Regina v Bell [2005] NSWCCA 81

New South Wales Court of Criminal Appeal

CITATION: Regina v Bell [2005] NSWCCA 81

HEARING DATE(S): 7 March 2005

JUDGMENT DATE: 7 March 2005

JUDGMENT OF: Spigelman CJ at 19; Grove J at 2; Bell J at 20

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - ATTEMPT TO STRANGLE WITH INTENT TO KILL - PLEA OF GUILTY - EVIDENCE OF INTENTION IN VOLUNTEERED ADMISSION BY OFFENDER - APPROPRIATE ALLOWANCES FOR MATTERS OF MITIGATION BY SENTENCING JUDGE -

LEGISLATION CITED: s29 Crimes Act 1900

R. v Ellis 1986 6 NSWLR 603 CASES CITED: Ryan v The Queen 2001 206 CLR 267

PARTIES: Regina v Michael Joseph Bell

FILE NUMBER(S): CCA 2004/2861

D. Frearson SC (Crown) COUNSEL: S. Kluss (Applicant)

S. Kavanagh (DPP) SOLICITORS: James Fuggle & Associates (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/51/0163

LOWER COURT JUDICIAL OFFICER: Ducker ADCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2861

SPIGELMAN CJ GROVE J BELL J

7 March 2005 REGINA v MICHAEL JOSEPH BELL Judgment

1 SPIGELMAN CJ: I will ask Grove J to give the first judgment. 2 GROVE J: The applicant seeks leave to appeal against severity of sentence imposed by Ducker ADCJ at Lismore District Court on 29 May 2003. On 26 May 2003 the applicant was to be presented for trial at that court on an indictment charging that he attempted to strangle Debera Bell with intent to murder her contrary to s 29 of the Crimes Act 1900 for which the prescribed maximum penalty is twenty five years imprisonment. On arraignment the applicant pleaded guilty and his Honour imposed a sentence of imprisonment of four years with a non parole period of two years and six months. The earliest date of eligibility of the applicant for release is 28 November 2005. 3 The facts of the offence were put before the Court in an agreed statement signed by the Crown Prosecutor. The content of that statement was: "Michael Bell and Debera Bell were involved in a defacto relationship for about 13 years. As a result of the relationship, they have two children, Keira Bell (born 6/5/90) and Jacob Bell (born 10/7/92). Both parties still reside in the same house however they have been separated for about 18 months. Since the breakdown of the relationship, there have been a number of ongoing problems between Michael Bell and Debera Bell. The problems have related to Debera Bell frequently being absent from home for Army Reserve training, family law issues and child support issues. About 4.45pm on Tuesday 21 May 2002, Debera Bell rang Michael Bell at his work requesting he mind their children for the evening whist she attend Army Reserve training at Lismore. Debera Bell then arrived at Michael Bell's work place at about 5.10pm where an argument took place over him still being at work. Debera Bell then conveyed Michael Bell home with a heated argument occurring along the way. After arriving at home, Michael Bell drove the children to the Casino RSM (sic) Club, where he purchased a carton of VB full strength beer stubbies. Debera Bell left a short time later for her training. Debera Bell returned home about 10pm the same night. Michael Bell upon seeing her arrive slammed the front door shut. Debera Bell entered the house and went to her bedroom, which is in the middle of the premises where she started to get undressed. Michael Bell walked into the room a number of times where he attempted to bait Debera Bell into an argument. On a number of occasions, Michael Bell held his hands out in front of his body and then moved them towards her as if he was going to touch her and then he said, 'That would be an assault'. This occurred a number of times before Debera Bell decided to contact police. Debera Bell then pushed past Michael Bell and walked into the kitchen/dining room area of the house where she picked up the phone and dialled '000'. Prior to speaking to the operator, Michael Bell grabbed Debera Bell's hand, which was holding the phone, and he forced the received back onto the hook. Michael Bell then grabbed Debera Bell around the throat using both hands and exerted pressure to force Debera Bell to the floor. Michael Bell then sat on Debera Bell's chest and continued choking her, adjusting his grip so that his thumbs blocked off the trachea below the voice box, thereby not allowing her to breathe. According to Michael Bell, he was choking Debera Bell in the method he had been trained when serving in the Army Reserve, and in order to choke her to death. After an estimated 10 to 15 seconds of Michael Bell choking Debera Bell, Michael Bell stated that Debera Bell's face starting turning blue. At that time, their 11-year-old son Jacob heard the commotion and came running into the kitchen area, screaming for Michael Bell to cease the assault. Michael Bell at this time ceased his assault upon Debera Bell by letting go of her throat. Debera Bell then managed to get up off the floor and she went back to her bedroom where she started crying uncontrollably. Michael Bell then contacted police via '000' where he stated, 'I want to be charged' and he agreed that he had assaulted his wife. Police attended at about 11pm where they were met by Michael Bell at the front of the house. Michael Bell at this time stated that he had tried to kill his wife by choking her. Police entered the house and located Debera Bell in her bedroom still crying uncontrollably. Police then placed Michael Bell under arrest and cautioned him. Attending