R v Malby & Peters [1998] VSC 267; [1998] VICSC 43 (7 April 1998)

Last Updated: 28 April 1998

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 263 of 1997

22 of 1998

THE QUEEN

v.

TONI SIAN MALBY

RUTH JOYCE PETERS

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JUDGES: PHILLIPS, CHARLES and BUCHANAN, JJA.

WHERE HELD: MELBOURNE

DATE OF HEARING: 7 April 1998

DATE OF JUDGMENT: 7 April 1998

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CATCHWORDS: Criminal Law - sentence- causing serious injury intentionally - no basis for finding of lack of remorse - personal circumstances of appellant - parity

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APPEARANCES: Counsel Solicitors

For the Crown Mr W.H. Morgan-Payler QC P. C. Wood

Solicitor

for Public

Prosecutions

For the Applicant Malby Mr A.H. Swanwick Goldsmiths

For the Applicant Peters Mr P. Casey Septimus

Jones & Lee

VICTORIAN GOVERNMENT REPORTING SERVICE

167 Queen Street, Melbourne - Telephone [phone]

31748

PHILLIPS, J.A.: I will ask Buchanan, J.A. to deliver the first judgment.

BUCHANAN, J.A.: On 18 December 1996, the applicants attacked and severely injured Patricia Whatman leaving her practically quadriplegic. The applicants were charged with intentionally causing serious injury to their victim. On 31 October 1997 the applicant Malby was sentenced to nine years' imprisonment and a non-parole period of seven years was fixed. On 30 January 1998, the applicant Peters was sentenced to a term of four and a half years' imprisonment and a non-parole period of two years was fixed.

The applicants have applied to this court for leave to appeal against their sentences.

The instigator and principal in the attack was Ms Malby. At the date of the offence she was 29 years of age and was the de facto wife of one Tony White, who had previously been the de facto husband of Patricia Whatman and was also the father of one of Ms Whatman's four children.

A few days before the assault the victim telephoned Ms Malby and said that she, Ms Whatman, was pregnant by White. On the evening of 18 December 1996, Ms Whatman again telephoned Ms Malby. Both the applicants drove to a house in Frankston where Ms Whatman was staying. The applicant Peters had been introduced to Ms Malby earlier that day. Ms Peters and her de facto husband had arrived in Melbourne on 16 December from Perth. Mr White and Ms Peters' de facto had known each other in Western Australia. Ms Peters was 24 years of age. The two couples had a barbecue at Ms Malby's house at Crib Point and then the applicant, accompanied by Ms Malby's two small children, drove to see Ms Whatman in Frankston. Ms Malby knocked on the door of a house looking for Ms Whatman, who emerged from a nearby house. The learned judge accepted that Ms Whatman went to the car containing Ms Peters and the children, opened the door and struck Ms Peters on the jaw. An altercation then took place between Ms Whatman and Ms Malby. Perhaps blows were struck. Various witnesses gave different accounts of the exchange. The applicants drove to the Chelsea Police Station where Ms Malby alleged that Ms Whatman had assaulted her. The policeman to whom the complaint was made suggested civil proceedings or an intervention order. The applicants left the police station dissatisfied by that pacific advice. They purchased alcohol at a bottle shop, drove to the Seaford beach where where they drank and then decided to return and deal with Ms Whatman. Before they returned Ms Malby showed Ms Peters two knives, one in the boot and one in the glove box of the car. The applicants arrived at the street in Frankston where Ms Whatman was staying. Ms Malby knocked on the door of the house where she supposed Ms Whatman was, and shouted to her to come out and fight. Ms Whatman, who had also been drinking, emerged from another house and called out that she would take the applicants on one by one. The applicants crossed the street. Ms Malby was armed with the knife that was in the boot of the car. It had a four inch blade. Ms Peters also carried a knife in a pocket. It was the knife from the glove box which Ms Malby had pressed upon her. Ms Malby lunged at Ms Whatman and pushed and tripped her so that she fell to the ground. Ms Malby sat on top of Ms Whatman. The learned judge found that the applicant stabbed and punched and kicked her. Ms Whatman first lay on her back, but at some stage she managed to get up, or partly up, before she was knocked to the ground again. She then lay on her front as the attack continued. During the attack, Ms Whatman was pleading for her life. The attack ended when a bystander intervened and pulled the applicants off Ms Whatman. They returned to the car and drove off. They were both apprehended by the police some hours later.

Ms Malby was the principal actor. In her interviews to the police she said that she was stabbing the victim with "full force" and at that her knife went into the victim "to the hilt". The victim was first taken to the Mornington Peninsula Hospital and was then transferred to the Victorian Spinal Cord Service of the Austin Repatriation Medical Centre.

