1 The applicant seeks leave to appeal against his sentence to life imprisonment with a non-parole period of thirty five years on conviction of one count of murder and one count of rape.

2 After the hearing of the application the court adjourned at the end of argument for a short period. We then announced our decision, namely refusal of the application and that we would publish our reasons at a later time. This was not an unusual course in criminal appeals, especially since the introduction of the criminal appeal reforms.[1] The court was in a position to dispose of the application expeditiously because of the materials filed and the prior preparation and discussion of the court members during the days beforehand. After hearing argument from counsel on both sides over some time[2] the court was in a position to determine the matter. This was a case where the applicant was sentenced to one of the sternest sentences for this type of offending. There were also questions raised by the applicant as to the construction of the Sentencing Act 1991. We were assisted by submissions from counsel on both sides. We refused leave to appeal for the reasons set out below.

3 The victim, Gillian Meagher, was a young woman of 29 years of age who was employed by the Australian Broadcasting Corporation ('ABC'). On the evening of Friday 21 September 2012, she and other employees of the ABC attended a birthday party for one of their co-employees at Fad Gallery in the City. Ms Meagher left the party at about 9.00 pm in company with three of her co-employees and they travelled by taxi to the Brunswick Green Hotel in Sydney Road, Brunswick. When the bar there closed at about 1.00 am the next morning, Ms Meagher and one of her co-employees walked up Sydney Road to Bar Etiquette for a last drink for the evening. At about 1.30 am, the co-employee offered to walk Ms Meagher home but she declined, saying that she lived only five minutes' walk away, and she set off for home north along the west side of Sydney Road.

4 The victim's movements were captured on a compilation of CCTV footage collated from premises she passed. She spoke with three other women who were walking in the opposite direction. One of the women gave her a cigarette. She was also observed by a male driver who noticed her as he drove past her.

5 Ms Meagher had a brief mobile telephone conversation with her brother who was in Perth at about 1.35 am. The reception was poor and the brother said he would ring her back. Within one minute he made three attempts to call her back but her phone rang out.

6 At 1.38 am the applicant came into contact with Ms Meagher at 517 Sydney Road. On the CCTV footage the applicant is seen to initially go past Ms Meagher and then turn back.

7 According to what the applicant told the police in his record of interview Ms Meagher appeared to be upset about her father's state of health. When interviewed by police on 27 September 2012 the applicant said that, because the deceased appeared upset, he offered to help her but that she flipped him off and that made him angry. In that interview he said:

You know it wasn't really my intention to hurt her, you know that? When we conversed, I swear to you man, I swear to you I'd - I'd - I'd - I just - I spoke to her and she looked - she looked distraught. Does that make sense?

...

And I spoke to - I spoke to her, you know and said, look I'll just - I'll - Ill help you, you know. That's what I said to her and she was like, fu.. anyway. It doesn't matter. She flipped me off and that made me angry, because I was actually trying to do a nice thing. You know that?

...

When - oh, man, I just - I just - she looked distraught, you know. She looked like she was lost. She didn't - and I don't know man, you know. Always try to do the right thing some - you know, most of the time and I didn't take well to her response, you know.

I just don't wanna go through it in detail ...

...

POLICE: So you said she fobbed you off and you got angry. Tell me what happened then?

Oh, I just got pissed off and I actually walked off and she followed. I actually walked in front of her and she followed.

...

And it just got worse.

POLICE: Tell me what happened.

...

So, fuck man. I'll - I'll - I'll - I don't wanna go through it in detail, but I'll - I don't even know if I can remember where I put her. Every day man, even before this, you know, was focused on me, I - I - I can't believe that I've done what I've done, do you understand that?

8 When relating this event to the forensic psychologist, Professor Ogloff, on 17 May 2013, the applicant told Professor Ogloff that, after he had walked off, Ms Meagher called him back to where she was at the corner of Sydney Road and Hope Street and that he walked with her along Hope Street towards her home until he got to the first laneway off Hope Street after turning left from Sydney Road.

