R v Babsek; ex parte Attorney-General of Queensland [1999] QCA 364 (7 September 1999)

Last Updated: 11 May 2016

IN THE COURT OF APPEAL [1999] QCA 364

SUPREME COURT OF QUEENSLAND

C A No 213 of 1999

Townsville

[R v Babsek; Ex parte Attorney-General]

THE QUEEN

CAROLINE ANGELA BABSEK

Respondent

EX PARTE: ATTORNEY-GENERAL OF QUEENSLAND

Appellant

McMurdo P

Pincus JA

Thomas JA

Judgment delivered 7 September 1999.

Judgment of the Court.

APPEAL ALLOWED. SENTENCE IMPOSED BELOW VARIED BY DELETING NINE YEARS AND SUBSTITUTING TEN YEARS, AND BY OMITTING THE RECOMMENDATION FOR PAROLE. SENTENCE BELOW OTHERWISE CONFIRMED.

CATCHWORDS: CRIMINAL LAW - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL - APPLICATION TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - whether sentence of nine years with parole recommendation after three years for manslaughter of de facto manifestly inadequate - whether sufficient weight given to general and specific deterrence - that violence not an option when relationships end - whether sufficient weight given to impact of crime on victims - whether judge erred in finding respondent had “no predisposition to violence” - whether judge erred in taking into account the respondent’s suffering - whether judge erred in finding respondent remorseful.

R v Whiting [1994] QCA 425; [1995] 2 QdR 199, R v Miguel CA 351 of 1994, 25 October 1994, R v Auberson CA 248 and 249 of 1996, 3 September 1996, R v Haack; Ex parte Attorney-General CA 430 and 442 of 1998, 18 March 1999, [1999] QCA 76 considered.

Counsel: Mr J D Henry for the appellant.

Mr P J Davis for the respondent.

Solicitors: Director of Public Prosecutions (Queensland) for the appellant.

Arnel and Cooper for the respondent.

Hearing Date: 28 July 1999

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 7 September 1999

Caroline Babsek was convicted on 10 February 1999 in the Supreme Court at Cairns of the manslaughter on 18 May 1996 of Simon de Luca, her former de facto. She was sentenced to nine years imprisonment with a recommendation for eligibility for parole after serving three years. The appellant, the Attorney-General of Queensland, claims the sentence imposed is manifestly inadequate.
The respondent, who was 24 at the time of the commission of the offence, had been friends with the deceased since she was 18. They lived together from about 1994 after their child, Drew, was born, until 1996 when the relationship began to break down. On 21 April 1996 Simon moved to his parents’ home in Tully and the respondent and Drew continued to live in Simon’s parents’ beach house at Mission Beach. The respondent and Simon had sexual relations at least once after the separation when the respondent, but not Simon, wished to continue the relationship.
On the day of the killing, the respondent phoned the De Luca home in Tully to give Simon an opportunity to see Drew before she went to Cairns for the weekend. Simon drove to the beach house, collected Drew and walked to the beach. The respondent followed and Simon confirmed their relationship was finished. The respondent then brought Drew home, apparently by car. Simon followed on foot, which usually took about nine minutes. The respondent took Simon's .22 rifle and case from his vehicle into the kitchen, ejected a used cartridge and in the same bolt action reloaded the rifle. Simon returned from the beach and entered the house through a door near the rumpus room, apparently to get his car keys. The respondent pointed the rifle in his direction and fired one fatal shot. The respondent rang 000 in a distressed state saying, “I’ve shot my boyfriend” and gave her address. About 15 minutes later she also rang Mission Beach Medical Centre again saying, “I’ve just shot my boyfriend” and giving her address.
Dr Dressler attended the scene. The respondent said to him, “Oh my God. Is he dead?” She was distraught and crying and told him there had been domestic problems for some time; they had been apart for several weeks; she had hoped to reconcile that day but the deceased indicated he was permanently ending the relationship. The respondent said, “I couldn’t accept him leaving me. I shot him. I didn’t really want to kill him.” She said that she had taken a handful of temazepan sleeping tablets. The doctor administered ipecac solution to induce vomiting and arranged for her to be transported to hospital. She admitted to police at the scene that she killed the deceased with his gun which she took from his car. She said, “I was just so scared that he was taking Drew ... I didn’t want to hurt him ... I love him just so much.” On the way to the hospital, she told police she shot the deceased in the face, adding, “I didn’t really mean to hit him, I just pointed the gun and fired.”
At the hospital whilst telling another doctor her version of events, she became too emotionally upset to continue. By 5.30 p.m., she was able to be discharged without any serious effects from whatever overdose she had taken. She was arrested and charged with murder later that evening.
The post mortem examination confirmed that death occurred very rapidly after the passage of a bullet through the brain. A ballistics expert gave evidence that the gun was discharged about four metres from the deceased. The point of entry of the bullet wound was behind the ear, consistent with the deceased fleeing or retreating at the time he was shot. The firearm was in sound condition and not subject to accidental discharge. As a safety precaution, the deceased was in the habit of leaving the discharged cartridge case from the last firing of the weapon within it.
The respondent was tried and convicted of murder but her conviction was quashed on appeal. At the first trial, the respondent gave evidence that she acted in self-defence. At her retrial from 3-10 February 1999, she did not give evidence and self-defence was not raised. The defence case in the address to the jury was that the respondent was guilty of manslaughter but did not intend to kill or do grievous bodily harm to the deceased. Criminal negligence was also left to the jury as an alternative that would also allow the jury to return a verdict of manslaughter. The jury were invited to give a special verdict as to whether any verdict of manslaughter was based on criminal negligence. After returning the verdict of not guilty to murder but guilty to manslaughter, the foreperson said that the members of the jury agreed on the verdict of manslaughter without regard to the question of criminal negligence. The jury’s verdict was therefore consistent with them concluding that the respondent pulled the trigger and caused Simon’s death without intention to kill or do grievous bodily harm.
On 10 February 1999, the learned sentencing judge ordered a pre-sentence report, including a psychological and psychiatric examination, and that each of the professionals have available the transcript of both trials. Mr R Greenwood QC, who appeared for the respondent at trial, said that some material in the possession of his instructing solicitor would be handed to those preparing the report and copies would also be given to the Crown. None of that material was formally tendered as an exhibit.
The matter was re-listed for sentence on 4 June 1999 after the pre-sentence, psychiatric and psychological reports had been obtained. Mr Henry, who appears for the appellant and who also appeared for the prosecution at the trial, referred to this material which included reports by Drs Kippax and Milner and suggested that the material should be made an exhibit of the sentence. His Honour noted:

