Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Murder - Premeditated intentional vicious killing by two youths aged 17 - Sentence of 26 years' imprisonment with non-parole periods of 15 years not manifestly excessive.

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Fresh evidence and events occurring after sentence - Failure to fulfil promise to co-operate and give evidence against co-accused.

R v Stanley (1998) 7 Tas R 357; Director of Public Prosecutions v Dunne [2021] TASCCA 5, applied.

Judgment Number: [2022] TASCCA 7

DIRECTOR OF PUBLIC PROSECUTIONS v WILLIAM ADAIR ROTHWELL

3 Respondent's sentence varied by increasing the parole ineligibility period to 17 years commencing on 16 August 2019.

DIRECTOR OF PUBLIC PROSECUTIONS v WILLIAM ADAIR ROTHWELL

1 I agree with the orders proposed by Martin AJ in relation to all three appeals, and with his Honour's reasons.

2 I agree with all the statements of principle in the reasons of Wood J. The appellants' contentions that their non-parole periods were manifestly excessive call for a value judgment based on the facts of the case and well settled legal principles. Like Martin AJ, and unlike Wood J, I have concluded that the non-parole periods were not manifestly excessive. I acknowledge however that the sentences imposed in this case, including the non-parole periods, were heavy ones, and that it is unsurprising that experienced judges may take different views as to whether they were manifestly excessive.

DIRECTOR OF PUBLIC PROSECUTIONS v WILLIAM ADAIR ROTHWELL

3 On 28 February 2020, Pearce J sentenced two youths, William Adair Rothwell and Jacob Michael Brennan, to imprisonment for 26 years, with a parole ineligibility period of 15 years for the murder of Billy Rae Waters.

4 The appellants appealed their sentence on the sole basis that it was manifestly excessive. The appeal was heard and while the judgment was reserved, the Crown appealed the sentence of William Rothwell. Both appellants had received a reduction in their sentence on the basis that they would give evidence in criminal proceedings against a third man, Mr B. In each case, it was made explicit by the learned sentencing judge that on the strength of their future co-operation their non-parole periods were reduced from 17 years to 15 years. Mr Rothwell failed to provide assistance as he had indicated he would, the Crown appealed and contends that his non-parole period should now be increased to 17 years.

5 I have had the opportunity to read the reasons of Martin AJ. In relation to the original appeals on the ground of manifest excess, despite being in agreement with substantial aspects of his Honour's reasons, I have reached the conclusion that the appellants' appeals on the ground of manifest excess should succeed. In relation to the Crown appeal concerning Mr Rothwell's sentence, I agree his sentence should be increased so that he does not receive a discount for future co-operation. I agree with the reasons of Martin AJ in reaching that conclusion, but not with his proposed order which is premised on the correctness of the sentences and would see Mr Rothwell's non-parole period increased to 17 years' imprisonment.

6 My reasons for concluding that the appellants' appeals should succeed are as follows_._

7 A summary of the facts of the crime are set out in Martin AJ's reasons at [104]-[120]. The learned sentencing judge's careful reasoning, including his consideration of the personal circumstances of the appellants, identification of those aspects of the crime which make it a particularly serious example of murder, factors in mitigation and questions of parity, are helpfully quoted at length by Martin AJ at [121]-[127].

8 The defendants committed a brutal, and pre-meditated killing. They were aged 17 at the time. These facts alone reveal that the sentencing task was inherently difficult.

9 The aspect of the sentences which causes me concern in the case of both appellants is the length of the non-parole period. This question is placed in sharp focus by the Crown appeal against Mr Rothwell's sentence in light of his failure to assist as he had indicated he would, and now the proposed re-sentencing order which would mean that Mr Rothwell would be ineligible for parole until he has served 17 years.

10 The approach taken by the learned sentencing judge to the fixing of the head sentence and the non-parole period can be discerned from the following comments:

"There are three factors which I have been asked to take into account in favour of the defendants: their admissions, their pleas of guilty and their youth. I have also been asked to take into account, in their favour, the willingness of each to give evidence at the future trial of Mr B. Such is the seriousness of the crime, and the need to impose a head sentence proportionate to the crime, that I have concluded that the mitigating factors should be taken into account in determining the length of the parole non-eligibility period."

11 The aspects of the crime which made it a particularly serious example were identified in the comments of the learned sentencing judge, quoted at [121] of Martin AJ's reasons. Later in the sentencing judge's reasons, he specified a discount in the parole non-eligibility period for the appellant's willingness to give evidence:

"A reduction in the parole non-eligibility period for both defendants constitutes a significant incentive for both to co-operate as promised. A failure to do so would much lessen the indication of acceptance of responsibility for the crime. If they fail to do so, the sentence may be reviewed and increased on appeal. I specify therefore that, for that factor, I would reduce the parole non-eligibility period by two years."

12 It can be seen that the learned sentencing judge took into account the matters in mitigation, the appellants' admissions to police, pleas of guilty and youth in determining the non-parole period. To arrive at the conclusion that a non-parole period of 15 years was appropriate for each offender, he reduced the period by two years to allow for a discrete factor in mitigation, being the willingness of each to give evidence at the future trial of Mr B. If not for this singular factor, the appellants would not have been eligible for parole until they had served 17 years' imprisonment.

13 The non-eligibility period that would otherwise have been imposed of 17 years reflected the mitigating factors identified by the learned sentencing judge namely, the appellants' admissions, their pleas of guilty and their youth.

14 In the case of both appellants, if there was error in fixing that period of 17 years it would have implications for whether the overall sentence in each case was manifestly excessive.

15 Consideration has been given to whether sentencing judges should specify a discrete discount for future co-operation: DPP v Couper [2013] VSCA 72, 41 VR 128; Saner v The Queen [2014] VSCA 134 at [81]. One advantage in doing so is that it proves to be useful for the appeal court in the event that after sentence a defendant fails to co-operate as promised. Once the Crown appeals on the basis that the sentence proceeded on a wrong premise, it being plain that the foreshadowed assistance did not eventuate, the appeal court may allow the appeal and impose the sentence which would otherwise have been imposed if not for the promise to co-operate. That is what the Crown is seeking in this appeal.

16 The only error asserted by the appellants is that of non-specific error of manifest excess. There is no error said to arise from the sentencing comments or the reasoning with respect to either the head sentence or the non-parole period. The appeal ground does not attack the approach of the sentencing judge in only giving weight to the mitigating factors in fixing the non-parole period. A suggestion of error in this regard was made in the course of submissions but then abandoned. There is no criticism of the discount of two years for the promise to co-operate in future proceedings, or that both appellants were given the same discount notwithstanding a difference in the usefulness of their evidence, and also, a consequential difference in the risk that would be assumed in giving that evidence. I do not venture into these areas but rather, will consider the appeal on the assumption that any error was confined to the matters raised in submissions.

17 The submissions for the two appellants had many themes and points in common, highlighting facts in mitigation individual to each appellant. It was argued that while his Honour correctly identified the mitigating factors, it can be inferred from the sentence imposed that he did not accord them sufficient weight. It was accepted that the sentencing judge was entitled to impose a sentence which reflected a high level of deterrence, denunciation and retribution. It was argued that principles applying to youthful offenders had a role to play notwithstanding the seriousness of the crime. A central contention was that the learned sentencing judge failed to give this factor sufficient weight.

18 The submissions of the appellants relied on other sentences imposed for single counts of murder in Tasmania and noted that as 17 year old offenders they were required to serve sentences that were in excess of, or equivalent to, sentences imposed upon mature adult offenders. Both counsel argued that the non-parole period imposed upon the appellants was a crushing period, would tend to be counterproductive to an incentive to reform and rendered the sentence manifestly excessive.

19 Ms Mainwaring argued if Mr Brennan had received the minimum non-parole period of half the head sentence then that would have given due weight to his youth, his lack of any significant criminal history, his prospects of rehabilitation and the fact that he has not been to prison before. As a comparable case which resulted in a much lower sentence reflecting the youth of the offender, Ms Mainwaring referred to a sentence of E, 13 December 2000, mentioned below at [44]. Mr Stevens relied on authorities regarding youth as a mitigating factor and argued that in isolation or in combination the head sentence and the non-parole period resulted in a sentence which was manifestly excessive.

20 The respondent also referred to previous sentences for murder imposed by judges in this State. It was submitted that they show a wide sentencing range for murder reflecting a wide range of circumstances and culpability. Having regard to the objective seriousness of the crime, the setting of a head sentence at 26 years' imprisonment was not manifestly excessive. It was submitted that the appellants' youth and lack of prior convictions were considered by the learned sentencing judge. However, given the objective seriousness of the crime, the non-parole period was within the proper exercise of his Honour's sentencing discretion.