9 The applicant told Professor Ogloff that when he reached the laneway, he kissed the victim and tried to touch her bottom and that she reacted by stepping back and slapping him across the face. He told Professor Ogloff that then he 'lost it' and, with that, he pulled the victim towards him, turned her around, pushed her onto the bonnet of a car, tore her clothes and raped her. Then, after he had done with her, he strangled her to death.

10 When interviewed by police on 27 September 2012, the only thing the applicant said about killing Ms Meagher was that he strangled her with his hands. He provided more detail in the version of events which he gave to Professor Ogloff. The applicant told him that, after he had ejaculated and was pulling up his pants, the deceased became aggressive and he told her to 'calm down'. He said that instead of calming down, she became angry, grabbed at him, hit him with her mobile telephone and she said that she was going to call the police. The applicant said he responded by putting his arms around her to 'quieten her down' and, according to him, she went back and hit her head on the concrete. The applicant said he could feel that there was blood coming from her head. He said that he held her down with his hand 'on the bottom part of her neck' and maintained pressure until she stopped moving. Asked how long that took, the applicant said no more than a minute and that, because of his strength and size, he should have known better. After that the applicant said he sat there crying, panicking, because Ms Meagher had ceased to breathe.

11 The applicant left Ms Meagher's body in the laneway and returned to his home address in Coburg where he collected a shovel and drove back to the lane in his white Holden Astra motor car. He returned to the lane at 4.22 am, placed the victim's body in the boot of the car and departed at 4.26 am. He drove to Blackhill Road Gisborne South where he buried Ms Meagher in a grave by the side of the road.

12 The grave was small and shallow. The deceased's body was left partially naked from the waist down. The applicant threw in the remains of Ms Meagher's clothes which he had torn from her when he had raped her. Then, at various places on the way back to the city the applicant threw items of the victim's personal possessions randomly out of the car as he drove along. When he arrived home, the applicant destroyed Ms Meagher's mobile telephone.

13 The next day, Sunday 23 September 2012, the applicant thoroughly cleaned the inside and outside of the car and, on 24 September, he had four new tyres fitted to the vehicle. He had planned to have the new tyres fitted for the purposes of obtaining a roadworthiness certificate before he killed Ms Meagher. He was in the habit of detailing and cleaning his cars every weekend.

14 At 2.08 pm on 27 September 2012, the applicant was arrested at his home and conveyed to the St Kilda Road Police Complex. When interviewed, he initially denied any involvement in the offending and, for the first three and a half hours of the interview, he maintained his denial and told a number of lies as to his whereabouts at the time of the crime.

15 As the interview proceeded, he began to make admissions which ultimately culminated in a confession. Subsequently, he accompanied police to the place in Gisborne South where he had buried the victim's body. Upon being returned to the police complex, he was charged with Ms Meagher's rape and murder.

16 At the time of the attack the applicant was on parole. He was also on bail having been convicted of an unprovoked assault on a male passer-by and subsequently having appealed to the County Court on the sentence imposed in the Magistrates' Court of three months jail. His parole in relation to an earlier sentence imposed on 26 April 2002 was cancelled on 28 September 2012. At the committal held on 12 March 2013 the applicant entered a plea of not guilty to murder and two charges of rape and a plea of guilty to rape.

17 On 5 April 2013 the applicant pleaded guilty to one charge of murder and one charge of rape. Following a plea on 11 June 2013, the applicant was sentenced on 19 June 2013 as follows:

[Common law and s3 of the Crimes Act 1958]

[s38 of the Crimes Act 1958]

1. In accordance with s 16(3B) of the Sentencing Act 1991, the sentences imposed are to be served cumulatively on any period of the sentence imposed by his Honour Judge Duckett on 26 April 2002 which the offender may be required to serve in custody in a prison.

2. Pursuant to s 6F of the Sentencing Act 1991 sentenced on Charge 1 as a serious violent offender and on Charge 2 as a serious sexual offender and I direct that the fact of the declaration and its details be entered in the records of the court.

