Bradley v The Queen [2017] VSCA 69

1 In 2015, after a trial in the Supreme Court sitting at Shepparton, the applicant, now aged 55, was convicted of the 1983 murder of Michelle Buckingham. He was sentenced to a term of 27 years' imprisonment. A non-parole period of 21 years was fixed. He now seeks leave to appeal against that sentence.

2 The applicant originally relied upon four grounds of appeal, but prior to the hearing of this application, he abandoned the first of them. The remaining three grounds are as follows:

1. His Honour erred in finding that the youth of the applicant at the time of the offence was only relevant 'to some limited extent'.
2. His Honour erred in failing to take into account sentencing practices at the time of the offence.

4. The sentence was manifestly excessive in light of:

• The young age of the applicant at the time of the offence;
• The sentencing practice at the time of the offence;
• Current sentencing practices;
• The age of the applicant at the time of his earliest release;
• The foreseeable recurrence of the applicant's depressive disorder;
• The applicant having good prospects of rehabilitation; and
• The applicant underwent unusual stress during pre-trial detention.

3 For reasons which follow, we would refuse leave to appeal.

4 On the night of 21 October 1983, Michelle Buckingham, then aged 16, was stabbed to death.

5 On the morning of 22 October 1983, the applicant approached his brother-in-law, Norman Gribble. He was in a highly agitated state, and had a cut on his hand. Mr Gribble bandaged up the cut and then drove the applicant to an area, not far from Shepparton, known as Waranga Basin.

6 The applicant told his brother-in-law that he and two friends, Rodney Butler and Trevor Corrigan, had 'killed a girl last night'. He said that they had gone to a local caravan park to collect his then girlfriend. They had instead picked up the deceased, who resided at the caravan park.[1]

7 The applicant told Mr Gribble that Butler had 'put the hard word' on her. She had rejected his advances and Butler had then stabbed her. Butler had then forced the others to participate.

8 According to Mr Gribble, the applicant had explained:

... they all had to have a go at stabbing her so there was no one left to point the finger at anyone. If they all had a go, they were all involved.

9 This took place in the car park, at the rear of the Pine Lodge Hotel, in Shepparton.

10 The applicant next told Mr Gribble that, after they had stabbed the deceased, the three of them had dumped her body by the side of a rural road outside Shepparton. The applicant then drove his companions back to town. He then sat in his car, by the river, in a state of turmoil. After that, he decided to tell his brother-in-law what he had done.

11 Mr Gribble said that once the applicant had confessed his involvement in the killing, he advised him to go at once to the police. Instead, the applicant sold his car and moved interstate.

12 On 7 November 1983, Michelle Buckingham's badly decomposed remains were found by a farmer. She had sustained at least 19 knife wounds to her back.

13 At the time, the applicant owned a distinctive green HQ Holden sedan. Several days before the body was discovered, a car closely matching that description was seen in the vicinity of where the body was ultimately found.

14 Almost thirty years later, in 2012, a local newspaper published a number of articles about the murder. The investigation had been revived as a 'cold case', under the supervision of Detective Senior Sergeant Ron Iddles, then of the Homicide Squad. In response to those articles, Mr Gribble at last came forward and spoke to police.

15 On 27 November 2013, Mr Iddles interviewed the applicant in Brisbane. He initially denied any knowledge of the deceased, and maintained that he had had no involvement at all in her death. He specifically denied having told his brother-in-law that he had been involved in her murder. He acknowledged, however, that he had owned a green HQ Holden in 1983. He also acknowledged that he had been friends at that time with Butler and Corrigan.

16 On 30 January 2014, Mr Iddles interviewed the applicant in Brisbane for a second time. On that occasion, he admitted having known of the deceased, although he insisted that he had never met her. He did, however, say that Butler had spoken to him about her.

17 On that second occasion, the applicant told Mr Iddles that, while he could not specifically recall having had any conversation with Mr Gribble of the kind alleged, he had been suffering from recurrent nightmares over the previous 20 years. He said that, in the course of those nightmares, he saw a 'spirit' coming to him, and 'sitting there'. He described it as though he was being haunted. He said that in one of his nightmares, he was talking to Mr Gribble, while driving to Waranga Basin. He said that he dreamt of a girl with long, dark hair who sometimes sat on his bed, and sometimes on his stomach. He referred to a cut on the little finger of his right hand.

18 When Mr Iddles asked if it was possible that the applicant had stabbed the deceased but 'blocked it out', his answer was 'probably not'. When pressed about whether he had been involved in the killing, he said that he had no memory of it, but was sure that if 'we had to - we had - we all have to do it'. He told Mr Iddles that he did not recall anything in 'reality time'. When asked again if it was possible that he had been involved, he acknowledged that this could be so, but claimed to have no memory of it. He said that he had no idea of why he had disposed of the green car.

19 On 12 March 2014, Mr Iddles interviewed the applicant in Brisbane for a third time. On this occasion the applicant said that he could now vaguely remember having been at the Pine Lodge Hotel, in Shepparton, on the night in question. He recalled it having been dark. He said, however, that he could not remember anything that took place afterwards.

20 On 13 March 2015, after the committal hearing, the applicant asked to speak to police again. On this occasion he was interviewed by Detective Senior Constable Simon Hunt, the informant in the matter. This time he gave what purported to be a complete account of his involvement in the death of the deceased. That account did, however, contain a number of demonstrable lies.

21 The applicant admitted to Mr Hunt having been with the deceased on the night she was killed. He claimed, however, that she was already dead when he found her slumped in the back seat of his car, shortly after she and Butler had left the hotel. He said that he had been frightened of Butler at the time, and, for that reason, had done everything that Butler told him to do. He added that Butler had threatened both him and Corrigan, telling them 'we all better stab her so if - well, if I go down for it, well youse'll all go down for it.' He claimed that Butler had handed him a fishing knife, and insisted that he stab the deceased. He said that he had pretended to do so, and had cut his finger in the process. He admitted to having used his car to dispose of her body.

22 This fourth version of events approximated the applicant's account to the jury, at his trial.

23 The judge indicated early on in his sentencing remarks that he was satisfied that Mr Gribble's evidence as to what the applicant had said to him in 1983 was truthful and substantially accurate.