21 The mitigating factors identified by his Honour were the appellants' admissions to police after arrest, their pleas of guilty and their youth. I will consider these factors in due course but first I will consider previous sentences for murder imposed by sentencing judges in this State and also consideration given to such sentences by this Court on appeal. As expanded upon below, past sentences can and should provide some guidance to appeal courts.

Principles governing consideration of past sentences

22 In exercising the sentencing discretion a judge must act in a manner that is consonant with reasonable consistency - "the treatment of like cases alike, and different cases differently": Hili v The Queen [2010] HCA 45, 242 CLR 520 at [49]; Wong v The Queen [2001] HCA 64, 207 CLR 584, 591 at [6] per Gleeson CJ; Elias v The Queen [2013] HCA 31, 248 CLR 483.

23 Past sentences can provide some measure by which a sentencing court can attempt to achieve consistency in sentencing and in the application of principle: R v Kilic [2016] HCA 48, 259 CLR 256 at [22].

24 The majority of the High Court in Hili at [54], in accepting that the proper use of past sentences was correctly identified by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1 at [303]- [305], stated:

"As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added in Hili). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'." [Footnotes omitted.]

25 There is no suggestion that the history of sentences for murder establishes a range of sentences or that the history establishes a range for a category of murder such as intentional killing. Even if there were, it would not mean that the range is the correct range: see Hili at [48]-[54], Simpson J in DPP (Cth) v De La Rosa at [303]-[304]. Reference to prior sentences will assist the maintenance of the consistency principle, but in each case the sentence must be determined having regard to the gravity of the criminal conduct, and the circumstances of the individual offender. In short, as stated by the High Court in Munda v Western Australia [2013] HCA 38, 249 CLR 600 at [39], a disparity with previous sentences is "one pointer" towards inadequacy, or here, excess.

26 Intervention of this Court is not justified unless "having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle": R v Pham [2015] HCA 39, 256 CLR 550 at 406 [28]; Wong (above) at 605 [58]; Barbaro v The Queen [2014] HCA 2, 253 CLR 58 at 79 [61]. This error of principle may be shown if the sentence is manifestly too long or too short and is "unreasonable and plainly unjust": Barbaro at 79 [61].

27 As noted, the only ground of appeal is that the sentence imposed upon the appellants was manifestly excessive. Where the non-parole period is under scrutiny, the question is whether the length of the non-parole period renders the sentence manifestly excessive: Groenwege v Tasmania [2013] TASCCA 7 at [56]. A long parole ineligibility period may make a sentence manifestly excessive, even though the particular head sentence is not excessive. Groenwege per Porter J at [57]-[60]. Whether the non-parole period is appropriate must be assessed not only on the basis of the whole of the circumstances of the case, but in light of the head sentence: Groenewege per Porter J at [57]. They are both integral aspects of the sentence.

28 Counsel for the Crown and counsel for the appellants provided tables of past sentences for murder imposed by judges in Tasmania. While an overview of sentences for murder has been helpful, in this case it is appropriate to focus on past sentences for single counts of murder, and particularly those involving an intentional killing. This Court also provides important guidance both in terms of consideration of sentencing principles and in the re-sentencing task.

29 In Neill-Fraser v State of Tasmania [2012] TASCCA 2 the Court considered a sentencing appeal in which the appellant had been sentenced to 26 years with a non-parole period of 18 years. The Court found specific error and engaged in the task of re-sentencing. The appellant had deliberately killed the deceased for personal financial gain arising out of her conclusion that their relationship was at an end. Having killed the deceased by some form of violence, she disposed of his body which was never found.

30 Mitigating factors include that at the age of 56 years, she had no prior convictions and it appeared that she had led a blameless life up until the murder. She did not plead guilty and so, was not entitled to that factor as mitigation.

31 It was said by Crawford J at [220] and [221]:

"[220] There are many variations between individual cases making it impossible to precisely calculate the appropriate sentence for most murders. However, since the abolition of mandatory life imprisonment in 1995, there have been a sufficient number of sentences and re-sentences for murder so as to enable a measure of consistency when sentencing for the crime. Generally speaking, a deliberate killing is more culpable than one that is not deliberate, and one that is provoked, committed because of a loss of self-control or through passion is not as culpable as a deliberate killing for personal greed. It may usually be expected that a sentence will be less severe for a person who is of good character compared to one who has a criminal record, particularly for violence.

[221] Upon a consideration of other sentences for murder, and having regard to all the circumstances of the appellant's crime and the other relevant aspects of the case, I conclude that imprisonment for 26 years was more severe than I would have expected and the imposition of a non-parole period of 18 years was particularly so."

32 The appellant was resentenced to 23 years' imprisonment and an order that she not be eligible for parole until she has served 13 years of the imprisonment.

33 In Nowoczynski v Tasmania [2019] TASCCA 6, an intentional killing was subject to appeal on the ground of manifest excess. It was particularly vicious involving 12 blows or kicks to the head and the appellant had forced gravel from the road surface into the victim's mouth during the attack. While the victim lay on the road dying he took some selfie photographs of himself and then abandoned the dying victim on the road which was in a remote location. He was sentenced to 22 years' imprisonment with a non-parole period of 13 years and 6 months. The appellant had no prior convictions. He did not plead guilty.

34 It was noted by Estcourt J at [10], with whom Brett J and Martin AJ agreed, that there were numerous examples of single count sentences for murder where the sentence and the non-parole period had been equal to or greater than those imposed by the learned sentencing judge. There was reference to the example of Neubert (22 May 2017) where the sentence passed on a man who shot and killed his estranged wife was 25 years with a non-parole period of 15 years.

35 It was concluded that the appeal was "wholly without merit" and having regard to all sentences for murder passed by the Court and its judges since 1995 it was quite apparent that the head sentence imposed of 22 years was not manifestly excessive.

36 His Honour, at [19], considered the non-parole period and noted that his analysis of sentences for murder revealed that it is not uncommon in sentencing for this crime to fix a non-parole period that is appreciably higher than the minimum permitted by law, even where the defendant has no prior convictions, citing Neill-Fraser and Neubert. In view of the viciousness of this murder, it was more than open for the sentencing judge to conclude that the minimum period that justice required the appellant to serve before being eligible for parole was 13 years and six months: [17].

37 In Duggan v Tasmania [2007] TASSC 23, the Court considered sentencing appeals brought by three men found guilty of murder, aggravated burglary, stealing and arson. These crimes were jointly committed and involved a home invasion which targeted the home of an elderly man, robbery at gun point, shooting the victim and setting his house on fire. All three pleaded not guilty, had prior convictions for violence, had served terms of imprisonment and could not claim youth as a mitigating factor.

38 They received global sentences of imprisonment for the crimes they committed. The appellant Duggan was sentenced to imprisonment for the term of his natural life and a non-parole period of 23 years. The appellant Watt was sentenced to 32 years and a non-parole period of 20 years. The appellant Gray was sentenced to imprisonment for 32 years and a non-parole period of 17 years.

39 The appeal brought by the appellant Gray was dismissed. The appeals brought by the appellants Duggan and Watt succeeded on the basis of disparity vis-à-vis the sentence imposed upon Mr Gray. Their sentences were reduced because of disparity, not manifest excess. Mr Duggan was resentenced to 32 years' imprisonment with an order that he not be eligible for parole until he had served 17 years and the non-parole order with respect to Mr Watt was reduced to 17 years. There was agreement that the original sentences imposed on the appellants Duggan and Watt, including the non-parole periods, were not manifestly excessive: per Crawford J at [26]; Evans J at [48] and Tennent J at [83] and [84].

40 In an earlier judgment of Adams v The Queen [1998] TASSC 41, the Court considered a murder involving a deliberate stabbing of a defenceless householder in the course of a burglary. It was committed because the burglar was concerned that the householder might recognise him. While it was recognised as an appalling crime, the Court held that the non-parole period was manifestly excessive. The original sentence was 25 years with a non-parole period of 18 years. The appeal was upheld and Cox CJ, with whom Underwood J agreed reduced the non-parole period to 15 years. After carefully considering the principles governing parole, Cox CJ considered the period of 18 years. It was described as a:

"Very severe penalty and considerably above the non-parole period set in a high percentage of the cases dealt with since the Act was amended to enable such orders to be made in murder cases. Only the cases of Curtis (eighteen years non-parole - thirty years head sentence) and Smith (twenty-five years non-parole - life imprisonment head sentence) equal or exceed this non-parole period and they were cases of particular depravity."

