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Court of Criminal Appeal 17 November 2017

Merrick v R

[2017] NSWCCA 264

Homicide
CRIME MANSLAUGHTER CONVICTION APPEAL MANSLAUGHTER SENTENCE APPEAL UTILITARIAN DISCOUNT

Citation: Merrick v R [2017] NSWCCA 264
Court: Court of Criminal Appeal
Date: 17 November 2017
Judge(s): Gleeson JA, Beech-Jones J, Fagan J

Background

The applicant was charged with the murder of a woman who sustained fatal head injuries in a shopping centre carpark at East Maitland on the evening of 7 December 2013. The Crown case was that the applicant struck her a forceful blow to the head, causing her to fall heavily to the ground without breaking her fall. She suffered a full thickness skull fracture and severe subdural haemorrhage, and died in hospital two weeks later. A jury found the applicant not guilty of murder but guilty of manslaughter.

The applicant's account, maintained throughout and on appeal, was that he made only a reactive, inadvertent contact with the deceased's face using his elbow, which merely destabilised her and caused her to fall. Wilson J sentenced him to 11 years imprisonment with a non-parole period of 8 years and 3 months.

The applicant sought leave to appeal against both conviction and sentence. The conviction appeal rested on the claim that the verdict was unreasonable and unsupported by the evidence. The sentence appeal challenged factual findings made at sentencing, the absence of a remorse finding, and the refusal to allow any discount for a conditional pre-trial offer to plead guilty to manslaughter.

Legal Issues

  • Whether the jury's verdict of manslaughter was unreasonable and unsupported by the evidence, specifically whether it was open to the jury to find beyond reasonable doubt that a reasonable person in the applicant's position would have appreciated his contact with the deceased exposed her to a risk of serious injury
  • Whether the sentencing judge's findings as to the force of the blow were sustainable on the evidence
  • Whether the sentencing judge erred in refusing to find that the applicant had demonstrated remorse
  • Whether the applicant was entitled to a sentencing discount for a conditional pre-trial offer to plead guilty to manslaughter that was rejected by the Crown

Decision

Ground 3: Unreasonable verdict

The Court identified eyewitness Ms Thomson's evidence as the most detailed direct account of the assault. Her descriptions of the applicant's upright, deliberate posture and the speed with which the deceased fell instantly to the ground were firm and consistent aspects of her evidence, unaffected by her acknowledged uncertainty about the precise type of blow or which side of the face was struck (at [30]-[31]). A second witness, Mr George, corroborated the speed of the fall (at [34]). The neurosurgeon Dr Dimou gave evidence that such injuries would be highly unusual from a simple fall and required force sufficient to accelerate the deceased's descent and render her reflex mechanisms for breaking the fall obsolete (at [51]-[54]).

The Court found Ms Thomson's evidence coherent, credible and internally consistent, with no discrepancies or inherent improbabilities that would have bound the jury to entertain reasonable doubt (at [29]). Differences between witnesses on collateral details, such as arm gestures during the argument and whether either party walked backwards, were matters properly within the jury's judgment (at [85]). The Court felt no reasonable doubt concerning the Crown's proof that the applicant delivered a deliberate heavy blow carrying an objectively appreciable risk of serious harm, and rejected ground 3 (at [86]).

Ground 1: Unsustainable sentencing findings and no remorse

The sentencing judge's findings as to the forceful nature of the blow were open on the evidence and were consistent with the jury's verdict, which implicitly rejected the applicant's account of a slight, inadvertent contact (at [88]). A jury finding that the applicant's conduct carried an objectively appreciable risk of serious harm was logically incompatible with accepting his version. The sentencing judge was bound to proceed on the basis of the verdict (at [88]-[89]).

The finding of no remorse was upheld. The applicant had never accepted responsibility for the deliberate, forceful blow that the jury found he delivered. He maintained his false account on affirmation during both the trial and sentence proceedings, and continued to deny the gravamen of his crime on appeal (at [96]-[97]). The Court observed that remorse for a crime cannot be shown if the facts are not faced and the criminality is not owned (at [97]). Character references attesting to contrition could carry no weight in circumstances where the applicant's ongoing denials actively contradicted them (at [98]).

On the question of a discount for the conditional plea offer, the Court reviewed the relevant authorities, including R v Oinonen, R v Pennisi, R v Cardoso and R v Johnson. It confirmed that the underlying basis for any such discount, beyond the operation of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), is fairness to the offender. A discount may be warranted where an offer to plead guilty to manslaughter was made in terms that disclosed the degree of culpability the offender proposed to accept and which could be compared with the jury's eventual findings (at [117]-[121]). Here, the applicant's offer was conditional upon an undefined statement of agreed facts that was never particularised. The only version of events he ever advanced was irreconcilable with a plea of guilty to manslaughter as found by the jury (at [110], [120]). The sentencing judge's refusal to allow any discount was not shown to involve error (at [123]).

Ground 2: Excessive sentence

This ground was rejected without detailed separate analysis. The Court found no reason to interfere with any of the sentencing judge's findings, and did not regard the sentence as excessive (at [127]).

Orders Made

  • Leave granted to appeal against conviction on ground 3 (a question of fact) and against sentence
  • Both appeals dismissed

Key Takeaways

  • A verdict of manslaughter will not be set aside as unreasonable merely because a witness was uncertain about peripheral details, such as the precise type of blow or which side of the face was struck, where firm and consistent aspects of that evidence, including the posture of the accused and the speed of the victim's fall, were capable of supporting the jury's conclusion beyond reasonable doubt (at [30]-[31], [86]).

  • Where the jury's verdict necessarily reflects rejection of the accused's account of only slight or inadvertent contact, the sentencing court is bound to proceed on findings consistent with that verdict, and is not required to separately address expert evidence premised on the rejected account (at [88], [94]).

  • Remorse cannot be established where an offender continues to deny the central factual finding implicit in the jury's verdict, both during sentence proceedings and on appeal. Character evidence from referees attesting to contrition carries no weight in that context (at [96]-[98]).

  • A conditional offer to plead guilty to a lesser charge does not attract a sentencing discount for utilitarian value where the offer was made subject to facts to be agreed that were never particularised, and where the only version of events propounded by the offender was inconsistent with the charge he offered to plead guilty to (at [110], [120], [123]).

  • The Court of Criminal Appeal confirmed that for a pre-trial plea offer to manslaughter to generate a potential sentencing discount where the Crown pressed a murder charge, the offer must have disclosed with sufficient clarity the culpability the offender proposed to accept, so that its potential utilitarian value can be assessed and attributed to the Crown's decision to reject it rather than to the offender's own conduct (at [117]-[121]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535
- R v Johnson [2003] NSWCCA 129
- R v Merrick (No 5) [2016] NSWSC 661
- R v Oinonen [1999] NSWCCA 310
- R v Pennisi [2001] NSWCCA 326
- R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142
- R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31