According to a medical report from that centre:

"The injuries Whatman sustained included

multiple stab wounds to the base of the

neck resulting in an incomplete quadriplegia,

left shoulder blade, upper middle abdomen,

both wrists, laceration to the right side

of the head, lacerations to both sides of

the chin, lacerations to both breasts.

She had skin injuries that looked like

scratches to the front of her chest and

there was a large bruise with skin markings consistent with a bite mark on the inner

aspect of her left forearm. As a consequence

of her incomplete quadriplegia, Ms Whatman

had altered sensation of the inside of

both arms as well as in the trunk and legs.

She had a weak proximal upper limb function

and extremely poor hand function. She had

no lower limb function. Her chest wall

and abdominal muscles were also paralyzed

as reflected by her inability to cough or

take big breaths. She had compromised

bladder and bowel function as a result

of the spinal cord injury requiring

alternative means of emptying these organs."

The victim was discharged from the Royal Talbot Rehabilitation Centre on 17 March 1997. A report from that Centre states:

"Succeeding the medical report dated

14 February 1997, Ms Whatman's medical

clinical discharge summary states,

'During the course of rehabilitation

considerable neurological recovery

occurred involving upper and lower limb

strength as well as bladder and bowel

function.' However, Ms Whatman is

dependent upon the use of wheelchair for

mobility. She is able to stand and I

also believe she is able to take a

few steps, although, the safety of

this activity is questionable."

A report by a psychologist who examined the victim states: "Emotional sequelae arising from the assault have been significant, including marked downturn in mood over her reduced quality of life, lowered self-esteem, the fact that she can only mobilise in a wheelchair, being left without sexual function. She has become anxious about the future course of her health, how she will cope with child rearing, about her vulnerability in terms of defending herself. She can no longer persue the social activities she enjoyed before the assault."

As I have said, the principal assailant was Malby. She was assisted by Ms Peters, but the extent to which Ms Whatman's injuries were inflicted by Ms Peters is unclear. Ms Peters told the police that she hit Ms Whatman with her fists once or twice. However, a resident of the street said that Ms Peters punched the victim several times in the head and kicked her head and shoulders. The resident also said that he saw a knife in Ms Peters hand, but there was no evidence that she stabbed Ms Whatman. The learned judge described Ms Malby's role in the attack as "significantly greater" than that of Ms Peters. Ms Peters had no prior convictions and Ms Malby had prior convictions for recklessly or intentionally causing injury and recklessly causing injury. The learned judge was told the circumstances of the offences and said that the light penalties imposed indicated "the comparative lack of seriousness of each offence".

I turn first to the sentence imposed upon Ms Malby. In her favour, the learned judge referred to her two young children and accepted that she is a fond mother. He also accepted that Ms Whatman had made telephone calls to Ms Malby over the days before the assault and that early in December Ms Malby was informed by her doctor that a cervical smear indicated a pre-cancerous condition of her cervix, although he discounted the relevance or importance of that circumstance.

On behalf of the applicant Malby it was contended that she should have been treated as an offender who had displayed genuine remorse. His Honour rejected that contention, saying:

"As to the question of remorse, however,

notwithstanding the submissions of your counsel, I

am unable to take the view that you do have genuine

remorse. Although you have expressed to others

regret for your behaviour, I am of the view that the

regret is rather for the situation you have found

yourself to be in, and the consequent affect on

yourself, particularly in respect of your contact

with your children and the affect of your possible

incarceration upon your children and yourself. I am

not satisfied that you have that contrition or shame

which would constitute true remorse. In my view you

do not."

In my opinion, the learned judge's finding was not justified having regard to the evidence. The applicant's expressions of regret in her record of interview are perhaps of slight weight. However, the evidence of a psychologist, Watson-Munro, and a Salvation Army chaplain, Captain McMahon, was not to be dismissed without reason. The psychologist said that the applicant "expressed considerable regret for her behaviour, which I believe to be genuine." In the context, I take the word "regret" to refer to contrition for the injuries which the applicants inflicted on Ms Whatman and not regret for the position of the applicant Malby herself, or her children. The chaplain said that in her view the applicant was genuinely remorseful for her actions. Neither of these witnesses was cross-examined as to the question of remorse and the learned judge did not say that he rejected that evidence. In addition, consistently with the existence of contrition, although not necessarily by itself proving it, the applicant co-operated fully with the police, frankly admitting her guilt and pleading guilty to this charge at the earliest opportunity, that is, the earliest opportunity at which the charge replaced that of attempted murder and undertook a course in anger management while in custody.

I am unable to see how the learned judge could have been satisfied that there was no genuine remorse. His Honour identified no reason for his conclusion, and in my view he ought to have found, at least on the balance of probabilities, that the applicant was truly remorseful.

Mr Morgan-Payler QC, who appeared for the respondent, conceded, in my view very fairly, that the learned judge ought to have at least warned Malby's counsel that he contemplated finding no remorse and sentencing on that basis. The error in wholly disregarding remorse is sufficient, in my view, to warrant the grant of leave to appeal.