41 In reducing the non-parole period Cox CJ had regard to the appellant's age (22 years), his lack of convictions prior to the murder for violent conduct since he was fifteen years old (he had a bad record for offences of dishonesty), his mental background and his prospects for the future.

42 Since Cox CJ made those observations in Adams, and the sentences of Curtis and Smith, the percentage of cases involving single counts of murder that have attracted a non-parole period equal to or in excess of 18 years has remained relatively small. I will have regard to sentences involving a non-parole period equal to or in excess of 17 years. This is the appropriate period for comparison purposes as it is the period the appellants would have received if not for the promise of future co-operation. Only one of the sentences considered for comparative purposes encompassed a discount for future co-operation. Duffy, referred to below, received unspecified "appropriate credit" for his willingness to assist in the administration of justice.

• Street, 19 November 1999 (25 years' non-parole, life imprisonment), mature offender attacked and abducted a woman, raped and then strangled her and killed her by hitting her with a rock. For the crime of murder 25 years non-parole and life imprisonment, six years for rape to be served concurrently with the sentence for murder.
• Brown, 27 October 2000 (17 years' non-parole, life imprisonment), on parole attacked a woman in her home after she refused to give him money. After attacking her and stabbing her in the chest he proceeded to rape her as she was dying. Committed another rape two months later. Sentenced initially to life imprisonment for murder and sought re-sentence (17 years' non-parole and life imprisonment).
• Kelly (18 years' non-parole, 25 years' imprisonment) and Marlow, (20 years' non-parole and life imprisonment), 12 April 2001, Kelly and Marlow were mature criminals carrying out a deliberate and cold-blooded execution, Marlow taunted dying victim, both pleaded not guilty.
• Bearman, 24 September 2002 (no parole, 25 years' imprisonment), mature offender found guilty, premeditated execution style murder at a grave site dug for the victim, no remorse and "multitude of lies".
• Adams, 26 March 2009 (no parole and life imprisonment) on parole when killed 78 year old woman during knifepoint robbery, prior conviction for murder.
• Streets, 12 October 2009 (22 years' non-parole and 35 years' imprisonment) 24 year old pleaded guilty to vicious intentional killing of victim with disability. No remorse, prior convictions for serious crime including rape.
• Papadopoulos, 30 June 2010 (25 years' non-parole, life imprisonment) a depraved killing of a defenceless woman, described as a planned "thrill" murder.
• Mason, 28 May 2015 (17 and a half years' non-parole, life imprisonment) global sentence for one count of murder and one count of committing an unlawful act intended to cause bodily harm. He stabbed his partner with kitchen knife, deliberately killing her and then turned on her friend, stabbing her repeatedly causing life-threatening injuries. Extensive history of domestic violence towards victim.
• Purkiss, 9 October 2019 (14 years' non-parole, 24 years' imprisonment), found guilty of intentional and pre-meditated killing of a friend, disposed of body by burying it in a remote location. Mature offender, served terms of imprisonment for prior offending but none for violence. No signs of remorse and told lies to conceal guilt. Blow CJ stated in light of the aggravating factors the offender: "Deserved a somewhat longer sentence than those imposed on most murderers in this State. Because he has no prior convictions for crimes involving violence, I think I should make some provision for him to be released on parole."
• Duffy, 13 November 2020 (18 years' non-parole, life imprisonment), mature offender committed callous execution style killing of a friend, pleaded guilty. Left him dying on the side of the road. Appalling criminal record and propensity for violent criminal conduct. Conflicting and false accounts. Willing to give evidence against others involved in the crime.
• Sadler, 28 May 2021 (20 years' non-parole, 32 years' imprisonment), 26 year old found guilty of planned execution style killing. Lined a room with plastic in preparation for dismemberment, after which body disposed of and parts not recovered. No relevant prior convictions but an experienced drug trafficker. Absence of remorse. Sentence is subject to appeal.

44 It is also helpful to have regard to cases of particular seriousness which have attracted lower sentences than imposed here:

• Neubert, 22 May 2017 (15 years' non-parole, 25 years' imprisonment), intercepted wife's vehicle, blocking her path, walked to the driver's window, placed barrel of gun against her head and shot her. Planned murder and drove round with fully loaded firearm in vehicle with that purpose. Ended her life in an exercise of coercive control. One of the shots fired by him caused grievous bodily harm to a female passenger resulting in additional three years' imprisonment cumulative, eligible for parole after served half. Total non-parole period 16 years and 6 months. 75 year old, no prior convictions, pleaded not guilty.
• Mayne, 12 September 2005 (14 years' non-parole, 25 years' imprisonment). Random violence by deliberately driving his car at a pedestrian and hitting him twice, although not an intentional killing involved at the "very least" an intention to cause serious injury and described by Crawford J as one of the worst examples of random violence with which he had had to deal.
• Butwell, E and Thompson, 13 December 2000. Three defendants lured a young man to an isolated spot and there savagely attacked him. Principal architect was Thompson who discussed plan with Butwell. E, aged 17 years, was a willing participant. Plan to do serious harm and all three attacked and intended to kill victim. Butwell and Thompson, (16 years' non-parole period, 25 years' imprisonment) E, (20 years imprisonment, no parole order, but by virtue of legislation, eligible to apply once served 10 years).

45 It is worth also mentioning Curtis, referred to by Cox CJ in Adams. The criminal conduct of Curtis and his co-offender, Watson was described by the sentencing judge as the most violent and horrific that he had had to deal with.

46 Curtis had been sentenced to 14 years for 21 other crimes committed on the same day as the murder, including one of forcible abduction, three of rape, ten of assault, four of grievous bodily harm. Relevantly, he was 16 years of age at the time of the crimes and committed the crimes subject to "considerable influence" from his brother who was 14 years older. Curtis applied to be re-sentenced, and on 30 August 1998 was sentenced to 30 years concurrent with the sentence of imprisonment of 14 years, and not eligible for parole until served 18 years.

47 A consideration of these sentences where the non-parole period is 17 years or more capture the most serious cases for single counts of murder. Most of them involve an intentional killing and in that regard are broadly comparable. It can be seen that almost all are more heinous than the crime here or, for some reason or reasons arising from the circumstances of the offender, are more serious or lack the mitigating features of this case.

48 A comparison reveals that the head sentence of 26 years was a heavy sentence for this crime and these appellants. It should not be assumed that parole will be granted once a prisoner is eligible to apply and makes an application. The Parole Board need not grant the prisoner parole. An application for parole may be refused or parole may be revoked: Corrections Act 1997, ss 72(3)(c) and 79. Here, if the appellants are not eligible, they will serve the period of 26 years which has not been ameliorated to reflect their admissions to police, pleas of guilty, youth and future prospects. This is a harsh aspect of the sentence.

49 Of course, even if the sentence was comparatively heavy to the point of inconsistency, that does not mean it was unjustly so, or that the sentence was wrong. There is no single correct sentence and "judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach as accords with the statutory regime that applies.": Markarian v The Queen [2005] HCA 25, 228 CLR 357 at [27].

50 A consideration of past sentences causes me particular concern regarding the non-parole period of 17 years (before a two year deduction for future co-operation). It has been demonstrated that comparatively, this is a very severe penalty for youths of 17 years of age with no criminal record.

51 The submission for the appellants is that the learned sentencing judge failed to give sufficient weight to the mitigating factors he identified, such as an early plea of guilty, and admissions to police as well as the age of the appellants, and that the sentence was so heavy that it reveals error in this regard.

52 The learned sentencing judge referred to the fact that both appellants "quickly made admissions of their respective roles to the police" and that because of their admissions the case against them became irresistible.

53 Mr Rothwell participated in two video recorded police interviews soon after he was arrested on 16 August, and made full and frank admissions regarding the murder and provided a significant level of detail about how the crime unfolded and his conduct. He expressed remorse, saying, "If I could take it back, I would."

54 Mr Brennan participated in two interviews. In the first, he denied being involved in Mr Waters' death. In the second, two days later, he admitted his involvement and provided comprehensive details.

55 Both appellants pleaded guilty to the charge of murder at an early stage. His Honour noted that the admissions and the plea of guilty lessened the need for a complex investigation and facilitated justice by avoiding the need for a trial and sparing Mr Waters**'** family the anguish which would inevitably accompany that process. The learned sentencing judge noted that the early plea of guilty indicated that the appellants accept responsibility for their acts.

