New South Wales Court of Criminal Appeal CITATION: Kaiser v R [2009] NSWCCA 130 HEARING DATE(S): 17 March 2009 JUDGMENT DATE: 29 April 2009 JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 43; Howie J at 44 DECISION: Grant leave to appeal but dismiss the appeal. CATCHWORDS: CRIMINAL LAW - manslaughter - appeal against sentence - whether sentencing judge erred in finding that the respective criminality of the applicant and of the co-offender were about the same - whether the applicant has a justifiable sense of grievance arising out of disparity in his sentence with that of the co-offender - whether the sentencing judge erred in finding that the applicant realised that the co-offender "might kill the deceased" - quantification of discount for plea of guilty - whether sentence is manifestly excessive - whether a less severe sentence is warranted LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 CATEGORY: Principal judgment FDP v R [2008] NSWCCA 317 GAS v The Queen [2004] 217 CLR 198 Gerard [1991] 56 A Crim R 297 R v Bryant [1999] NSWCCA 181 R v Clifford [2005] NSWCCA 350 R v Diab [2003] NSWSC 978 CASES CITED : R v Ellis (1986) 6 NSWLR 603 R v Forbes [2005] 160 A Crim R 1 R v Hales (unreported, NSWCCA, 2 July 1992) R v Norman & Oliveri [2007] NSWSC 142 R v Oosterum [2004] NSWSC 532 R v Simpson [2001] 53 NSWLR 704 R v Tran [1999] NSWCCA 443 R v Waterman [2002] NSWSC 1236 PARTIES: Brian Andrew Kaiser (Applicant) The Crown FILE NUMBER(S): CCA 2007/1251 COUNSEL: P Hamill SC (Applicant) M Grogan (Crown) SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2007/1251 LOWER COURT JUDICIAL OFFICER: Barr J LOWER COURT DATE OF DECISION: 29 November 2007 LOWER COURT MEDIUM NEUTRAL CITATION: NSWSC 1362 IN THE COURT OF CRIMINAL APPEAL 2007/1251 McCLELLAN CJ at CL SIMPSON J HOWIE J WEDNESDAY, 29 APRIL 2009 KAISER, Brian v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to the manslaughter of Shandele Macey and was sentenced to a non-parole period of 8 years and 2 months with an additional term of 2 years and 9 months making a total of 10 years and 11 months imprisonment. The applicant seeks leave to appeal against his sentence. The maximum penalty is twenty-five years imprisonment. There is no standard non-parole period. 2 A co-offender, Jeremy Michael Hunt was sentenced for the same offence arising out of the same circumstances. He was sentenced to a non-parole period of 6 years and 9 months with an additional term of 2 years and 3 months making a total term of 9 years imprisonment. 3 The trial of the applicant and Hunt was originally listed to commence on 20 October 2007. It was on that date that the applicant indicated that he would plead guilty to manslaughter. The sentencing judge allowed a "modest" discount for the plea of guilty but did not otherwise specify the discount that he was prepared to allow. 4 The applicant's notice of appeal raised four grounds. Before turning to consider them and other matters raised at the hearing, I shall relate the relevant facts. 5 The applicant and Lee Stuckings were both truck drivers employed by the same company. The victim was Mr Stuckings' partner. From around mid 2004 the applicant and the deceased had an intermittent sexual relationship. The deceased later took steps to end the relationship but this proved difficult. She obtained an AVO in January 2005. The applicant breached the terms of the AVO leading to proceedings in February 2005, March 2005 and February 2006. The applicant resented the ending of the relationship and was also concerned by the fact that he was owed money for amphetamines which he had supplied to the deceased. The co-offender Hunt was an associate of the applicant. He resided with another co-offender, Roland Garland, who in turn, supplied amphetamines to a fourth co-offender, Michelle Rocco. 6 On March 2006 the applicant went to the deceased's home. She complained to the authorities and he was arrested and charged with trespass and malicious damage to property. He was held in custody for a short period of time. These events apparently raised the applicant's level of animosity toward the deceased. 7 The applicant sought the assistance of Hunt to take revenge and "sort out" the deceased. He asked Hunt to go to the deceased's home and "deal" with her. This was planned to occur at about 1:00 am on 20 March 2006 at which time the applicant would from his employer's records be able to prove that he was at work which he believed would provide him with an effective alibi. The applicant was aware that the enterprise "may involve the use of a firearm." 8 On 19 March 2006 the deceased received two text messages from the applicant as well as a phone call in which the applicant said "you'll pay for what you have done." At 11.36 pm Hunt used the applicant's mobile telephone to call his girlfriend. He told her that he was in the applicant's truck. Hunt then rang Rocco who drove her car to a Mobil service station on Sandgate Road to collect him. She had previously been recruited to drive Hunt to the victim's home. Hunt was carrying a full length 0.22 rifle. Rocco drove directly to the deceased's home where she turned off her lights but left the engine running. Hunt got out of the vehicle, took his rifle and fired three shots. The deceased, who heard the car pull up, had gone to the window of her lounge room to look out. The first bullet struck her in the neck and killed her. The other bullets hit the house. 9 Hunt re-entered the car and Rocco drove him back to Garland's house. On the way he disposed of the rifle into the Hunter River. 