R v Bates; R v Baker[2002] QCA 174

SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  The applicants pleaded guilty to two offences committed on 5^th October 1999, the manslaughter of Russell Donald Williams and an assault occasioning bodily harm committed upon Troy Anthony Love.  When he committed the offence, the applicant Bates was five days short of 20 years old and Baker was aged approximately 16 years 8 months.  Baker fell to be sentenced as an adult because of s 105(2) of the Juvenile Justice Act 1992.  The deceased Williams was three weeks short of 21.  The complainant Love was but 14 years old.

2. The learned sentencing Judge took the view that there was little to separate the applicants in terms of criminal culpability. He sentenced Bates to the maximum of life imprisonment for the manslaughter, and Baker to 12 years’ imprisonment with, as necessarily followed, a declaration that she had been convicted of a serious violent offence. There were concurrent terms of 12 months’ and 6 months’ imprisonment respectively for the assault occasioning bodily harm.

3. The Judge differentiated in relation to Baker because she was then only 16 years old, had no prior criminal history and had “much better” prospects of rehabilitation than Bates.

4. Bates’ significant prior criminal history rested in his conviction, only about 11 months before committing these offences, of assault occasioning bodily harm for which he was given 18 months’ probation, which by these offences he consequently breached.

5. The applicants seek leave to appeal on the ground that the sentences were manifestly excessive, Baker also contending that the Judge failed to give consideration to s 107B of the Juvenile Justice Act.

6. The circumstances of the offence of manslaughter were horrendous. They grew out of Baker’s taking umbrage at being called a slut when she refused to agree to pay for the repair of scratches to the bonnet of a car she had climbed on to. She invoked the assistance of her former de facto husband, Bates. Hearing of this and fearing retribution, the deceased and Love, who had been in the party which criticized Baker’s treatment of the vehicle, took refuge in their home, which they attempted to secure by closing the doors and windows. The applicants gained entry nevertheless, and located their victims inside. Bates struck and kicked Love about the head and body, causing bruising and swelling, and then turned his attention to the deceased, upon whom he visited what the learned Judge termed a “vicious battering”. The deceased offered no resistance. During the onslaught by Bates, Baker triumphally urged him on, saying: “Go my Rambo”. While the deceased lay on the floor, Bates kicked and punched him. The applicants left that room. Shortly thereafter the deceased stumbled out apparently towards the bathroom, to be interrupted by a kick to the head from Bates. The deceased fell to the floor, whereupon Bates resumed his onslaught. A little later, Baker joined in, stomping upon or kicking the deceased’s head with such force that she left the imprint of her footwear. The deceased died as a result of head injuries.

7. Another person present attempted to give assistance to the deceased. Baker told her not to do so. Bates then went off drinking with Baker and others. Learning of the death of the deceased, Bates threatened with death anyone in his party who revealed his involvement.

8. The applicants ran away. When detained by the police, they were uncooperative and dishonest.

9. They were tried for murder, during which they denied their responsibility for the death of the deceased. Close to its end, that trial had to be abandoned. They conceded their guilt of manslaughter at the commencement of the second murder trial, and the Crown accepted that plea. The learned Judge took the view that the late pleas of guilty to manslaughter were not indicative of remorse, and that view was reasonably open, notwithstanding some slight contrary suggestions in a psychologist’s report tendered before His Honour.

10. The Judge characterized it as a terrible case, going on to provide this more detailed description:              

“It involves a home invasion of the very worse kind.  It resulted in a young man being savagely beaten to death in his own home by a complete stranger.  The incident arose out of a triviality.  A 16 year old girl who left school to have a child is annoyed because she is called a slut.  The insult is offered after she damages someone else’s property and declines to accept responsibility for it or even offer an apology for the damage.  She calls on a man whom she knows to be violent for the very purpose of beating those who insulted her.  The man responds knowing all that has happened is that teenagers have called each other names.  His involvement in the dispute was entirely unnecessary and gratuitous.  It was not his quarrel.  Not only had he broken up with Baker, he had been ordered to stay away from her. 

The ferocity and the persistence of the attack is incomprehensible.  It was an attack in which Baker, despite her youth and sex, fully participated.  She urged Bates on to greater cruelty.  The deceased put up no resistance and was beaten terribly as he sought refuge in his own bedroom.  That was bad enough, but what followed was worse.  When the deceased was making his way to the bathroom it must have been obvious that he had been severely hurt.  The normal human reaction would have been to feel pity and to offer assistance.  Instead, he was brought down by a cowardly blow and then set upon with renewed force as he lay dying on the floor.  Baker was not content with encouraging her co-accused.  She too kicked the unconscious man in the head. 