24 The judge noted that the Crown had put its case against the applicant in two ways, either as murder simpliciter, or as murder by way of joint criminal enterprise.[2] He concluded that, after the three offenders had picked up the deceased, and she had refused to have sex with at least one of them, they had agreed that they would each stab her. Their reason for doing so was because, in his Honour's terms, that way 'there would be no come back on any of you.'

25 The judge noted that the applicant had told Mr Gribble that Butler had stabbed the deceased first, and he and Corrigan had then joined in. Both Butler and Corrigan gave evidence at the trial. Each denied any involvement in the killing. Neither had ever been charged. In fact, as his Honour correctly observed, there was no admissible evidence against either of them.

26 The judge concluded that the applicant had 'actively participated' in the stabbing. That was so, whether he acted alone, or with Butler and Corrigan. His Honour was not 'positively persuaded' that the applicant's attribution of the lead role in the stabbing to Butler should be accepted. He stated that, in the particular circumstances of this case, it really did not matter.

27 As his Honour put it, 'participation in a joint killing of this kind involves no less moral culpability than sole responsibility for the killing'.[3] Indeed:

an offence committed by more than one offender against a victim who is outnumbered is generally considered to be more culpable than an offence committed by a single offender against another.[4]

28 The judge then moved to evaluate the objective gravity of this crime. He said:

There is a nightmare quality to the cruel brutality of your offending which comes from the combination of the following aggravating features:

(a) the heartless and predatory nature of your attack upon a teenage girl who had all her life ahead of her;

(b) the brutality of stabbing her at least 19 times in the back; and

(c) the callousness with which her body was dumped.[5]

You have never demonstrated any real remorse for the killing or accepted responsibility for what you did.

There are echoes of the killing of Rosalyn Nolte by Lowery and King in a case which shocked Victorians just over a decade before this murder.[6]

30 Having next summarised the victim impact statements (which, not surprisingly, spoke of the devastating effect that the murder had had upon the family of the deceased), the judge turned to the applicant's personal circumstances.

31 His Honour noted that the applicant was the youngest of a family of seven. He had had a dysfunctional upbringing. His father was an alcoholic, who had been constantly violent towards the applicant's mother and his elder siblings. The applicant was educated up to the age of 15. Even by that stage he had begun to drink. He then commenced work as a roustabout with a shearing contractor, and spent a good deal of time working interstate.

32 At about the age of 17, the applicant returned to Shepparton. He moved in to the caravan park, to which reference has been made, with his girlfriend at the time. After working as a roustabout for a further two or three seasons, he became a shearer, and worked as such for several years. His relationship with his girlfriend ended early in 1984, several months after the murder of the deceased. Thereafter, he began to drink more heavily.

33 At about that time, the applicant was admitted to Mont Park Psychiatric Hospital. He spent several weeks there suffering from what was described as a 'breakdown'. Upon discharge, he lived for a time with his brother and sister-in-law in Melbourne.

34 In 1986 the applicant formed a relationship with a work colleague. In 1991 they had a son. The relationship broke down in 1993, and the applicant began drinking even more heavily.

35 Between 1984 and 1996, the applicant was convicted of a number of offences. These included armed robbery, aggravated burglary and threat to kill. Several of these offences were committed against his former partner. The judge described them as indicating 'serious inadequacies with respect to anger management in the context of a failed relationship.'[7] His Honour added 'they also demonstrate a continuing propensity for violent offending'.[8]

36 During this period, the applicant served time in prison. On occasion, he was treated as a psychiatric patient. Following his release in 1997, he lived with his mother and again began drinking heavily. He was admitted to hospital several times following suicide attempts.

37 In about 2000, the applicant moved permanently to Queensland. Whilst there, he was admitted to a psychiatric hospital following yet another suicide attempt. For some years he was homeless, and lived on the streets.

38 In 2005, the applicant finally managed to obtain steady employment, this time as a cleaner at a veterinary clinic. Apparently, he enjoyed the work and developed good relationships with his workmates.

39 In 2010, however, the applicant again attempted suicide. Thereafter, he appeared to have stopped drinking, and was said to have lived frugally.

40 A neuropsychological report prepared by Associate Professor Warrick Brewer, of the University of Melbourne, was tendered on the plea. He described the applicant's intellectual ability as 'low average'. The applicant was said to be 'alcohol dependent in remission'. He was also diagnosed as having depressive symptoms, and was said to be a moderate suicide risk, on an ongoing basis.

41 A psychiatric report prepared by Associate Professor Andrew Carroll, consultant forensic psychiatrist, was also tendered. He noted that the applicant had been diagnosed with depression in the past, and had been in receipt of medication. However, he was no longer taking anti-depressants. The report observed that the applicant appeared to have adapted remarkably well to prison life. He said that, in his opinion, the likelihood of the applicant reoffending was low.

Drawing these matters together, I make the following background findings:

(a) you grew up in a violent and dysfunctional family;

(b) you commenced drinking in your mid-teens and have had alcohol-related problems for most of your adult life;

(c) you have been unable to sustain satisfactory lasting relationships with members of the opposite sex and have lost contact with your son;

(d) you have engaged in violent offending as a mature man albeit nothing of equivalent violence to the offending here in issue;

(e) your offending demonstrates serious ongoing problems with anger management and a capacity for violence in your mature years;

(f) you have suffered from recurrent episodes of depression;

(g) you had nevertheless settled into a stable and productive life in Brisbane prior to your arrest. You were not abusing alcohol and there is no evidence of violent behaviour during this period;

(h) you have adapted well to prison life and show no current signs of depressive illness;

(i) it is likely that your sentence may produce a depressive reaction; but

(j) your long-term prognosis is good and there is nothing to suggest that long-term imprisonment will produce an adverse effect on you or that you will find it more difficult than the average prisoner.[9]

43 His Honour then dealt with a number of mitigating factors upon which the applicant relied. He said:

First, it is submitted that the murder was not pre-planned or premeditated. I accept that this is so, but its casual and heartless quality is, in a fundamental sense, totally abhorrent. To say things had "fallen foul" at the Pine Lodge Hotel, as your brother Lawrie reports you to have stated at one point, does not adequately reflect the predatory and deliberate nature of the killing.