3. Pursuant to s464ZFB(1) of the Crimes Act 1958 an order is made for the retention of a forensic sample.

4. Pursuant to s11 of the Sex Offender Registration Act 2004 an order that the offender comply with reporting obligations for the remainder of his life.

5. Pursuant to s78(1) of the Confiscation Act 1997 a disposal order is made.

18 Initially the applicant relied on one ground of appeal:

Ground 1: The learned Sentencing Judge erred by inferring that the Applicant intended to kill the deceased either:

1. because she would otherwise have called the Police; or
2. because of some form of perverted pleasure which derived from

and relying on those inferences to find that in terms of moral culpability the Applicant's killing of the deceased ranks among the worst kinds conceivable.

19 Shortly before the hearing of the application the applicant sought to rely on a further ground:

Ground 2: The learned Sentencing Judge erred in setting a non-parole period of thirty five years by placing excessive weight on the need for community protection.

20 The application for leave to add ground two was brought extremely late. An explanation was required by the Court. Upon being satisfied by the explanation provided by senior counsel as to that lateness the Court permitted the applicant to present the argument on ground two and otherwise reserved our decision. In all the circumstances of the matter and given the explanation of senior counsel[4] we would grant the applicant leave to amend the notice of appeal to include ground two.

21 On the plea the applicant conceded that a sentence of life imprisonment was open. The plea was submitted on six bases:

1. the offences were extremely serious in combination and individually;

2. the applicant had serious and relevant prior offending;

4. the applicant was a serious and violent offender;

5. the applicant was assessed as being a high risk of sexual offending into the future; and

6. the applicant suffered a borderline personality disorder (although no application of Verdins was sought).

22 Further, the plea was concerned with a non-parole period. It was submitted a non-parole period should reflect the applicant's plea of guilty, his genuine remorse and his assistance to the police.

23 The applicant accepted that the killing of Ms Meagher was reckless. However, he resisted the suggestion he killed Ms Meagher to silence her. The applicant conceded on the plea that there was no meaningful distinction in terms of culpability between the use of force because Ms Meagher fought back after the rape or because of her intention to call the police or a combination of those reasons.

25 The applicant argued that the learned judge erred by attributing two alternative motivations that may have accompanied the intent to kill which his Honour found proved beyond reasonable doubt. Specifically, they were that the applicant strangled Ms Meagher with intent to kill her either because she would otherwise have called the police or because of some form of perverted pleasure which derived from taking her life. These matters were set out by his Honour:

As you said to police, you strangled her. As you told Professor Ogloff, she was going to call the police, things escalated and you pushed her down and held her down with your hand 'on the bottom part of her neck' and 'maintained pressure and she eventually stopped moving'. As appears from the forensic evidence, she was a small woman, only 157 cm tall and weighing only 55 kg. Consequently, a man of your size and strength could easily have controlled her. It follows that, apart from the fact that she was about to call the police, and apart from the sadistic pleasure which you evidently derive from hurting women, there was no reason to hold her on the ground by the neck until she ceased to breathe. In the absence of a statement by you to police or to Professor Ogloff, or any sworn testimony, as to your intention at the time, I am the more confident to infer[5] from the facts to which I have referred that you strangled Gillian Meagher with intent to kill her either because she would otherwise have called the police or because of some form of perverted pleasure which derived from taking her life.[6]

26 The applicant argued that the finding of an intentional killing was an essential precondition to the alternative motives attributed that were genuinely capable of aggravating the offending. The applicant submitted that the inference that he intended to kill Ms Meagher was not open; that the inference that he derived some form of perverted pleasure from killing her was not open; and the inference that he intended to kill Ms Meagher in order to avoid her calling the police was not open. The Crown argued on the plea that the offending was a reckless killing. Eventually, the applicant conceded during the plea that whether the killing was intentional or reckless would not make a difference.

