PARTIES: THE QUEEN
v
ALBRECHT MORTON
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY
EXERCISING TERRITORY JURISDICTION
FILE NO: No. CA21 of 2000
#DATE 19:10:2001
DELIVERED: 19 OCTOBER 2001
HEARING DATES: 2 AUGUST 2001
JUDGMENT OF: MARTIN CJ, MILDREN & RILEY JJ
Appeal - sentence - Crown appeal against sentence
Appeal allowed.
Counsel:
Appellant: W J F Karczerski and I. Rowbottam
Respondent: D. Bamber
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Northern Australia Aboriginal Legal Aid Service
Judgment category classification: B
Judgment ID Number:
Number of pages: 17
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
No. CA21 of 2000
BETWEEN:
THE QUEEN
Appellant
AND:
ALBRECHT MORTON
Respondent
(Delivered 19 October 2001)
MARTIN CJ
[1] For the reasons given by Mildren J, I agree with the orders he proposes.
MILDREN J: [3] As has often been said, the circumstances which give rise to a
conviction for manslaughter are so various, that there is no established
sentencing tariff. Manslaughter may be divided into two broad categories often
referred to as voluntary and involuntary manslaughter. The significant
difference between these two categories is that in the former case there is
nearly always an intention to kill or to cause grievous harm, whereas in the
latter there is not. Murder, which is reduced to manslaughter because of
provocation is an example of voluntary manslaughter. In provocation
manslaughter cases, the intent to kill or cause grievous harm is an aggravating
factor which often, although not inevitably, places it in a more serious
category than cases of involuntary manslaughter. In the Northern Territory,
because of the effect of S 3 of the Criminal Code, in cases of
involuntary manslaughter there must always be proved actual foresight that the
accused's acts could result in the deceased's death. In this respect,
Territory law relating to manslaughter differs from the common law which also
includes manslaughter by criminal negligence where no foresight is required.
Such a case is dealt with by the Code as an aggravated dangerous
act contrary to S 154(1) and (3) of the Code, to which s 3
does not apply. At common law, if there is foresight amounting to
recklessness, this would be murder. But in the Northern Territory there is no
such thing as murder by recklessness. The provisions of S 162(1) of the
Code establish what mental element, if any, need be proved by the Crown
to establish murder: see Charlie v The Queen (1998) 7 NTLR 152; (1998)
99 A Crim R 232. Consequently the essential difference in the Northern
Territory between voluntary and involuntary manslaughter is the nature of the
mental element required. Clearly an intent to kill or to cause grievous harm
is more culpable than mere foresight of the possibility that the accused's acts
might cause death.
[4] It is well established that in arriving at an appropriate sentence in
provocation manslaughter cases, not only must the sentencer bear in mind that a
human life has been taken in circumstances where there has been an intent to
kill or an intent to cause grievous harm, but also, when assessing the
objective gravity of the offence the sentencer must pay regard to three key
factors identified by Hunt CJ at CL in R v Alexander (1995) 78 A Crim R
141 at 144:
"(1) the degree of provocation offered (or, alternatively, the extent of the
loss of self-control suffered), which when great, has the tendency of reducing
the gravity of the offence;
(2) the time between the provocation (whether isolated or cumulative in its
effect), and the loss of self-control, which when short also has the tendency
of reducing the objective gravity of the offence; and
(3) the degree of violence or aggression displayed by the prisoner, which when
excessive has the tendency of increasing the objective gravity of the
offence."
[5] R v Alexander or the principles referred to in that case, has been
followed by single Judges of the Supreme Court of the Northern Territory on a
number of occasions: see, for example, R v Wilson (1995) 81 A Crim R 270
per Kearney J; R v Rudge (unreported, SCC 9626174, Mildren J 3/6/98);
R v Farley (unreported, SCC 9923602, Thomas J, 12/10/2000).
[6] Whilst the learned sentencing Judge's remarks are consistent only with a
finding that the degree of provocation offered was very much at the bottom of
the scale, his Honour made no specific findings as to the other factors,
although his Honour referred to the facts of the case in such a way that his
Honour must have had those other factors in mind. Similarly, whilst it may be
said that his Honour did not place any specific emphasis as an aggravating
factor that the weapon used was a knife, and the victim was a defenceless woman
who offered no resistance, I am not persuaded that his Honour overlooked those
matters.
