent two periods in a psychiatric ward and then spent about five months at the Salvation Army Bridge Centre. Alcohol was continuing to cause problems for him. He made a further attempt at suicide in July 2000.
His relationship with the deceased brought some stability to his life, but it was not a comfortable relationship. They argued regularly, particularly over their financial affairs, about which they had little frankness or openness with each other. He said that it got to a point where he hated going home. He was unhappily working long hours as a taxi-driver, earning a relatively small income, and he felt that Ms Mudge gave him very little consideration. She also had a gambling problem, but she would not admit to it. To some extent he felt trapped in their relationship, but he feared being alone and he was generally fond of her.
The learned sentencing judge had before him a psychiatric report concerning the appellant, that contained a diagnosis of two psychiatric conditions, long-standing alcohol abuse and pathological gambling. Although he may have been subject to episodes of depression in the past, manifested as suicide attempts, there was no evidence that he was depressed at the time of the crime. It was possible that he had incurred some central nervous system damage as a consequence of his long-standing alcohol abuse, apparent from his reduced tolerance, and that may have caused him to be less able to control impulses and temper. To the psychiatrist he had expressed remorse and sadness concerning what he had done.
A report of a forensic psychologist, written less than a month before the appellant was sentenced, gave insight into his response to the crime. Early in his incarceration he was suicidal, angry and rejecting of assistance. He was devastated by his actions and believed that he had to suffer, although in the course of time he was able to adjust well to his incarceration. He had consistently been remorseful for his actions and had often spoken of the impact of Ms Mudge's death on their respective families. On many occasions he had stated that regardless of the sentence imposed on him, he would have to live with that for the rest of his life, and that even though his marriage was difficult, he missed the deceased and still loved her. In the prison he had been in a position of trust and a valuable member of the prison hospital's ward staff. He was involved in a "Coping Skills" group run in the hospital and provided a level of peer support to other inmates. From time to time he suffered symptoms of depression, but overall was progressing well. The psychologist did not think that he presented as a continued risk of violence.
The appellant's counsel relied on the following matters in support of a submission to the learned judge that they were "significant to reduce an otherwise appropriate tariff":
1There was a confession of guilt within an hour or so of the crime, with the result that the police did not conduct the investigation that would otherwise have been necessary.
2Although not made at the earliest possible opportunity, the appellant pleaded guilty five weeks after the filing of the indictment, as a result of which the need for a trial and anguish to the deceased's family was avoided. Counsel submitted that the plea was particularly significant in a murder case. It is certainly not common that a person charged with murder will plead guilty. By doing so, his counsel submitted, he gave up any chance, slight though it may have been, of a merciful verdict of manslaughter being returned by a jury.
3The act of killing was not cold blooded or premeditated, but one done on the spur of the moment. It could be described as a violent act by a person who had reached the end of his tether.
4There was genuine and unremitting remorse following the crime.
If it took as long as three or four minutes to smother the deceased until she died, as was reported by the forensic pathologist and not challenged by the appellant's counsel, it would have been reasonable to infer that it was a case of murder under the Criminal Code, s157(1)(a), that is, one committed with an intention to cause her death. Counsel for the appellant did not suggest otherwise to the learned judge. He stated the appellant's instructions as simply being "he lost his temper, he grabbed for Ms Mudge and before he knew it, he'd killed her". For a reason that is not apparent from a perusal of the appeal book, the learned judge understood that the appellant had pleaded guilty upon the basis that he committed a murder under s157(1)(c), that is by means of an unlawful act which he knew, or ought to have known, to be likely to cause death in the circumstances, although he may have had no wish to cause death or bodily injury. After the plea in mitigation, his Honour expressed his understanding to counsel for the Crown, who confirmed that he also understood the plea to have been made on that basis. Counsel for the appellant said nothing about the matter.
In his comments on passing sentence, the learned judge categorised the crime as one of domestic violence within the home and murder under s157(1)(c). Factors which tended to bring the case within the lower end of the appropriate range of sentences, in the opinion of the learned judge, were the plea of guilty within a reasonable time, with a resultant avoidance of further trauma to the deceased's family, genuine and deep remorse and full acceptance of responsibility. His Honour referred to the appellant's conduct as relatively prolonged, committed against a female partner and brutal in its nature. While accepting that the complexity of the relationship might well explain the appellant's outburst, it did not explain the extent and duration of the response. His Honour considered that homicide as a result of domestic violence required both significant retribution and general deterrence by way of sanction. Factors which his Honour regarded as tending to take the case away from the lower range of appropriate sentences were the prolonged nature of the crime, the absence of provocative or threatening conduct by the deceased and the fact that the crime was committed in a domestic situation. The learned judge referred to some previous sentences for murder imposed by judges in this State before sentencing the appellant to imprisonment for 17 years.
Few reasons were given by the learned judge for imposing a non-parole period of 12 years. He explained that he had been persuaded to make an order fixing a non-parole period because it was a case of murder and because of the legislative change to the parole laws made by the Sentencing Amendment Act 2002, notwithstanding that the change had not yet been proclaimed to commence. The only other explanation given by his Honour was in the course of correcting an error he had made in announcing the order. He said that he had in mind fixing a non-parole period of two-thirds of the head sentence. However, the non-parole period ordered was in fact eight months longer than that.