27 There was no issue that the learned judge reached his conclusion that the applicant intended to kill Ms Meagher because of the applicant's admissions to the police, to Professor Ogloff and, also, the forensic evidence as to the nature of the injuries suffered by Ms Meagher. The applicant argued that these sources of evidence neither independently nor in combination permitted a finding of a specific intention to kill beyond reasonable doubt. He submitted that the admissions made to Professor Ogloff were, at their least, silent on the question of intent. Emphasis was also placed upon the record of interview. The applicant submitted that there were no admissions as to intention. It was emphasised that while the applicant said to the police that he had 'strangled' Ms Meagher, he also said '...it wasn't really [his] intention to hurt her'. He also said he could not 'believe that it - it went that way'. [7]

28 The applicant acknowledged that his prior criminal record revealed 'a shocking history of gratuitous violence inflicted upon vulnerable women'. However, the applicant submitted that his history could not give rise to an inference adverse to him namely that he killed Ms Meagher because he derived some form of 'perverted pleasure' from killing her. The point was made that this particular motivation was not asserted by the Crown nor discussed on the plea.

29 This Court considered the assessment of Professor Ogloff. We observe that when asked, on the plea, whether there was a prospect that the applicant would not have killed Ms Meagher if she had not resisted him, the Professor said:

again, it is very difficult for me to make that opinion, but I think it was one of the features that he [the applicant] explained - that he used when he described the offending, was resistance which caused him increasing levels of anger and rage and retaliation.

30 Thus, to recapitulate, the applicant submitted that the learned judge erred by inferring that there was an intention to kill because either the deceased would have called the police or because of 'some form of perverted pleasure'. The judge erred, it was said, because he relied on these inferences to find culpability of the 'worst kind conceivable'.

31 We do not accept the submission of the applicant. The applicant's first ground of appeal and the submissions in support take his Honour's comments out of context and focus on isolated language in the reasons for sentence. Such approach is wholly artificial. A sentence is to be read in its entirety. In this case the sentence includes the graphic description by the learned judge of dreadful and violent treatment of victims the applicant had raped in the course of his long criminal history. To summarise the applicant's analysis disregards the sentence in its entirety, is selective and, in particular, avoids the judge's detailed history of the applicant's violence when perpetrating the prior sexual offences. His Honour also considered carefully the description given by the applicant in the record of interview of his size and strength compared with Ms Meagher and, further, the statements made by the applicant in his record of interview and to Professor Ogloff that Ms Meagher fought back and told the applicant she was calling the police.

32 The applicant also argued the judge erred by placing the applicant's case into an inappropriate category of cases such as arose in R v Hudson,[8] R v Williams,[9] R v

Dupas[10] and R v Denyer.[11] The applicant argued that those types of cases featured multiple victims, premeditation and planning or gratuitous violence and torture. It was submitted that the finding of his Honour as to the applicant engaging in 'perverted pleasure' in taking the life of his victim was a finding of such seriousness and gravity as to bring the case within that category. It was submitted that the judge found pleasure was derived by the applicant from the killing not pleasure derived from the violence. However, the finding that the pleasure was derived from the killing equated with an intentional killing, which the applicant submitted was not available to his Honour on the evidence. Hence, it was said this case should not have been equated with the other cases in that category.

33 We are not persuaded by this argument, the findings were open to his Honour. Although the features present in some of the cases relied on by the applicant were not present in his offending, there were other features of the killing which made it particularly callous and which warranted condign punishment. These included the viciousness of the attack being a stranger rape and subsequent killing carried out by a comparatively large man on a small woman, the fact that the victim was murdered to prevent the rape being reported to the police, the applicant's appalling history of violent offending against individuals smaller and weaker than him - most of whom were women - and the fact that he was on parole and bail at the time of the offending. The circumstances of the offence of murder vary greatly but in our view the features of this particular murder place it in the category of cases referred to above. The applicant was a violent sexual predator who killed his victim. Furthermore, if his Honour was entitled to find an intention to kill and then did so find, the other findings do not make much difference. In any event, in light of the applicant's concession on the plea[12], his Honour was entitled to consider that the outcome would not matter whether this offending was categorised as an intentional or reckless killing. However, as Coghlan JA pointed out in the course of argument, a case such as R v Lowe[13] where a life sentence was imposed for a single murder equates quite readily with the present circumstances.