"At this stage I have not read the transcript of the earlier trial, but the impression I have from reading the reports of the experts [is] that they didn’t read all of the record either, and certainly reference is made to the psychiatric reports and psychiatric evidence dealt with at the earlier trial. If we make an exhibit I would be required to read all of it, and if I mark it ‘A’ for identification, just mark it as document ‘A’ and then whatever parts you refer me, I will certainly look at closely."

Mr Henry indicated that if the sentencing judge intended to sentence the respondent on the basis that she was the victim of a violent relationship he would want to address the evidence from the first trial that touched on that issue.
His Honour did not make that finding but concluded that the relationship between the deceased and the respondent “was marked on occasions with disputation, altercation and some physical violence”; from the long period of the relationship and the reconciliations that “there remained some positive feelings towards each other, and certainly on the part of both of [them] towards [their] son”; the respondent was “emotionally affected by the most recent separation, and by the statements made by Simon that he regarded the relationship as being at an end”; the respondent was “deeply in love with Simon, and that this heightened [her] emotional state”.
As is often noted in this Court, the facts of manslaughter cases vary greatly and consequently so do the penalties imposed. The sentence may vary from life imprisonment in serious cases through the full spectrum of custodial sentences with or without early parole recommendations to the very rare case of a non-custodial sentence: generally the sentence will be a substantial term of imprisonment in between those extremes, possibly with a parole recommendation, especially if there has been an early guilty plea. This is a very serious example of manslaughter and the penalty must reflect its gravity.
In support of the claim that the sentence is manifestly inadequate, the appellant submits that the sentence imposed in itself demonstrates that insufficient weight was given to deterrence. A case such as this where death was caused during the emotional and traumatic breakup of a relationship is less likely to require particular or individual deterrence; the violence usually arises out of a unique relationship and set of circumstances and is therefore less likely to be repeated. General deterrence is however always a very important factor in such cases and a substantial term of imprisonment must generally be imposed upon those who unlawfully kill a former partner who wishes to leave the relationship. When relationships break down, the law provides some assistance in the areas of child custody, property division, maintenance and divorce; Domestic Violence Orders are provided for protection from those who would resort to violence. All members of the community must understand that physical violence is not an option when relationships end.

