Armour v The Queen [2012] VSCA 188

1 On 20 January 2011 the applicant pleaded guilty before a judge in the Trial Division to one count of murder. He was sentenced on 10 August 2011 to 26 years' imprisonment with a nonparole period of 21 years. Pursuant to s 6AAA of the Sentencing Act 1991, the sentencing judge declared that, had it not been for the applicant's plea of guilty, he would have sentenced the applicant to a term of imprisonment of 30 years with a nonparole period of 25 years. There was, accordingly, a discount of four years' imprisonment on account of the plea of guilty. The applicant's cooffender, Judith Moran, pleaded not guilty to a count of murder but, after a jury trial, was found guilty of that offence on 9 March 2011. The judge sentenced her on the same day as the applicant and imposed the same sentence and nonparole period.

2 On 25 June 2012, Harper JA refused the applicant leave to appeal on all three grounds. As he was entitled to do, the applicant subsequently elected under s 315(2) of the Criminal Procedure Act 2009 to renew his application for leave to appeal.

3 The offence took place just before midday on 15 June 2009 at a café at 191 Union Road, Ascot Vale, in a busy shopping district. The applicant, in front of several innocent bystanders, shot the victim, Desmond Moran, seven times. Two shots struck him in the head, three in the chest and two in the neck. The trial judge found that the murder was committed pursuant to an agreement made between the applicant and Judith Moran. The judge found that the applicant 'had planned to shoot [the victim] for some time and prepared accordingly, in return for a financial benefit' received from Judith Moran.[1]

4 His Honour, in sentencing the applicant, said this:

An important sentencing consideration in this case is that this was an appalling murder both in the way it was carried out and the very public manner in which it occurred. The public location for this killing was consciously selected. This was a deliberate and brutal killing for money. The objective seriousness of what you did is very high indeed and those who might be minded to commit such offences must know that if they do, the sentence that will follow will be very substantial.[2]

There is no challenge on this application to any part of that characterisation.

5 The applicant advanced the following three grounds of appeal:

1. The sentencing judge erred in not finding that the applicant, at the time of committing the offence, was suffering from a mental state/condition, namely adjustment disorder, in conjunction with psychological issues caused by the prescribed medication, Effexor, which created an additional and/or enhanced an existing mental state/condition and thereby failed to apply the principles as set out in Verdins.

2. The sentencing judge erred in imposing a sentence on the co-offender which offended the principles of parity and produced a penalty that on analysis of the respective sentences engendered a justifiable sense of grievance.

3. In all the circumstances, the sentence was manifestly excessive.

6 Counsel for the applicant argued the grounds clearly and forcefully and has advanced everything that could fairly have been said in support of them. We are not, however, persuaded that any of the grounds is reasonably arguable and leave to appeal must therefore be refused. Our reasons are as follows.

7 It is important at the outset to emphasise the limited nature of this Court's role in appeals against sentence. As has been explained often, the Court of Appeal does not decide for itself what sentence should have been imposed. Instead, our role is a supervisory one, reviewing the discharge of the sentencing function by the judges and magistrates who, under our law, have that function on behalf of the community.

8 The question for consideration on a sentence appeal is whether the power to impose sentence has been lawfully exercised. The Court must decide whether the decision arrived at was within the legal limits which applied to the case at hand, given the circumstances of the offence and of the offender.

9 Against that background, the grounds of appeal can be restated more simply as follows:

1. Was it reasonably open to the judge to conclude that the applicant's culpability for the murder was not reduced by the psychological condition which affected him?

2. Was it reasonably open to the sentencing judge to impose the same sentence on the applicant as he did on Judith Moran given that the applicant pleaded guilty when Judith Moran did not?

3. Was it reasonably open to the judge to impose the sentence which he did if proper weight were given to all relevant factors?

10 We are satisfied, as was the judge who heard the leave application, that each of those questions must be answered in the affirmative. That is, it was reasonably open to the sentencing judge to reach the conclusions which he did, and to impose the sentence which he did, on the evidence before him. The fact that another judge might have come to a different conclusion is beside the point. What matters for the purpose of this appeal is that the sentencing discretion was exercised within the applicable legal limits and there is, accordingly, no basis for this Court to intervene. The contrary is not reasonably arguable, in our view.

11 The matters in dispute were canvassed in detail before the sentencing judge. They are fully set out in his Honour's reasons and are also dealt with at length in the reasons of the single judge who refused leave. We can therefore deal with the grounds quite briefly.