The insult to Baker cannot explain what was done to Russell Williams.  The violence was so great and so prolonged it is difficult not to infer that the prisoners enjoyed their activity.  I can see no other explanation for the renewal of the attack in the kitchen.  Whatever offence the deceased had caused Baker he had more than atoned for it by the beating in the bedroom.  To assail him a second time was wanton cruelty.  It was what killed him.”

11. The applicant Bates focuses on his not having been given any benefit for the plea of guilty. The Crown’s acceptance of that plea at the second trial was apparently explained by the relevance, to the proof of intention, of recently obtained results of tests showing the presence of alcohol and amphetamines within Bates’ system. There was, however, nothing to stop Bates from entering a plea of guilty to manslaughter when first arraigned for murder, albeit the Crown would not at that stage have accepted that plea in discharge of the indictment. Taking that course would have put Bates, by the time of the sentencing, in a better position realistically to seek credit for the plea.

12. The Judge regarded it as a late plea, and that was factually correct. It is significant that until that point, Bates had apparently maintained his denial of responsibility for the death. The Judge was not bound to reduce the penalty because, late in the overall piece, Bates pleaded guilty, simply because he thereby demonstrated willingness “to facilitate the course of justice” (Cameron v R (2002) 76 ALJR 382).  Although the Judge was statutorily bound to take the guilty plea into account, he was by s 13(1) of the Penalties and Sentences Act 1992, authorized, but not bound, to reduce the sentence in consequence.  In declining to impose a less severe penalty, the Judge obviously took the view that the horrendous nature of the crime, committed by a person with Bates’ prior criminal record, warranted nothing short of the maximum notwithstanding the plea. 

13. It should be noted that when the matter first came before his Honour, the Prosecutor suggested a range of eight to twelve years which the Judge considered too low. At the subsequent hearing, the Crown increased that range to 12-14 years. But that did not of course bind the Judge.

14. It has often been said that sentences for manslaughter vary greatly depending on the circumstances, in the most serious cases reaching life imprisonment.

15. In Veen No 1 (1979) 143 CLR 465, Mason J made an observation, approved by the majority in Veen No 2 (1988) 164 CLR 465, to the effect that a sentence of life imprisonment reflects the offender’s record, his propensity to commit violent crime, the need to protect the community and the very serious nature of the offence.  All of those circumstances worked here in favour of the imposition of the maximum. 

16. The case falls within the worst category of manslaughter, by reason of this aggregation of circumstances: the triviality of the matters which formed its genesis, the gross viciousness of the conduct which caused the death, the satisfaction one infers was derived by the offenders through their commission of the offence, and the callousness of their subsequent conduct. The need to protect the community emerges from the events themselves, and as we know, Bates had previously relevantly offended.

17. It fell within the limits of his Honour’s sound sentencing discretion to imprison Bates for life. Fine comparison between the circumstances of this case and others is not helpful in a situation like this.

18. In the course of his sentencing remarks, the learned judge observed that each applicant, by the Crown’s acceptance of the pleas to manslaughter, gained the advantage of immunity from conviction for murder. That was true in fact, but the point was not relevant in determining penalty, for reasons expressed in R v Crocker CA 118 of 1999.  The making of the statement does however raise the question whether such a consideration did in fact influence the learned Judge, by, for example, denial of credit for the pleas of guilty. 

19. I do not consider that it did for two reasons. First, the Judge expressly considered any possible significance of the pleas, concluding that they had none for reasons concerning the pleas themselves, their lateness and their not being indicative of remorse. Second, the gravity of the offending ipso facto put the applicants into a category where substantial imprisonment was necessary, effectively leaving no room for credit for the pleas which could arguably have had no more than limited significance anyway: in other words, any arguable, limited significance in the pleas (for example, as reflecting desirable cooperation in the administration of justice) was overborne by the feature of the gravity of the crime.

20. In the case of Bates, allowing for the court’s general preference for imprisonment for determinate periods, especially where the offender has pleaded guilty, the reality is that the court could not appropriately have sentenced to imprisonment below the level of 18 years, in my view, meaning he would necessarily have to serve at least 14.4 years. The minimum period to be served by life prisoners is 15 years. Even were interference otherwise justified, those figures suggest that any interference would amount to no more than impermissible “fine tuning”.

21. When sentencing criminal offenders, the court acts on behalf of the community, as an integral part of the mechanism which assures the rule of law. In discharging that significant role, the court is astute to accommodate reasonable public expectations, as reflected through the sentencing legislation enacted by the parliament, and so far as otherwise may reliably be gauged through community interchange.