56 These mitigating factors distinguish this case from some other past sentences where the offenders did not make admissions to police, demonstrated a lack of remorse or did not plead guilty. These factors on their own warranted a significant reduction in the sentence to be served. In addition, they are also relevant to their prospects of reform, and were a positive indicator in that regard.

57 The learned sentencing judge referred to the lenience generally extended to young offenders. He referred to the reasons for the mitigating impact of youth: to allow for immaturity, lack of judgment, the greater potential for rehabilitation and avoidance of the corrupting influence of prison.

58 Azzopardi v The Queen [2011] VSCA 372, 35 VR 43, provides a useful summary of the reasons for the mitigating impact of youth.

59 Firstly, "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.": [34]. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

"Courts 'recognise the potential for young offenders to be redeemed and rehabilitated'. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, 'is one of the great objectives of the criminal law'. The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending." [35]

61 Thirdly, it was said that the effect of incarceration in an adult prison on a young person will more likely impair, rather than improve the offender's prospects of successful rehabilitation: [36].

62 There is a considerable body of authority on the sentencing of young offenders who commit serious crimes. As stated by Martin AJ at [140], it is well recognised that the principles favouring emphasis on youth and rehabilitation must give way when serious crimes are committed that require priority to be given to the protection of the public and matters such as general deterrence and denunciation. As stated by McClellan CJ at CL in KT v The Queen, (2008) NSWCCA 51, 182 A Crim R 571 at [25]:

"The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity."

63 The nature and circumstances of the offence may be such that the respondent should have been considered as having conducted himself like an adult, with the consequence that relatively little weight should be given to age: R v Tran [2002] VSCA 52; (2002) 4 VR 457 at [14]. In such cases, youth and prospects of rehabilitation may be reflected in a moderation of the sentencing outcomes or the non-parole period. See for example R v Tran at [15].

64 As to whether violent offending is "adult behaviour" the court will look to various considerations including the use of weapons, planning or pre-mediation, the existence of an extensive criminal history and the nature and circumstances of the offence: KT per McClellan CJ at CL at [25].

65 However, the violence of the offence, of itself, does not necessarily establish that the youth was acting as an adult, and there may be aspects of the offence in question, even when violent, that disclose an immaturity associated with youth. The assessment must be one of maturity and conduct, not only that the degree of violence and the gravity of the offence, which are factors to be weighed in that assessment: YS v The Queen [2010] NSWCCA 98 at [22].

66 I return to the summary of principles in Azzopardi which dealt with the application of the sentencing principles concerning youth where the crimes have been particularly serious or persistent: [37]-[40]. The conclusion reached by the court was stated as follows:

"The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished. [Footnotes omitted].

"In the circumstances of this case it is only the potential for rehabilitation which carries any weight, and it has much less part to play in a crime as disturbing and violent as this one. The prospect of rehabilitation is to be considered along with the assessment of the risk to the public which they may pose on release. Relevant to both questions is the fact that both defendants have demonstrated the capacity to commit such a crime. Considerations of youth are dominated by the need for punishment, denunciation, vindication of the victim and protection of the public. It may be that, for one or both of the defendants, this was an isolated act, not likely to be repeated, but no material is advanced on their behalf which would reassure me that this is so. The circumstances of the murder, and the trivial and dishonourable reasons for which it was carried out, suggest strongly that persons capable of such acts present a continuing danger to the public. For both defendants it is almost impossible to predict the extent to which, after many years in prison, he may be rehabilitated, and the level of the threat to society he may present if released."

68 The learned sentencing judge concluded that considerations of youth are dominated by the need for punishment, denunciation, vindication of the victim and protection of the public. I respectfully agree that that must be so, given the gravity of this crime and the conduct of the appellants highlighted by the sentencing judge in planning and executing an intentional killing, the extreme, cruel and prolonged violence and their callous indifference to the victim in carrying out the murder and later in concealing the body.

69 The sentencing function must fulfil objectives such as general deterrence and reinforcing the values of the community by denouncing such conduct. The objective of "just punishment" must be fulfilled, it is in the community's interest for sentences to adequately recognise the nature and gravity of the wrong that has been done: Director of Public Prosecutions v DJK [2003] VSCA 109 per Vincent JA at [18].

70 The learned sentencing judge did not suggest that youth had been extinguished as a sentencing factor. Rather, it had much less part to play in a crime as disturbing and violent as this one.

71 I agree with Martin AJ in his characterisation of the conduct of the appellants as the behaviour of mature adults and not typical of an immature youth.

72 There are aspects of their circumstances that are relevant to an assessment of their culpability, and consequently, their prospects of rehabilitation. It is to be noted that the crime was instigated by an adult, Mr B. This aspect of the facts was set out by the learned sentencing judge:

"For some months prior to August 2019 Mr Rothwell was selling cannabis for another older man, who I will refer to Mr B. Mr Rothwell had been friends with Mr Waters for some time but Mr Rothwell and Mr B believed that Mr Waters had stolen cannabis from them. Mr B asked Mr Rothwell whether he knew anyone who would kill Mr Waters. After first responding that Mr B had asked the wrong person, Mr Rothwell approached Mr Brennan, who agreed. Mr Brennan also knew Mr Waters. On 31 July 2019 Mr B gave Mr Rothwell a sawn-off single barrel shotgun."

73 Mr Rothwell described Mr B as "like his boss" and that Mr Rothwell thought he was doing Mr B a favour. Mr B is a mature adult at 33 years of age.

74 At the material time Mr Rothwell was living independently. He had a supportive family but was estranged from that support and disconnected from their moral and stabilising influence. It would seem he was immersed in bad company and involved in the insidious environment of a drug culture. Mr Brennan's life had been very disadvantaged and had lacked the stability of a family and positive role models to counterbalance the corrupting influences that he had been subject to for much of his adolescence. To some degree, these circumstances and the lack of adult moral guidance afforded a vacuum for the role of Mr B.

75 The circumstances of the appellants and the role of Mr B does not in any way diminish the gravity of the conduct of the appellants in planning and carrying out the chilling murder of the victim. However, it is relevant that the appellants did not, either together or in collusion instigate the murder but rather, planned it at the behest of a mature adult offender. He was, on any view, an external corrupting influence providing direction or leadership not only in instigating the murder, but in his conduct such as providing the murder weapon. In terms of his influence, he was described by Mr Rothwell as "like a boss", and I note, a boss operating outside the law and the moral framework of society. It is telling of Mr B's direction or leadership, as revealed in the Crown facts, that after the murder, the appellants returned the firearm to Mr B and gave him the deceased's ring and his house key. Some days later they received an ounce of cannabis from him as payment and they split it in half.

76 These facts and the role of Mr B bears on an assessment of the appellant's culpability to a degree, and is a point of distinction with other cases of pre-meditated murder where the offender conceives the idea as well as the plan and there is not an external corrupt player who has a role in the events or some degree of influence upon the conduct of the offender or offenders who carry out the killing. There are a number of sentences referred to above which provide this contrast. This aspect of the circumstances of the murder bears on an assessment of culpability and prospects of rehabilitation and also reinforces that this is not a case where the mitigating effect of youth is all but extinguished: see Azzarpardi above at [50].

77 Another factor bearing on rehabilitation is that neither appellant had any prior convictions. The sentencing judge accepted that Mr Rothwell had the intelligence and capacity to be a contributing member of the community. Mr Brennan's background was characterised by abuse and neglect. Notwithstanding a history of challenging behaviours and emotional disturbance he had very limited antecedents.

78 The court's power with respect to fixing a non-parole period lies in the Sentencing Act 1997, s 17(2). The period cannot be less than half the length of the sentence: s 17(3). If no order is made, then there is no allowance for parole: s 17(3A). There is not a standard non-parole period provided for which is the default position if no order is made. There is not a statutory presumption as to the non-parole period, such as half the sentence which may be departed from by the sentencing court and that will take effect in the event an order is not made (see, by contrast, the former Parole Act 1925 (Tas), s 12A). The sentencing court is provided with a discretion in fixing a non-parole period. Section 17(4) of the Sentencing Act provides:

"17 Court may bar or limit eligibility for parole

(4) In exercising its discretion under subsection (2) , a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:

(c) any other sentence to which the offender is subject."

79 In any particular case there may be factors that weigh for or against eligibility for parole, and the court is entrusted with a wide discretion in balancing these considerations and determining the appropriate outcome.