Secondly, it is submitted that I should be satisfied that Rodney Butler was the driving force behind the offending. For the reasons I have explained, I am not satisfied that your role was that of a subsidiary. On the basis of your admissions and of the circumstantial evidence as a whole, I am satisfied beyond reasonable doubt that you killed Michelle Buckingham by actively participating in stabbing her. On the basis of your admissions and the circumstantial evidence as a whole, I am also satisfied beyond reasonable doubt that you did so jointly with Corrigan and Butler. I am not, however, satisfied on the balance of probabilities that your role should be regarded as less significant or culpable than that of Butler.

Thirdly, you were at the time of the offending only 21 years of age (although almost 22) and it is submitted that your youth should be regarded as reducing your moral culpability. I accept that you were still at an age where there is the potential that immaturity might have affected your moral judgment to some degree. Young adult age of itself is not, however, conclusive proof of immaturity. At the time of the murder, you were living an adult life working as a shearer and living in an apparently stable relationship. There is no evidence that you were immature. There is nothing to show that you were led into the killing because of your immaturity. On the contrary, you were the older man amongst the three who, you say, were present at the time of the killing. The other two were markedly younger and it was your car which was used for the purpose of the offending...[10]

44 His Honour then referred to a decision of this Court, DPP v SJK,[11] which dealt with youth as a mitigating factor. He noted that although the focus in such a case is usually upon prospects of rehabilitation, that was not the only basis upon which it assumed relevance. He then said of SJK:

The Court went on to observe that in that case the criminal conduct in issue could hardly be explained or ameliorated to any substantial degree by reference to the offender's levels of maturity. In my view, this is a similar case and, making full allowance for your relative youth, your general level of culpability must still be regarded as extremely high.

Fourthly, it is submitted that, despite your troubled past, the fact that you had settled down in Brisbane prior to your arrest and obtained steady employment favours the view that your prospects of rehabilitation are good. A series of impressive references from staff at the veterinary hospital at which you worked have been tendered on your behalf. You also have the ongoing support of three of your sisters and of some friends. I accept the view of Professor Carroll that your prospects of rehabilitation are probably good. Although I doubt this to be so if you relapse into heavy drinking. I further accept the submission made on your behalf that a meaningful parole period should be provided to facilitate and ensure your reform.

Fifthly, it is submitted that because you have suffered recurrent depression, you are likely to find imprisonment more difficult than the average prisoner. In my view, very little weight can be given to this factor. Professor Carroll states that your symptoms are currently in remission and that you are a resilient person. He says that if depression reoccurs then it will be for limited periods only. He says that, in the longer term, there is nothing to suggest that you will find imprisonment more burdensome than for the average prisoner. I would add that the association between heavy alcohol use and depression which is apparent from your history will, of necessity, be broken in prison. I am not persuaded that the personality disorder which Professor Carroll describes gives rise to ongoing circumstances falling within what we call the fifth factor referred to in the case of Verdins. I prefer his opinion to that of the neuropsychologist, Professor Brewer, by reason of his superior qualifications and the fact that Professor Carroll saw you after your conviction, rather than before your trial. Hence, his report relates to your current situation.

I do accept, however, that you are likely to find the stress of the imposition of sentence itself more stressful than the average prisoner and I endorse the view that you will require supervision to prevent self-harm.

Sixthly, it is submitted that, by reason of the admissions made in your fourth and final record of interview, the issues at trial were narrowed. In particular, you admitted to being present at the time Michelle Buckingham was killed and you admitted that your car was used to dispose of her body. I do not accept this submission. It is true that these admissions narrowed the range of evidentiary issues in some respects but I do not accept that you can receive a sentencing benefit for the partial truths embodied in the lies you fabricated in your fourth record of interview. Aspects of your story in fact created new evidentiary issues, such as your attempt to maintain that the killing occurred on the Saturday, your assertion that the stabbing did not occur until you had driven away from the Pine Lodge Hotel and your account of pretending to stab Michelle Buckingham. There can be no benefit gained by you from the fact that your lies included partial admissions.

Seventhly, it is submitted that, in addition to current sentencing practices, some regard should be had to the sentence that would have been imposed if you had been convicted in 1983. At that time, the offence of murder was punishable by mandatory life imprisonment. I agree that this is a relevant consideration but I do not see that this can of itself be said to somehow support a sentence of less than life imprisonment. Insofar as parole was subsequently granted to a number of prisoners who suffered this penalty, that decision was made subsequent to sentence. The regime then in operation is simply not comparable to that under which I must impose sentence. Insofar as it is relevant, this factor favours the imposition of an extended term of imprisonment.[12]

45 The judge observed that the applicant had sought to rely upon sentencing statistics for murder in the years 1987 and 1988. These were the first years after the abolition of mandatory life imprisonment for murder. His Honour did not regard these statistics as helpful, 'for the reasons explained by the High Court in R v Pham.'[13] He added that he was familiar with current sentencing practice for murder in this State,[14] and said that he took it into account.

46 The judge then summarised his findings as to mitigation. He accepted that:

(a) the murder was not pre-planned;

(b) to some limited extent, your moral culpability can be regarded as diminished by your relative youth at the time of the offending;

(c) my sentence should recognise the fact that you have good prospects of rehabilitation;

(d) you have undergone unusual stress during pre-trial detention;

(e) it is likely that you may suffer a depressive reaction to this sentence which will be greater than the reaction of the ordinary prisoner to a sentence of long term imprisonment.[15]

47 His Honour did not otherwise accept that the matters urged on the applicant's behalf warranted any significant reduction in penalty. He observed that the gravity of this particular offence meant that only a 'substantial' period of imprisonment was warranted. He highlighted, once again, 'the brutal and cowardly killing of a teenage girl and the abandonment of her body' and the group nature of the offence which had 'the capacity to jointly terrify and overpower a victim'.[16]

48 In terms of general deterrence, his Honour stated that such a violent, 'alcohol-fuelled', predatory killing should be condemned by the community. As regards specific deterrence, he noted that the applicant's ongoing prospects of rehabilitation were closely linked to the continued control of his alcoholism. As such, his Honour said:

The sentence I impose must bring home to you the seriousness of your offending and the fundamental need for you to permanently change your way of life.[17]

49 The judge also pointed to the applicant's subsequent criminal history, including convictions for violent offences, which meant that he fell to be sentenced as a 'serious violent offender' under the Sentencing Act 1991.