22. In this case, aside from the expression of community outrage which naturally followed public disclosure of the commission of the offences, the parliament has sent a very clear message that those who commit serious violent offences should be accorded no particular leniency or tolerance. The amendments in 1997 to the Penalties and Sentences Act, which set up the serious violent offence regime, sent that signal.

23. In that context, and acknowledging the horrifying brutality of the killing, albeit not murder, reasonable community expectations clearly warranted imposition of the maximum available penalty, that is, imprisonment for life.

24. I would refuse Bates’ application.

25. Counsel for the applicant Baker contended for a range of eight to ten years’ imprisonment, based on a starting point of 12 to 15 years for Bates, which Baker’s counsel would then reduce taking account of Baker’s age, lack of prior criminal history, plea of guilty and the approach militated by ss 107B and 109(2)(e) of the Juvenile Justice Act.

26. Section 107B obliged the learned Judge to have regard to the circumstance that Baker was a child, that is under 17 years of age, when she committed the offence. Of course the Judge was aware of her then age, which was approximately 16 years 8 months, and that she was then, in law, a child. He said so expressly in his sentencing remarks, referring to his obligation nevertheless to sentence her as an adult in light of s 105(2) of the Juvenile Justice Act. 

27. Section 107B also constrained the Judge not to sentence Baker to a term of imprisonment longer than the maximum detention to which she could have been subjected as a child. It is accepted that is life imprisonment.

28. The objection then taken is that the Judge did not have regard, under s 107B (2)(b), to the later s 109(2)(e), requiring that any detention order imposed on a child be for “the shortest appropriate period”. The Judge did not refer to that provision expressly, but he did say that it was in part her youth which caused him to treat her more leniently than Bates. That is to me a sufficient signal that the Judge was well aware of the significance of her youth in all its ramifications, statutory or otherwise.

29. The other substantial criticism mounted on behalf of Baker is that the Judge should have given further credit because of her plea of guilty, having regard especially to her cooperation in the administration of justice. The Judge was influenced with Baker, as with Bates, by the lateness of the plea of guilty, and her maintaining denial of responsibility for the death of the deceased until the commencement of the second trial. He was entitled to take that view. As to the reference to her deriving, through the Crown’s acceptance of a plea to manslaughter, the advantage of immunity from conviction for murder, I refer back to what I said earlier when dealing with the application of Bates.

30. In my view for an offence of this seriousness, and notwithstanding Baker’s considerable youth and the lack of prior criminal convictions, the sentence of 12 years fell within the appropriate range.

31. As I said earlier, the circumstances of some serious, violent offences are so grave as to overwhelm considerations which will, in other cases, operate substantially in mitigation. Youth is obviously one such feature. The wanton cruelty of this brutal sustained attack, and the triumphalism which characterized the attitude of Baker, produce nothing but revulsion. In this case, Baker’s youth could not reasonably have warranted a sentence less than of the order His Honour imposed.

32. Sentencing courts treat child offenders with special regard because they may lack the adult capacity for mature judgment, and because the prospect of rehabilitation, usually favourable, should be especially carefully fostered. How do those considerations relate to this case? Baker was by statute to be sentenced as an adult, but those features are still potentially relevant.

33. As to her maturity, these points should be made: she was, at the time of the offences, just short of the age of which the law would regard her as an adult; she had previously lived with Bates in a de facto relationship; and she had borne a child. The aggregation of those features posits a not insubstantial level of experience of life, the problems it spawns and ways of dealing with those problems. These circumstances suggest that notwithstanding her youth, she should be regarded as having had the capacity and maturity to realise the enormity and gross criminality of the venture into which she led Bates, and in which she chose enthusiastically to participate herself.

34. As to the matter of rehabilitation, a shorter term would no doubt assist her personally, although one hopes the educational and vocational courses and counselling undertaken in jail will nevertheless prove beneficial. But the circumstances of some serious violent offending are so grave that the considerations of punishment and deterrence outweigh the liberal pursuit of rehabilitation. This is such a case. Those aspects – punishment and deterrence – notwithstanding her youthfulness, lack of prior criminal history and pleas of guilty, did in my view render imprisonment for of the order of the substantial term of 12 years appropriate for this crime.

35. I would, likewise, refuse Baker’s application.

36. WILLIAMS JA: I will not repeat unnecessarily facts and circumstances set out in the reasons for judgment of the Chief Justice, but I consider it necessary to refer to some particular matters in order to justify the conclusion which I have reached.

