Sheiles v R

HOEBEN CJ at CL:

The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on her by Button J in the Supreme Court at Sydney on 1 December 2017 for the offence of manslaughter.

Following a trial commencing 26 June 2017, the applicant was found not guilty of murder but guilty to the alternate offence of manslaughter by a majority verdict on 25 July 2017. That offence which is contrary to s 19(1)(a) of the Crimes Act 1900 (NSW) carries a maximum penalty of 25 years imprisonment.

The applicant was sentenced to a term of imprisonment of 8 years, commencing 21 November 2014 and concluding 20 November 2022, with a non-parole period of 5 years which is due to expire on 20 November 2019.

The applicant relies upon a single ground of appeal:

As at the time of the offence, the wife of the deceased was gravely ill and the deceased was her carer. There was an expectation that she would not survive beyond a few months. They had a 15 year old daughter (who later gave a victim impact statement which was tendered on sentence and became Ex E).

The applicant was aged 38 at the time of the offence. She went with others to the home of the deceased. His wife was not at home as she was in hospital. His daughter left at some point after the applicant had arrived. The applicant and the deceased were left alone. The other people present had passed out.

While they were alone, the deceased sexually assaulted the applicant, involving a “degree of physical violence above and beyond the violence inherent in any sexual assault” (Sentence Judgment (SJ) [19]). Later, while the applicant was driving the deceased to the hospital to pick up his wife, the deceased “tried to sexually assault the offender again but she was able to fend him off” (SJ [20]). About a day later, the applicant sent a Facebook message to a friend which was “a statement of intention … to do physical harm to the deceased” because of what he had done to her (SJ [27]). This message was sent “some hours before the stabbing” and was found to increase the objective gravity of the offence (SJ [50]).

For reasons which could not be determined by the sentencing judge, the applicant and the deceased met again at an isolated location near the home of the deceased. During that meeting, the deceased sexually assaulted the applicant to “which she responded by stabbing him [once] in the chest with a large knife” (SJ [33]).

The sentencing judge set out the objective features of the offence as far as he was able (SJ [11]). His Honour’s task was hampered by the applicant’s deliberate untruthfulness on a number of issues.

His Honour sentenced the applicant on the basis that she had formed an intention to cause grievous bodily harm to the deceased and did so as an act of excessive self-defence (SJ [36]-[37]). Evidence of the deceased’s wife’s illness and the impact which his death would have on his wife, and ultimately his daughter, was presented at trial and was not in dispute. Nor was the applicant’s knowledge of those facts. The applicant had briefly met the deceased’s 15 year old daughter on 19 November 2014 (SJ [18]). On the same day, the applicant met Ms Kelly and the circumstances of her illness were obvious (SJ [20]).

In the sentence judgment, his Honour concluded that two matters increased the gravity of the offending.

Later in his sentence judgment, his Honour said:

The applicant relied upon the following principles in relation to his Honour’s use of the evidence concerning the loss to the deceased’s wife and daughter, brought about by his death.

A purpose of sentencing is to recognise the harm done to the victim of crime and the community (s 3A(g) Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act)). In determining the appropriate sentence for an offence the fact that the injury, emotional harm, loss or damage is substantial may be relevant (s 21A(2)(g) of the Sentencing Act). The fact that such a factor is relevant and known does not require the Court to increase the sentence for the offence (s 21A(5) of the Sentencing Act).

The Court is not to have regard to any aggravating factor if it would be contrary to any rule of law to do so (s 21A(4); R v Wickham [2004] NSWCCA 193 at [26]).

Sections 3A and 21A were not intended to alter common law principles of sentencing (Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [15]-[20]).

A common law principle from R v Previtera (1997) 94 A Crim R 76 is that it is inappropriate to impose a harsher sentence upon an offender because the value of the life is perceived to be greater in one case than it is in the other.

In relation to that principle of law, the applicant had regard to the dicta of Spigelman CJ in R v Berg [2004] NSWCCA 300 where the Chief Justice said that R v Previtera may need to be reconsidered in an appropriate case because of the insertion of s 3A(g) of the Sentencing Act:

The applicant identified another common law principle to the effect that the Court is only to have regard to the consequences of an offence that were intended or could have been reasonably foreseen (Josefski v R [2010] NSWCCA 41; 217 A Crim R 183 (per Howie and Davies JJ; James J finding it unnecessary to determine the point).

In the applicant’s analysis of the law, the Court was referred to the observations of Howie J in both R v Wickham and Josefski v R as follows.

In R v Wickham, Howie J said at [25] (Bell & Hislop JJ agreeing) that s 21A(4) can impose a limitation on the use to be made of a particular factor not otherwise apparent in the provisions in s 21A(2):

In Josefski v R, Howie J said:

In relation to victim impact statements, the applicant summarised the relevant legal principles. The applicant submitted that a victim impact statement given by a family victim may, on the application of the prosecutor if the court thinks it appropriate to do so, be taken into account in determining the punishment for the offence on the basis that the harmful impact on the immediate family is an aspect of harm done to the community (s 28(4) of the Sentencing Act). This section was introduced in its present form in 2014.

The applicant noted that in R v Ronald Edward Medich (No 43) [2018] NSWSC 886 Bellew J, on the application of the prosecutor, and after reviewing relevant authorities on s 28(4) said at [25]:

It was common ground that no application was made by the prosecutor pursuant to s 28(4) in this case.

