1 The appellant entered a plea of guilty to one count of murder of his wife. He was sentenced to nineteen years' imprisonment with a non-parole period of sixteen years' imprisonment. The learned sentencing judge indicated pursuant to s 6AAA of the Sentencing Act 1991 that but for the appellant's plea of guilty she would have imposed a sentence of twenty two years' imprisonment with a non-parole period of eighteen years' imprisonment.

2 The appellant appeals on two grounds, first, manifest excess, secondly, mischaracterisation of the offence. I would allow the appeal. My reasons follow.

3 The appellant murdered the deceased on 1 February 2010. At that time the deceased was 50 years old and the appellant was 61 years old. They had been married for about 27 years but were living separately in the same family home with their two adult children who were in their early twenties. From February 2009, the appellant and the deceased had lived in separate bedrooms, prepared separate meals, watched television in separate rooms, rarely spoke, and when they did speak, there was unpleasantness.

4 The appellant was born in Cyprus and emigrated to Australia in 1972. He returned to Cyprus in 1976 and then came back to Australia in 1982. He married the deceased in about 1983 following a family arrangement. He commenced work with a tyre manufacturer and stayed working there for 26 years until he was retrenched.

5 In April 2009, the appellant went overseas. Before he did so, the deceased informed him that she wished for a divorce. The appellant offered her a sum of $250,000 in full settlement of her potential entitlement under the Family Law Act 1975 (Cth), which she rejected. Family Court proceedings commenced in consequence of which the appellant undertook not to dispose of the family assets.

6 On the morning of 1 February 2010, sometime after 7.30 am, an argument occurred between the appellant and the deceased at their home in the kitchen. Their children were absent at the time. According to the appellant, the argument centred around the deceased's desire to sell the family home as part of the divorce settlement and his insistence that this not occur. During the argument, the appellant picked up a knife from the kitchen bench and stabbed his wife five times. One blow struck her in the anterior chest penetrating her heart, three blows struck her in the left lateral chest and one blow struck her in the left lateral thigh. The forensic pathologist who performed the autopsy on the deceased also observed multiple incised injuries to the deceased's right hand consistent with attempts at self-defence. The deceased died from acute blood loss.

7 The appellant described the killing in the record of interview. He said he and the deceased had an argument of which he could not recall all the details. He said that the argument 'just got out of hand, and I got the knife there - I don't know how, it was on the bench - the kitchen, by the kitchen sink, I grabbed it, and - that's it.'

8 The appellant said the deceased came at him and he 'I don't know, just pushed just, I just stabbed at her.'

9 The appellant described the argument as 'just the usual thing ... she wanted a divorce.' He said the deceased made fun of him saying 'I want to sell everything, I'm going to take everything.' He said he had worked hard for 26 years including 22 years on night shifts when he looked after the children in the day time whilst his wife was at work. He said that 'everything' meant the house, a taxi licence and a lot of money in the bank. He said he stood to lose half a million dollars. He said she wanted her life with his money. The appellant said the deceased's statements about taking 'everything' drove him crazy and he could not remember anything else. He said he was 'out of my mind'. He said that earlier in time at the Federal Magistrates' Court he told the deceased she could have what she wanted but to leave the house. He said that if the house was sold their adult children would not have a home.

10 In the record of interview the appellant repeated these facts. He said that all he needed was to keep the house for the children as their wages were inadequate. He said he asked his wife to allow him to keep the house until the children moved out but she would not listen.

11 After stabbing the deceased, the appellant sat on the front steps of his house where he was observed by a witness at 8.30 am. At 9.01 am he telephoned '000' and asked to speak with the police. He explained to the service officer that he had had an argument with his wife, stabbed her and thought that he had killed her. The police attended the appellant's home and found the deceased's body in the kitchen. The appellant remained at the scene and admitted to police when they arrived that he had killed his wife with a knife. The appellant participated in a record of interview and fully admitted killing his wife during an argument over the division of family assets. The appellant was charged with murder and remanded in custody. He did not apply for bail.

