R v Hile[1999] QCA 17

COURT OF APPEAL

McMURDO P

PINCUS JA

McPHERSON JA

CA No 341 of 1998

THE QUEEN

v.

DAMIEN WILLIAM HILEApplicant

BRISBANE

DATE 05/02/99

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty to manslaughter in the Supreme Court, Brisbane, on 3 August 1998.  He was sentenced to six years' imprisonment with a recommendation for parole after two and a half years. 

The facts are as follows.  The applicant had a long history of substance abuse and on 13 August 1997 was sharing a residence with the deceased, Kerry Anne Pascoe, who was 42 years old, and some other women.  The deceased was not a regular user of heroin and this occasion was either her first or second time to have taken the drug.  She had recently been discharged from a psychiatric hospital where she was treated for depression and alcohol and substance abuse.

The applicant and the deceased met whilst they were psychiatric patients.  The deceased was an abuser of alcohol, prescribed drugs and of cannabis and the applicant was aware of that history.  The applicant had obtained $150 worth of heroin which he knew had a very high purity of between 86 and 90 per cent.  He mixed up four shots and administered one to himself.  Two other women administered shots to themselves and the applicant injected the deceased in her foot at her request.

The applicant knew the deceased was an irregular user of heroin.  Before he administered the dose, another woman present said to the deceased words to the effect, "You don't want to end up in a life like mine addicted to heroin.  It's the beginning of the end."  Another woman present seemed to encourage the deceased to have the heroin and it was finally agreed by all that she would take the dose in the manner that it was administered.

Shortly after the injection the deceased began to convulse and the applicant, who held a St John's Ambulance first aid certificate, administered CPR whilst another woman called the ambulance.  The deceased was taken to hospital, was comatosed, and died six days later.

The applicant originally told ambulance officers the deceased's heroin shot was self-administered but later confessed to an acquaintance who informed police.  The applicant at first denied to police that he injected the deceased, but when confronted with the statement of another witness, made full admissions.  He then cooperated fully with police and pleaded guilty by way of an ex officio indictment. Submissions by defence counsel and the psychiatric report tendered below demonstrate the applicant was genuinely remorseful. 

The applicant had a significant criminal history, mostly drug- related, with some relatively minor property offences.  He had had the benefit of probation and other non-custodial orders in the past and had been sentenced to comparatively short terms of imprisonment. 

In 1988 he was convicted of the offence of assault occasioning bodily harm in the Toowoomba Magistrates Court and was sentenced to six months' imprisonment cumulative on another six months' term of imprisonment that he was serving for property and drug offences.

The last entries in his criminal history for receiving, being on premises with intent and possession of tainted property were committed two to three months after the manslaughter and whilst on bail.  This does not suggest that his rehabilitation was promising.

The psychiatric report prepared by Dr Paul White indicates that the applicant was experienced in the use of heroin and believed he had injected the deceased with a relatively small amount of the drug which did not place her at risk.  In fact, the dose administered was equivalent to 40 milligrams of morphine, a relatively large dose for someone who had no previous exposure to narcotics and was not in pain.

Dr White describes the applicant's actions as a "tragic miscalculation ... based on the relative tolerance to the drug that he and his friends had developed over time".  Dr White notes the applicant had a number of admissions to psychiatric hospitals for Bipolar Affective Disorder (Manic phase), but this was not a factor in the circumstance of the events.

Some assistance can be gained as to the appropriate range of sentence in a case like this from a review of other sentences, although none are truly comparable and there is a great variance in the sentence imposed in manslaughter cases.

In R v. Streatfield (1991) 53 A Crim R 320, Streatfield was sentenced to nine years' imprisonment for killing his de facto wife with whom he had been living for 14 months and who was six months pregnant to him.  He had been playing with his gun and fired it and then he believed ejected all ammunition before pointing and firing at his wife with no intention of harming her and believing the gun to be unloaded.  There was no argument or animosity between them at that time and, as Justice Thomas said, "The essential fact is that he had no intention to harm."

Streatfield lost his partner and expected baby and was genuinely remorseful.  He had no relevant significant convictions.  Justice Thomas further noted, "The absence of intention to harm must be a very significant factor, and is probably the primary factor in assessing the quality of the offender's act that amounts to manslaughter."

The sentence was reduced to five years with a recommendation for parole after 18 months, but as Streatfield had already spent six and a half months in pre-sentence custody, the effective sentence was one of six years' imprisonment with a recommendation for parole after two years.

In the more serious case of R v. Rabih, Butterworth's Unreported Judgments, BC8600696, Rabih was sentenced to 18 years' imprisonment with no non-parole period for the manslaughter of a 15 year old heroin-using prostitute.  With her consent Rabih injected her with heroin in return for her having prostituted herself.  The deceased lost consciousness and died.  The sentencing Judge accepted that Rabih was a pimp, procurer and dealer in heroin.  Perhaps somewhat surprisingly, there has been no appeal from that sentence, at least that is reported.