[7] In this respect notwithstanding Mr Bamber's submissions to the contrary, I
agree with Riley J that the degree of provocation offered was not substantial,
that there was time for the respondent to have reconsidered his position whilst
he obtained the knife and whilst his relatives asked him to desist, and that
the degree of violence displayed was excessive. I also agree with the
conclusion of Riley J that the sentence imposed by the learned sentencing Judge
was manifestly inadequate.
[8] In cases where, as here, the objective gravity of the offence is very
serious, less weight can be given to factors personal to the respondent: see
R v Krosel (unreported, SCC 18 of 1986 Nader J); R v Farley
(supra); R v Lupoi (1984) 15 A Crim R 183 at 190. That is not to say
that no weight should be given to them. It is appropriate to bear in mind that
the respondent had pleaded guilty and was immediately remorseful, had no prior
convictions for violence, and there was a finding, not now challenged, that
there was no need for special deterrence. Taking all of those matters into
account I consider that the appropriate head sentence in this case ought to
have been one of imprisonment for 10 years.
[9] Counsel for the respondent, Mr Bamber, submitted that this being a Crown
appeal, the appeal ought not to succeed where the prosecution has failed to
assist the sentencing judge, and that in this case no submissions were made
dealing with the matters referred to in R v Alexander, or any of the
other matters of principle now relied upon by Mr Karczewski for the Crown. Mr
Bamber referred us to the decision of this Court in R v Anzac (1987) 50
NTR 6 at 14-15 where the duties of prosecutors at the sentencing stage were
discussed. As was there pointed out, there is a difference between what is
expected of a prosecutor following a plea of guilty and that which is to be
expected following a trial. This was a plea of guilty and thus the principles
referred to by the Full Court of the Federal Court of Australia in R v Tait
and Bartley (1979) 24 ALR 477 applied. In that case the Court (Brennan,
Deane and Gallop JJ) said:
"Although the existence of error is the common ground which entitles the
appellate court to intervene in appeals by the Crown and by a defendant (cf
R v Butler [1971] VR 892; R v Liekefett; ex parte
Attorney-General [1973] Qd R 355), there would be few cases where the
appellate court would intervene on an appeal against sentence to correct an
alleged error by increasing the sentence if the Crown had not done what was
reasonably required to assist the sentencing judge to avoid the error, or if
the defendant were unduly prejudiced in meeting for the first time on appeal
the true case against him."
[10] I do not necessarily accept that submission because Mr Bamber, who
appeared for the appellant at first instance, addressed the relevant issues and
in particular, referred his Honour to R v Wilson, supra. But even
assuming Mr Bamber's submission to be correct, I do not accept that in that
case the appellant is precluded from asking this Court to intervene.
[11] In R v Zhen Qi (1998) 102 A Crim R 172, a decision of the Court of
Criminal Appeal of New South Wales, a Crown appeal succeeded where the Crown
had acquiesced in the sentence and had informed the sentencing judge that the
sentence he proposed would not result in appellable error. The sentence
imposed was 2 years periodic detention. The Court held that the sentence
imposed was demonstrably and seriously inadequate, and that the degree to which
the sentencing judge fell into error was substantial. The Court followed
Allpass (1993) 72 A Crim R 561 at 566 where it was said:
"The Crown is not debarred, on appeal, from taking a stance different from that
taken at first instance, but this Court, in the exercise of its discretion, is
entitled to take account of the fact that, at first instance, the Crown
acquiesced in the course that was taken by the sentencing judge: Jermyn
(1985) 2 NSWLR 194; 16 A Crim R 269; Malwaso (1989) 168 CLR 227; 43 A
Crim R 451. The weight to be given to such a consideration depends upon the
circumstances of the particular case, but it may be of considerable
significance if the respondent was given a non-custodial sentence at first
instance. Its weight may also vary with the degree to which the appellate
court thinks that the sentencing judge fell into error."
[12] Similar principles would apply where, although the error has not been
acquiesced in by the Crown, it is the result of a failure to draw to the
sentencing court's attention to relevant authorities dealing with matters of
principle. In this case, the sentence originally imposed clearly falls into
the category of being demonstrably and seriously inadequate.
[13] Where an appeal by the Crown is successful it is not inevitable that this
Court might impose a lesser sentence than that which the Court considers should
have been imposed at first instance. In Anzac, supra at 16, this Court
said:
"There has not been an inordinate period between the imposition of sentence on
2 June and the hearing of this appeal; although the respondent has been in
jeopardy twice as regards sentence, there is no reason for the sentence which
this court should now impose to be more lenient than the sentence which should
have been imposed in June."