As Thomas JA observed in R v Haack:^[1]

"Courts are rightly concerned at violence by possessive males who cannot accept rejection and who behave violently towards former partners in such situations. Deterrence is needed against overreaction by females in such situations just as it is for males.”

Deterrence of those who choose to damage their partner rather than let him or her escape a relationship is an important sentencing objective. People seeking to escape such relationships deserve the help of the law. The present case is a clear example of such conduct.
The appellant submits that the sentence imposed demonstrates that the sentencing judge did not give sufficient weight to the physical and emotional impact of the crime upon its victims. His Honour noted in his sentencing remarks:

“Your action in bringing about Simon’s death has caused damage on a wide scale. Simon was a member of a close-knit extended family. He, in his short life, had attracted many friends who became close to him, almost as family members. His death, particularly in the circumstances in which it occurred, has impacted severely on family members and friends.

I have had regard to the accounts of physical and emotional upset detailed in the extensive list of statements given to me. I can only express the hope that the intensity of anger and grief which has permeated these statements will abate for the family members, particularly as there must some day be a resolution of the conflict over Drew and that can be successful only if those high emotions are contained.

Of course no sentence can right the wrongs that have been done. The sentence of this Court can never even approach substantially addressing such a wrong, but there are other matters that must be taken into account. Apart from grief and vengeance, there are matters such as the rehabilitation of the offender who must return to the community.

It is my task also to look at our society’s interest. The understandable feelings of victims must not be allowed to move the Court beyond the way of justice. I must look forward to the effect that the sentence I impose has, in the knowledge that you will again take your place in the community, you must have the opportunity to resume a life which will have value.

I must also take note of the interests of Drew in having an early resolution of the conflict over his custody. I must note also his interest when he is mature in resolving the emotional conflicts which have been thrust upon him.”

These comments demonstrate that the learned sentencing judge was fully aware of the tragic circumstances and displayed considerable sensitivity in identifying the consequences to the deceased's family, to the child of the union and to the respondent. Since the homicide the child Drew has been in the custody of the deceased's parents. The issue of custody or access when the respondent is released from prison was obviously a matter of considerable tension between the deceased's family and the respondent. In our view this subject was a distraction from the proper sentencing process and was conducive to error. If the sentence was moderated or reduced in order to bring forward the time of resolution of the question of custody, it was erroneous to have done so. The above passages do not expressly state that such a consequence should flow, but they tend to suggest it. Conversely, if they did not affect the result, they involve unnecessary speculation in a contentious area which we have already suggested is a distraction from the task of formulating a just sentence.
The appellant complains of the sentencing judge's finding that the respondent had “no predisposition to violence”. As has been noted, his Honour made no finding on the unresolved issue arising out of the first trial as to whether the respondent or the deceased was violent towards the other. His Honour's finding that the respondent had no predisposition towards violence was consistent with her lack of any prior convictions, the references tendered and the material in the pre-sentence report;^[2] it was not a finding that she was the victim of the deceased's violence.
The appellant submits the judge should not have taken account of the respondent's suffering. The judge found the respondent had suffered severely from the death she inflicted. He took "into account also the added burden which [the respondent] suffered by [her] period of incarceration to date and the deprivation of [her] association with Drew in those critical ages between three and six years.” Although the respondent was the very cause of this present suffering and therefore cannot rely upon it in mitigation, it was not unreasonable for the judge in context to make mention of this fact: the respondent must live with the knowledge that she killed Simon, the father of her child Drew; this will have an irreversible and detrimental impact on Drew and her relationship with him; it is a life long sentence for her, and almost certainly for Drew and in many ways it is a greater penalty than one that can be imposed by any court.
The appellant submits the sentencing judge erred in finding the respondent had “genuine remorse”. The respondent always admitted her responsibility for killing the deceased and did get assistance for him; on the other hand, had she denied it, there would have been an overwhelming case against her.
The respondent still maintains that she was the victim of violence and abuse from the deceased. Mr Henry submitted at sentence that lack of remorse was shown by the respondent's lies in the first trial: the respondent claimed the deceased threatened and assaulted her at the boat ramp; she then saw him through the kitchen window approaching through the rear of the house making threatening gestures. She made no mention of these claims in her accounts to doctors and police immediately after the killing. Photographs and a lace tablecloth tendered in the first trial demonstrate that the kitchen window through which she claimed to see these things was blocked by two layers of tablecloth.
The respondent's claim that she was a victim, together with some of the pre-sentence report material, suggests that she has not yet fully accepted her responsibility for Simon's death. Ms Lee-Hong’s pre-sentence report at 5.5 notes:

“Ms Babsek would benefit from intensive rehabilitative counselling to enable her to come to terms with the circumstances surrounding the offence and the consequences of her actions.”