37. The initial relevant events, the scratching of the car and the description of Bates as a “slut”, occurred on the street outside 13 Wu { margin-top: 12pt!important; margin-left: 30.35pt; text-indent: -23.15pt; text-align: justify; font-weight: normal a Street, Thorneside, in the Redland Shire. In order to avenge that perceived insult Bates telephoned Baker, who was then drinking with some other males at Dooley’s Hotel, Loganlea, within the Logan Shire. That meant Bates was some 30 kilometres, more than half an hour’s drive, away from Wu { margin-top: 12pt!important; margin-left: 30.35pt; text-indent: -23.15pt; text-align: justify; font-weight: normal a Street at that time.

38. Prior to the date in question Bates and Baker had lived for a time in a de-facto relationship but it had ended. More importantly for present purposes, Baker had obtained a domestic violence order against Bates the terms of which precluded him from associating with her. The inference is clear that at the time the phone call in question was made, Baker was aware that she was seeking the assistance of a person known to have a violent disposition.

39. Notwithstanding the existence of the domestic violence order, Bates responded immediately to the call; he left the hotel and drove to Thorneside.

40. Bates, and his two male companions, met Baker, and her female companions, at Thorneside a short distance from 13 Wu { margin-top: 12pt!important; margin-left: 30.35pt; text-indent: -23.15pt; text-align: justify; font-weight: normal a Street. The girls got in the car for the purpose of driving to that address. On route Baker said: “They better learn not to fuck with me now that my Rambo is here”. To that Bates replied: “Yes, well, they better learn not to fuck with my babe”. That reinforces the inference that Baker contacted Bates because she knew of his violent disposition, and was expecting him to act in a seriously violent manner towards whoever was found in the house at 13 Wu { margin-top: 12pt!important; margin-left: 30.35pt; text-indent: -23.15pt; text-align: justify; font-weight: normal a Street.

41. Bates had no real interest in the earlier, rather trivial incident. He appears to have travelled to Thorneside merely to obtain whatever gratuitous pleasure he could get out of seriously assaulting other persons at the request of his “babe”. Retribution for a trivial insult offered out of his presence was the motivation for his attack. His role is close to that of a hired assassin; his return was not money but whatever gratification he got from responding to the urgings of Baker. It should be noted that, whilst Williams and Love were clearly present when the car (owned by a boy named Lavis) was scratched and the insult offered to Baker, there was no clear evidence that conduct by either or both Williams and Love, as distinct from conduct of other males in the group (including Lavis), precipitated Baker’s calling in Bates.

42. The assault was particularly vicious. It was a home invasion of the worst kind. When the deceased was rendered virtually unconscious by the first attack Bates was urged on to greater brutality on hearing Baker say: “Go, my Rambo”. An attempt by the deceased, then semi-conscious, to get to the bathroom after the initial assault, resulted in Bates kicking him severely in the head. That was followed up with further kicks, including an episode where the kicks were driving the deceased’s head up against the wall.

43. With the deceased again virtually unconscious Bates decided that it was time that she participated in the attack. She delivered a kick which was so severe that it left the imprint of her shoe on the left forehead of the deceased; the medical evidence suggested that it was that blow which resulted in a tear of the septum pellucidum, the membrane that runs between the two spheres of the brain. The medical evidence was that quite a profound force was required to cause such an injury.

44. The degree of criminality of the conduct of both Bates and Baker is aggravated by the simultaneous attack on the young boy Love. He was quite seriously injured as a result of the attack on him.

45. Bates and Baker, together with their companions, then left the house. They went to a hotel where alcohol was purchased and then to a park. It would appear that there was further drinking, probably celebrating the success of the attack.

46. Bates and Baker subsequently went to Baker’s house at 13 Marlin Street; they ran from there on observing police in the vicinity and in the course of that Baker lost the black sandals she had been wearing at the time of the assault. They were recovered by police and the pattern of the soles matched the imprint on the forehead of the deceased.

47. A short time later police located Bates and Baker hiding in the yard of nearby premises. Baker did participate in an interview with the police, but it is not necessary to refer to what she said in any detail for present purposes. Relevantly at the end of the interview when asked would she like to say anything or make comment before it finished, she said: “Can I have my shoes?” When the police officer indicated they were probably back at the scene of the crime she again asked: “Can I have them back?” Later when asked if she was happy with the way she had been treated by the police she said, “Yep”, and when the police officer said, “Nothing more?” she replied, “Except for my shoes”.

48. In his sentencing remarks the learned judge said:

“Baker showed a particular anxiety to recover her shoes from the police.  I infer that her concern was a product of her guilty knowledge that forensic testing might connect her to the savage blow to the deceased’s head.”

