AP (a Pseudonym) v The Queen [2019] VSCA 278

1 Following a 13 day trial, the applicant was found not guilty of murder at common law but guilty of statutory murder and aggravated carjacking contrary to ss 3A and 79A of the Crimes Act 1958.[2] He was sentenced to 17 years' imprisonment for statutory murder and three years' imprisonment for aggravated carjacking. The sentencing judge ordered that one year of the aggravated carjacking sentence be served cumulatively upon the statutory murder sentence, for a total effective sentence of 18 years. The sentencing judge fixed a non‑parole period of 14 years. The maximum penalties available for statutory murder and aggravated carjacking were life imprisonment and 25 years' imprisonment respectively.[3]

2 The applicant seeks leave to appeal against sentence on the basis that the sentence of 17 years' imprisonment for statutory murder and the non‑parole period of 14 years were manifestly excessive. To succeed, the applicant must establish that either or both of the statutory murder sentence and the non‑parole period of 14 years were wholly outside the range of available sentencing options.

3 For the reasons which follow, the applicant has failed to overcome that hurdle. We would refuse leave to appeal.

Circumstances of the offence****[4]

4 This application for leave to appeal arises from events that took place on 2 July 2017. At about 7:30 pm the applicant met Damian Siilata, Taisi Bartley, Isaia Pesefea and JP,[5] outside Melbourne Central. Their ages ranged from 16 to 20. At Bartley's suggestion, the group gathered with the intention of committing an armed robbery on an IGA store in Brunswick West.

5 Bartley brought some clothing and other items with him, including rubber gloves. The others obtained gloves. The applicant had a small kitchen knife with him or obtained the knife from the Queen Victoria building. The group took a tram to an area near the IGA store. They surveyed the store and surrounding area on foot before leaving to go and change their clothes to disguise themselves.

6 About the same time, Mr Paolo Costa[6] parked his Nissan Patrol car in Peacock Street, Brunswick West. His friend had gone into one of the houses while Mr Costa stayed in the car. The group were walking towards Peacock Street and noticed Mr Costa in his car using his phone.

7 They decided to carjack Mr Costa's car and use it in the armed robbery as a weapon and getaway vehicle. None of them knew how to start a car without a key, so they needed a car with an occupant. Mr Costa's car was ideal for their purposes. They agreed that Pesefea would pull Mr Costa out of the driver's seat. Bartley was to be the driver as he could drive either a manual or automatic car. Siilata would get into the front passenger's seat and JP and the applicant would get into the back seat. Pesefea was to render Mr Costa unconscious by choking him. He was then to join the other two in the back seat.

8 The group began to put their plan into action at 9:45 pm. Pesefea tried to pull Mr Costa out of the driver's seat. Siilata got into the front passenger's seat. JP and the applicant got into the back seat and pulled Mr Costa backwards towards them. Bartley got into the driver's seat and Pesefea took the remaining space in the back seat of the car.

9 However, things did not go according to the plan. Mr Costa was a tall man. He resisted and struggled against Pesefea. Mr Costa was eventually dragged into the back seat. He ended up face down with his head towards the applicant (on the back seat passenger's side) with his legs near Pesefea (on the back seat driver's side) and JP (in the centre back seat). Mr Costa was struggling, thrashing around and screaming. Siilata and Bartley also tried to restrain Mr Costa. At some stage, JP handcuffed Mr Costa's right wrist. The applicant stabbed Mr Costa in the neck.

10 Bartley started the car and began to drive slowly. As the car started moving, the applicant said 'I did it'. Someone asked what he had done. He replied 'I stabbed him'. At about that time, Pesefea was trying to choke Mr Costa to render him unconscious. JP reported hearing Pesefea say to the applicant at some stage 'Do not stab him'. It was not part of the plan to attack Mr Costa with a knife.

11 Mr Costa's left superior thyroid artery was cut. This caused him to bleed heavily. Someone suggested moving Mr Costa to a nearby car park. The applicant and Pesefea, possibly with assistance from other members of the group, removed Mr Costa from the car. Mr Costa's head slammed into the ground in the process.

12 Mr Costa's body was carried into Dunstan Reserve, Brunswick West and left under a tree face down where he was discovered the next morning. Police later found the knife the applicant had used to stab Mr Costa near his body.

13 The group drove the car to a reserve in Coburg and abandoned it. They disposed of some items (such as the blood-covered trousers the applicant wore and the gloves used by JP and Pesefea) and several of them changed or disposed of their clothes. Siilata took Mr Costa's phone. The group returned to Melbourne by train. The car and other items they had left behind (including a set of handcuffs) were recovered by police several days later.

14 The substantial operating cause of Mr Costa's death was determined to be the stab wounds inflicted by the applicant. Other non-fatal injuries were also inflicted on Mr Costa during the course of the attack on him.