[14] However, in the present case the respondent's sentence was backdated and
he was released forthwith upon a partially suspended sentence. In those
circumstances, as was observed by Muirhead J in Davey (1980) 2 A
Crim R 254 at 261:
" ... there is no person so likely to become, not only bewildered, but
embittered, as a person who has been sent back to his work and his family under
probation by the judge he has seen considering his case, only to find himself
re-arrested to serve a custodial sentence imposed elsewhere, a sentence he will
not regard as just. Respect for the law is very much at risk under such
circumstances."
[15] That factor, and the fact that the respondent has been twice placed in
jeopardy, requires this Court to exercise restraint in re-sentencing the
respondent, and justifies the imposition of a sentence which is less than the
minimum sentence which ought to have been imposed at first instance. I would
allow the appeal and quash the sentence imposed on 8 December 2000. In lieu
thereof I would impose a sentence of imprisonment for 7 years and fix a
non-parole period of 3 years 6 months, such sentence and non-parole period to
be back-dated by a period of 11 months as from the date he is taken into
custody.
RILEY J [17] The Crown appeals against that sentence. The principal ground of
appeal is that the learned sentencing Judge erred in imposing a sentence which
was manifestly inadequate in all the circumstances of the case. There were
other grounds of appeal but they were, in effect, presented in support of the
principal ground of appeal.
A Crown Appeal
[18] The principles that apply to a Crown appeal are well understood and have
been addressed in many decisions of this Court. They are conveniently
summarised by the Full Court of the Federal Court in R v Tait (1979) 46
FLR 386 at 388 as follows: [19] In R v Raggett (1990) 50 A Crim R 41 at 47 Kearney
J said of a Crown appeal based upon the ground that the sentence was manifestly
inadequate: The History
[20] The death of Ms Morton occurred on 7 January 2000. On that day the
respondent and members of his family were eating breakfast. The respondent and
the victim had been drinking heavily through the previous day and night and
there was an ongoing argument between them. That argument flared up during the
course of breakfast and the respondent told the victim to stay away. She
continued to argue and was yelling and swearing. There was a scuffle where
each pushed the other and the victim scratched the respondent. The victim was
pushed causing her to fall to the ground. She threw a tin of canned meat at
the respondent. The respondent then picked up his grandmother's walking stick
and, using both hands, began to strike the victim about the head and legs. It
was a thin stick and splintered after a couple of blows. The victim fell to
the ground and the respondent then picked up a vehicle starter motor which was
situated nearby and weighed 15 kilograms and, with his arms raised above his
head, threw it at the victim striking her in the upper back region. Others
present at the scene called upon the respondent to stop however he responded
"No, I'm going to teach her a lesson". The respondent then walked to his
bedding which was nearby and obtained a 25 centimetre boning knife. He stabbed
the victim once in the victim's upper right back. He then left the area,
walking some 85 metres before dropping the knife.
[21] Female relatives of the victim attempted to stem the flow of blood however
she continued to bleed. The respondent became concerned and obtained the keys
to a community vehicle. The victim was wrapped in a blanket and they set off
for the nearby Ti Tree health clinic with the respondent driving. The victim
died before they reached the health clinic.
[22] The victim died from injuries received during the assault. The knife was
measured at 25 centimetres with a 15 centimetre blade. The wound was measured
at 15 centimetres in depth and the knife had been driven to the hilt into the
victim's back with a moderate to severe degree of force. A lung was punctured
and the pulmonary artery was severed.
[23] The Crown accepted that the respondent did not intend to kill the victim
but rather intended to cause her grievous harm. A plea of guilty to
manslaughter was accepted on the basis that provocation applied. It was said
that the provocation consisted of hurtful words and insults coupled with verbal
and physical goading of the prisoner. In that regard the learned sentencing
Judge observed: [24] In proceeding to sentence the respondent the learned
sentencing Judge took into account the early plea of guilty, the genuine
remorse felt by the respondent for causing the death of his sister, the fact
that his actions were out of character and that personal deterrence was not a
factor in the sentencing process in this particular case. His Honour also
took into account that the prisoner had been in custody on remand since the
date of his arrest and "it is well recognised that conditions in remand custody
are worse than those for convicted prisoners".
[25] A distinction was drawn by his Honour between the "usual alcohol
fuelled violence involving weapons, which is so often seen in this jurisdiction
directed at female Aboriginals" and the circumstances of this particular
offence which involved provocation.