49. In the circumstances that was an appropriate inference to draw from Baker’s conduct.

50. Given all that, it was not surprising that Bates and Baker were charged with murder. Each maintained a plea of not guilty to that charge throughout the first trial which did not go to verdict; a re-trial was ordered. It was at the commencement of the re-trial that a plea of guilty to manslaughter by each was accepted by the prosecution. In the course of his sentencing remarks, the learned sentencing judge said that the prosecution had accepted those pleas “for reasons which are far from obvious and which have not been explained by the Prosecutor”. It is clear that prior to the commencement of the re-trial the prosecution would not have accepted such a plea. When it was offered at that time, the prosecution secured a short adjournment to consider its response.

51. The only new information, and this was said by the prosecution to be directly relevant to its decision to accept the pleas, was evidence as to the presence of amphetamine in the body of Bates at the material time. After his arrest, a blood sample taken from Bates revealed a blood alcohol reading of .013 per cent. That was apparently about six hours after the attack, and could possibly have been explained by the alcohol consumed after the killing. The sample also showed a concentration of .017 milligrams per litre of methylamphetamine. There was medical evidence before the sentencing judge that a level of .017 would have necessitated, if no further drug was ingested, a reading of .034 milligrams per litre at the time of the assault. That was said to be within the therapeutic range and a person with that concentration would be capable of forming an intent.

52. But apparently the prosecution was concerned that evidence as to the quantity of alcohol and drug in the body of Bates could have made it difficult to prove beyond reasonable doubt that he had an actual intention to kill or cause grievous bodily harm.

53. Importantly, when it came to sentence, it was of significance that pleas of guilty had been recorded. Given that the methylamphetamine evidence only became available shortly before the re-trial, and was considered by the prosecution to be the critical factor in accepting pleas of guilty to manslaughter, it cannot be said that the pleas of guilty were made other than at the earliest time such pleas would be regarded as meaningful by the prosecution. To that extent the pleas were timely.

54. In the sentencing remarks it was said that the pleas did not “indicate any sense of remorse”. On all the available material, including the psychiatric reports, that is the appropriate conclusion to reach.

55. Sentencing for manslaughter is always difficult. It is worth repeating a passage from my reasons for judgment in R v Duong and Others [2002] QCA 151:

“It has often been said that the offence of manslaughter covers a wide variety of circumstances in which a person has been unlawfully killed.  Because of that it is difficult to speak of a range of punishment applicable to the offence, and it explains why it is sometimes difficult to reconcile one sentence of manslaughter with another.  Many crimes of manslaughter involve what could be described as a one on one situation.  In many such instances there are complicating features such as provocation, excessive self-defence and a single blow (with or without a weapon) delivered in a highly emotional situation.  Such cases can readily be distinguished from a planned gang attack on a relatively defenceless person in a remote locality.  There is an even greater abhorrence generally in society when such an attack is carried out with retribution as its main object”.

56. The maximum penalty which may be imposed for manslaughter is that of life imprisonment, and there are certainly cases where that is the appropriate penalty; it cannot be said that life imprisonment could never be imposed for that crime. In R v Griffin & Dunkerton (CA 309, 318 and 352 of 1998, 19 March 1999) the President, Davies JA and Wilson J said that because the circumstances constituting the offence of manslaughter vary greatly “sentences imposed can vary from non-custodial sentences in truly exceptional cases up to life imprisonment for the most serious examples.”  To similar effect is the observation of Lord Lane CJ in R v Walker (1992) 13 Cr App R(S) 474 at 476 quoted by Atkinson J in her reasons.

57. If one considered only his conduct leading up to and in the course of the assault one could readily justify imposing a life sentence on Bates, as in fact the learned sentencing judge did. It was one of the worst examples of sustained brutality to a defenceless person with retribution as its main object. The way in which Bates responded to urgings from Baker clearly demonstrates that he is a person with a seriously violent disposition who constitutes a threat to society. The fact that at the time he was on probation with respect to a charge of assault occasioning bodily harm confirms that disposition.