15 The applicant was born in Victoria. His parents are Samoan. The applicant had a difficult upbringing due to his father's violence and alcohol abuse, which was principally directed towards the applicant's mother, but also towards the applicant and his four siblings. The family spent time in refuges due to his mother trying to escape. When the applicant was 12 years old, his father left the family home.

16 Due to the family moving, the applicant attended various schools. He did not see his father for the next four or five years until he went to live with him in New South Wales when he was about 16 years old. The applicant left school during Year 11. He had some employment, including as a labourer, which involved some delivery work. While the applicant's crimes were not marked by the use of drugs or alcohol, the applicant had previously used ketamine and cannabis and engaged in binge drinking in social settings. He was 16 years old at the time of offending.

17 A report from Dr Aaron Cunningham, forensic psychologist, was tendered on the plea. Dr Cunningham described the applicant as having been involved in assaults several times when he was first in custody, both as perpetrator and victim. The applicant reported to Dr Cunningham that he had experienced auditory hallucinations of his father being verbally abusive. The applicant had self-harming scars on his arms, legs and body. The applicant told Dr Cunningham that he self‑harmed as a means of coping with stress. The applicant was prescribed medication to control his mood. Dr Cunningham concluded that the applicant meets the criteria for post-traumatic stress disorder, having been exposed to violence since childhood.

18 Dr Cunningham stated that the applicant maintains a stable and supportive family who visit him in custody. Dr Cunningham described him as presenting as 'an intelligent individual who is active in reading books and exploring meditation and philosophy. He reported a motivation to better himself as a person. His behaviour in gaol has improved to avoid being relocated to another facility'.

19 A pre-sentence report was prepared by Youth Justice in December 2018. The applicant appeared to have been a difficult detainee: self-harming, failing to respond well to offers of assistance and counselling, and engaging in violence towards fellow detainees and staff. While in detention, the applicant attended some cultural programs in group settings, and appeared desirous of developing his cultural ties. The report concluded that the applicant's prospects of rehabilitation were 'dependent upon his motivation to engage in treatment programs, whereby he has not responded or engaged in rehabilitative services whilst within a Youth Justice Centre'.

20 The applicant had no prior convictions. He was charged with two assault related matters while in custody.

21 The applicant's family remain supportive of him and visit him in custody.

22 The sentencing judge described the offending and the background of the applicant. He stated that the applicant presented as an intelligent person who actively reads, has explored philosophy and meditation and who had generally expressed a motivation to employ himself. The judge summarised the findings of Dr Cunningham and the observations made in the pre-sentence report. The judge took the view that the applicant's behaviour described in that report had to be looked at through the prism of the applicant's post-traumatic stress disorder.

23 The judge noted the effect of the crime on the victims and described their grief as plainly profound.

24 It was submitted on the plea that the applicant's prospects of rehabilitation should be regarded as reasonable. The sentencing judge was not satisfied that this was the case, but did note the applicant's youth and his recent signs of improvement. His Honour regarded the applicant's prospects of rehabilitation as guarded, but said they may improve. The applicant appeared, in the sentencing judge's view, to have gained some understanding of the consequences of his actions.

25 The judge noted that the applicant was to be sentenced for the murder of Mr Costa in circumstances where the jury was not satisfied that it could be proved beyond reasonable doubt that the applicant intended to kill or cause really serious injury. The sentencing judge was satisfied that the applicant intended to stab Mr Costa, though was not satisfied that the applicant appreciated the consequences of his actions. His Honour remarked that the extent of Mr Costa's injuries resulting from the group's attempts to subdue him in a 'most threatening way', made the offending in relation to the crime of aggravated carjacking particularly serious. The sentencing judge noted that aggravated carjacking was a violent crime, and the potential risk in the underlying crime increased the gravity of the offending for statutory murder.

26 The sentencing judge noted that while the applicant had denied involvement in Mr Costa's death_,_ as was his right, he had expressed some empathy and remorse for his family. However, his Honour noted that these sentiments were coupled with some skewed views about criminal conduct and it was difficult to distinguish the applicant's genuine views from his bravado.

27 The sentencing judge considered matters put on the applicant's behalf in mitigation on the plea, including that he was not the instigator of the original crime, and was the youngest of the participants.

28 The sentencing judge noted that ordinarily general sentencing principles, including general deterrence, would be particularly important. However, because of the applicant's youth his Honour exercised restraint in the operation of the usual sentencing principles which would apply to an adult.

29 The applicant seeks leave to appeal against sentence on the basis that the sentence of 17 years' imprisonment for statutory murder and the non‑parole period of 14 years were manifestly excessive.