10 The following morning the applicant told another person that Hunt had killed the deceased. He said that he was in mourning and that he had loved her. He said words to the effect that she was not meant to die, that he did not want her dead and that it was only meant to scare her. 11 When first approached by the police the applicant said he was at work at the time of the offence. However, a number of telephone calls were intercepted over the following week which made plain the involvement of both the applicant and Hunt in the relevant events. Amongst other matters they were recorded discussing a newspaper article about the events. The article showed the bullet holes. The applicant said to Hunt that the holes were not where Hunt had said "but, its immaterial now … it's past that. We've just got to deal with the fucking cards we've been dealt." In a later call Hunt said "I'm not coming back. I can't cop this … I'm not going for fucking 25 years … it was a fucking accident." In later conversations the applicant said "like I'm saying but it's past that now. No choice but to bat on … I know that's not what you intended or whatever but that's not that what none of us intended …." 12 The sentencing judge found that the applicant's actions were planned very carefully as was evident from his creation of an alibi. His Honour accepted that the applicant "had no intention of having the deceased killed and that he regrets her death." However, he found that the use of a weapon was contemplated and suggested that the appellant foresaw that the deceased might be killed. His Honour said "he planned an assault upon her and entered into a joint enterprise with Hunt to put it into effect. He realised that Hunt might use a firearm in the assault and that by doing so he might kill the deceased in circumstances amounting to manslaughter." When the matter was raised during argument in this Court counsel for the applicant accepted that the reference to the "use of a weapon" was intended to indicate that it was contemplated that the weapon would be discharged. 13 His Honour's ultimate conclusion was expressed in the following terms: "Although there was no intent to kill or seriously injure the deceased and although there was no advertence to the probability that death would result if the shots were fired, the offence was objectively very serious." 14 With respect to the applicant's plea of guilty his Honour was not satisfied that it was "any evidence of remorse" but said that it "earns [the applicant] a modest discount for its utilitarian value." 15 There was also a matter on a Form 1, being a charge that the applicant supplied amphetamines to the deceased between 1 March 2004 and 1 March 2006. This is a serious offence with a maximum penalty of 15 years imprisonment (s 25 of the Drug Misuse and Trafficking Act 1985). 16 In relation to Hunt his Honour accepted that he regularly drank large quantities of alcohol and had consumed a significant quantity of alcohol on the night of the offence. However, his Honour found that Hunt had plenty of time to plan and reflect before he committed the offence and ultimately found that the offence was not committed more readily or at all because Hunt had had alcohol to drink. 17 The applicant was 34 years old at the time of the offence. He first came into conflict with the law when he was 28 years old and faced a number of charges arising from the contravention of Apprehended Violence Orders (AVO). The sentencing judge was satisfied that these matters probably related to his relationship with the deceased. His Honour concluded that this record did not aggravate the applicant's criminality but did not entitle him to leniency. 18 The applicant had a normal childhood although he was affected when his older brother died in a shooting accident. He had been regularly employed. He began using cannabis when he was 18 and at 23 years of age was admitted to hospital with cannabis induced psychosis. He was diagnosed as suffering bipolar disorder which was in remission at the time of sentencing. He began using amphetamines daily in his 30's and now required professional help for his dependency. Mr Ashkar, psychologist, concluded that there were indicators of border line personality pathology, schizoid personality style, avoidant personality style, depressive personality style, dependent personality style and anti-social personality style. 19 At the time of the offence the applicant was subject to a bond for breach of an AVO. He was also on bail for another breach of an AVO and for trespass at the deceased's home. 20 The sentencing judge found that the applicant had "some prospects of rehabilitation" although they were "not high". His Honour noted that following his arrest and grant of bail the applicant had been charged with having taken and driven a conveyance without consent and with assault occasioning actual bodily harm. For these offences he was sentenced to a five month suspended sentence. He had also been dealt with for shop lifting, maliciously destroying or damaging property, possessing implements to enter a conveyance and larceny. On 8 June 2007 he was called up and sentenced to a number of periods of full time imprisonment totalling 5 months commencing on 23 May 2007. 