It is unnecessary to analyse the learned judge's reasons for the sentence and parole order. Because the grounds of the appeal are simply ones of manifest excessiveness, it is upon that question that this Court must concentrate, at the same time accepting the factual basis upon which the learned judge sentenced. Neither party suggested otherwise.
Since the commencement of the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 on 5 July 1995, most sentences for murders that were found to have been committed in breach of s157(1)(c), that is, on the basis that the prisoner knew or ought to have known that his or her actions were likely to cause death, but not because he or she actually intended to cause death, have attracted sentences in the range of 15 to 21 years imprisonment. On the other hand most sentences for murders that involved an actual intention to kill have attracted sentences of at least 18 or 19 years imprisonment, with sentences of imprisonment for 21 years and upwards being particularly common. The sentence of 17 years' imprisonment in this case was therefore in the bottom half of the usual range for a murder under s157(1)(c). However, it should not be thought that by rationalising in this way, I am suggesting that no murder under s157(1)(c) should attract a shorter sentence of imprisonment than 15 years or a longer sentence than one of 21 years. Indeed, on 22 May last year, one Lyons was sentenced to 23 years' imprisonment for a murder constituted on that basis. Courts should be careful not to categorise cases too rigidly for the purpose of establishing an appropriate sentencing range.
Factors tending towards a higher sentence in this case included, as the learned sentencing judge said, the relatively prolonged conduct of the appellant that caused death. Some murders result from a single act, such as the firing of a firearm or a single blow or stabbing with a knife. The appellant's conduct, on the other hand, involved smothering of the deceased with a pillow for as long as three or four minutes. No doubt she was struggling violently at first and he maintained his efforts until all resistance had left her and it may fairly be presumed, continued to do so until life left her. Although, in view of the circumstances of the hearing below, this Court must accept that it was a s157(1)(c) murder, it was nevertheless an aggravating factor that the appellant maintained his suffocation of the deceased for a prolonged period of time. It may also be noted, as was done by the learned judge, that it cannot be said that the deceased in any way provoked the appellant's violence. Further, the appellant is not entitled to have the length of the sentence significantly reduced for good character, having regard to his prior convictions, notwithstanding that they occurred about 20 years ago.
The remorse of the appellant, together with his speedy confession and plea of guilty, were certainly mitigating factors deserving of a reduction in the length of the sentence of imprisonment. Pavlic v R (1995) 5 Tas R 186.
Although a sentence of 15 or 16 years may have been adequate having regard to all the matters I have mentioned, I am unpersuaded that the sentence of 17 years' imprisonment was manifestly excessive. In my opinion it is unassailable and certainly not so high as to justify a conclusion that it was "unreasonable or plainly unjust". House v R (1936) 55 CLR 499 at 505.
The same matters are relevant to the question of parole. When considering whether the setting of a non-parole period of 12 years was manifestly excessive, it is appropriate to take account that an overall sentence of 15 or 16 years' imprisonment may not have been manifestly inadequate and also that the period of 12 years' non-parole was the same as the basic parole period that would have applied, without an order being made to the contrary, if the sentence had been one of 24 years' imprisonment. In that light, the appellant argued that the requirement that he serve 12 years in prison before being eligible for parole, has the appearance of being harsh.
Referring to the provisions of the Parole Act 1975, s12B(1), that were similar to the provisions of the Sentencing Act 1997, s17, that applied at the time of the sentence in this case, Green CJ in Gill v R 34/1990 at 1, said that the scheme of the legislation justified a conclusion that prima facie a person sentenced to a term of imprisonment was to be eligible for parole after serving half the term and that the power to limit eligibility for parole conferred by the legislation, should only be exercised if the judge is affirmatively satisfied that there exist sufficient reasons why the accused should be deprived of the right to have the Parole Board consider his release on parole. In the case of a sentence of imprisonment for a finite term of years for murder, those views must now be read in the light of what was said by Cox CJ in Adams v R [1998] TASSC 41, with whom Underwood J agreed. The Chief Justice said that in exercising the discretion reposed in it, a sentencing court must consider (inter alia) what minimum time justice requires that the accused must serve, having regard to all the circumstances of his offence. His Honour approved of the view that in a case of murder in particular, the fixing of a longer non-parole period than half the term of imprisonment may be justified. His Honour adopted the view of the High Court in Bugmy v R (1990) 169 CLR 525, that the task of the sentencing court will be to determine the minimum term of imprisonment which is appropriate to achieve the joint goals of prevention, punishment and deterrence.
Having regard to the appellant's previous convictions for wounding and armed robbery, notwithstanding that they were of some age, and having regard to the circumstances of his crime that I have identified, I am satisfied that the appellant had no entitlement to become eligible for parole after serving only half of the sentence of 17 years' imprisonment. However, I am also satisfied that a non-parole period of 12 years was, with respect to the learned sentencing judge, unduly harsh, particularly when considered in the light of orders for parole eligibility made in other murder cases. Also taking into account the appellant's genuine and deep remorse and full acceptance of his responsibility for what he did, it is my view that a more appropriate non-parole period would have been one of 10 years, and it should be substituted by this Court for the period ordered by the learned judge.
Accordingly, I would allow the appeal to a limited extent, by quashing the order fixing a non-parole period of 12 years and in its place ordering that the appellant not be eligible for parole for a period of 10 years from 15 September 2001.
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