Case Note: Sawyer-Thompson v The Queen [2018] VSCA 161

Case Citation: Sawyer-Thompson v The Queen [2018] VSCA 161

Judges: Maxwell ACJ, Tate JA and Beach JJA

Names of Parties:

Bonnie Katie Sawyer-Thompson – Applicant

The Queen – Respondent

Summary of Facts:

The Applicant was tried and convicted of the Defensive Homicide of Jack Brian Nankervis in the Supreme Court of Victoria.[1] It was found that the Sawyer-Thompson’s partner, Philip Mifsud, threatened to kill her family if she did not carry out the murder of Nankervis.[2] Sawyer-Thompson was subjected to violence as a result of the abusive relationship that she had with Mifsud.[3] It was found that before the killing of Nankervis took place, Mifsud told Sawyer-Thompson to hit him (Nankervis) with a mattock that was given to her prior to entering the victim’s apartment.[4] He also told her to claim that Nankervis attempted to rape her, thus resulting in the killing of the victim.[5] During the initial trial, the Sawyer-Thompson pleaded not guilty to defensive homicide with the defence of duress as she believed that her partner would carry out the threat of killing her family if she had not killed Nankervis.[6] However, after the jury empanelment process was completed, she changed her plea to guilty to defensive homicide. Upon the initial sentencing of Sawyer-Thompson, the judge said that the attack on the victim was ‘ghastly and disturbing in its execution’ given that he was ‘hacked and stabbed repeatedly … well beyond [what] was necessary to kill him’.[7] The sentencing judge in the initial trial sentenced her to 10 years imprisonment with a non-parole period of 7 years with the time already served included in the sentence.[8]  An appeal of this conviction was granted to the Court of Appeal of the Supreme Court of Victoria.

The Key Issues for Determination:

The Court of Appeal had to determine various key issues within this case. The first and main key issue is whether the sentence that was implemented by the sentencing judge in the initial trial was excessive.[9] The second key issue that had to be determined was whether the applicant had reasonable belief that her partner would kill her family if she did not kill Nankervis.[10]

A summary of the analysis of the law and the principles of law applied in the judgment

Maxwell ACJ (Tate agreed with the judgement of Maxwell ACJ) based their decision upon the reasons referred to below:

His Honour first discussed the overall mischaracterisation of the seriousness of the offence committed by the applicant, which he considered to be less serious as the applicant committed the offence as a result of the threat from their partner and history of violence.[11] His Honour understood and agreed that the violence that was perpetrated by the applicant was “grossly excessive” and “the extent of the injuries was deeply shocking”.[12] His Honour raised the question of what the actions of the applicant disclose about her state of mind at the time of the offence being committed.[13]

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In discussing the defence that was previously adopted by the defence, the Court determined that the family violence provisions that are entrenched that the time of the offence had to be analysed.[14] The defence counsel submitted that the then current provisions relating to Family Violence were applicable to the offence that the applicant was charged with (defensive homicide).[15] His Honour referred to the Crimes Act 1958 (Vic) to discuss the family violence law that applied during the time of the offence being committed.[16] Formerly known as Section 9AH (2) (a), (b) and (c) of the Crimes Act 1958 (Vic) (now ss 322J and 322P), a person may have a reasonable belief that the conduct that they committed was necessary to defend themselves, or prevent their liberty from being deprived, or was committed under duress.[17]

His Honour secondly discussed the change of plea and abandonment of the defence of duress by the applicant.[18] His Honour noted that the applicant previously offered to plead guilty to the offence before the trial commenced, and the change of plea (to guilty) ultimately avoided “what would have been a stressful trial and spare the witnesses the ordeal of reliving these events and being cross-examined about them”.[19] His Honour accepted this action as the applicant showing remorse for their actions, and her overall willingness to assist in the course of justice by changing her plea to guilty.[20] It was also noted that the decrease in the length of the sentence was warranted given the overall cooperation of the applicant in changing her plea, her willingness to assist the authorities.[21]

Beach JA held a different judgement to Maxwell ACJ and Tate.

His Honour accepted that the conduct and violence inflicted on the victim excessive, and to the point where he was ’unrecognisable’.[22] His Honour then discussed the two main grounds of appeal; the first being that the sentencing judge made an error in concluding that the offence committed as a serious example of defensive homicide, and that the sentence and non-parole period were excessive.[23] In relation to the sentencing judge concluding that the offence was a serious example of a defensive homicide, His Honour agreed that the conduct that the applicant undertaken was excessive as it was ‘well beyond the point that was necessary to kill’.[24] His Honour also believed that the sentence that was given to the applicant in the initial trial (ten-year imprisonment) was not manifestly excessive in accordance to the sentencing options that were available to the sentencing judge.[25] His Honour also noted that the sentence was in no way manifestly excessive, but can be viewed as a stern sentence given by the sentencing judge.[26]

The final outcome and the orders made by the Court:

As a result of this Appeal, the Court ordered the original sentence to the set aside, and the applicant to be resentenced to six and a half years imprisonment with a non-parole period of five years. [27]

Critical Review of Decision:

In my opinion of the decision made in the case of Sawyer-Thompson v The Queen (2018), the Judges have effectively analysed all the major factors (both underlying and key issues) when determining the outcome of this appeal. Two of the judges in the case (Maxwell ACJ and Tate) both agreed that the sentence that was given to the applicant (Sawyer-Thompson) was excessive as the sentencing judge mischaracterised the seriousness of the offence (defensive homicide).[28] They also discussed the Family Violence provisions that were submitted by the defence, and how they related to the possible defence that we previously adopted by the applicant during trial.[29]

Beach CJ agreed with the decision that the sentencing judge came up with in accordance to the arguments presented during the trial.  In my opinion, the Judges properly analysed both sides of the argument, and fairly discussed the argument put forward by the defence and the prosecution. Overall, the outcome of the appeal was fair as the two Judges (Maxwell and Tate) analysed the underlying mitigating factors and the law that applied during the time the offence was committed and determined that the initial sentence that was given by the sentencing Judge was excessive. In the initial trial, the sentencing judge acknowledged the ‘reasonable to good’ possibility of the applicant being rehabilitated.[30]

In my opinion, the sentence that was given as a result of this appeal was fair because Maxwell and Tate both agreed that the offence was mischaracterised by the sentencing judge when determining a suitable sentence. In my opinion, the sentencing judge should have reduced the sentence because the applicant committed the offence to prevent her family from being killed by her partner.[31] The initial defence that the applicant submitted was that the conduct was committed under duress that was then recognised under s.9AG(2) of the Crimes Act that recognises that her conduct was in reaction to the threat of death to her family.[32] She had a belief that she thought was reasonable at the time, that her partner would kill her family if she had not killed Nankervis in his apartment.[33] The initial defence that the applicant submitted was that the conduct was committed under duress that was then recognised under s.9AG(2) of the Crimes Act that recognises that her conduct was in reaction to the threat of death to her family.[34] The Court in Parker agreed that the personal factors must be taken into account when determining whether the person’s belief was reasonable as it could justify their conduct.[35]

In my opinion, I also agree with the judgement that Beach JJA made as he reinforced the decision that the sentencing judge delivered due to the seriousness of the violence that led to the death of Nankervis.[36] As both the sentencing judge and Beach JJA agreed that the offence was a serious example of defensive homicide as the attack was ‘beyond the point that was necessary to kill’ the victim.[37]

Overall. I agree with both of the decisions that were delivered by the judges. However, I believe that the applicant should have stuck with the initial plea of not guilty and the defence of duress as there was suitable evidence to support that claim and view.

[1] R v Sawyer-Thompson [2016] VSC 767.

[2] Sawyer-Thompson v The Queen [2018] VSCA 161 [2].

[3] Ibid, [2].

[4] R v Sawyer-Thompson [2016] VSC 767 [2].

[5] Ibid, [2].

[6] The definition of duress in this case was adopted from DPP v Parker (a pseudonym) [2016] VSCA 101 

[7] R v Sawyer-Thompson [2016] VSC 767 [165] (‘Reasons’)

[8] R v Sawyer-Thompson [2016] VSC 767 [265] (‘Sentence’)

[9] Sawyer-Thompson v The Queen [2018] VSCA 161 [

[10] Ibid [15].

[11] Sawyer-Thompson v The Queen [2018] VSCA 161 [6]; See e.g. Black v The Queen [2012] VSCA 75 [18], [21], [33].

[12] Sawyer-Thompson v The Queen [2018] VSCA 161 [6].

[13] Ibid [6].

[14] Ibid [22].

[15] Ibid [18].

[16] Ibid [18].

[17] Crimes Act 1958 (Vic) S.9AH, now categorised under ss.322J & 322P.

[18] Sawyer-Thompson v The Queen {2018] VSCA 161 [3]; The definition of the defence of duress was referred and adopted in this case; DPP v Parker (a pseudonym) [2016] VSCA 101 (‘Parker’).

[19] Reasons [199].

[20] Sawyer-Thompson v The Queen [2018] VSCA 161 [58]; Reasons [219].

[21] Sawyer- Thompson v The Queen [2018] VSCA 161 [55].

[22] Ibid [67].

[23] Reasons [70] [1], [2]

[24] Sawyer-Thompson v The Queen [2018] VSCA 161 [116].

[25] See, e.g. Clarkson v The Queen (2011) 32 VR 361, 384, [89].

[26] Creamer v The Queen [2012] VSCA 182; 221 A Crim R 284 [45].

[27] Sawyer-Thompson v The Queen [2018] VSCA 161 [9].

[28] Ibid [65].

[29] Ibid [18].

[30] Reasons [236].

[31] Sawyer-Thompson v The Queen [2018] VSCA 161 [1] (a)

[32] Parker v The Queen [2016] VSCA 101 [3].

[33] Ibid [1] (a).

[34] Parker v The Queen [2016] VSCA 101 [3].

[35] Ibid [8].

[36] Sawyer-Thompson v The Queen [2018] VSCA 161 [116].

[37] Sawyer-Thompson v The Queen [2016] VSC 767 [165].