Psychologist Mr Schauer noted that the respondent appeared to be a person of low average intelligence who has “learnt to block out past and recent stressors very well. I doubt that she can fully recover until she has learned to address her offences. It is highly recommended that she starts attending regular counselling or psychotherapy sessions to address her offending behaviours prior to her release.”
Whilst there is considerable force in Mr Henry's arguments, this failure to accept full responsibility is not necessarily inconsistent with genuine remorse for having caused the death of her former partner and the father of her child as well as for the consequences which flow from her conduct. The judge was entitled to conclude the respondent was genuinely remorseful.
The essential issue is whether the sentence, which includes the parole recommendation, was manifestly inadequate. It is always difficult to find comparable sentences in such a case which turns on its unique facts. The essential feature of this crime was that it was committed by a woman who was not prepared to permit her male partner to terminate their relationship. She shot him through the head from a range of about four metres. There was a not insignificant degree of preparation and deliberation. The shooting was not the result of any physical activity or immediate provocation on the part of the deceased beyond his insistence on terminating the relationship. He would seem to have been in retreat when he was shot. The respondent's state of mind is encapsulated by her statements to a doctor who arrived soon after when she said "I couldn't accept him leaving me" and "I shot him. I didn't really want to kill him". The last statement seems to be the basis for the verdict of manslaughter returned by the jury; the case is a fairly bad example of manslaughter.
Sentences with some comparability assist in determining the appropriate range. In R v Whiting,^[3] Whiting was acquitted of murder but convicted of manslaughter and was sentenced to 8 years imprisonment for killing his estranged wife by strangulation. The Attorney-General appealed against the inadequacy of the sentence. Whiting was 30 years old; had used violence to his wife in the past and had convictions for offences including menacing a woman with a knife when he was 16 years old, indecent dealing and carnal knowledge, assault occasioning bodily harm to his first wife and wilfully setting fire to a dwelling house after a woman whom he had just met refused his advances. The Attorney’s appeal was allowed and the sentence increased to 11 years imprisonment. Whiting is a more serious case than this because of Whiting's prior convictions for violent offences.
In R v Miguel,^[4] Miguel was convicted at trial of the manslaughter of his de facto wife. He was sentenced to 12 years imprisonment; the applicant applied for leave to appeal against his sentence as it was manifestly excessive. After hiding in the house and cutting the telephone wires, Miguel killed his wife in the presence and sight of their two young children in a brutal and cold blooded stabbing with a sharpened hunting knife; the five separate stab wounds to the body were inflicted with considerable force. The 10 year relationship had been turbulent; it had been interrupted and embittered by the applicant’s affairs with another woman. Some months before her death, the deceased obtained a domestic violence order against him and requested he leave the home. He would not accept the relationship was over and breached the order, visiting her and threatening her with a knife on one occasion. He discovered she planned to marry another man and to take the children to live in New South Wales. He carefully planned the events which led to her death; eight days before, he told his doctor that he planned to kill her. The jury verdict seemed to be one of diminished responsibility. Miguel had a history of psychiatric problems and the court agreed with the sentencing judge’s comments that “... the applicant was fortunate that the jury had taken the view of the facts that they did.” Miguel’s application was refused. The careful premeditation makes Miguel more serious than this case, although Miguel involved psychiatric illness.
In R v Auberson,^[5] the offender was convicted after a murder trial of manslaughter. He claimed the sentence of nine years imprisonment was manifestly excessive; the Attorney-General claimed it was manifestly inadequate. Auberson and his wife had been married for four years and were in a relationship for the four years prior. She left the matrimonial home with their 18 month old son in December 1994. Auberson was emotionally and financially dependent on his wife and suspected she was involved in an extra-marital affair. He became depressed and after finding employment after a lengthy period of unwanted unemployment invited her to return to discuss a reconciliation. She did so at about 8.30 p.m. on 15 January 1995 and was dead seven minutes later. The deceased told Auberson that the relationship was over and “I am gonna go for all the money I can, go for your super.” He then strangled his wife, beat her over the head with bathroom scales at least twice, cut her throat with a Stanley knife and released his strangle hold; when his wife said, “You’ll regret that” he recommenced the assault upon her. He attempted suicide by driving his car over a 40 metre cliff, but sustained only minor injuries. He offered to plead guilty to manslaughter but the prosecution continued the murder prosecution.
Psychiatrists for the prosecution and defence were called at trial on the issue of diminished responsibility; both diminished responsibility and provocation were left to the jury. The jury returned a verdict of "guilty of manslaughter with provocation". The sentencing judge reduced the head sentence rather than imposing a higher head sentence with a recommendation for early release on parole.
The court concluded that the sentence imposed was "at or near the bottom of the range" but was not such as would justify the court’s interference on an Attorney-General’s appeal.
Fitzgerald P and de Jersey J (as he then was), in a short joint judgment, Pincus JA agreeing, said:

"Reference was made to the need to balance ‘competing factors such as deterrence, revenge and ... rehabilitation’, although in my opinion neither deterrence nor rehabilitation has a major role to play in sentencing for an offence such as this, in which the guilty person has otherwise lived a blameless life and has committed a serious offence in a brief period in which he lost self-control.”

When referring to "deterrence", it is probable their Honours were referring to particular rather than general deterrence. If the reference is to general deterrence, we must, with respect, disagree. As has been stated earlier in these reasons, general deterrence is a very important factor in cases such as this. Rehabilitation, too, remains relevant, for offenders are likely to form relationships in the future which will inevitably involve at least some occasional conflict and which may break down.
In this case, regular counselling or psychotherapy sessions are recommended,^[6] as is "a structured release plan and supervision, thus providing a lengthy period of supervision within the community, whereby her progress in counselling and psychological intervention could be monitored."^[7]
The case of Auberson is in many ways comparable to this case. The sentence of nine years was recognised as being "at the bottom end of the range". There was no recommendation for parole.
Here, the nine year sentence included a recommendation for parole after serving only three years. There was a degree of premeditation in that the rifle was obtained from the deceased’s car, taken into the kitchen, removed from its case, a used cartridge ejected and the rifle simultaneously reloaded, taken to another part of the house, pointed in the direction of the deceased and discharged when he was attempting to flee. There was no plea of guilty.
An Attorney-General's appeal against sentence is not lightly allowed.^[7] Nevertheless, where the sentence imposed is outside the scope of a proper sentencing discretion the appeal must succeed: R v Melano; ex parte Attorney-General.^[8] Despite the mitigating factors, a sentence requiring this offender to spend only three years in custody does not adequately reflect the seriousness of her conduct and is manifestly inadequate.
As the sentencing discretion has miscarried, this Court is entitled to sentence afresh. Whilst a sentence of nine years imprisonment with no recommendation may, like Auberson, be at the bottom end of the proper sentencing range, a sentence of 10 years imprisonment more adequately reflects the serious facts of this case and the need for general deterrence; it cannot be over emphasised that serious physical violence and death inflicted by one party on another in the course of the break-down of a relationship will ordinarily result in a substantial term of imprisonment.
The recommendation in the pre-sentence report, that the respondent should have the benefit of home detention and parole to provide a lengthy period of supervision within the community whereby her progress in counselling and psychological intervention could be monitored, can be adequately met without a parole recommendation; the respondent will be eligible for parole after serving 50 per cent of her sentence, this offence having occurred prior to the commencement of Part 9A of the Penalties & Sentences Act 1992.
The appeal is allowed; the sentence imposed below is varied by deleting nine years and substituting 10 years and by omitting the recommendation for consideration for parole; otherwise, the sentence below is confirmed.

^[1] CA 430 and 442 of 1998, 18 March 1999

^[2] See s 15, Penalties & Sentences Act 1992

^[3] [1994] QCA 425; [1995] 2 QdR 199

^[4] CA 351 of 1994, 25 October 1994

^[5] CA 248 and 249 of 1996, 3 September 1996

^[6]Ex 3, Mr Schauer's report, R609

[7] Ex 3, Pre-sentence Report, R605

^[7] See Everett v R; Phillips v R [1994] HCA 49; (1994) 181 CLR 295
^[8] [1994] QCA 523; [1995] 2 QdR 186

Authorities Cited4

Referred to (4)