12 It was conceded by the Crown that the appellant had indicated his intention to plead guilty to murder at the earliest possible opportunity.

13 On the plea, senior counsel for the appellant listed a number of mitigating circumstances: the age of the appellant, his health, namely, a recently diagnosed diabetic condition, the early plea of guilty, the lack of prior convictions, the lack of a history of any violence in the marriage, the fact he was a decent, hardworking member of the community and had originally arrived in Australia speaking very little English.

14 It was also said on the plea that the appellant and the deceased effectively separated in 2009. Between May and August the appellant went to Cyprus. When he returned to the family home in Melbourne there was a letter waiting for him from the deceased's lawyers on the kitchen bench. Earlier in time the deceased had told her brother that she had informed the appellant of her wish to be divorced. The deceased told her brother that the appellant had offered her $250,000.00 and that she wanted enough money to buy a home which could accommodate their children. On 30 January 2010 the deceased told her brother that she had started packing because she had found a suitable house for sale for $380,000.00.

15 The appellant's counsel called character evidence. In the course of evidence from the brother of the appellant, Sevket Bayram, an attempt was made by junior counsel for the appellant to lead evidence as to the appellant's intention with respect to the family home. The judge refused to permit the leading of this evidence and expressly said the intention could be given in evidence by the appellant but not otherwise.[1] Counsel did not persist and no admissible evidence was led at all as to the appellant's intention with respect to the family home. Next on the plea, immediately after the judge made her view on evidence of intention plain, senior counsel for the appellant submitted that [in any event] whatever was going to happen with the house would be resolved by the court. Then her Honour said to senior counsel: 'I'm not sure that's quite right, even the reference, "I will give her what the court says, but I won't sell the house, I don't want to sell the house." I mean that's what he was adamant about, I think clearly what they were arguing about that [sic], he says that himself.' Senior counsel for the appellant immediately responded 'yes, he does', said nothing more about intention and proceeded to make submissions on the mitigating factors referred to above.

16 Plainly, counsel for the appellant were on notice that her Honour viewed the appellant's position as one that he simply did not wish to sell the house. However, as was clear from the record of interview the appellant did not want to sell the house because of his children needing a home. Unfortunately, this key point was never appropriately put to her Honour on the plea. Furthermore, assuming that her Honour had the record of interview before her, she was not taken to this fact by the appellant's counsel in the course of the plea either by reference to the record of interview or other admissible evidence. To compound the situation, there was no verbal assertion of the fact of intention of the appellant save the transcript reference above. All this occurred when, most regrettably, the highly relevant matter of intention was plainly there on the record of interview transcript to be raised with the judge. Notwithstanding the firm indications by her Honour on the topic of intention counsel failed to respond. This was most regrettable as the non-disclosure of the true facts on intention led the judge on a path of fact-finding and reasoning that was based upon a false premise.

17 Thus, her Honour, in the circumstances of the evidence formed the view that the appellant and the deceased argued because the appellant did not want to sell the house simpliciter. Indeed, this was confirmed by the appellant's senior counsel. Whereas, in fact, in the record of interview the appellant said repeatedly his intention was to keep the house for his children.

18 In the reasons for sentence the learned judge said with respect to the appellant's intention concerning the house:

Your counsel informed the court that the argument was over your wife's desire that the house be sold and your insistence that the house not be sold. It is quite clear that this is the basis of the argument that resulting in your killing your wife. It is mentioned in a number of the victim impact statements and although I cannot use what is written in those documents as being material capable of being relied upon in respect of this fact finding, the references to the discussions and the arguments between you and your wife about the financial settlement are clearly supportive of what is being put forward as being the major reason for this killing. I therefore am prepared to act on the basis that that was the reason why your wife was killed, not that it was planned or premeditated but that you severely overreacted to her desire for a fair and equitable sharing of the joint assets. (Emphasis added.)