21 Although it was submitted that the applicant's need for professional help in relation to his amphetamine dependency justified a finding of special circumstances the sentencing judge declined to adjust the statutory ratio. Ground 1 (a) The learned sentencing judge erred in finding that the respective criminality of the applicant and Mr Hunt (leaving aside two specified issues) were about the same. (b) The applicant has a justifiable sense of grievance arising out of the disparity or lack of proper proportion between the sentence imposed on him and that imposed on Mr Hunt. 22 The sentencing judge sentenced both the applicant and Hunt on the same day. His Honour was careful to identify matters relevant to each offender, their part in the offence and their individual subjective circumstances. His Honour found that the applicant was the "instigator, planner and intended beneficiary of an offence carried out in furtherance of an existing course of criminal conduct." His Honour said of Hunt that he "was willing to lend a hand to solve a problem not his own" and "employed a lethal weapon to carry out a highly dangerous act in furtherance, as he knew, of the enforcement of a drug debt and otherwise for Kaiser's purposes." 23 His Honour did not find the criminality of Hunt to be of the same order as the applicant. The applicant submitted that this finding was an error and that the objective criminality of Hunt exceeded that of the applicant. This submission was founded upon the fact that Hunt was the actual shooter and so it was submitted, the applicant never agreed that the firearm should be used and was not at the scene at the time of the shooting. 24 I am not persuaded that his Honour's finding was erroneous. As his Honour emphasised the applicant both instigated and planned the criminal enterprise. The planning was careful, the confrontation being timed for the early morning when the deceased would be unlikely to be prepared for a confrontation and the applicant could point to an alibi "through his work record." The applicant was motivated by revenge borne of the termination of his relationship with the deceased, the non payment of debts and complaints to the police that he had breached the AVO which had led to him being charged and held in custody. He had in contemplation that the weapon would be discharged. An understanding of the attitude of the applicant was available from the fact that approximately 7½ hours prior to her death the applicant telephoned the deceased and said "you'll pay for what you have done." On the other hand Hunt's involvement was gratuitous. He had nothing to gain either financially or otherwise from the offence. 25 It is not a universal principle that the culpability of an aider and abetter is less than that of a principal. A "manipulative or dominant aider and abetter may be more culpable than a principal." GAS v The Queen [2004] 217 CLR 198 at [23]. In the present case the applicant was the dominant figure and both instigated and planned the offence which led to the deceased's death. See also R v Norman & Oliveri [2007] NSWSC 142. 26 The applicant further complained of the disparity in his sentence with that of Hunt. In terms of non-parole periods the applicant received a sentence which is one year and five months greater than Hunt's, his overall term being one year and 11 months greater. However, to my mind the difference was justified. 27 Apart from the matters relevant to the criminality of each offender Hunt entered a plea to manslaughter three months earlier than the applicant who entered his plea on the day fixed for trial. Although Hunt has a lengthy criminal history he has no record for crimes of violence prior to the commission of the present offence. On the other hand the applicant had a history of breaching AVOs. 28 Because the applicant's objective criminality was greater than Hunt's his sentence was required to reflect a greater emphasis on denunciation, personal and general deterrence. The assault planned on the deceased was not an isolated incidence of violence but part of a pattern of menacing behaviour by the applicant towards the deceased. The applicant was the subject of an AVO at the time of the offence and was also on a bond and on bail for offences against the deceased. These were significant aggravating factors see FDP v R [2008] NSWCCA 317 at [75]; Gerard [1991] 56 A Crim R 297 at 301; R v Hales (unreported, NSWCCA, 2 July 1992 p 2). Although Hunt committed the offence in breach of a good behaviour bond he was bound in relation to offences unrelated to the deceased. 29 Of particular significance is the fact that when sentencing the applicant his Honour was required to have regard to the Form 1 offence. This carried a maximum penalty of 15 years imprisonment. There were no Form 1 matters in relation to Hunt. The applicant submitted that the Form 1 matter should have been leniently treated because he voluntarily disclosed his guilt. However, it is apparent from the evidence that the police were already aware that the applicant was supplying the deceased with drugs. When questioned about these matters the applicant, in order to avoid being implicated in the killing, suggested that the deceased may have been involved in drug deals with other persons. Furthermore the applicant did not enter an early plea to the drug supply count which was only placed on the Form 1 after he offered the plea to manslaughter. This is not a case where the matters considered in R v Ellis (1986) 6 NSWLR 603 were of significance. 