Sentencing in Manslaughter Cases
[26] In R v Blacklidge ((1995) NSWSC 12 December 1995) Gleeson CJ
speaking for the Court of Criminal Appeal said: At the same time, the courts have repeatedly stressed that what is involved
in every case of manslaughter is the felonious taking of a human life. That is
the starting point for a consideration of the appropriate penalty, and a key
element in the assessment of the gravity of the objective circumstances of the
case."
[27] In R v Alexander (1994) 78 A Crim R 141 Hunt CJ at
CL dealt with a case in which the offender was found not guilty of murder and a
plea of guilty to manslaughter on the ground of provocation was accepted. In
discussing the sentencing process his Honour observed that there are three
"particular matters which have been taken into account in provocation
manslaughter cases" and these are: (2) the time between the provocation (whether isolated or cumulative in its
effect) and the loss of self-control, which when short also has the tendency of
reducing the objective gravity of the offence; and
(3) the degree of violence or aggression displayed by the prisoner, which
when excessive has a tendency of increasing the objective gravity of the
offence."
[28] The degree of provocation offered in this matter must be
regarded as slight. In my view his Honour was correct in his
characterisation of the respondent as being in a position where he should
regard himself as "fortunate that the Crown has adopted what appears to be a
generous interpretation of what is sufficient to deprive a prisoner of power of
self-control and also how an ordinary person would have acted in similar
circumstances". In the circumstances of this matter the degree of provocation
was not substantial and the loss of self-control suffered by the respondent was
not great.
[29] On the other hand the degree of violence that followed the provocation was
excessive. The respondent pushed the victim to the ground, he struck the
victim about the head and legs with the walking stick, he then threw a 15
kilogram starter motor at the victim striking her in the upper back region, and
finally he obtained a knife and stabbed her burying the knife up to the hilt.
All of this occurred in circumstances where others present endeavoured to
prevent him proceeding and he responded by indicating he was going to "teach
her a lesson". There was time for the respondent to reconsider his position
whilst he obtained the knife and when his relatives had asked him to desist.
[30] Further, this is not a case where the victim offered significant
resistance to the respondent. She initially acted in a way that was accepted
by the Crown to be provocative but then her resistance was overcome by the use
of the stick, the starter motor and, finally, the knife.
[31] In cases such as this, where the offence is reduced from murder to
manslaughter by reason of provocation, it is necessary to give proper weight to
the fact that the act causing the death was done with intent to kill or to
cause grievous harm. It is recognised as a major crime and one calling for a
"correspondingly grave measure of criminal justice being meted out to the
guilty party": Morabito v R (1992) 62 A Crim R 82 at 85. In this
particular case the Crown accepted that the respondent did not intend to kill
his sister. However the sentence must reflect the objective seriousness of the
case including that what was involved was the felonious taking of human life
with intent to cause grievous harm: R v Blacklidge (supra). In R v
Lupoi (1984) 15 A Crim R 183 the Court of Criminal Appeal in South
Australia observed (at 190) that: [32] As was observed by Martin CJ in Najpurki v Luker
(1993) 117 FLR 148 at 153: The use of a knife in the circumstances of this matter makes
the offending more serious. The courts have observed that the community and
the courts abhor the use of knives in the commission of crimes.
[33] The courts have on many occasions addressed the issue of violence in
Aboriginal communities and have observed that the weaker members of such
communities, particularly women and children, must be protected from excessive
violence. Some of the concerns of the courts are discussed in R v Wurramara
(1999) 105 A Crim R 512 at 520-522.
[34] In my view the head sentence and the period of imprisonment the respondent
had to serve prior to release were clearly inadequate. The sentence does not
adequately reflect the serious nature of the circumstances surrounding the
offending and the fact that the victim died as a consequence. The sentence
failed to reflect the seriousness of the conduct of the respondent and was so
far removed from an appropriate sentence that it demonstrated that the exercise
of the sentencing discretion has been unsound: Cranssen v R (1936) 55
CLR 509 at 520.