13 As the judge correctly noted, where the person being sentenced relies on some impairment of mental functioning as relevant to moral culpability (or as in some other way bearing on the sentence), the task for the sentencing Court is to decide whether, and if so to what extent, the impairment is likely to have affected his or her mental functioning at the time of the offence, or in the lead-up to it, or is likely to affect him or her if sentenced to imprisonment. That proposition was laid down in R v Verdins[3] and has been applied consistently since.

14 As to Verdins proposition 1, concerning the reduction of moral culpability, the Court in Verdins said:

It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender's conduct. The effect on the court's assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence.[4]

15 As was pointed out in Carroll v The Queen,[5] a finding of the kind in issue here - that the applicant's moral culpability was not reduced by his adjustment disorder and depression - is a finding of fact. Accordingly, such a finding will attract intervention by this Court only if it can be shown that it was not reasonably open on the evidence for the judge to make the finding which he or she did. In the present case, as we pointed out to counsel for the applicant, it would have had to be shown that there was no other conclusion reasonably open to the trial judge but that the applicant's culpability was reduced, at least to some extent, by the impairment of his mental functioning.

16 Not only was his Honour's conclusion reasonably open but we respectfully agree with it. His Honour's approach exemplifies the rigour with which arguments of this kind must be assessed, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal.[6] As is now well recognised,[7] diagnostic labels are by themselves of no assistance to a sentencing judge. What matters is what the expert evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.[8]

17 Where reliance is placed on proposition 1 of Verdins, concerning moral culpability, the question for the sentencing Court is whether the evidence establishes - on the balance of probabilities - that the impairment of mental functioning contributed to the offending in such a way as to render the offender less blameworthy for the offending than he or she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?[9]

18 There was no evidence of that kind in the present case. The trial judge pointed out, correctly, that there was no suggestion in the report from the forensic psychologist, Mr Cummins, that there was any such causal link. When the judge specifically asked Mr Cummins in evidence about that, he confirmed that he did not consider that there was any 'direct' connection between the condition and the offending, although he did say that there was an 'indirect' link.

19 The point to which particular attention was paid in the written submission on behalf of the applicant, and in oral argument, concerned a concession made by the prosecutor at the conclusion of the plea hearing. The concession is set out below:

[PROSECUTOR]: ... the Crown submission is that there is still some Verdins application here, and that is, in fact, what Mr Cummins says, bottom of page 5, 'Under these circumstances, in my opinion, the principles of Verdins would have applicability'.

HIS HONOUR: In the sense of the sentence being more onerous.

[PROSECUTOR]: Yes, but also in the sense that he was suffering from a mental condition at the time, which he specifies as adjustment disorder, at the time of the commission of the offence, but the Crown says Verdins is a sliding scale and can be applied appropriately, depending upon the level and the seriousness of the mental condition/illness that was applicable at the time and that Your Honour should give some weight to Verdins and the principles of general deterrence and moderation that apply, but a limited amount of weight in relation to this case, because this is a murder, pre-planned, for reward, the Crown says, premeditated and carried out in an execution style in public in the middle of the day, and that is a seriously aggravating feature.

20 The submission advanced in this Court was that the failure of the judge to refer to this concession in his sentencing reasons necessarily implied that he had failed to take it into account a relevant consideration. We reject that submission. It is well established that the mere failure of a sentencing judge to advert to a particular matter will not ordinarily justify an inference of that kind. Here, the prosecutor's concession was but one strand of a very extensive argument on the general topic of the relevance of the impaired mental functioning. Moreover, as is apparent from the plea transcript, that topic was the subject of the closest attention by the sentencing judge who, as we have pointed out, asked questions of the expert witness in order to clarify the tenor of the evidence being given.

21 Furthermore, his Honour's reasons expressly addressed the different ways in which a link between the impairment and the offending might have been said to justify a conclusion that moral culpability was reduced. His Honour stated:

In my view the evidence does not establish any causal connection between your mental state at the time and your offending by:

• impairing your ability to make calm and rational choices;

• reducing your ability to appreciate the wrongfulness of what you did;

• contributing to you committing the offence.[10]

Indeed, the evidence I accept compels the conclusion that you made a planned, considered and rational decision to commit the offence of murder and your actions support that view.[11]

22 His Honour did accept, however, that the applicant's mental state was such that his time in custody would be more burdensome as a result (proposition 5 of Verdins) and, further, that the condition was likely to worsen in gaol (proposition 6 of Verdins.)[12] These matters were properly taken into account by his Honour.