ambulance officers treated Debera Bell. Michael Bell was subsequently conveyed to Casino Police Station where he was submitted to custody requirements. Michael Bell was then electronically interviewed in relation to the matter, during which time he stated he had thought of killing the victim earlier that afternoon and had dreamt of it, the previous night. Michael Bell stated he had intended to choke Debera Bell to death and fully knew what he was doing, having formerly been trained in weaponless techniques during his 26 years of Army service. Michael Bell indicated that the reason why he ceased the assault was because of the intervention of Jacob. Michael Bell also stated that he is suffering post traumatic stress disorder arising from unsuccessfully performing CPR on a drowning child in Casino in 2001. Michael Bell indicated this may have partially acted on his mind at the time of the incident, however, he was aware what he was doing and the likely outcome. Michael Bell was then charged with the matters now before the Court. In relation to the incident, Debera Bell suffered soreness to the neck and throat areas, a minor graze next to her left eye and a lump to the back of the head. Michael Bell suffered no injuries." 4 This morning there has been tendered to the Court an affidavit by a solicitor now acting for the applicant who did not act for him at the proceedings below. That affidavit exhibits a letter to the Office of the Director of Public Prosecutions suggesting that examination of papers appears to indicate that a statement made by the victim had not been served. There is no response to that letter other than the supply of a statement apparently made on 1 July 2002, in the course of which the victim is recorded as stating that she did not believe now that the applicant was trying to kill her and she expressed some views about what charges might be brought against him. Of course, by that time the applicant had been charged with the offence to which he ultimately pleaded guilty. 5 It might also be observed in passing that a Victim Impact Statement made on 28 May 2003, that is to say about nine months after the statement to which I have just made reference, included remarks by the victim in which she affirms that she thought that the applicant was going to kill her. More important, for the purposes of these proceedings, are the matters set out in the agreed statement of facts which includes repeated admissions by the applicant that it was, indeed, his intention at the time to kill the victim. 6 The applicant's prior record included a conviction for assaulting a female recorded at Grafton Petty Sessions in December 1984. The victim was the applicant's former wife. The facts of this offence were before the learned sentencing judge, who observed that it was a matter of "some concern". At the relevant time he was restrained by a court order from not approaching his wife, however, he saw her enter a home in the company of another man and he entered and assaulted her by punching her in the face three or four times and twisting her arm up her back. As she tried to flee he jammed her fingers in a door. He was released on recognizance to be of good behaviour for twelve months and he kept that recognizance. 7 The Crown Prosecutor has drawn attention to the subsequent imposition of a sentence of imprisonment for six months at Casino Local Court for contravening an apprehended domestic violence order which was in place in favour of Debera Bell. The breach had occurred about two months before the applicant was before the Court on the current matter. The sentence would have been served concurrently with part of the sentence imposed by Ducker ADCJ. 8 Two grounds of appeal are relied upon on behalf of the applicant. The first contends that: "His Honour did not take further into account aspects relevant to the decision in ( R v Ellis 1986 6 NSWLR 603)". 9 In Ellis, Street CJ (with whom Hunt and Allen JJ agreed) said: "When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the police of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned". 10 With reference to those remarks McHugh J in Ryan v The Queen 2001 206 CLR 267 @ 272 observed: "Thus, according to Ellis , the degree of leniency to be shown for the disclosure of unknown offences will vary according to (1) the likelihood that the offences would have been discovered by the authorities; and (2) the likelihood that the offences could have been proven beyond reasonable doubt in a court without the disclosure". 11 The second element of McHugh J's observation is pertinent to the present case. As the sentencing judge observed, it was the forthrightness of the applicant in disclosing, and repeatedly disclosing, his homicidal intention, which enabled the Crown to advance a case charging the more serious rather than a lesser offence which could have been proved by the objective circumstances and without the disclosure. 12 However, the issue raised by the ground is whether his Honour's assessment of sentence appropriately reflected the degree of leniency to which the applicant was entitled, having regard to his confessional concession. His Honour made express reference to what he found was the likelihood that the applicant would have been charged with a lesser offence but for the revelation of his express intention, and in that context said: "His plea of guilty, I think, should benefit him with considerable leniency".