50 The applicant submitted before this Court that the judge failed to consider the effect of his troubled upbringing on his maturity at the time of the offence.

51 In addition, he submitted that his Honour failed to consider the evidence that Rodney Butler had, in 1983, been a violent and hardened young criminal who was perfectly capable of having 'stood over' the applicant, and coerced him into doing what he did. Under the general rubric of this proposed ground, the applicant submitted that his Honour failed to take into account the fact that the applicant had no prior convictions of any kind, noting specifically that the judge had made no mention of that fact in his otherwise comprehensive sentencing remarks.

52 It was further submitted that the applicant's upbringing and background were such that it should not be inferred that he had any greater level of maturity than his age (21) would suggest. Rather, it was submitted, these factors would tend to make the applicant more 'prone to ill-considered or rash decisions'.

53 The applicant referred in that regard to R v Azzopardi, in which this Court said:

There are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration. First, young offenders being immature are therefore 'more prone to ill-considered or rash decisions'. They 'may lack the degree of insight, judgment and self-control that is possessed by an adult'. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.[18]

54 Finally, it was submitted that there was no basis for his Honour to conclude that the applicant's youth at the time was only relevant to 'some limited extent'. The applicant had been wrongly denied the full benefit of youth as a mitigating factor.

55 The Crown accepted that the applicant had had a difficult upbringing, and that his youth at the time of the commission of this offence was a relevant mitigating factor. Nevertheless, he was, it was submitted, precluded from relying upon youth to the fullest extent by dint of his age at the time he came to be sentenced. All he could legitimately call in aid was perhaps some modest reduction in moral culpability, on account of impetuosity, immaturity or other proven lack of judgment.

56 The Crown next submitted that, although the judge had not referred in terms to the fact that the applicant was to be sentenced on the basis that he had no prior convictions, his Honour was plainly cognisant of that fact. First, he was told specifically, during the course of the plea, that there were no prior convictions. Secondly, in the sentencing remarks he referred at some length to the applicant's subsequent convictions.[19] It was submitted that it was necessarily implicit, in the reasons for sentence, that the applicant was understood to have no prior convictions, and was to be dealt with on that basis.

57 The Crown next submitted that, although the applicant had had a difficult upbringing, it was not immediately apparent how that was linked to the commission of this offence. As the Crown put it:

It is difficult to comprehend how even the most wayward or morally depraved person could fail to understand that stabbing a 16 year old girl to death in company because she had rebuffed a sexual advance would not be behaviour worthy of the severest condemnation and punishment.

58 The Crown noted that the judge was still prepared, notwithstanding the horrific nature of this crime, to treat the applicant's moral culpability as having been reduced on account of his age, and background. The judge recognised that these factors gave context to, and provided a partial explanation for, what the applicant had done. However, it was submitted that his Honour had correctly found that they did not, in any way, excuse his behaviour.

59 Finally, the Crown submitted, that based on the material before him, the judge had gone as far as he reasonably could in giving recognition to the applicant's youth at the time of the murder. It was not correct to suggest that his Honour had treated the applicant as having a greater level of maturity, based upon his dysfunctional upbringing, than would otherwise be warranted.

Ground three - current sentencing practices in 1983

60 The applicant submitted that the judge erred in failing to give proper weight to sentencing practices for murder, as they stood in 1983, rather than as they now stand.

61 The applicant referred, in that regard, to the principle of 'equal justice' as enunciated by this Court in Stalio v The Queen.[20] In that case, the applicant pleaded guilty to a series of sexual offences involving young girls going back many years between 1974 and 1983. He relied specifically upon s 5(2)(b) of the Sentencing Act, which provides that, in sentencing an offender, a Court must have regard to 'current sentencing practices'. He submitted that 'sentencing practices' for the offences in question meant sentences typically imposed for such offending at the time the offences were committed. As sentences for sexual offences had increased dramatically over the years, the sentencing judge should have ignored that fact, and focused exclusively upon the practices of the past.

62 This Court held that the phrase 'current sentencing practices' in s 5(2)(b) related to sentencing practices at the date of sentence, and not at the date of the commission of the offence. Importantly, however, the Court added that 'the concept of equal justice' - said to be embraced within the statutory purpose of just punishment[21] - required regard to be had to sentencing practices at the date of the offence, provided that those practices could be shown to have required 'the imposition of a materially lesser sanction for like offences' than current sentencing practices would demand.[22]

The principle of equal justice requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time. In Lowe v R, Mason J stated:

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.

It would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time.[23]

64 The applicant submitted that, although in 1983 the sentence for murder had been mandatory life imprisonment, it was well understood at that time that persons sentenced in those circumstances could expect to have their progress reviewed, at some stage, by the Parole Board. That body would then make recommendations to the government as to whether, after an appropriate time, the person sentenced to life imprisonment should be released on licence.

65 In 1983, the sentencing judge played no role at all in the setting of a non-parole period. His or her only responsibility was to pass a sentence of life imprisonment.

66 Statistics published by the Victorian Law Reform Commission in 1985 were said to show that most of those who received life sentences under the regime then in force were, in fact, released, having had their sentences commuted to something just below 14 years.

67 In 1986, mandatory life imprisonment for murder was abolished.[24] From that time, courts were given the power to choose between imposing a life sentence, or a lesser, but definite, term of years. The applicant relied upon statistics taken from 1987 and 1988 which, he contended, showed that, in those years at least, the average head sentence for murder was between 16 and 19 years. He sought to contrast those averages with the 27 year term imposed in this case.[25]

68 The applicant drew attention to the judge's response, in his sentencing remarks, to the submission that Stalio required some moderation of sentence.[26] He submitted that the judge had erred in treating the sentencing regime that was in place in 1983 as somehow falling outside the principle of 'equal justice', as explained in Stalio. He contended that equal justice could not be ignored merely because the decision with respect to commutation was, at that time, made by the government, and not by a court. He further submitted that the regime that existed in the 1983, and that which prevails today, despite their differences, were comparable. Both required a decision to be made about release from imprisonment, and in neither case was that decision to be made by the sentencing judge.

69 The applicant accepted that, had he been sentenced for this offence in 1983, he would have been given a term of life imprisonment. He submitted, however, that he would have expected to have been released after serving about 14 years, though perhaps a little more. That figure stood in stark contrast with the 21 years non-parole period with which the applicant was now confronted.