58. But the legislature provides that the court on sentencing must have regard to the guilty plea. Section 13(1) of the Penalties & Sentences Act 1992 provides that the court must take the fact that an offender has pleaded guilty into account and in consequence “may reduce the sentence that it would have imposed had the offender not pleaded guilty”.  Similar legislative provisions are found in other jurisdictions.  There is now a body of case law on s 13 and provisions to similar effect.  It is sufficient to refer to Cameron v The Queen (2002) 76 ALJR 382; Atholwood (1999) 109 A Crim R 465, Siganto v The Queen [1998] 194 CLR 656; McQuire & Porter (2000) 110 A Crim R 348 especially at 358, 362 and 366; R v Taylor & Napatali; ex-parte Attorney-General (CA 157 & 158 of 1999, 20 August 1999); R v Harman [1989] 1 Qd R 414 and R v Bulger [1990] 2 Qd R 559.  As McPherson JA said in Taylor ordinarily there would be some reduction in sentence consequent upon a plea of guilty.  I regard those authorities as indicating that a provision such as s 13(1) would in the absence of some specific consideration (which should be identified) require some reduction in sentence even where there was no remorse reflected by the plea nor any other relevant consideration (such as avoiding the necessity of a young child giving evidence in a sex case).  It is now clear from Cameron that the focus is on the offender’s willingness to facilitate the course of justice.  As that case, and McQuire, in particular demonstrate that is an issue quite separate and distinct from demonstrated remorse.

59. As already noted the pleas of guilty by both applicants were made at the earliest time such pleas would be regarded as meaningful by the prosecution. It follows that the pleas here do indicate some willingness to facilitate the course of justice.

60. As stated above, the facts and circumstances of the attack resulting in the death of Williams were such as to justify the imposition of the maximum penalty on Bates. The impact of his plea of guilty, without remorse, calls for the imposition of a determinate sentence, rather than a life sentence, which is effectively an indeterminate sentence. When all the serious aspects of the case against Bates are given due weight I have come to the conclusion that in the light of the plea of guilty the appropriate sentence was one of 18 years imprisonment. That automatically carries with it a declaration that the conviction is for a serious violent offence.

61. So far as Baker is concerned, in addition to the effect of her plea of guilty, one must make allowance for her age and the fact that her prospects of rehabilitation were better than those of Bates. Against that, there is the medical evidence which suggests that it may well have been her kick which was the immediate cause of death.

62. I am satisfied that the learned sentencing judge gave proper weight to the considerations made relevant by the Juvenile Justice Act 1992 with respect to Baker.

63. In the circumstances the sentence in fact imposed on Baker was the appropriate one.

64. I agree with what has been said by the other members of the court with respect to the submission based on the decision in R v Crocker (CA 118 of 1989, 10 September 1999).

65. My orders would therefore be:

1. In CA number 295 of 2001 (Bates) grant leave to appeal, allow the appeal, and in lieu of the sentence of life imprisonment order that Bates be imprisoned for a period of 18 years with a declaration that he was convicted of a serious violent offence.

2. In CA number 329 of 2001 (Baker) dismiss the application for leave to appeal against sentence. 

66. ATKINSON J:  The facts of this case are set out fully in the judgments of the Chief Justice and Williams JA which I have had the advantage of reading.

67. As has often been said,^[1] manslaughter is an offence the circumstances of which vary so greatly that the sentencing range which may appropriately be imposed lies from a non-custodial sentence to the statutory maximum of life imprisonment.  Lord Lane CJ referred to the difficult exercise of sentencing discretion which the judge is called upon to undertake, in R v Walker:^[2]

“It is a truism to say that of all crimes in the calendar, the crime of manslaughter faces the sentencing judge with the greatest problem, because manslaughter ranges in its gravity from the borders of murder right down to those of accidental death.  It is never easy to strike exactly the right point at which to pitch the sentence.”

68. This case sets itself at the most serious end of that continuum. The learned sentencing judge was of the view that in Bates’ case, those circumstances warranted the maximum permissible punishment of life imprisonment. His Honour sentenced Baker to twelve years’ imprisonment. Both were declared to have been convicted of a serious violent offence. The applicants argue that the appeal against sentence should be allowed because the sentences imposed were manifestly excessive and errors were made in the exercise of the sentencing discretion.

69. The offences under consideration in the present appeal involved a sickening attack on two unarmed men for the most trivial of reasons. The attack on the deceased was repeated once he was injured, bloodied and utterly helpless and harmless.

70. There were personal factors, however, which acted in mitigation of the sentence which might be properly imposed. Bates was young, being only 19 at the time of the offences.^[3]  Baker was only 16 at the time of these offences.  Youth is generally a mitigating factor to be taken account of in sentencing.^[4]

71. Baker complained that the learned sentencing judge failed to have regard to s 107B of the Juvenile Justice Act 1992.  However, it was accepted in this case that the maximum sentence which could have been imposed on a youthful offender was the same as could have been imposed on an adult offender.^[5]  The omission of the sentencing judge to specifically refer to this section does not mean his Honour did not take it into account.  In any event it does not appear that this consideration would have made any difference to the sentence imposed.  Baker’s youth does appear to have been taken account of as a mitigating factor in the sentence imposed on her.