By way of contrast, a much more lenient sentence was imposed in R v. Tanya Lamb, Butterworth's Unreported Judgments, BC9701136.  Lamb was found guilty after a trial of aiding or encouraging Alan Latham to inject the deceased with heroin, an act which led to the death.  Lamb was of limited intellectual capacity and a heroin addict.  Although Latham administered the drug to the deceased, it was the decision of them both. 

The New South Wales Court of Appeal refused to interfere with what was, in fact, a sentence of four years' imprisonment with a two year non-parole period, the same penalty which was imposed on Latham.  The facts and personal details of Latham do not appear in the reported judgment of Lamb.

In Clarke and Purvis (1992) 13 Cr.App.R (S) 552, Clarke pleaded guilty to manslaughter having injected the deceased, a friend, and like Clarke and Purvis, a regular user, with heroin, resulting in death.

Clarke was sentenced to five years imprisonment.  Purvis was sentenced to 15 months imprisonment for possession of heroin.  As here, Clarke and Purvis tried to assist the deceased and finally called an ambulance.  Clarke was 26 and Purvis 27. Both had some prior convictions, but none resulting in a custodial sentence.

Comparable sentences of Cato & Others (1976) 62 Cr.App.R 41 and Dalby (1982) 74 Cr.App.R 348 were discussed by the Court of Appeal.  The Court of Appeal reduced Clarke's sentence to three and a half years imprisonment and did not interfere with the sentence of 15 months imposed on Purvis for possession.

These sentences demonstrate the wide range of sentences that can be imposed for offences of manslaughter.  To be criminally responsible for the death of another human being is a dreadful thing and the reason why manslaughter is punishable by up to life imprisonment.

As I have commented, punishment for manslaughter varies widely depending on the facts of each case.  The facts of this case place the sentencing range at the lower end of the scale of punishment, which may vary from a non-custodial sentence at one end to life imprisonment at the other.  The appropriate penalty here is, nevertheless, a substantial custodial sentence.

This is because heroin is currently named in the Drugs Misuse Act 1986 as a dangerous drug and the applicant knew of its dangers; of the deceased's lack of experience with it and of the purity of this dose of heroin.  The applicant has a significant criminal history which included periods of imprisonment and committed further property offences after his arrest on this charge. 

Because of his plea of guilty by way of ex officio indictment, I would have imposed a slightly lesser sentence than that imposed by the learned Judge below and given a slightly earlier recommendation for release on parole.

Although in my view the sentence imposed below is towards the top end of the appropriate range on the facts of this case, I cannot honestly conclude that that sentence is manifestly excessive and for that reason would dismiss the appeal.

McPHERSON JA:  I agree.  In this Court reference was made to, and reliance placed upon, the decision in Streatfield (1991) 53 A.Crim.R. 320.  It is right to point out that the decision in that case was a majority judgment and also that some of the authorities, in particular R v. Green, on which some reliance was placed in arriving at the level of penalty in Streatfield, have since been reconsidered by this Court in R v. White, ex parte Attorney-General [1995] 2 Qd.R. 199.

Even so, the statement to which particular reference was made in the reasons for judgment of Mr Justice Thomas in Streatfield at page 326 of the report I have mentioned, cannot, in my opinion, fairly be cavilled at.  What His Honour said was that the absence of intention to harm must be a very significant factor, and is probably the primary factor, in assessing the quality of the offender's act that amounts to manslaughter.

The only requirement as I understand it, stating it in a general way, for culpability in the case of manslaughter is that the accused should have caused the death of another in circumstances where the possibility of that death was objectively foreseeable by an ordinary person.

In the present case, and unlike, perhaps, the case of Streatfield, it seems to me that it is not possible to say that there was an absence of intention on the part of the applicant here to harm the deceased.

The fact is that the injection of drugs, and consequently giving assistance in the process of doing so, is an act that on one view is intended to cause harm to the recipient of the drug, in as much as it is well known that dangerous drugs such as heroin cause harm by the very fact of their introduction to the human body.

It is therefore not possible, to my mind, to treat the present case as one which is in that respect on all fours with the facts of Streatfield.  In any event, the learned Judge did go on to say that the applicant before us was conscious of the fact that the deceased was not accustomed to taking heroin and that the drug being used was in a particularly pure state.

His Honour concluded that the applicant took a well-established risk with reckless indifference to the consequences.  It would be difficult to disagree with that conclusion even if one were disposed to do so.  In the end, however, it seems to me that sentences in manslaughter cases do, as this Court acknowledged in R v. Whiting [1995] 2 Qd.R. 199, at 202, vary very widely with the circumstances and the particular facts of the offence in question.

The sentence here to my mind was not beyond the limits of a proper discretion in fixing a penalty for the offence in this instance.  In my opinion there is no demonstrated basis for interfering.

It may be noted in passing that the applicant's written outline before this Court in the present case argues for the substitution of a head sentence of five years, with a recommendation for parole after 18 months.  On one view, that is not to differ markedly from the sentence that it is sought to review before us.

For these reasons as well as those given by the President I would dismiss this appeal.

PINCUS JA:  The applicant, as has been mentioned by the presiding Judge, was sentenced to six years imprisonment with a recommendation for parole after two and a half years.