70 It was submitted that the judge should have approached this matter as one of substance, and not one of form. He should have imposed a sentence that gave proper weight to the requirement of equal justice. That requirement was overarching, and ought to have taken precedence over all other sentencing factors.[27]

71 The Crown replied by submitting that the judge had approached the issue of current sentencing practices correctly. The 'sentencing practice' for murder in 1983 was to impose life imprisonment. There was no non-parole period fixed by the sentencing judge. That meant that it was difficult to make any meaningful comparison between sentencing practices then, and those which applied today.

72 The Crown submitted that the judge was, of course, entitled to have regard to the fact that the sentence for murder in 1983 had been mandatory life imprisonment. However, his Honour was correct to hold that he could not have regard to whatever the government of the day might have done, in terms of commutation, as a matter of executive discretion. To accept the applicant's submission would be to countenance sentencing judges taking into account executive actions in granting parole generally, a matter which judges are specifically precluded by statute from doing.[28]

73 Finally, the Crown submitted that the judge was entitled to hold that the sentencing statistics for 1987 and 1988 were of no real assistance. The use of bare statistics of that kind had only limited value, in any event.[29]

74 The applicant once again sought to rely upon his youth at the time of the murder as a mitigating factor. He did so not just in support of ground two, which alleged specific error in that regard, but also in support of the more general ground of manifest excess.

75 In that regard, the applicant relied not merely upon his age at the time of the offence, but also the fact that he had no prior convictions at that stage. He also relied upon his dysfunctional upbringing, and background, as a counterweight to any apparent suggestion of maturity.

76 The applicant also sought, in support of this ground, to rely upon sentencing practice as it stood in 1983. He did so not merely as an indication of specific error under ground three, but also as a particular of manifest excess.

77 Next, the applicant sought to rely upon a series of cases which, he submitted, were appropriate comparators, and which he contended would demonstrate that this particular sentence was 'wholly outside the range'.

78 First, the applicant noted that the median sentence for murder between 2009 and 2014 was 20 years. He further noted that the majority of sentences for that offence fell somewhere between 17 and 20 years.

79 Next, the applicant referred to three cases which, he submitted, bore similar features to his own, but which had resulted in significantly lower sentences being imposed.

80 The three cases of murder upon which the applicant relied were R v Brooks,[30] R v Heblos[31] and R v Athuai.[32]

81 In Brooks,[33] the applicant, who was aged 25 at the time of the offence, bludgeoned his 22 year old female victim to death. He was of low intelligence. It appeared that he killed her after she disturbed him in the course of a burglary, and did so to prevent her from later identifying him. He pleaded not guilty. He was sentenced to 18 years' imprisonment with a non-parole period of 14 years. On appeal, that sentence was said to have been 'well within the range'.

82 In Heblos,[34] the respondent bludgeoned his former employer to death while carrying out a robbery at the business. He inflicted at least eight separate blows to the victim's head, all of them involving the use of severe force. He was aged only 18 at the time, and had no prior convictions. He had pleaded guilty, in the presence of the jury, to manslaughter. However, the Crown had refused to settle for manslaughter, and elected instead to proceed with the murder charge. The question at trial was whether the respondent had the requisite mental state for murder, and the jury found that he did. He was sentenced to 15 years' imprisonment, with a non-parole period of 10 years.

83 In his sentencing remarks, the trial judge gave considerable weight to the respondent's youth, and prospects of rehabilitation. Not surprisingly, the Director of Public Prosecutions appealed against that sentence, arguing that it was manifestly inadequate. This Court accepted that, as a general proposition, the youth of an offender and, in particular a first offender, should be a primary consideration in sentencing. In such cases, rehabilitation was usually more important than questions of general deterrence. However, the Court went on to note that in R v Mills,[35] Batt JA had observed that there were cases of such gravity, and extreme violence, that the usual principle would have to be given less weight. The Court then resentenced the respondent to 21 years' imprisonment, with a non-parole period of 16 years.[36]

84 In Athuai,[37] the appellant, in company, stabbed the victim to death in an unprovoked attack. He was aged 17 at the time, and had had a violent upbringing in Sudan. He was sentenced to 22 years' imprisonment with a non-parole period of 17 years. It was submitted on his behalf that the sentencing judge had failed adequately to take into account his youth and prospects of rehabilitation, and that the sentence was manifestly excessive.

85 The appeal was allowed, and the appellant was resentenced to a term of 18 years', with a non-parole period of 14 years.

86 It should be noted that Brooks, Heblos and Athuai were decided in 1999, 2000 and 2007 respectively. It is clear, as will become apparent, that sentences for murder have increased significantly since that time.

87 As a further mitigating factor, the applicant sought, in his submissions before this Court, to rely upon his age at the time of his earliest possible release. As matters stand, he will not be eligible for parole until he is 73. It was submitted that if he were to survive the 21 year non-parole period (and possibly the totality of his 27 year sentence) he would be left without any reasonable expectation of a useful life thereafter.[38]

88 Finally, the applicant sought to rely upon what were said to be his prospects of rehabilitation, which the judge below had accepted were good.[39]

89 The Crown, in response, simply referred to and adopted its submissions on ground two in relation to the applicant's youth at the time of the offence. Likewise, it referred to, and adopted, its submissions on ground three in relation to sentencing practices for murder at the time of the offence.

90 The Crown submitted that the three cases upon which the applicant relied, in support of his contention that the sentence in this case was manifestly excessive, were of no assistance to him.

91 The murder in Brooks had been committed spontaneously, in the midst of other offending, by a young boy of low intelligence, and in respect of whom general deterrence had to be moderated. The respondent in Heblos was young at the time of sentencing, and had fought his trial solely on the basis of a lack of murderous intent. The facts of that case bore little resemblance to those before this Court, and in any event involved a Crown appeal, as to which special circumstances applied. Finally, the applicant in Athuai was still a teenager when he came to be sentenced. He had killed his victim in the course of a fight. He was also able to call in aid his extremely underprivileged background.

92 Importantly, the Crown submitted, all three of these cases were of some antiquity, and sentences for murder had increased significantly over the years.