19 A little further on in the reasons for sentence her Honour then said:

Your wife was a much loved woman, held in great affection by those who knew her. Her killing was senseless and a complete waste of a life that she was looking forward to leading. One in which she may well have been far more her own person. You have deprived her of that, you have deprived her mother of her daughter, her niece of her aunt, her brother of his sister, and most importantly, your children of their mother. For someone to lose their life over a sum of money is a despicable thing to occur and whilst I accept that people can get very upset over money, it is replaceable, human life isn't. Accordingly, whilst this is not at the highest end of crimes of murder, neither is it at the lowest, and it must be treated as a relatively serious form of murder. (Emphasis added.)

20 Then further on again in the reasons for sentence her Honour recited part of the evidence about the financial arrangement and settlement between the appellant and the deceased. The judge referred to the evidence of the appellant's brother, Sevkat Bayram. Her Honour said:

Then in relation to the issue of money and how he felt about the resolution of the financial settlement, he was asked a series of questions first by [the prosecutor] in cross-examination:

Q: When you became aware your brother and his wife were going to get a divorce, did your brother ever discuss property settlements with you?

A: No we never discussed what the property settlement. We always talked about he wants the divorce and we actually we did talk about it 'so how you going to do it'. He said to me 'My wife wants to sell the house but the kids always angry, they don't want to sell the house'.

Q: Did he discuss with you how much he'd give his wife?

A: He didn't want to give her 50/50.

Q: He didn't want to.

A: Want to give her 50/50, yes we did discuss that.

Q: So he did or did not want to give 50/50?

A: He did not.

When re-examined by [the appellant's] junior counsel, he was asked:

Q: Just on that issue about 50/50 was it a situation about that he wanted to keep the house for the children?

HH: You ought not lead.

Q: Sorry your Honour. Did he indicate who he wanted the house for when he indicated?

A: The reason he didn't want to give her 50, he said I don't want to sell the house.

Q: Right.

A: I will give her whatever the court, actually he said I will give her whatever the court decided. He's say [sic] that but the house I don't want to sell it. I want to keep the house for the kids. This was the talking between us.

21 Notwithstanding the reference to the house being kept 'for the kids' the matter of the appellant's intention was not pursued or clarified.

22 In the sentencing remarks her Honour took account of the early plea of guilty and assessed it as a level of remorse but 'not a high level'.[2] In the submission on the plea the appellant's counsel did not make any reference whatsoever to the matter of remorse save to refer to the early plea of guilty. This omission is difficult to fathom. Unfortunately, the omission of counsel led the judge to remark in the sentence that there was some evidence of remorse 'but relatively limited evidence.[3] Her Honour observed:

You have however accepted your guilt and responsibility immediately for this matter, and not exacerbated the situation by running a trial. As indicated I take your plea as at least an indication of some remorse.[4]

23 The appellant's counsel on the plea also tendered the report of a forensic psychologist Mr J Cummins. Counsel for the appellant said the primary purpose of the report was to show that there was no underlying psychopathy. Counsel expressly stated that no Verdins issue was raised.[5]

24 However, Mr Cummins' report made repeated references to the appellant's remorse. He wrote:

[The appellant] specifically stated he regretted stabbing and killing his wife. It was apparent from his comments at interview he immediately accepted his actions were unlawful.

In my opinion [the appellant] spoke in a remorseful manner at interview, although it was also apparent he was still significantly in a state of shock concerning his offending and the consequences of this, not only in terms of the death of his wife but also in terms of how this affects him and his children and their relationship.

...

At interview he was on the verge of tears on a number of occasions. It was obvious from his comments at interview he regarded his offending behaviour as unacceptable, extreme, and out of character. He said as a result of his offending behaviour he has not only lost the person he loved, but has now also lost his children.

25 Notwithstanding these assessments in the report of Mr Cummins, counsel for the appellant on the plea did not raise the topic of remorse or direct her Honour to the remarks.

26 The appellant relies on two separate grounds of appeal. Ground 1 alleges that the sentence is manifestly excessive. In particular, the appellant argues that the learned sentencing judge gave insufficient weight to his plea of guilty together with its indication of remorse, his admissions in the record of interview and in determining a minimum non-parole period, gave insufficient weight to his age, previous good character and the diminished need for specific deterrence. Ground 2 alleges that the learned sentencing judge erred in law by mischaracterising the offence as 'a relatively serious form of murder' which was irreconcilable with other findings by the judge.