[35] In my opinion an error in principle has been demonstrated and that error
is manifested by the inadequacy of the sentence. That being so the duty
resting upon the Court is to impose a sentence appropriate to the
circumstances. In so doing it is necessary to consider the impact of what has
been described as the "double jeopardy" faced by the respondent. In R v
Tait (supra) it was observed (at 388): [36] In the event that a Crown appeal is upheld it is not
necessarily the case that the Court on appeal will impose the sentence that
should have been imposed at first instance. The fact that the successful
appeal places the respondent in the position of being "twice in jeopardy" often
leads to a discount being applied to the sentence: R v Hallocoglu (1992)
29 NSWLR 67 at 80. In many such cases, in order to reflect this approach, the
courts have imposed sentences somewhat less than would be appropriate if it
were not a Crown appeal. The extent of the discount will vary according to the
circumstances of the particular matter and will range from substantial to none
at all. These observations have particular application in the present matter
where the offence occurred on 7 January 2000 and the respondent was taken into
custody on that day. He was dealt with in December 2000 and was released from
prison on 8 December 2000. He has now been at large for a period of
approximately 10 months. He is an Aboriginal man who lives a traditional
lifestyle in a remote community. He has reached the age of 32 years with no
prior history of violence. To return him to prison would be a bewildering
experience for him and an experience, I suspect, unable to be adequately
explained. It would be unjust and probably counterproductive to now require
him to return to prison.
[37] I would allow the appeal and set aside the sentence appealed from.
Although in my opinion it is necessary for the Court to intervene rather than
leave the sentence undisturbed it seems to me that any further sentence should
be structured so that the conditional release should not be affected. I note
that a majority of the Court does not agree that should be so and I say nothing
more as to the appropriate sentence to be imposed in the special circumstances
of this matter.
"An appellate Court does not interfere with the sentence imposed
merely because it is of the view that that sentence is insufficient or
excessive. It interferes only if it be shown that the sentencing judge was in
error in acting on a wrong principle or in misunderstanding or in wrongly
assessing some salient feature of the evidence. The error may appear in what
the sentencing judge said in the proceedings, or the sentence itself may be so
excessive or inadequate as to manifest such error...".
"In general, then, to establish the existence of the necessary
(unidentified) error the Crown must show that the sentences are not just
arguably inadequate but so very obviously inadequate that they are unreasonable
or plainly unjust."
"The prisoner may count himself fortunate that the Crown has
adopted what appears to be a generous interpretation of what is sufficient to
deprive a prisoner of power of self-control and also how an ordinary person
would have acted in similar circumstances. I consider the community,
generally, would be appalled to think that an ordinary person, and that is an
ordinary sober Aboriginal person, would stab a woman with a boning knife in the
back intending to cause her grievous harm in circumstances where that ordinary
person was provoked by verbal abuse, goading, scratching and a near miss from a
thrown can of meat. Nevertheless, whatever opinion I have as to the basis of
the prisoner's plea is irrelevant. I am bound to proceed in accordance with
the DPP's decision that the provocation of the prisoner was, in law, sufficient
to justify acceptance of a plea to manslaughter rather than murder."
"It has long been recognised that the circumstances which may give
rise to a conviction for manslaughter are so various, and the range of degrees
of culpability is so wide, that it is not possible to point to any established
sentencing tariff which can be applied to such cases. Of all crimes,
manslaughter throws up the greatest variety of circumstances affecting
culpability.
"(1) the degree of provocation offered (or, alternatively, the
extent of the loss of self-control suffered), which when great has the tendency
of reducing the objective gravity of the offence;
"... the sentence must reflect the gravity of what he did, not only
to punish him adequately for what he did but also to deter others from doing
likewise. Spouses, both husbands and wives, have to be protected from this
kind of violence. The bringing of a loaded gun or any gun or weapon into a
domestic quarrel, especially where there has been a history of past violence,
must be deplored and deterred as strongly as possible. The punishment and
deterrent aspects of sentencing weigh heavily in the scales in this case. They
outweigh factors personal to the respondent".
"Assaults with weapons which have the capacity to maim, mutilate,
disfigure, incapacitate or disable another are of a most serious kind. Such an
assault is aggravated if the person perpetrating it goes out of his or her way
to become armed with the weapon, and it is worse if the person upon whom the
assault is perpetrated is defenceless for whatever reason."
"Although an error affecting the sentence must appear before the
appellate court will intervene in an appeal either by the Crown or by a
defendant, a Crown appeal raises considerations which are not present in an
appeal by a defendant seeking a reduction in his sentence. Crown appeals have
been described as cutting across `time honoured concepts of criminal
administration'... A Crown appeal puts in jeopardy `the vested interest that a
man has to the freedom which is his, subject to the sentence of the primary
tribunal'... The freedom beyond the sentence imposed is, for the second time,
in jeopardy on a Crown appeal against sentence. It was first in jeopardy
before the sentencing court."