23 We are not persuaded, therefore, that there was any specific error. On the contrary, we harbour no doubt that his Honour was mindful of exactly what had been said by both counsel on the plea. That being so, as counsel for the applicant conceded, the question was whether his Honour's finding was open. As we have said, we are satisfied that it was open and, indeed, we agree with it.

24 The second ground was parity. The applicant's written submission expresses the central complaint in these terms:

Equal justice required that the applicant's sentence be somewhat lower than that imposed on Judy Moran because of the applicant's early guilty plea and the finding of remorse.

25 As we said earlier, the question to be addressed where the parity ground is raised is whether it was reasonably open to the judge to differentiate - or fail to differentiate - between cooffenders in the light of the relevant similarities and differences between them.[13] In the present case, the applicant had in his favour the undoubtedly significant mitigating effect of the plea of guilty, whereas Judith Moran had pleaded not guilty and was not entitled to any such discount.

26 On the other hand, as the judge specifically pointed out in his reasons, Judith Moran was much older than the applicant, being aged 66 at the time of sentence, and was in poor physical health. Those were - as his Honour took time to explain by reference to the authorities - relevant considerations which applied to the sentencing of Judith Moran. They did not apply to the sentencing of the applicant. (On the other hand, the existence of psychological difficulties was a factor common to both cases.) In sentencing Judith Moran, the judge said that, had it not been for her age and poor health, the sentence he imposed on her would have been 'significantly greater'.[14]

27 There was reference in argument to whether there was any relevant differentiation between the cooffenders as to their responsibility for the commission of the murder. Suffice it to say that the judge appears to have proceeded on the basis that both participated in planning and carrying out the killing.[15] It is not suggested that his Honour made any factual error in his assessment of the respective contributions to the murder. On the material, his Honour's findings would seem to have been well open.

28 The decision to impose the same sentence on the applicant as on Judith Moran was a matter for the judge, subject - as we have said - to the legal limits applicable. Another judge might have reached a different conclusion but, in our view, it is not reasonably arguable that the decision his Honour arrived at fell outside the range within which the sentencing discretion could properly be exercised.

29 The contention that a sentence is manifestly excessive is invariably expressed as a submission that the sentence is outside the range reasonably open to the sentencing judge in the circumstances.[16] The ground of manifest excess is a stringent ground, difficult to make good.[17] It is again not a question of what this Court might have done had we been called on to impose sentence. Rather, it has to be shown that the sentencing judge has gone so badly wrong that the sentence imposed was 'wholly outside the range of sentencing options available to [the judge]'.[18] Put another way, it must be shown that it was not reasonably open to the sentencing judge to impose that sentence if proper consideration had been given to all the relevant circumstances of the offender and of the offending.[19]

30 For reasons which the judge gave so clearly, this was a very serious example of the crime of murder. His Honour described it as appalling and we would respectfully agree. In the circumstances, the contention that the sentence imposed was outside the range lawfully open is not reasonably arguable, in our view, and therefore leave to appeal must be refused.

[1] R v Armour [2011] VSC 376 (10 August 2011), [30] ('Reasons'). The judge found that Judith Moran had purchased a new Land Rover Discovery valued at $75,000 for the applicant, in exchange for carrying out the murder: at [7].

[3] [2007] VSCA 102; (2007) 16 VR 269, 272 [13] ('Verdins').

[5] [2011] VSCA 150, [18].

[6] See, for example, DPP v Patterson [2009] VSCA 222, [46]; R v White [2009] VSCA 177, [13]-[17]; Romero v The Queen [2011] VSCA 45, [13]-[14].

[7] R v Robazzini [2010] VSCA 8, [42].

[8] Verdins, 271, [8]; R v Zander [2009] VSCA 10, [29].

[9] Ashe v The Queen [2010] VSCA 119, [14], [19]; Davey v The Queen [2010] VSCA 346, [25]; M C v The Queen [2011] VSCA 2, [20]-[21]; Bowen v The Queen [2011] VSCA 67, [28]-[29], [33]; DPP v H P W [2011] VSCA 88, [28], [63]; Pettiford v The Queen [2011] VSCA 96, [32]-[34].

[10] Reasons, [34]; see Verdins 275, [26].

[13] Teng v The Queen [2009] VSCA 148; (2009) 22 VR 706, 710 [16]-[17].

[14] R v Moran [2011] VSC 375, [41].

[16] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, 680, [9].

[17] DPP v Karazisis [2010] VSCA 350, [127] ('Karazisis').

[18] R v Boaza [1999] VSCA 126, [42] (Winneke P). See also, Hanks v The Queen [2011] VSCA 7, [22]; Larsen v The Queen [2011] VSCA 325, [37].