34 In our view, the nature of the killing in this case preceded by the sexual attack was vicious and violent. Endeavouring to draw a demarcation between the two offences is of no utility. Indeed, the submission defies commonsense. Here the rape was followed almost immediately by the killing of Ms Meagher. We are not persuaded.

35 In our view the first ground is not made out. Turning then to ground two.

To say so is not to exclude altogether the chance of improvement. As bad as your crimes are, you will have the opportunity in gaol to strive for rehabilitation and I propose to set a non-parole period as an incentive for you to try. I am also conscious that you are almost 42 years of age and thus you may well have passed the halfway mark of your life. It remains, however, that because of the enormity of your offending against the deceased, the gravity and frequency of your previous offending, and the consequent need for community protection, I have no choice but to sentence you to prison for a very long period of time and to impose on you a non-parole period which, regardless of how long you live, is bound to exceed the usual range.[14]

Because you have previously been convicted of serious violent offences for which you have been sentenced to imprisonment, you now stand to be sentenced for the murder of Gillian Meagher as a serious violent offender and, because you have previously been convicted of multiple counts of rape and other sexual offences for which you were sentenced to terms of imprisonment, you now stand to be sentenced for the rape of Gillian Meagher as a serious sexual offender. I am bound, therefore, by s 6D(a) of the Sentencing Act 1991 to regard the protection of the community as the principal purpose for which the sentence for each of your offences is to be imposed.

Under s 6D(b) of that Act, I am empowered to impose sentences longer than is proportionate to the gravity of the offence if necessary to achieve the purpose of community protection. In the result, however, I do not find it necessary to do so. In my view, the nature of the offences for which you stand to be sentenced, the consequent need for denunciation, deterrence and just punishment, and the requirement for community protection conduce to the result that it is sufficient to impose sentences proportionate to the gravity of your crimes.[15]

38 The applicant argued that his Honour placed undue weight on community protection when setting the non-parole period. The applicant argued that community protection only arose under the rubric of the head sentence. He relied upon the statement of principle in Bugmy v The Queen:

... it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term. The risk that the applicant might re-offend was of course a relevant factor in fixing a minimum term. But a minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation. The applicant was twenty-seven years of age when the minimum term was fixed. He will be over forty-five before the likelihood that he will re-offend will become a matter for assessment. It is not possible to say now what the likelihood will be then. Equally, the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead. Again, while the desire on the part of his Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance.[16] (emphasis added)

39 The applicant also relied upon a statement of Callaway JA in R v Brazel to support the proposition that the importance of community protection is reflected in the head sentence[17].

40 Axiomatically, the fixing of a non-parole period would not assure the applicant of release into the community at some future time. As Southwell J observed in R v Denyer:

It must steadily be borne in mind that the court in fixing a non-parole period is not attempting to decide when (and where a life sentence has been imposed) or whether the prisoner is to be released; it is doing no more than empowering the Parole Board to make that decision after the expiration of the non-parole period. If upon all the evidence available to it at the time, the board forms the view that the protection of the community demands the continued incarceration of a prisoner, then it would not grant release on parole.[18]

41 The applicant submitted that the learned judge's assessment of the risk that the applicant might pose to the community was used to set an impermissibly long non-parole period. It was submitted the result of this error is a non-parole period attended by an element of impermissible preventative detention[19]. In support of the argument it was also submitted that protection of the community is taken up in the process of release on parole.

42 We consider if this argument was valid it would mean a sentencing court would play no real role in the overall sentencing process including rehabilitation of an offender. In sentencing, the task of community protection is not to be abrogated to the Adult Parole Board.

43 The applicant also raised a statutory construction argument.[20] He argued that the introduction of s 6D of the Sentencing Act, concerned with community protection and serious offenders, changed the law in respect of the setting of head sentences but not the non-parole period. Section 6D provides:

6D Factors relevant to length of prison sentence

If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence -

(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

44 The submission was that the expression 'sentence' in s 6D, and indeed throughout the Sentencing Act applied only to the head sentence. We were taken to s 11 (fixing of non-parole periods),[21] s 14 (fixing of a new non-parole period in respect of multiple offences) and s 15 (the order of service of sentences).