93 The Crown also referred to a number of cases that, it submitted, demonstrated similar aggravating features to those present in this matter. They all involved the senseless and cold-blooded murder of young women or girls by men who had either sexually assaulted them, or had in mind doing so. That quality, the Crown submitted, called for particularly stern punishment in the present case as well.

94 The Crown referred to R v Camilleri[40] and R v Beckett[41] as comparable cases, both of which attracted sentences of life imprisonment, though acknowledging the offending in those cases could fairly be regarded as worse than that of the applicant.

95 In Camilleri, the applicant was sentenced to life imprisonment without the possibility of parole for the rape and murder of two schoolgirls. He pleaded not guilty, but was convicted after a lengthy trial. His co-offender, Beckett, who elected to plead guilty, received a life sentence with a non-parole period of 35 years.

96 The Crown also referred to R v Clarke.[42] In that case, the offender, aged 25, stabbed a six year old girl to death, after having sexually assaulted her. As in the present case, the applicant was able to conceal his crime many years. He then pleaded not guilty at trial. Again, as in the present case, he had no prior convictions. He did, however, have a significantly worse subsequent criminal history than did the applicant. It included convictions for manslaughter and rape. He received a life sentence with a non-parole period of 25 years.

97 The Crown also referred to R v Debs.[43] The applicant in that case received a life sentence without the possibility of parole for the murder of a young woman, with whom he had had intercourse. It seems that she was a prostitute. He had a very bad criminal history and, like the applicant, had pleaded not guilty at trial. Once again, the Crown accepted that the offending in that case was objectively more grave than that in the present matter, but the sentence imposed was far heavier as well.[44]

98 As regards the applicant's age at the time of his earliest possible release, the Crown acknowledged that this was a relevant factor. Nonetheless, while it was accepted that a judge should, where possible, seek to avoid imposing a 'crushing' sentence,[45] there were some cases where the gravity of the offending was so great that nothing short of a sentence of that description, in its ordinary sense, would suffice.

99 The Crown submitted that the fact that a particular sentence may deprive an offender of any reasonable opportunity of life outside a custodial environment does not mean that the sentence will necessarily, and for that reason only, be manifestly excessive.

100 The Crown further submitted that the judge was well aware of the applicant's age when sentencing him. His Honour also said that he had regard to the principle of parsimony.[46] In any event, the Crown submitted that the evidence did not establish that the applicant would be devoid of all prospect of any future life outside of prison at the age of 73, if he were released on parole.

101 The Crown next submitted that this offence had involved the 'callous and cowardly slaying of a teenage girl', who was killed for no reason other than that she refused to have sex with a group of young men. Her body was 'dumped' on the side of the road, left effectively to 'rot'. The applicant then kept his secret for 30 years, thereby adding to the torment of the victim's family. When those aggravating factors were taken into account, together with the fact that the applicant pleaded not guilty, and showed no remorse, it was submitted that the sentence imposed in this case was plainly within range.

102 Finally, the Crown submitted the applicant could, quite reasonably, have been given an even longer sentence for this offence. The fact that he had not been given a life sentence, as he might have been, fully reflected the reduction warranted by reference to the Stalio principle of 'equal justice' to which reference has already been made. The sentence of 27 years' imprisonment was precisely the type of sentence that might have been expected, at least after a trial.

103 We would refuse leave to appeal. We do so essentially for the reasons advanced by the Crown in its written case, and elaborated upon in oral argument.

104 As regards ground two, which raises the issue of youth, the judge was confronted with a difficult sentencing task. The applicant was only 21 when he committed this offence. In ordinary circumstances, that might well entitle him to some measure of leniency, based upon his youth and prospects of rehabilitation. Age can be relevant in such cases, in fixing both the maximum term, and the non-parole period.

105 The principles governing youth as a mitigating factor were clearly set out in Mills, where Batt JA (with whom Phillips CJ and Charles JA agreed) said:

1. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
2. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
3. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s. 5(4) of the Sentencing Act.)[47]

106 There are various reasons why leniency may be accorded to young offenders. They include reduced moral culpability by reason of immaturity, and a less than fully developed capacity to control impulsive behaviour.

107 Nonetheless, the general propositions stated in Mills are subject to several qualifications. As the level of seriousness of the criminality increases, there will often be a corresponding reduction in the mitigating effects of the offender's youth.

108 In DPP v Lawrence, Batt JA (with whom Winneke P and Nettle JA agreed) said:

Further, as the cases make clear, with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a "back seat" to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both. Here, the respondent was in any event only on the borderline of youthfulness and moreover was not by any means a first offender.[48]

109 There is nothing to suggest that the judge in the present case failed to give sufficient weight to the applicant's youth at the time he committed this offence. His Honour's comment about the applicant having lived and worked interstate for some years by the time he was 21 does not mean that he rejected youth as a mitigating factor. It means, rather, that he put the applicant's youth into context. While the applicant was still very young at the time of the murder, his background was by no means typical of a 21 year old at that stage. The fact that he had left home some years earlier, and had supported both himself and his partner by working full time was clearly relevant when considering what weight should be accorded to his youth as a mitigating factor.

110 In any event, the judge said that he gave some weight to the applicant's youth as having reduced his moral culpability. The sentence that was ultimately imposed does not suggest to the contrary. His Honour's treatment of youth was orthodox, and in accordance with the authorities.

111 With regard to ground three, the judge was well aware of this Court's decision in Stalio. He had, after all, been a member of the Court that decided that case, and had been a party to the joint judgment.

112 In purely legal terms, the judge's approach to sentencing practice for murder, as that practice stood in 1983, was unexceptionable. His Honour focused upon the mandatory life sentence that then prevailed. Strictly speaking, that was the only 'sentencing practice' that could be taken into account in considering what sentence the applicant might have expected to receive had he been dealt with for murder at that time.

113 The judge did not engage in the highly problematic task of trying to reconstruct what the government of the day might have done, by way of executive action, to enable the applicant to be released by way of commutation, had he been sentenced then. Nor, in our view, was he obliged to do so. The only relevant enquiry concerned the outcome of the (putative) sentencing process, carried out as it would have been under the applicable legislative provisions.

114 His Honour was entirely correct to follow Stalio by treating the reference to 'current sentencing practices', as it appears in s 5(2)(b) of the Sentencing Act as meaning those practices that applied at the time of sentencing. At the same time, he did not ignore the need to have regard to the principle of 'equal justice', as required by Stalio.