30 The applicant contends that the length of the statutory murder sentence was unprecedented in Victoria for a child. Further, the applicant submits that manifest excess is established having regard to facts and considerations including but not limited to the fact that the applicant did not intend to kill Mr Costa or cause him really serious injury, the offending was committed in the company of older co‑offenders, the applicant was a child with no prior convictions, and the applicant's developmental history was blighted by family violence resulting in serious ongoing psychiatric disturbance. On the hearing, the applicant's counsel stressed how differently the courts had always treated children, contending that the applicant was a child as opposed to a young offender at the time the events took place. The applicant relied on a number of cases in support of his contentions.[7] The applicant contends that the non‑parole period, which equates to 78% of the head sentence, is incongruous and excessive.

31 The respondent submits that the cases the applicant relies on are distinguishable and were not binding on the sentencing judge in any event. Among other things, the respondent submits that the applicant's conduct went well beyond that agreed beforehand with his older co-offenders, the offending involved serious examples of statutory murder and aggravated carjacking, the applicant had not accepted responsibility for Mr Costa's death, and the sentencing judge correctly assessed the applicant's rehabilitation prospects and gave appropriate weight to sentencing principles and the applicant's developmental history and psychiatric disorder. The respondent submits that the non‑parole period is not manifestly excessive.

32 The statutory murder committed by the applicant is a serious example of that offence. He was not the ringleader; the carjacking was not his idea to begin with and he was the youngest member of the group. There was no intention to kill or cause really serious injury. But it was the applicant's idea to take a knife (even though that was not part of the plan) and to use it even though Pesefea said 'Do not stab him'. The result of taking and using the knife was the loss of Mr Costa's life. Moreover, the crime was committed during the commission of a violent carjacking. As the judge noted, this increased the gravity of the offending for statutory murder.

33 The judge noted the importance of the applicant's youth. The authorities make clear that the more serious the offending, the more the mitigating effect of youth diminishes.[8] Denunciation and general and specific deterrence must have greater emphasis as the seriousness of the offending increases.[9] In the case of murder (whether common law or statutory murder) there is much less room for the offender's youth to have a significant role in the sentencing task. Of course, it is still a factor, but the weight accorded to youth cannot overshadow how serious the offending has been and the consequences of the offending. There are also gradations in age - a 13 year old is likely to be much different from a 17 or 18 year old; with even less maturity and ability to understand the consequences of rash actions. There is nothing in his Honour's reasons, nor in the sentence he imposed to suggest that he did not take into account the applicant's age of 16 at the time of commission of the offences. Nor is there anything in the cases referred to by the applicant to suggest that the sentence was not within the range of sentences that might be imposed.

34 As the applicant accepts, there is no standard non-parole period for any term of imprisonment.[10] In all the circumstances, a ratio of 78% of the head sentence is unremarkable, particularly given the judge's assessment of the applicant's prospects of rehabilitation as guarded.

35 In fixing the sentence, his Honour had regard to all relevant considerations (including the applicant's lack of prior convictions, his upbringing and mental health issues). The sentence (including the non-parole period that the judge set) was one that was within the range of sentencing options available to the judge.

[1] A pseudonym has been used as the offender was 16 years old at the time of the offence.

[2] DPP v AP [2018] VSC 820 ('Reasons').

[3] Crimes Act 1958 ss 3, 79A(2).

[4] This section is largely drawn from the Reasons [2]-[21].

[5] A pseudonym has been used in the place of the name of the applicant's co-offender, JP, as he 16 years old at the time of the offence.

[7] R v PDJ [2002] VSCA 211; (2002) 7 VR 612 (17 year old offender - 16 years' imprisonment with non-parole period of 12 years for murder); DPP v TY (No 3) [2007] VSC 489; (2007) 18 VR 241 (14 year old offender - 12 years' imprisonment with non-parole period of eight years for murder); DPP v MM [2009] VSC 336 (16 year old offender - nine years' imprisonment for statutory murder, other offences committed, total effective sentence 10½ years with non-parole period of six years); R v JLE [2011] VSC 669 (offender 15½ years of age - 13 years' imprisonment with non-parole period of eight years for statutory murder); DPP v Perry; Perry v The Queen (2016) 50 VR 686 (26 year old offender - 20 years' imprisonment for statutory murder, other offences committed, total effective sentence 27 years with non-parole period of 23 years). On the hearing, the applicant drew the Court's attention to R v Athuai [2007] VSCA 2 ( 17 year old offender - 18 years' imprisonment with a non-parole period of 14 years for murder).

[8] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 55-56 [37]-[40] ('Azzopardi'); DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132 [22] ('Lawrence').

[9] Azzopardi [2011] VSCA 372; (2011) 35 VR 43, 55-56 [37]-[40]; Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132 [22].

[10] R v Bolton [1998] 1 VR 692, 699.