45 In Bugmy v The Queen the majority of the High Court held that the sentencing judge had erred in fixing a minimum term of eighteen years and six months, having sentenced the youthful offender to life imprisonment for murder. Dawson, Toohey and Gaudron JJ referred to the importance of uniformity in sentencing and noted that the minimum term was 'higher than any other in the statistics furnished to the [Victorian] Court of Criminal Appeal'. Their Honours held that the sentencing judge had erred by arriving at the minimum term in a manner more appropriate to the fixing of a head sentence.

46 We reject the argument. First, Bugmy was decided prior to the insertion of s 6D in the Sentencing Act,[22] which requires the court to regard the protection of the community as the principal purpose for which the sentence is imposed.

47 Secondly, a sentence is approached as a whole. The entire structure of the Sentencing Act is predicated on assessing sentences in their entirety. Indeed, the purposes of the Act in s 1 provide that sentencing is a holistic exercise.[23] While the applicant points to ss 11, 14 and 15 which specifically deal with non-parole periods in order to suggest that the Act expressly divides the two concepts, the differentiation argued by the applicant is mistaken. The use of the term 'non-parole period' is necessary in order to expressly vest power in a court to fix such periods. If s 6D was to only apply to the head sentence we consider the Parliament would have expressly said so. As a matter of statutory interpretation, 'where a word is used consistently in legislation it should be given the same meaning consistently.'[24] Further, it is well established that where the Parliament could have used the same word, but chooses to use a different word, the intention is to change the meaning.[25] The inverse of this rule must also be correct. The Parliament in this instance resolved to use the term 'sentence'. It did not bifurcate the term to make it clear that it only applied to the head sentence. The consistent and common understanding of the term 'sentence' throughout the Act includes both the head sentence and the non-parole period.

48 In applying this interpretation to the learned judge's decision, it was appropriate for his Honour to frame the sentence as he did. In fact his Honour set out a number of criteria that ultimately lead to such a long non-parole period:

...because of the enormity of your offending against the deceased, the gravity and frequency of your previous offending, and the consequent need for community protection, I have no choice but to sentence you to prison for a very long period of time and to impose on you a non-parole period which, regardless of how long you live, is bound to exceed the usual range.[26]

49 On the basis of the trial judge's comments and the role and purpose of the Act, community protection in the circumstances was highly relevant to both the head sentence and the non-parole period. Ground 2 is not made out.

Whether a less severe sentence should be imposed

50 In any event, there is an additional matter with respect to both grounds. In order to succeed the applicant would need to satisfy us of a second pre-requisite to the granting of leave, namely, that there is a reasonable prospect a less severe sentence would be imposed.[27] We are not so persuaded. The gravity of the killing warranted a life sentence. So much was conceded by the applicant. The non-parole period fixed by his Honour was entirely within range in the circumstances of this offending. We observe that the learned judge made limited moderation for the early plea and some remorse. However, those matters needed to be put in context. Initially the applicant in the record of interview denied involvement. It was only when confronted by the evidence against him that he admitted guilt and assisted the police. Furthermore, the gravity of the applicant's prior history - including 20 sexual assaults involving 17 rapes - were carefully laid out and considered by his Honour.

51 At the hearing of the application, the Crown informed the Court that there was an error in order 3 of his Honour's judgment regarding the sentence for rape. Order 3 states:

In accordance with s 6E of the Sentencing Act 1991, the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1. Accordingly, the total effective sentence is life imprisonment.

52 As the applicant is serving a life sentence for the murder of Ms Meagher, the order that the sentence for rape be served cumulatively is otiose. Nothing turns on this point.

53 It follows from these reasons that the applicant failed on his application for leave to appeal. The application was refused for these reasons.

[1] Criminal Procedure Act 2009 (Vic); Supreme Court of Victoria, Practice Direction No 2 of 2011 - Court of Appeals: Criminal Appeals, May 2011.