80 The purpose of legislation providing for parole eligibility is to "provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate.": Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629. The non-parole period should be "the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence": Power at 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525. Other considerations are general and personal deterrence, the prisoner's capacity for reform (Power at 628-629), a judge will give weight to his or her estimate of the capacity of the prisoner for reformation and the necessary deterrent and punitive effects of sentences (Hili v The Queen above at [41]).

81 In Gill v The Queen [1990] TASSC 37, Crawford J, as he then was, with whom Neasey J agreed, commented on the effects of not making an order than an offender be eligible for parole at the earliest possible time and provides useful discussion regarding the effect of non-parole orders or extending the non-parole period in terms of sentencing goals:

"The making of an order by a sentencing judge that a prisoner shall not be eligible for parole, or extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effect, or the possibility of them or the object of achieving them, or some of them, should be considered by sentencing judges before making an order removing eligibility for parole or extending the non-parole period."

82 In R v Shrestha [1991] HCA 26, 173 CLR 48 at 63, the public benefit to be derived from the parole scheme and the rehabilitation of the prisoner through supervision was clearly identified:

"It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might be reasonably regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public."

83 Parole provides a prisoner with a hope of release and an incentive for rehabilitation: Bugmy (above) per Dawson, Toohey and Gaudron JJ at 536. An inordinately long non-parole period may be counter-productive to a prisoner's rehabilitation and to the community interest. Indeed, lengthening the non-parole term may be self-fulfilling in the sense that, of itself, it may lessen the chances of rehabilitation. In the case of young offenders who have not been to prison before, the hope of release is likely to provide a strong incentive to improve themselves and an incentive to undertake programs offered in prison. But, a sentence felt to be crushing may discourage reformation and entrench an oppositional mentality.

84 Once a prisoner becomes eligible to apply for parole, it is not, of course, automatically granted. An application may be refused by the Parole Board. The considerations taken into account by the Board include the likelihood of the prisoner reoffending, the protection of the public and the rehabilitation of the offender: Corrections Act, s 72(4)(a)-(l). The Parole Board must take into account other matters such as any reports tendered to it on the prisoner's psychiatric condition. Notably, in this case, the learned sentencing judge expressed the view that before Mr Brennan is granted parole, the Board should have a psychiatric assessment of his conditions so as to inform the level of risk he may pose on release. As stated by the learned sentencing judge, the sentencing court should proceed on the assumption that the matters the Parole Board is required to take into account, will be carefully considered by the Board.

85 Crawford J in Gill at 9 commented that the Parole Board has a duty to have regard to the interests of the public and it will usually be in a better position to assess matters of public interest and the prisoner's interests, and the prospects of rehabilitation than the sentencing judge was at the time of sentencing.

86 The simple point to bear in mind is that if it were to transpire that a prisoner whose application for parole was before the Parole Board, had not lived up to the promise of reform suggested at the time of sentencing, or if it appeared to the Board that release on parole was not in the public interest, parole may be refused by the Board. Conversely, if an overly lengthy period of non-parole has the effect of discouraging reform, this opportunity for rehabilitation may be lost. This represents a loss to the community as well, which benefits from the reformation of its members.

87 In terms of the punitive effects of imprisonment and the potentially crushing impact of a lengthy non-parole period for an adolescent and young adult as opposed to a mature adult, deprivation of liberty during adolescence and early adult years is likely to have a greater impact than confinement for the same number of years later in life: The State of Tasmania v JW, Blow J (as he then was), 6 December 2000 (sentence).

88 In terms of the appellants' prospects of rehabilitation, I accept the difficulty identified by the learned sentencing judge, and the impossibility of predicting at the time of sentencing the extent to which, after many years in prison, the appellants may be rehabilitated and the level of threat to society they may then present. While these factors of the risks of reoffending and a concern for the protection of the community are relevant to the fixing of the non-parole period, as well as being relevant to the head sentence, in the case of a lengthy non-parole period they are of less significance. This is "simply because relevant forecasts cannot be made at such a distance": Bugmy per Dawson, Toohey, Gaudron at 537_._

89 It is worth emphasising that it is a prisoner's "capacity" or "potential" for reform that is reflected in the non-parole period. The concerns for the protection of the community and his Honour's reservations about their prospects of reform arose from the "circumstances of the murder, and the trivial and dishonourable reasons for which it was carried out." However, there remains the potential or capacity for reform for these appellants because of their youth. This is not a case where the appellants have demonstrated, by other criminal conduct, a propensity for violence. This is not a case where their conduct, aside from the murder, shows that their characters are so formed and corrupted that they are likely to be immune to positive encouragement or incentives. Furthermore, in accordance with the remarks of Crawford J in Gill, the sentencing court should have regard to the encouraging effects of parole upon reformation and good behaviour in prison. For these appellants, facing a lengthy term of imprisonment, it can be expected that the prospect of conditional release will be an encouragement to reform.

90 The gravity of this particular crime of murder has been reflected in the head sentence of twenty six years' imprisonment. While a heavy sentence, it was within the exercise of the sentencing judge's wide discretion. It sent a clear message of denunciation and deterrence and provided extended protection to the community. His Honour was entitled to give particular weight to these sentencing goals given the serious aspects of the case. However, this head sentence combined with a non-parole period of 17 years, before a discount for future co-operation, meant the sentence was unduly severe.

91 As noted the non-parole period of 17 years (before the specific discount of two years for future co-operation) is very heavy compared to past sentences imposed by judges in this jurisdiction. The period is particularly severe by reference to the appellants' admissions and their pleas of guilty, youth and prospects of rehabilitation. Notwithstanding the gravity of this terrible crime, and concerns about their prospects which arise from their preparedness to carry it out, their youth and lack of antecedent history provides hope for reform. It is in the interests of the community that they be encouraged to reform. The non-parole period, as the minimum time that justice requires should be served having regard to all the circumstances of the offence, should adequately reflect the appellants' capacity for reform and provide that encouragement.

92 This conclusion with respect to the period of 17 years has implications for the non-parole periods ultimately imposed of 15 years. They are severe for these offenders to the point of error, noting the matters in mitigation and the specific discount allowed of two years to reflect a promise to give evidence. This is a case where the sentences are rendered manifestly excessive by virtue of the length of the non-parole periods. There must have been some misapplication of principle, even though it is not apparent from the learned sentencing judge's statement of reasons.

93 In relation to the appellants' appeals, in light of my reasons, I would allow the appeals, leave the head sentence intact and reduce the non-parole period in each case by two years.

94 In Mr Brennan's case, the order I would make is that he not be eligible to apply for parole until he has served 13 years. Even though that is the "minimum" non-parole period, it is still a comparatively heavy punishment. In any case, the minimum non-parole period is relative to the head sentence and if that is a heavy penalty then there are obvious ramifications for the minimum period of imprisonment in that particular case and the degree of leniency it provides.

95 In Mr Rothwell's case, he would have received a non-parole order of 13 years but for the Crown appeal as a consequence of his failure to co-operate as promised. As indicated, I agree with the reasons of Martin AJ concerning the Crown appeal and that the respondent should not receive a benefit from an unfulfilled promise to co-operate. Accordingly, I would allow the Crown's application to extend time, allow the Crown appeal and order that a non-parole period of 15 years be imposed, so in consequence, his original sentence remains intact.

DIRECTOR OF PUBLIC PROSECUTIONS v WILLIAM ADAIR ROTHWELL

96 Jacob Michael Brennan and William Adair Rothwell (the appellants) pleaded guilty to the murder of a male victim committed on 4 August 2019. At the time of the murder, the appellants were aged 17 years and the victim was 18.

97 On 28 February 2020, Pearce J sentenced the appellants to imprisonment for 26 years, commencing on 16 August 2019. His Honour ordered that the appellants not be eligible for parole until they had served 15 years of that sentence.

98 The sentencing judge was informed that the appellants would, in the future, co-operate with authorities and give evidence against a co-offender. His Honour reduced each non-parole period by two years in recognition of the promised co-operation.

99 Each of the appellants appealed against the sentence, including the non-parole period, on the sole ground that the sentence was manifestly excessive.

100 On 11 November 2020, at the conclusion of the hearing of the appellants' appeals, the Court reserved its decision. Subsequently the Director of Public Prosecutions (the Director) notified the court of an intention to appeal against the adequacy of Mr Rothwell's sentence. On 22 December 2020, the Director filed an application for an extension of time within which to appeal, together with a notice of appeal asserting that the sentence imposed on Mr Rothwell was manifestly inadequate. In essence, the Director contended that contrary to submissions presented to the sentencing judge, and relied upon by his Honour, Mr Rothwell did not co-operate with authorities.