30 The applicant also submitted that he had demonstrated greater remorse for the killing than was demonstrated by Hunt. I do not accept this submission. His Honour found that neither offender expressed genuine remorse, a finding which was clearly open. 31 Finally it was suggested that the applicant had greater prospects of rehabilitation than Hunt. However, his Honour found that although the applicant had some prospects of rehabilitation they were not high and found that there was little to distinguish the applicant from Hunt in this regard. To my mind this finding was appropriate. Although Hunt had a significant record of offences he was 19 years of age and considerably younger than the applicant, who was 34 years of age, which would normally suggest a greater prospect of rehabilitation. 32 Having regard to these various factors I am not persuaded that the applicant has a justifiable sense of grievance when his sentence is compared to that imposed on Hunt. Ground 2: the learned sentencing judge erred in finding that the applicant realised that the co-offender (Hunt) "might kill the deceased." 33 As I have already indicated the sentencing judge expressed a finding that the applicant "realised that Hunt might use a firearm and that by doing so he might kill the deceased in circumstances amounting to manslaughter." The statement of agreed facts did not support the second element of this finding. However, it was common ground at the sentencing hearing and accepted on appeal that the applicant knew that the confrontation which he had planned may involve the discharge of a firearm. It was further agreed that the applicant engaged Hunt to "take revenge, and sort out the deceased" providing the context in which the firearm may be discharged. 34 In these circumstances, rather than the finding which his Honour expressed, the appropriate finding was that the applicant was aware that Hunt would assault the victim in circumstances where a loaded firearm would be discharged. It was not open to his Honour to find that it was within the applicant's contemplation that Hunt might kill the deceased. Of course, such a finding was not necessary to support the charge of manslaughter. It was sufficient that the applicant contemplated that Hunt would commit an unlawful and dangerous act being the discharge of the loaded weapon. 35 Although the finding which his Honour made was beyond the facts which had been agreed the offence was, as his Honour found, "objectively very serious." As will be apparent when I consider grounds 4 and 5 the error which his Honour made does not, in my opinion, justify this Court intervening to reduce the applicant's sentence. Ground 3: the learned sentencing judge erred in failing to quantify the "modest discount" that he allowed for the utilitarian value of the applicant's plea of guilty and/or failed to give any adequate weight to the plea of guilty. 36 As I have indicated the applicant pleaded guilty on the day of trial. His Honour concluded that this justified "a modest discount for its utilitarian value." Because Hunt had offered a plea at an earlier point in time than the applicant his Honour indicated that he would receive "a slightly greater discount". 37 To my mind in the circumstances of this case it was appropriate for his Honour to allow the applicant only a modest discount. Although this Court has encouraged trial judges to quantify the discount for a plea a failure to do so does not of itself constitute error: R v Simpson [2001] 53 NSWLR 704 at [83]. There is no substance in this ground of appeal. Ground 4 : the sentence is manifestly excessive Ground 5: a different, less severe, sentence is warranted and ought to have been imposed. 38 The applicant directed the court's attention to a number of sentences previously imposed for the offence of manslaughter. It was submitted that when compared to the applicant's sentence they demonstrated error, the sentence being excessive. However, there are difficulties in comparing the sentences imposed for manslaughter offences a fact which has been frequently recognised. The issue was discussed by Spigelman CJ in R v Forbes [2005] 160 A Crim R 1. 39 The decisions to which the applicant referred were R v Diab [2003] NSWSC 978; R v Oosterum [2004] NSWSC 532; R v Clifford [2005] NSWCCA 350; R v Bryant [1999] NSWCCA 181; R v Tran [1999] NSWCCA 443 R v Waterman [2002] NSWSC 1236. It is unnecessary to discuss their detail. Each has its own particular features which both justify the individual sentence imposed and distinguish it from the present case. 40 In the present case the offence and associated action were carefully planned. The planning included the creation of an alibi for the applicant at the time of the confrontation. The applicant's actions were motivated by a desire for revenge and to recover the debt owing to him and were committed at a time when the deceased had obtained the protection of the law from the applicant's threatening behaviour. The applicant was unable to reconcile himself to the failure of his relationship, such as it was, with the deceased. Only hours before her death he had telephoned her and warned her that "she would pay for what she had done." The applicant knew that a weapon would be discharged in the course of the planned assault. 41 At the time of the offence the applicant was on a bond and on bail for offences committed against the deceased as well as being subject to the AVO. The sentencing judge was also required to reflect the drug offence, a serious matter, in the sentence. Although, as I have indicated his Honour expressed the applicant's criminality in terms which were not available from the agreed facts I am not persuaded that this has resulted in a sentence which is unwarranted. 42 Although I would grant leave to appeal I would dismiss the appeal. 43 SIMPSON J: I agree with McClellan CJ at CL. 44 HOWIE J: I agree with McClellan CJ at CL. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.