115 The applicant's criticism that the judge's approach was mere 'formalism', and did not properly reflect the requirement of 'equal justice', in the Stalio sense, is misplaced. The sentence imposed, coupled with his Honour's sentencing remarks, demonstrate that this is so.

116 The judge was also presented with bare statistics that, as is often the case, were singularly uninformative. The figures were said to show the practice adopted by the government of the day in granting release to those sentenced to life imprisonment in the early 1980s. However, he was given no indication of what factors may have been present in each of those cases, viewed individually. In any case, as we have said, executive release of that kind is not an appropriate comparator for sentencing purposes.

117 At the same time, his Honour was well aware of the need to moderate the sentence that he was minded to impose to allow for some measure of 'equal justice'. Stalio required that he have regard to that principle and, as we have said, there is nothing in the sentence actually imposed to suggest that it was not given due weight.

118 The problem of how to sentence an offender in circumstances where there has been a long delay between the commission of the offence and the imposition of sentence can be acute. That is particularly so where sentences for that particular offence have, over the years, greatly increased.

119 In Radenkovic v The Queen, which concerned resentencing following an appeal where the law had changed, Mason CJ and McHugh J said:

... considerations of justice and equity ordinarily require that the convicted person be resentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood.[49]

120 These observations have been held to apply not just to resentencing but also where sentencing standards have changed from the time the offence was committed.

121 Thus, in Green v The Queen,[50] the Northern Territory Court of Criminal Appeal held that the principle enunciated in Radenkovic applied equally to that situation, albeit subject to three qualifications. First, the principle was not an inflexible rule. Secondly, it can only be applied if it is reasonably practicable to do so. Thirdly, some changes in the statutory sentencing regime may complicate the applicable law.[51]

122 This Court's decision in Stalio illustrates how much care a sentencing judge must exercise when approaching this question of delay in dealing with historic offending. For the reasons we have given, no error has been shown in the approach taken by the sentencing judge.

123 There are two additional matters we wish to mention. The first is a possible qualification to the application of the principle of equal justice. Counsel for the applicant stressed the importance of 'treating like cases alike'.[52] But, as was suggested to counsel for the applicant in the course of argument, it may be doubted whether 'like cases' is an apt description of a case like the present - where offending is only discovered some thirty years after its occurrence - and a case where the offence is discovered, prosecuted and punished contemporaneously.

124 The point may be expressed this way. It was the applicant's own conduct, in leaving Victoria and concealing his responsibility for this murder for over thirty years, which made it impossible for him to be sentenced contemporaneously with the offending. For that reason, it may be said, he is not entitled - following his much-delayed conviction for murder - to seek to be treated as if his criminal responsibility had been established in 1984 or thereabouts.

125 The UK Court of Appeal has very recently endorsed just such a view. In R v Forbes,[53] a five member bench of the Criminal Division of that Court was dealing with the issue of sentencing for historic sexual offences. The Court quoted with approval the following statement by the late Dr David Thomas, the author of Current Sentencing Practice:

An offender brought to justice many years after the date of his offence, who complains that his sentence would have been less severe if he had been brought to justice at an earlier stage, may reflect on the fact that it was his choice not to take the initiative and admit the offences when the earlier more lenient sentencing policy was in operation.[54]

126 The second point concerns s 114 of the Sentencing Act and s 27(2) of the Charter of Human Rights and Responsibilities 2006 ('the Charter').[55] Section 114 of the Sentencing Act provides:

Effect of alterations in penalties

(1) If an Act (including this Act) or subordinate instrument increases the penalty or the maximum or minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provision effecting the increase.

(2) If an Act (including this Act) or subordinate instrument reduces the penalty or the maximum or minimum penalty for an offence, the reduction extends to offences committed before the commencement of the provision effecting the reduction for which no penalty had been imposed at that commencement.

127 As this Court said in Stalio, s 114 reflects the common law presumption that legislation does not operate retrospectively. It also reflects the policy embodied in s 27(2) of the Charter, which states:

A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.[56]

128 In R v H, the UK Court of Appeal summarised the jurisprudence on the European equivalent of s 27(2) (Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms)[57] as follows:

In the result therefore in historic cases, provided sentences fall within or do not exceed the maximum sentence which could lawfully have been imposed at the date when the offence was committed, neither the retrospectivity principle nor Article 7 of the Convention are contravened.[58]

129 No issue of that kind arises here, of course, as the maximum has at all times been the same, namely, life imprisonment.

130 Finally, it seems to us that the sentence imposed for this murder was within range for an offence as objectively grave as this. A cursory review of recent sentences for murder in this State shows that the contrary is not reasonably arguable.

131 For example, in Wilson v The Queen,[59] this Court refused leave to appeal in a case in which the applicant was sentenced by King J to a term of 27 years on a charge of murder, and an additional three years and six months on two further charges of incitement to murder. A non-parole period of 26 years was fixed. His co-offender, who also stood trial for murder (albeit before a different judge and jury) was sentenced to 24 years with a non-parole period of 20 years. The case was a bad one, involving the bludgeoning to death of a 14 year old autistic boy, during the course of a violent confrontation with his father. For all that, it could be contended that it was no more heinous an offence than that which is presently before this Court.

132 In Ryan, Lindholm and Trabert v The Queen,[60] Lindholm pleaded guilty to murder, but Trabert and Ryan stood trial, and were convicted of that offence. This was an execution killing. Ryan was sentenced to 31 years' imprisonment, with a non-parole period of 26 years. Trabert was sentenced to 28 years' imprisonment with a non-parole period of 23 years. Lindholm was sentenced to 25 years' imprisonment with a non-parole period of 21 years. All three applications for leave to appeal were refused. Lindholm, who was the instigator of the murder (but who pleaded guilty, though without remorse) was said by this Court to have received a 'merciful' sentence.

133 There are other recent examples that indicate that this sentence was by no means outside the range of current sentences for murder. For example, in R v Maddigan[61] the offender killed a young girl of 11, after having sexually assaulted her. Unlike the applicant, he pleaded guilty and exhibited a degree of remorse. He was also able to call in aid a depressive illness. Nonetheless, he was sentenced by Lasry J to life imprisonment, with a non-parole period of 28 years.