I do not understand the Crown to take issue with the above analysis of the law and the statements of principle therein set out. The Crown’s submission, however, was that the statements of principle were not complete and that there is another line of authority which had not been specifically dealt with by the applicant.

The Crown accepted that by referring to R v Previtera and not s 28 of the Sentencing Act, Button J made clear that the victim impact statements were not to be taken into account in aggravating the seriousness of the offence (R v Previtera; R v Bollen (1998) 99 A Crim R 510; R v Dang [1999] NSWCCA 42 at [15]; SBF v The Queen [2009] NSWCCA 23; 198 A Crim R 219 at [86]).

The Crown submitted, however, that there was another way in which the effect the deceased’s death had on his family could be taken into account by the sentencing judge. The Crown relied on R v Lewis [2001] NSWCCA 448 where the same point arose in that the applicant argued that the sentencing judge had erred in taking into account as an aggravating feature, that the victim’s death would deprive her children of a mother. Hodgson JA (Barr and Greg James JJ agreeing) said:

The Crown noted that R v Lewis was applied by sentencing judges in R v Aytugrul [2009] NSWSC 275, R v Naden [2013] NSWSC 759 and more recently in R v Droudis (No 16) [2017] NSWSC 20.

In those judgments the sentencing judges stated the principle as follows. R v Aytugrul, R A Hulme J when sentencing the offender included the following at [23]:

In R v Naden Price J citing R v Lewis said at [26]:

In R v Droudis Johnson J said:

The Crown acknowledged that R v Lewis, R v Aytugrul, R v Naden and R v Droudis were all cases of murder where the offender had an intention to kill. The Crown submitted that even though the applicant had an intention to inflict grievous bodily harm and was found to have acted in excessive self-defence, she nonetheless was not only aware that the deceased had dependants but the evidence at trial made it clear that she knew the impact that the injury to the deceased would have on his sick wife and ultimately his daughter. The Crown submitted that the sentencing judge’s comments at SJ [48], [49] and [51] involved a recognition of the impact on the deceased’s family and as such were relevant to the applicant’s culpability on the basis identified by Hodgson JA in R v Lewis. The using of that evidence in that way was not contrary to the principles set out in R v Previtera.

Senior counsel for the applicant accepted that the principle in R v Lewis was good law and could have application to this case. He submitted that it did not in fact apply because there was no finding of an intent to kill. The intent found was to inflict grievous bodily harm.

Senior counsel for the applicant made two further related points in his submissions. The first was that in this case the consequences for others of itself did not and could not increase the objective seriousness of the offence. There was no consideration given as to how, as a matter of law, it could do so in the sentence proceedings. Senior counsel for the applicant noted that R v Lewis was never raised in the sentence proceedings and the offender was not cross-examined in the sentence proceedings to establish the R v Lewis criteria.

The second point made was that for R v Lewis to apply, it would have to be established that it was reasonably foreseeable that at the time the single stab wound was inflicted, that death might result and if so, there would be a consequence for the deceased’s sick wife and ultimately his daughter. Senior counsel for the applicant submitted that such a finding was not open when the sentencing judge was not satisfied beyond reasonable doubt as to there being an intention to kill.

When regard is had to what Hodgson JA said in R v Lewis, it is clear that he was referring to moral culpability. The concluding words of his analysis (at [67] of R v Lewis (set out at [29] hereof)) makes that clear. There, his Honour said:

Strictly speaking, it may not have been correct for the sentencing judge to include his finding on this issue under the heading of “Objective Seriousness”. That does not mean that a consideration of the issue was irrelevant for sentencing purposes. For the reasons set out in R v Lewis, it was relevant to the applicant’s moral culpability and as such was a relevant factor.

I am also of the opinion that for the R v Lewis principle to apply, it is not necessary that an intention to kill be found. The principle could still apply in the circumstances that prevailed here, i.e. an intent to inflict grievous bodily harm.

As the sentencing judge found, the action which brought about the death of the deceased was “the offender stabbed him deeply and forcibly in the chest with a large knife” (See [12] hereof). In those circumstances, the fact that the applicant had an intention to inflict grievous bodily harm did not exclude her also being aware of the real possibility or risk of death being caused by that action. In other words, an intent to inflict grievous bodily harm is not inconsistent with it being reasonably foreseeable by the offender at the time of the stabbing, that death could result from that action.

The fact that the matter was not specifically raised in the sentence proceedings, does not invalidate the above reasoning. From the answers given by the applicant when cross-examined in those proceedings, it is clear that she was well aware of the likely effect on the deceased’s wife and daughter of his death. In that regard, there was nothing controversial in his Honour making the factual finding which he did as to the applicant’s state of knowledge.

The above analysis does not conflict with the principles established by R v Previtera. The analysis does not depend upon victim impact statements. His Honour dealt with those separately and in doing so was conscious of the effect of R v Previtera. There is, of course, nothing in his Honour’s judgment, nor in the application of the R v Lewis principle here, which would suggest that in some way the life of the deceased was more valuable than that of other persons.

It follows from the above that this ground of appeal has not been made out.

The orders which I propose are:

BELLEW J: I agree with Hoeben CJ at CL.

CAMPBELL J: I agree with Hoeben CJ at CL.