72. Added to the consideration of their youth, was their lack of serious criminal records. Baker had no criminal history. Bates’ criminal history contained convictions which had not been considered sufficiently serious to warrant the imposition of a term of imprisonment. That the offender’s criminal record is one of the significant factors to be considered in determining whether to impose the maximum term of imprisonment for manslaughter can be seen in the judgment of Mason J in Veen v The Queen [No 1],^[6] quoted by the High Court in Veen v The Queen [No 2]:^[7]

“The court imposes a sentence of life imprisonment on taking account of the offender’s record, his propensity to commit violent crime, the need to protect the community and the very serious offence of which he stands convicted, imprisonment for life being a penalty appropriate to very serious manslaughter when it is attended by the additional factors to which I have referred.”

73. The Court then went on to consider the effect of a serious criminal history but reiterated the relevance of the offender’s criminal history to the sentencing discretion:^[8]

“… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed.”

74. None of these mitigating factors, whether considered in isolation or together, would necessarily have been sufficient to suggest that the sentence given to either Bates or Baker was manifestly excessive.

75. Had Bates been sentenced to life imprisonment after a conviction for manslaughter at a trial, that sentence might well have been within range. However, he was not. Both he and Baker pleaded guilty to manslaughter.

76. Section 13(1) of the Penalties and Sentences Act 1992 provides that in imposing a sentence on an offender who has pleaded guilty to an offence, a court must take the guilty plea into account and may reduce the sentence that would otherwise be imposed because of the guilty plea.  Ordinarily a guilty plea will have the effect of ameliorating a sentence which would otherwise be imposed.^[9]  There are three possible reasons for this.  As Spigelman CJ observed in the New South Wales Court of  Criminal Appeal in R v Thomson; R v Houlton:^[10]

“It has long been the practice of this Court that a plea of guilty should attract a lower sentence than would otherwise be imposed.  Three reasons are usually advanced to justify the practice.  First, the plea is a manifestation of remorse or contrition.  Secondly, the plea has a utilitarian value to the efficiency of the criminal justice system.  Thirdly, in particular cases – especially sexual assault cases, crimes involving children and, often, elderly victims – there is particular value in avoiding the need to call witnesses, especially victims to give evidence.”

77. In this case, little weight can be attached to the suggestion that the guilty plea was indicative of remorse. Some suggestion of Bates’ acceptance of his responsibility for his actions can be seen in the evidence of the psychologist, Luke Hatzipetrow, whose report was tendered during the submissions on sentence. There is, however, but slight evidence of remorse or contrition. The saving of witnesses of the ordeal of giving evidence of the traumatic events which they witnessed, played a part in or of which they were victims, was also of slight value given that there had previously been a trial which had been aborted on the fifth day.

78. The relevant factor in this case was the willingness of the applicants to facilitate the course of justice.^[11]  The utilitarian value of a plea, even in these circumstances, can not be underestimated.  Of the 601 indictments disposed of during the period of 1 July 2000 – 30 July 2001 covered by the last Annual Report of the Supreme Court of Queensland,^[12] only 43 or just over 7 per cent required a trial.  There were 475 pleas of guilty obviating the need for a jury trial.^[13]  The public interest is clearly served by an accused person, who accepts his or her guilt of an offence, pleading guilty to that offence.^[14]  As Byrne J observed in R v Bulger^[15]:

“If, as Harman^[[16]] decides, administrative expediency resulting from a guilty plea is a sufficient basis for moderation in sentencing, it ought not be decisive against a lesser sentence that conviction seems certain in the event of a trial.  Unless there is an incentive for an offender to admit guilt, there is always the prospect the trial will proceed to verdict if only because the accused perceives that there is nothing to be lost in risking the contest.”

79. The extent to which a guilty plea will ameliorate the sentence depends in part on how early or late the plea was entered. These were not early pleas, occurring as they did at the commencement of the second trial that they faced. However, they were pleas entered at the earliest time that the prosecution would accept a plea of guilty to manslaughter in discharge of the indictment. The prosecution received a toxicology report concerning the level of amphetamine in Bates’ bloodstream. The prosecution then determined that they would not proceed on the murder charge and indicated that a plea of guilty to manslaughter would be accepted. The pleas were entered.

80. It should therefore be distinguished from a guilty plea entered without explanation on the morning of or during a trial. It has more in common with the circumstances to which Ipp J adverted in Atholwood^[17] in the Court of Criminal Appeal in Western Australia.^[18]  In that case, the accused had been charged with several counts.  After a process of negotiation, the prosecution withdrew a number of the charges and Atholwood pleaded guilty to one of the remaining charges.    Ipp J observed:^[19]

“It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted.  Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him.  During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts … to persist in a not guilty plea on all counts.  In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity.”