101 For the reasons that follow, in my opinion the appeals by the appellants should be dismissed. The appeal by the Director should be allowed and Mr Rothwell's non-parole period increased by two years.

102 Prior to receiving notice that the Director intended to appeal, I had prepared reasons for dismissing the appeals by the appellants. The application by the Director has not altered my view with respect to the appellants' appeals, and it is appropriate to set out my reasons with respect to those appeals before dealing with the application and appeal by the Director.

103 In the following reasons concerned with the appeals by the appellants, the facts and principles are discussed on the basis of the material provided to the sentencing judge and this Court. For these purposes, I put aside additional material provided by the Director in respect of the Director's appeal.

104 Mr Rothwell and the victim were friends. However, Mr Rothwell and an older man for whom Mr Rothwell had been selling cannabis, Mr B, both believed that the victim had stolen cannabis from them.

105 It was Mr B who instigated the murder. He asked Mr Rothwell whether he knew anyone who would kill the victim. Initially Mr Rothwell responded that Mr B had asked the wrong person, but Mr Rothwell then approached Mr Brennan who agreed to be involved.

106 On 31 July 2019, Mr B provided to Mr Rothwell a sawn-off single barrel shotgun. A couple of days later the appellants told Mr Rothwell's girlfriend that they were going camping at Bridport with the victim, but that they were setting him up and were going to be paid an ounce of weed each to kill the victim. They also showed her the shotgun.

107 The appellants wasted no time in setting in motion a plan to kill the victim. On 2 August 2019 they invited the victim to join them on a camping trip to Bridport. They intended to kill the victim in his sleep.

108 In pursuance of the plan, the appellants stole a car together and travelled to Bridport with the victim. However, the plan was thwarted when the victim stayed awake.

109 As the learned sentencing judge observed, the appellants were undeterred and came up with another plan. They arranged to meet the victim at an agreed location on the pretext that they would use the stolen car to commit burglaries. Having previously hidden the car in the bush at Mayfield, on 4 August 2019 they retrieved the car. After meeting the victim, together they walked to the car.

110 The appellants were well prepared to commit the murder. They had taken with them to the car the shotgun, a Bowie knife and a wooden baton. When they arrived at the car with the victim, and as the victim approached the driver's door, Mr Brennan fired the shotgun at the victim, striking him in the upper leg. In a clear demonstration of an intention to complete the task of murdering the victim, Mr Brennan attempted to fire the weapon a second time, but it jammed. The appellants then retreated down an embankment for the purpose of reloading the shotgun. The victim went after them, screaming for help.

111 In a vicious response to the victim's pleas for help, the appellants bashed the victim repeatedly. Mr Rothwell used the wooden baton and Mr Brennan the barrel of the shotgun. Mr Brennan then took the Bowie knife from the backpack and stabbed the victim at least 18 times to his head, neck and body. At least 10 of the stab wounds were to the victim's head and neck, and at least 8 to his back, mostly on the left. One of the stab wounds penetrated the inner lining of the abdominal cavity causing internal bleeding.

112 As the victim lay moaning on the ground, one of the appellants picked up the firearm, loaded it and shot the victim in the back of the head, killing the victim immediately. In interviews with the police, each appellant claimed that the other fired the final shot. Both shotgun wounds were inflicted from a range of less than one metre.

113 After killing the victim, in an effort to conceal the crime, the appellants dragged the victim's body into the bush and covered it with vegetation. They removed his fluorescent trainers to make it more difficult for the body to be seen. Mr Brennan removed a ring from the victim to provide evidence that the victim had been killed. The victim's house key was also taken. Subsequently the shotgun was returned to Mr B.

114 The appellants subsequently told Mr Rothwell's girlfriend that the victim had been killed. Mr Rothwell said he had pulled the trigger and the victim had been hit multiple times with a baton. In addition, both appellants told other persons about the killing.

115 The gunshots and screams for help had been heard and were reported to police. However, the initial search did not locate the stolen car or body. The car was found the following day and, on 11 August 2019, the victim was reported missing by his housemates. Further searches resulted in the discovery of the body on 16 August 2019. The appellants were located together that day and were arrested.

116 Mr Rothwell was interviewed by police on 16 and 18 August 2019. He admitted the murder, and said that it was instigated by Mr B whom he described as "like his boss". It was at Mr B's request that he asked Mr Brennan if he would kill the victim.

117 Mr Brennan was interviewed on 17 and 18 August 2019. In the first interview he denied committing the crime, but admitted his role during the second interview.

118 The appellants told the police that Mr Brennan shot the victim in the leg. Mr Rothwell admitted striking the victim twice to the head with the baton, and Mr Brennan admitted striking the victim to the head with the butt of the shotgun. Both said Mr Brennan used the knife to stab the victim.

119 As to the firing of the fatal shot to the head, Mr Rothwell said that after stabbing the victim many times, Mr Brennan had said, "He's not done", reloaded the gun, laid the victim face down and shot him in the back of the head at close range. However, Mr Brennan told police that Mr Rothwell reloaded the firearm and handed it to Mr Brennan, but as he was about to shoot the victim Mr Rothwell said he wanted to do it because he was the one from whom the victim had stolen. According to Mr Brennan, he handed the shotgun back to Mr Rothwell and it was Mr Rothwell who fired the shot.

120 The appellants both told police that they were paid an ounce of cannabis for the murder which was divided between them.

121 As the sentencing judge observed, murder is a "uniquely serious crime". His Honour correctly noted that there are "a number of aspects of this crime which make it a particularly serious example and which justify a greater head sentence than that imposed for most other single murders in this State". His Honour then summarised the key features:

"• It was a planned and intentional killing. Both defendants planned the murder over several days. When one plan did not succeed another was implemented. It was not a spontaneous decision affected by immaturity or lack of judgment and cannot be attributed to rage or sudden impulse or other human frailty;

• The murder involved a betrayal of [the victim's] friendship. He was tricked into going with the defendants and he would have had no hesitation in doing so;
• In Mr Rothwell's case, the motive could only have been either retribution for stealing the cannabis and interfering with his own or his dealers' illegal activities, or to ingratiate himself with his dealer and thereby advantage himself, or for the promise of an ounce of cannabis. In Mr Brennan's case, the explanation offered for his involvement is that Mr Rothwell told him that [the victim] planned to do him harm. He now accepts that what he was told is unlikely to be true. For both defendants, the planned and deliberate killing of another human being for such reasons is to be regarded by a civilised society as being a very serious crime;
• The defendants acted in concert so that [the victim] was confronted by the combined force of two men acting together;
• The carrying out of the murder involved extreme, cruel and prolonged violence. [The victim] was subjected to suffering. The attack and then the fatal wound were inflicted when he was pleading for help. He was shot without mercy;
• Both men took steps to conceal the murder. [The victim's] body was dragged into the bush and left hidden. It was a crude attempt but it was almost two weeks before his body was found."

122 The relevant matters personal to each appellant were summarised by the sentencing judge:

"William Rothwell comes from a good family, has no prior convictions, and was part way through year 12. During 2019 conflict developed between him and his family. He moved out, became disconnected from them and fell into bad company. Nothing in his background, no psychiatric, psychological or underlying disorder or condition, explains why he may have resorted to a crime of this gravity. I was asked to obtain a report from Community Youth Justice about Mr Rothwell's engagement with services and programs at Ashley Youth Detention Centre. I do not find it necessary to obtain a report. I would accept for the purposes of sentencing, from his education, background, vocational interests and community involvement prior to this crime, and his engagement with services while in custody, that he has the intelligence and capacity to be a contributing member of society.