The facts of the matter have been mentioned by the presiding Judge and I do not wish to add to what Her Honour has said about them except in two respects.  Before the injection was administered, the prosecutor told the Judge, the applicant said to the victim, "You really shouldn't do this" or "don't do it", a sentiment which was echoed by another woman present; but a third woman present encouraged the deceased to continue and ultimately he acquiesced.  This is, in substance, what the prosecutor said.

The prosecutor also said, in the course of discussing the matter with the learned primary Judge, that the applicant deliberately took a risk.  The element of deliberation, if present, seems to me to be a substantial aggravating factor.

In the address given by counsel for the applicant below, as I read a rather confusing passage at page 19, the assertion appears to be made that there was certainly no appreciation of the risk of death.  Another source of information is a statement recorded as having been made to a psychiatrist, Dr White, who was engaged by Legal Aid, in whose report the applicant was recorded as having said that he injected "a relatively small amount of a drug and one that would not place her at risk".

In these circumstances, it is not clear on what basis sentencing should have proceeded; but I have a doubt whether it was open to the Judge, having regard to the onus on the Crown to prove aggravating circumstances beyond reasonable doubt, to make any finding on this rather scanty material other than that which would have represented the view expressed to the psychiatrist.

It has also been mentioned by the presiding Judge that there the applicant had a psychiatric disability which had produced a number of admissions to psychiatric hospitals, and that appears to me to be a mitigating factor, although not one of great importance.

The Judge found that the applicant had unwillingly brought about the death of a 42-year-old woman and His Honour found that the applicant should have appreciated the risk to the victim.  I notice that His Honour did not say, as had been submitted, that there was any element of deliberation.  His Honour added, "I note that you rendered assistance at once and I accept that you experienced true remorse notwithstanding your initial prevarication with the police."  His Honour also said, correctly, that the applicant had a "substantial criminal history, at least most of it drug-related".

His Honour said this, "The general moral sense of the community is outraged by the use of heroin, let there be no doubt, and would be especially so where death has resulted from injecting the drug as here into an inexperienced novice."

I confess to having some reservations about this reference to community opinion.  My impression is that, whereas many and I think most people are in general in support of the law's present approach to heroin use, there are said to be rational and informed views which support quite different approaches.  I do not express my personal opinion about the merits of that debate, but merely note that it is a subsisting one, not only in this country but elsewhere.

The circumstance that what was injected was an illegal substance was plainly treated as an aggravating one.  Much of what the Judge said, in His Honour's sentencing remarks, could not have applied had the applicant, instead of injecting heroin, injected another substance, the use of which was lawful but injection of which could cause death.  The principle is that the sentencing Judge must consider all the accused's conduct "but cannot take into account  circumstances of aggravation which would have warranted a conviction for a more serious offence".  (De Simoni (1981) 147 CLR 383 at 389).

In D [1996] 1 Qd.R. 363, this Court analysed authorities in the De Simoni line and put forward a number of principles said to emerge from that and subsequent cases.  It is clear that, whether or not it caused any damage, the act of injecting heroin was a separate offence which could have been charged.  Had that been done and a conviction ensued, the penalty to which the applicant would have been liable would have been 20 years' imprisonment.  (See section 6.1(b) of the Drugs Misuse Act 1986).

It appears to me that the trial Judge's approach to the matter may be defended on the ground that it was not the illegality of injecting the heroin which His Honour took into account as an aggravating circumstance, but merely the dangerous nature of the drug and community opposition to its use.  My view, already indicated, however, is that a realistic view of the sentence is that the applicant was punished for injecting a prohibited drug and that was a substantial part of the reason for the sentence which was imposed.  I do not, however, find it necessary to say any more about what I regard as the rather difficult subject of the effect of De Simoni, or the analysis of it in D.

As to comparable cases, I, like the presiding Judge, have noted Clarke and Purvis in which in rather a similar case a lower sentence was imposed.  Some other sentences were discussed by the learned presiding Judge.  I have derived assistance from a useful collection of cases in the same general category, which is to be found in judgments of the Court of Criminal Appeal in Streatfield to which reference has been made.

I think the decision in Streatfield itself, however, is helpful.  The facts of it have been outlined and an important fact, as it appears to me, is that there was no suggestion there that the woman who was shot in the head and killed had any intention of turning the gun on herself.  Here, the facts are really quite different in that the injection was one which the victim intended to administer to herself and, in a misguided and a clearly criminal attempt to be helpful, the applicant took over the task.  Especially if one ignores - admittedly a difficult feat - that the injection of heroin was in itself illegal, then it appears to me that Streatfield's action was inherently a great deal worse than the applicant's.        

In the whole of the circumstances, it appears to me that, with the greatest respect to the primary Judge, His Honour's conclusion was rather beyond the range which should have appertained.

Having in mind in particular what I regard as a critical feature, that it was not established that the applicant's subjective state of mind was other than that which was stated to the psychiatrist, namely, that the heroin was not of an amount which would place the victim at risk, I would reduce the sentence to four years.

THE PRESIDENT:  The order is the application for leave to appeal is refused.