81. The sentencing judge said that he was obliged to take into account the pleas of guilty but that he did not think they were of any real relevance. The failure in these circumstances to take account of the guilty plea in ameliorating the sentence imposed, in my view, represented an error in the exercise of the sentencing discretion.

82. A further error in the exercise of the sentencing discretion was evidenced by the learned sentencing judge’s observation that the acceptance of the pleas of guilty by the prosecution conferred a “distinct forensic advantage” on the applicants in that they were made immune from conviction on the more serious charge of murder. In so reasoning his Honour appears to have taken into account that the applicants obtained a benefit from pleading guilty to manslaughter and the sentence need not therefore reflect any amelioration on account of the guilty plea. That this reasoning is erroneous was recognised by this court in R v Crocker,^[20] where the court held that:

“The accused could be regarded as having obtained a “benefit” or advantage” only if it is assumed that he was guilty of the greater charges, or at least of something more serious than the charges of which he was convicted.  Such an assumption is fundamentally obnoxious to the criminal law.”

83. The motive for pleading guilty, if indeed that consideration formed any part of their motive, is not a reason for declining to find that the plea has any relevance to the sentencing discretion.^[21]

84. When one considers the cumulative effect of the mitigating factors on sentence in the case of Bates – his youth, his lack of a serious criminal history and in particular his plea of guilty – it appears that the sentence of life imprisonment was manifestly excessive. The most recent decision of the Court of Appeal which deals with an appeal against sentence for manslaughter, R v Duong, Nguyen, Bui and Quoc^[22] offers some useful insights into the appropriate sentence which should be imposed.

85. In that case four men were sentenced after pleading guilty to manslaughter on the second day of their trial for murder. The pleas were accepted in discharge of the indictment containing the count of murder. The deceased was killed by what the Court described as “a callous attack by a gang upon a comparatively defenceless young man”. The motivation for the attack was belief (perhaps true) that the deceased had stolen some property not of great value. It was an attack therefore carried out by a gang with retribution as its main object. The deceased was lured out of the safety of a residence late at night by a false pretence by Duong and taken to a remote place at the top of an embankment which overlooked a steep drop to water. There was no possibility of outside interference or assistance.

86. Duong, who was then aged 21, armed himself with a piece of electric cord; Nguyen, then aged 27, armed himself with a rolling pin and knives. The deceased was terrorised and subjected to extreme violence. Duong and Nguyen kicked and punched the deceased about the head and body and attacked him with the weapons with which they had armed themselves. Bui and Quoc, who were parties to the plan to threaten and assault the deceased, encouraged continuation of the assault by their presence, did nothing to prevent it, and did nothing to call on the attackers to desist even when it must have been obvious that serious harm was being inflicted on the deceased. The deceased’s body was then rolled down the cliff to the water. All showed a callous disregard for the deceased and left the body in an isolated place.

87. Duong did voluntarily speak to the police on the following day, showed them where the body was, made some admissions and implicated others but only by playing down his own role. He did not give any further assistance and maintained his not guilty plea until the second day of the trial.

88. The appellate court accepted that the offenders must receive some benefit for the guilty pleas notwithstanding the lateness of the pleas and that it was “an horrendous crime calling for severe punishment.” Sentences of 12 years imprisonment imposed on Duong and Nguyen, with the automatic declaration that each had been convicted of a serious violent offence, and 9 years imprisonment imposed on Bui and Quoc, with a declaration that each was convicted of a serious violence offence, were not disturbed on appeal. The Court held that the sentences were not manifestly excessive.

89. It is appropriate to recognise the plea of guilty in this case by imposing a determinate^[23] rather than an indeterminate sentence on Bates.  The crime was even more vicious, cold-blooded and trivial in its genesis than that committed by Duong and Nguyen.  Duong had at least assisted the police on the following day whereas Bates and Baker had been prepared to evade and lie to the police and deny any responsibility for the killing until the commencement of the second trial.  The appropriate sentencing range is 15 – 18 years imprisonment.  In view of the gravity and viciousness of this crime, it is appropriate to sentence at the top of that range. 

90. I am not, however, convinced that the sentence imposed on Baker, balancing the mitigating factors of her youth, her lack of criminal history and her guilty plea against the brutality of the crime, was manifestly excessive.

91. I would refuse the application of Baker for leave to appeal. I would grant the application of Bates for leave to appeal, allow the appeal and substitute a sentence of 18 years imprisonment for that of life imprisonment. The declaration that he has been convicted of a serious violent offence should remain in place.