Jacob Brennan turned 17 less than two months before this crime. His background is characterised by abuse and neglect. His young life was dominated by interactions with the child protection services in NSW. He does not know his father. As a young child his mother exposed him to drug use and domestic violence. He was taken into care at age 5 and between then and age 13 he was placed in about 11 different foster homes. He returned to the care of his mother when he was almost 14. She was an intravenous user of methylamphetamine. He says that she attacked him and, when he defended himself, he was charged with assault. He was sent to emergency care with his grandparents in Tasmania, but when, in May 2017, they told the authorities they could no longer look after him, he was placed in commercial accommodation. He, in effect, lived independently between the ages of 14 and 17 during which time he claims to have had virtually no supervision. In 2012, when he was about 10, a doctor in NSW recommended psychological intervention for a range of conditions. I was informed of a report from a clinical psychologist in April 2017. I was told some of the contents of the report but I do not have a copy of it. It refers to previous diagnoses of a range of psychological conditions including Asperger's syndrome, ADHD and oppositional defiance. The report attributes his challenging behaviours and emotional disturbance to his past trauma from which I infer that there were, prior to the report, challenging behaviours and emotional disturbance. I have not been informed what they were. The author of the report strongly recommends a thorough psychological examination. No such examination was ever performed. I raised with counsel for Mr Brennan the question of whether I should now obtain a new assessment of him. I was informed that advice has already been sought, and that no mental disorder or abnormality or impairment of mental function is asserted as relevant to sentence. The present position is that Mr Brennan has virtually no social connection outside the detention centre. He has a friend who visits and some irregular contact with his mother. He is taking the opportunity presently available to him for education at Ashley. He says that he is interested in education so as to equip him for employment and engagement on release."

123 As to matters of mitigation, the sentencing judge identified three matters which he had been asked to take into account, namely, the admissions, pleas of guilty and youth of the appellants. In addition, his Honour was asked to take into account the co-operation of each appellant with the authorities. After referring to those matters, his Honour said:

"Such is the seriousness of the crime, and the need to impose a head sentence proportionate to the crime, that I have concluded that the mitigating factors should be taken into account in determining the length of the parole non-eligibility period."

124 The sentencing judge did not overlook the early pleas and admissions to police. His Honour correctly noted that the case against the appellants became "irresistible" as a consequence of the admissions, but recognised that the early pleas of guilty "facilitated justice by avoiding the need for a trial, thus sparing [the victim's] family and friends of the anguish which would inevitably accompany that process." His Honour also recognised that the admissions and early pleas indicate that the appellants accept responsibility for their crime.

125 As to the appellants' youth, and their prospects of rehabilitation, his Honour considered those matters carefully:

"The law generally extends lenience to young offenders. That is so to allow for immaturity, lack of judgment, the greater potential for rehabilitation and avoidance of the corrupting influence of prison. In the circumstances of this case it is only the potential for rehabilitation which carries any weight, and it has much less part to play in a crime as disturbing and violent as this one. The prospect of rehabilitation is to be considered along with the assessment of the risk to the public which they may pose on release. Relevant to both questions is the fact that both defendants have demonstrated the capacity to commit such a crime. Considerations of youth are dominated by the need for punishment, denunciation, vindication of the victim and protection of the public. It may be that, for one or both of the defendants, this was an isolated act, not likely to be repeated, but no material is advanced on their behalf which would reassure me that this is so. The circumstances of the murder, and the trivial and dishonourable reasons for which it was carried out, suggest strongly that persons capable of such acts present a continuing danger to the public. For both defendants it is almost impossible to predict the extent to which, after many years in prison, he may be rehabilitated, and the level of the threat to society he may present if released. I take into account how old they will be when they become eligible for parole. It is the Parole Board which is required by the Corrections Act 1997, s72(4), to take into account, in determining whether or not a prisoner should be released on parole when a non-parole period has expired, the likelihood of the prisoner re-offending, the protection of the public, the rehabilitation of the prisoner, the prisoner's behaviour in prison, any reports tendered to it on the prisoner's psychiatric condition and the probable circumstances of the prisoner after release from prison. The Court should proceed on the assumption that these matters, as well as the others the Board is required to take into account, will be carefully considered by the Parole Board. At this stage what I am to determine is the minimum time that justice requires that each defendant must serve having regard to all the circumstances of his offence."

126 It was also necessary for the sentencing judge to consider the question of parity between the appellants. Associated with this aspect was the fact that both appellants co-operated with authorities. Again it is appropriate to refer to his Honour's remarks in this context:

"I must also consider, as between the two men, whether they should receive the same or a different sentence. Because of their joint involvement, both are responsible for all of the criminal conduct. However, there is a distinction between an offender's responsibility for criminal conduct and his culpability. Each defendant's level of moral culpability is assessed by reference to his particular conduct. Counsel for Mr Rothwell submits that he should be permitted an earlier eligibility for parole because he played a lesser role in the physical acts which led to [the victim's] death. Mr Rothwell asserts that his application of force was limited to striking [the victim] with the baton.

On one version, Mr Brennan was responsible for a greater level of direct violence, but Mr Rothwell instigated the plan, supplied the gun and brought the knife intending [the victim] would be killed. It was not suggested that he was overborne by Mr B and he had ample time to consider and withdraw from his involvement. Mr Brennan willingly joined in. It has not been determined who fired the fatal shot, but both are equally blameworthy for it. Mr Rothwell brought the gun intending for it to be used for that purpose. If Mr Brennan did not fire the shot, he admitted that he was prepared to do so.

One matter causes me considerable concern. Mr Brennan admitted using the knife which Mr Rothwell had brought to inflict the stab wounds. Mr Rothwell could only have brought a knife of that nature as a possible means of killing. However, Mr Brennan told the police that he stabbed [the victim] in the neck, back and head to 'end his suffering.' There were at least 18 stab wounds. Although there was only one deep penetrating wound, infliction of such an extreme number of stab wounds gives rise to an impression of his acts being uncontrolled and unrestrained. Whatever the explanation, the number of stab wounds is a particularly disturbing aspect of Mr Brennan's conduct and poses a real question about the risk he may present to the community on release. In the end I have, for reasons I have already expressed, decided that it is a matter for the Parole Board. The Board may take into account these comments on passing sentence. I have decided that both should receive the same sentence, but I would record my view that before Mr Brennan is granted parole, the Board should have some psychiatric assessment of the nature and effect of the conditions with which he has seemingly been diagnosed so as to inform the level of risk he may pose on release. It will be for the Board to determine whether the same should apply to Mr Rothwell."

127 The sentencing judge then dealt at some length with the appellants' co-operation with the authorities, and determined that both appellants should be treated equally by reducing the non-parole period by two years in recognition of their co-operation.

128 Understandably, the submissions of each appellant were centred upon their youth, absence of prior convictions (or relevant prior convictions), full admissions, remorse, early indication of a plea of guilty and assistance to authorities. Counsel for Mr Rothwell pointed out that at the time of the offending he had moved out of home and become involved with cannabis. Nevertheless, he has a supportive family and possesses the potential to contribute to society. Counsel submitted that Mr Rothwell possesses attributes consistent with self-discipline, leadership and generosity.

129 Emphasis was placed on Mr Brennan's background. He has been in the care of the New South Wales Department of Community and Justice since the age of 5 years. He was subjected to a disadvantaged and unstable upbringing, characterised by neglect, with barely any supervision between the ages of 14 and 17 which resulted in feelings of loneliness and abandonment. While emphasis was also placed on the appellant's psychiatric disorders, counsel relied upon the positive signs favouring rehabilitation which Mr Brennan has displayed through his attendance at college during 2019 and educational programs while in custody.

130 Neither appellant contended that any specific error occurred in the sentencing process which was sufficient to amount to error in principle or fact for the purposes of the appeal. However, both contended that the sentencing judge should have given greater weight to the youth of the appellants, and other matters personal to them, in fixing both the head sentence and non-parole period. Counsel urged that the sentence is in excess of, or equivalent to, sentences imposed on mature, adult offenders which is demonstrative of inadequate weight being given to the youth and other personal factors attracting a degree of mitigation. In this context, particular attention was paid to the non-parole period.

131 In an endeavour to assist the Court in understanding the broad range of sentences imposed for the crime of murder, the Director provided statistics dating back to 1995. In Sentencing in Tasmania[1], Professor Kate Warner identified head sentences for the crime of murder between 1995 and 2000 ranging from 10 years to imprisonment for life. The median sentence was 21 years and the median non-parole period 14 years. Professor Warner noted that higher sentences were imposed for premeditated crimes, while sentences at the lower end of the scale were imposed in matters involving diminished responsibility, or where death was not intended. Median sentences tended to be imposed in cases involving angry or jealous confrontations and disputes.

132 The Sentencing Advisory Council database identifies 32 sentences between January 2001 and December 2014 imposed for single crimes of murder. The minimum period imposed was 15 years and the maximum 35 years, with a median period of 20 years. The median minimum non-parole period imposed during this period was 11½ years.

133 The DPP also provided a table of sentences imposed for the crime of murder between February 1990 and February 2020, together with a brief summary of the essential facts of the crimes. It is apparent, but not surprising, that premeditated crimes attracted the longer sentences and non-parole periods.