27 Turning first to ground 2. The learned judge based the characterisation of the offence as 'a relatively serious form of murder' by mischaracterising the appellant's motivation for murdering his wife. To state the point directly, there is considerable difference between a man killing his wife for money and a man who kills his wife because of a strong fear of losing the home for his children.

28 Counsel for the appellant ought have properly explained to the judge the motivation of the appellant. It was inadequate not to take the judge through the relevant parts of the record of interview or respond to her Honour's indication requiring direct evidence of intention. Counsel should never gloss over materials on the assumption that the judge will have all the materials and see the point, or indeed any others that might be relevant. It behoves counsel to put to a sentencing judge the instructions of the client together with the relevant evidence.

29 Regrettably, her Honour has been led to perpetrate an error readily avoidable with proper assistance from counsel. I would add that on the appeal counsel for the Crown sought to rely upon the principle, stated in Romero v R[6], that this Court will not 'lightly entertain arguments that could have been, but were not advanced on the plea.'[7] Here the motivation of the appellant for murdering his wife was disclosed by him from the outset. He was either not listened to or was ignored in the preparation and presentation of his plea. In my view it would render a serious injustice if the appellant was precluded from correcting the error in this case. The circumstances take it outside the ordinary care contemplated in Romero.

30 It follows I consider ground 2 is made out. In effect, ground 1 merges with ground 2 as the sentence is manifestly excessive in light of the now clarified circumstances. The appeal ought be allowed and the appellant resentenced.

31 I pause to mention that at the outset of the appeal counsel for the appellant (not the counsel who appeared on the plea) sought leave to add a new ground, what he called a 'natural justice ground'. The proposed ground was that her Honour erred in failing to raise with counsel during the plea hearing her Honour's view that the appellant's offence must be treated as a relatively serious form of murder for having been committed over money. I would refuse leave. The proposed ground is, at least in part, encompassed in ground 2. As the appellant has, for the reasons given, already made out ground 2, it is unnecessary to consider the proposed ground. Furthermore, the appellant was granted leave to appeal against sentence pursuant to s 278 of the Criminal Procedure Act 2009.[8] The application submission was the time to raise the amendment. No explanation was provided to us save late briefing of counsel. Of itself, that is not a sufficient reason to exercise the discretion here in my view.

32 The appellant is now 63 years old. He pleaded guilty at the earliest opportunity. On the basis of the report of the forensic psychologist he has shown genuine remorse.

33 The appellant was a hard working individual of good character during his life

in Australia. Together with his wife he provided a home for their family and accumulated reasonable levels of assets and savings. He was looking forward to his retirement in a new family home. Instead, through his own actions he has lost everything. He has health problems that may make his life in prison difficult. He will remain in prison until at least his seventies.

34 The appellant's children are now estranged from him, as seem to be the rest of his wife's family. The victim impact statements of the family go part of the way to describe the tragedy caused by the appellant. The learned sentencing judge articulated the sad consequences of the appellant's actions in her reasons for sentence.[9]

35 Domestic violence is a dreadful crime with very tragic consequences. A woman in the middle of her life was killed by her husband because she wanted to leave and take a substantial part of the matrimonial assets albeit that the appellant wanted to preserve the family home for his adult children until they had their own home. Specific deterrence essentially does not arise in this case, however, general deterrence does.

36 In all the circumstances of this case, I would re-sentence the appellant to a term of 16 years and 6 months' imprisonment and fix a non-parole period of 13 years and 6 months' imprisonment. Pursuant to s 6AAA of the Sentencing Act if necessary, I would have imposed a sentence of 19 years and 6 months' imprisonment with a minimum term of 16 years and 6 months' imprisonment.

[6] [2011] VSCA 45.

[7] At [11] (Redlich JA, Buchanan and Mandie JJA concurring).