134 Returning to the facts of this case, to stab a defenceless teenage girl to death, inflicting multiple knife wounds, without having been offered the slightest provocation, and merely in response to her refusal to engage in sexual intercourse, must merit the description that the judge applied to this crime, namely 'brutal and cowardly'. It was, as his Honour said, an aggravating factor that her body was dumped by the side of the road. In addition, it must not be forgotten that the applicant pleaded not guilty, and showed no remorse, thereby disentitling him to mitigation sometimes available in such cases.

136 Before leaving this matter, the Court wishes to acknowledge the fact that counsel who appeared on behalf of the applicant did so pro bono, thereby enabling everything that could reasonably have been said in support of this application to be properly considered. It goes, almost without saying, that this is in accordance with the finest traditions of the Victorian Bar.

[1] The judge, in his sentencing remarks, said that he was satisfied that they had 'picked up' the deceased intending all along to have sex with her.

[2] In other words, 'acting in concert'.

[3] R v Bradley [2015] VSC 768, [22] ('Sentencing Remarks').

[6] Ibid [26]-[27] (citations omitted). See R v Lowery & King (No 3) [1972] VicRp 109; [1972] VR 939. His Honour's reference to that case was the subject of criticism on behalf of the applicant before this Court.

[8] Ibid [39]. This observation formed the basis of a submission as to specific error that was advanced before this Court.

[11] [2002] VSCA 131.

[12] Sentencing Remarks, [65]-[70].

[13] [2015] HCA 39; (2015) 256 CLR 550 ('Pham').

[14] As an experienced trial judge and, more recently, a Justice of Appeal, his Honour would be well aware of current sentencing practice for murder in this State.

[18] [2011] VSCA 372; (2011) 35 VR 43, 15 (Redlich JA with whom Coghlan AJA and Macaulay AJA agreed).

[20] [2012] VSCA 120; (2012) 46 VR 426, 432 [9], 440 [53] ('Stalio'). In Stalio, the Court referred to various authorities in this State, and elsewhere, on the subject of sentencing for historic offences, not all of which could be reconciled. It did so in the context of the expression 'current sentencing practices' in s 5(2)(b) of the Sentencing Act.

[21] Sentencing Act 1991 s 5(1)(a); see also Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 472-3 [28].

[23] Ibid [53]-[54] (citations omitted).

[24] Crimes (Amendment) Act 1986.

[25] It should be noted, however, that in 1987 and 1988 a number of life sentences were imposed, six in 1987 and nine in 1988.

[26] The relevant paragraph from the sentencing remarks is extracted at para [44] of this judgment.

[27] In the same way, it was submitted that the statistics from 1987 and 1988 were relevant to show sentencing practice for murder closely proximate to the commission of this offence, and for that reason, should have been taken into account.

[28] Sentencing Act s 5(2AA).

[29] See Pham, 558 [26], 559 [28], 559-60 [29], 561 [32].

[30] [1999] VSCA 5; (1999) 103 A Crim R 234 ('Brooks').

[31] [2000] VSCA 229; (2000) 117 A Crim R 49 ('Heblos').

[32] [2007] VSCA 2 ('Athuai').

[33] [1999] VSCA 5; (1999) 103 A Crim R 234.

[34] [2000] VSCA 229; (2000) 117 A Crim R 49.

[35] [1998] 4 VR 235 ('Mills').

[36] Of course, Crown appeals at that time were conducted on the footing that the principle of double jeopardy operated as a constraint upon this Court when resentencing a respondent.

[37] [2007] VSCA 2.

[38] R v Yates [1985] VicRp 3; [1985] VR 41; R v Hunter (1984) 36 SASR 101. Another way of viewing this particular submission is to regard it as a complaint that the sentence in the present case is 'crushing'.

[39] In the written case, the applicant also sought to rely on the fifth limb of Verdins, namely that his depressive disorder would mean that his time in prison would weigh more heavily upon him than it would on a person of normal health. However, during the course of oral submissions, that particular argument was, sensibly, abandoned. The evidence was that the applicant was doing well, at present, in prison.

[40] [2001] VSCA 14; (2001) 119 A Crim R 106.

[41] [1998] VSCA 148.

[42] [2006] VSCA 43.

[43] (2008) A Crim R 231.

[44] The Crown might also have referred to Hunter v The Queen [2013] VSCA 385 where the applicant received a sentence of life imprisonment without the possibility of parole. He had pleaded guilty to murder, but faced the difficulty of having had a prior conviction for that offence. This Court, by majority, granted leave to appeal but dismissed the appeal. It is unnecessary for present proposes to canvas other cases where the offenders received life without parole, including for example, R v Denyer [1995] VicRp 12; [1995] 1 VR 186; R v Coulston (1997) 2 VR 446 and R v Lowe (1997) 2 VR 465. Carl Williams received a term of life imprisonment with a non-parole period of 35 years for three gangland execution style murders, having pleaded guilty and received a utilitarian discount for doing so.

[45] See generally R v Vaitos (1981) 4 A Crim R 238; R v Yates [1985] VicRp 3; [1985] VR 41.

[47] [1998] 4 VR 235.

[48] [2004] VSCA 154 (citations omitted). See also May-Jordan v The Queen [2017] VSCA 30.

[49] [1990] HCA 54; (1990) 170 CLR 623, 632.

[50] [2006] NTCCA 22; (2006) 19 NTLR 1.

[51] See generally Fox and Freiberg Sentencing - State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 434.

[52] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 472-3 [28].

[53] [2017] 1 WLR 53.

[54] Dr David Thomas, 'Commentary on R v H' [2012] Criminal Law Reports 150, 156.

[55] Section 1(1) of the Charter of Human Rights and Responsibilities provides: 'This Act may be referred to as the Charter of Human Rights and Responsibilities and is so referred to in this Act'. The convention is to refer to an Act by its short title (as expressed in the Charter by s 1(1)).

[56] Stalio [2012] VSCA 120; (2012) 46 VR 426, [49].

[57] Opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953).

[58] [2011] EWHC 1247; [2012] 2 All ER 340, 348 [18].

[59] [2016] VSCA 62.

[60] [2016] VSCA 255.

[61] [2016] VSC 790.