The sentence of nine years was a very close to the maximum sentence available of 12 and a half years. The assault itself and the consequences for the victim were extremely serious. The wounds inflicted by the applicant Malby reveal the ferocity of the attack. While the attack was not a spontaneous, spur of the moment reaction, for the knives were produced some time before and Ms Malby wanted to confront the victim, it does appear to have been a hot-blooded, not to say frenzied, assault.

As counsel for the applicant has pointed out, there are circumstances which go some distance to explain the crime, although they cannot, of course, excuse it. The applicant had recently been diagnosed as suffering a

pre-cancerous condition of the cervix. Ms Whatman had made a great deal of the unfaithfulness of Ms Malby's

de facto and taunted and insulted the applicant on the night of the assault. The resentment and hostility which the applicant felt, coupled with possible anxiety about her health, may help to explain her complete loss of control. In Neal v. The Queen [1982] HCA 55; (1982) 149 CLR 305, at pages 324-5, Brennan, J. said in an appeal from a sentence imposed for assault,

"The facts of the present case likewise point to

some 'special problems' which may explain - though

they cannot justify or excuse - Mr Neal's conduct.

The assault was not caused by any ill-feeling between

Messrs. Collins and Neal personally. Yet a dramatic

and emotional confrontation on Mr Collins' steps had

occurred, apparently produced by deeply-felt

objection to departmental control of the reserve.

The fact that the incident was to be accounted for

by the probleMs (whatever they are) of life on the

reserve was a material factor for consideration. It

is erroneous to neglect consideration of emotional

stress which explains criminal conduct; that factor

is material to the assessment of proper retribution

and it may be material to deterrence - at all events

if those to be deterred are likely to be subjected

to similar emotional stress."

I have already mentioned the applicant's remorse, her co-operation with the police and the absence of comparable prior offences. In all the circumstances I consider an appropriate sentence is seven years imprisonment and I would fix a non-parole period of five years.

I turn next to the applicant Peters. The resentencing of the applicant Malby renders reconsideration of the sentence imposed upon the applicant Peters appropriate in order to maintain parity.

At the time of the offence Ms Peters was 24 years of age. She had no prior convictions. From the account which I have given of the events of 18 December, it is apparent that Ms Peters' role was secondary to that of Ms Malby. Ms Peters was first struck by Ms Whatman without any justification at all, it would appear. She told the police she punched the victim, but did not stab her. Neither the victim nor witnesses to the attack said that Ms Peters used a knife, although she was seen carrying a knife when she walked away from the victim, and the learned judge found that she also kicked Ms Whatman. It appears likely from the evidence of bystanders that Ms Peters did not know Ms Malby was weilding a knife during the assault, and so much was conceded by counsel for the respondent.

It appears from a report of a clinical psychologist that was before the sentencing judge that Ms Peters is naive and somewhat slow of understanding and thus was likely to be in thrall to the more powerful Ms Malby. Mr Morgan-Payler observed that there was nothing to show

that Ms Peters expected the ferocity of Ms Malby's attack.

Ms Peters co-operated with the police and pleaded guilty to the charge of intentionally causing serious injury. Parity of sentencing would be largely maintained by reducing Ms Peters sentence to a term of three years. In the case of Ms Peters I would fix a non-parole period of 12 months. There is a significant prospect of complete rehabilitation. Ms Peters has no prior convictions and the circumstances of the offence show that she was swept along in an enterprise which she did not completely comprehend.

PHILLIPS, J.A.: I agree.

CHARLES, J.A.: I also agree.

(Discussion ensued.)

PHILLIPS, J.A.: The orders of the court will be as follows.

In the case of the application by Toni Sian Malby, the order of the court is as follows: The application for leave to appeal is granted; the appeal is treated as instituted and heard instanter and is allowed; the sentence imposed below is set aside and in lieu the applicant is sentenced to be imprisoned for the term of seven years and is to serve five years of that sentence before becoming eligible for parole; it is declared that 372 days be reckoned as already served under that sentence and it is directed that the fact that that declaration was made and its details be noted in the records of the court.

On the application by Ruth Joyce Peters, the order of the court is as follows: The application for leave to appeal is granted; the appeal is treated as instituted and heard instanter and is allowed; the sentence imposed below is set aside and in lieu the applicant is sentenced to be

imprisoned for three years and is to serve 12 months of that sentence before becoming eligible for parole; it is declared that 99 days be reckoned as already served under that sentence and it is directed that the fact that that declaration was made and its details be noted in the records of the court.

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CERTIFICATE

I certify that this and the nine preceding pages are a

true copy of the reasons for judgment of the Court of

Appeal of the Supreme Court of Victoria (Phillips,

Charles and Buchanan, JJ.A.) delivered on 7 April 1998

DATED this day of 1998.

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Associate