134 This type of statistical information is helpful because it provides a yardstick against which the sentences under consideration can be considered. However, the limited value is well recognised and was explained in the majority judgment of the High Court in Hili v The Queen [2010] HCA 45, 242 CLR 520 at 537 [54] and [55]:

"[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'.

'[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were'."

135 In my opinion, assessed against the statistical information to which I have referred, notwithstanding the youth of the appellants and other matters personal to them, both the head sentence of 26 years, and the non-parole period of 15 years, were within the range of the sentencing discretion. The crime committed by the appellants was a particularly serious example of the crime of murder. It was not a murder committed on the spur of the moment in emotionally charged circumstances. It was planned over a number of days and, when the first plan did not succeed, another plan was hatched and quickly brought to fruition. It was an intentional and vicious killing by two young men who acted without mercy in the face of the victim who was pleading for help. As the sentencing judge correctly pointed out, this crime involved "extreme, cruel and prolonged violence". In addition, the appellants hid the victim's body. They displayed callous disregard for the victim and a lack of contrition by telling others they had killed the victim.

136 There were no mitigating circumstances accompanying the objective facts of the crime. As the sentencing judge observed, it is the responsibility of the law generally, and the criminal courts in particular, to "uphold the sanctity of every human life". This was a crime that had "a terrible impact" on the victim's family and friends, particularly his sister and grandmother from whom the sentencing judge heard "moving" statements.

137 The importance of the impact of crimes generally, and particularly homicides, was emphasised in the joint judgment of French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda v Western Australia [2013] HCA 38, 249 CLR 600. The High Court was concerned with an appeal against a decision of the Western Australian Court of Criminal Appeal to increase a sentence imposed upon the appellant for the crime of manslaughter. The killing occurred in the context of a domestic relationship, and the maximum penalty for the crime was imprisonment for 20 years. A sentence of 5 years and 3 months, with a non-parole period of 3 years and 3 months, was increased by the appellate court to 7 years and 9 months, with the same non-parole period.

138 During a discussion concerning general deterrence in respect of crimes which are not premeditated, the judgment addressed other aspects of sentencing, including vindication of the "human dignity of the victim" [54] and [55]:

"[54] It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

[55] A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law."

139 Counsel for the appellants urged this Court to infer that the sentencing judge must have given insufficient weight to the factors of youth, rehabilitation and assistance to the authorities. However, when the sentencing remarks are viewed in their entirety, it is apparent that his Honour paid careful attention to those matters, particularly with respect to the fixing of the non-parole period.

140 As to the sentencing of young offenders who commit particularly serious crimes, it is well recognised that the principles favouring emphasis on youth and rehabilitation must give way when serious crimes are committed that require priority to be given to the protection of the public and matters such as general deterrence and denunciation.[2] In KT v The Queen [2008] NSWCCA 51, 182 A Crim R 571, the New South Wales Court of Criminal Appeal was concerned with a sentence imposed upon a young offender for the crime of manslaughter. McClellan CJ at CL discussed the relevant principles and the impact on sentencing when young offenders commit serious crimes in a manner reflective of adult behaviour [22]-[26]:

"[22] The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].

[23] The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

[24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

'It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft [1975] VicRp 27; (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.'

[25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]- [10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM [2002] NSWCCA 58 at [96]- [98]; R v Adamson [2002] NSWCCA 349; (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in 'adult behaviour' (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

[26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus; R v Voss at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27])."

141 In a judgment with which Price J agreed, Hall J made similar general observations [103]-[106]:

"[103] Plainly, there is no hard and fast general rule that applies uniformly in the sentencing of young offenders. One well-known principle, of course, is that when a court is required to sentence a young offender, considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the offender's rehabilitation: see Tran at [9]. However, the phrase 'in general' is not to be overlooked. In Tran at [9], Wood CJ at CL observed:

'That is a sensible principle to which full effect should be given in appropriate cases. It can have particular relevance where an offender is assessed as being at the cross roads between a life of criminality and a law abiding existence.' (emphasis added.)

[104] Again, the phrase 'in appropriate cases' is not to be overlooked. His Honour went on in Tran to state (at [10]):

'What his Honour did not mention, and appears to have overlooked, however, was the qualification to that principle concerning young persons where they conduct themselves in a way that an adult does, and commit a crime that involves violence or is one of considerable gravity. In such a case, it is the function of the Court to protect the community, and to appropriately give effect to the retributive and deterrent elements of sentencing: R v Pham (1991) 55 A Crim R 128; R v Allam (unreported Court of Criminal Appeal, NSW, 13 April 1993); DRL (unreported Court of Criminal Appeal, New South Wales, 16 May 1997); Townsend (unreported Court of Criminal Appeal, New South Wales, 14 February 1995) and SDM (unreported Court of Criminal Appeal, New South Wales, 4 August 1997) ...'.

[105] In Tran (a case involving one count of armed robbery under s 97(1) of the Crimes Act to which the respondent to the appeal pleaded guilty, together with an offence of supply prohibited drug and an offence of goods in custody taken into account on a Form 1), Wood CJ at CL concluded (at [14]):

'The nature and circumstances of the offence were accordingly such that the respondent should have been considered as having conducted himself like an adult, with the consequence that relatively little weight should have been given to his age.'

[106] The same point was made by this Court in Hoang at [44]. The Court additionally observed at [45] that the weight to be given to considerations associated with offending arising out of immaturity, diminishes the closer an offender approaches the age of maturity, referring in that respect to this Court's decisions in Bus and Regina v Voss [2003] NSWCCA 182."

142 These principles were recently confirmed by the New South Wales of Court of Criminal Appeal in Atai v The Queen [2020] NSWCCA 302. The court was concerned with an appeal against a sentence of imprisonment for 38 years, with a non-parole period of 28 years and 6 months, imposed following pleas of guilty to a number of terrorist offences.[3] The appellant was aged 19-20 years at the time of the offences, and played a key role in assisting the principal offender who murdered a civilian employee of the New South Wales Police Force.

143 An appeal against the sentence on the basis that it was manifestly excessive was dismissed. In a judgment with which Price and N Adams JJ agreed, Bathurst CJ succinctly stated the relevant principles. Although his Honour was concerned with a young offender who had committed terrorist crimes, his Honour's statement of the principles is readily applicable to the circumstances under consideration [92]-[94]:

"[92] The Crown submitted that the applicant's submissions ignored the line of authority relied upon by the sentencing judge, which establish that whilst youth is relevant in determining the weight to be given to general deterrence and denunciation, its weight is considerably diminished in terrorist cases where the offender participates in planning or carrying out acts of extreme violence. The Crown referred in that context to R v Khalid [2017] NSWSC 1365; Director of Public Prosecutions (Cth) v MHK (2017) 52 VR 272; [2017] VSCA 157 at [56], [58], [66]-[67], IM at [53]-[54] and Alou at [130]-[139], [144], [198]-[199]. It was submitted that consistently with those cases, the sentencing judge did not err in giving priority to general deterrence and denunciation above the ameliorating effect of youth and sentenced in accordance with the general sentencing principles concerning the relevance of youth in dealing with terrorist offences.

[93] It has been consistently stated by intermediate appellate courts in this State and Victoria that whilst youth is relevant as a mitigating factor, its weight needs to be appropriately moderated in terrorist cases where the offender participates in planning and carrying out acts of extreme violence. Thus in IM, a decision of this Court on which much reliance was placed by the applicant, Meagher JA with whom the other members of the Court agreed made the following comments:

'[53] Because of the significance given to punishment, general deterrence and protection of the community in cases involving terrorist offences, mitigating factors such as the youth of the offender and prospects of rehabilitation are given much less weight in the face of those other factors, and especially the often overwhelming need for general deterrence and the protection of the community. In Lodhi v The Queen, Price J stated at [274] in a passage agreed in by Spigelman CJ at [109] and cited with approval in MHK at [55]:

Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution.

[54] The position is similar in relation to the youth of an offender, which in general is an important mitigating circumstance. As the Court observed in MHK at [56], an offender's youth is "relevant to an assessment of the moral culpability of the offender, as the law recognises that the immaturity and impressionability of youth may be, and commonly is, an important contributing factor to the involvement of a young offender in the crime for which that offender is to be sentenced". However the Court then acknowledged that these principles "need to be appropriately moderated where, as in a case such as this, the offender has been involved in serious and dangerous offending" at [57].'

[94] The present case involved a terrorist act and other offences which were both serious and involved a degree of planning. As was pointed out in Alou at [136], the emphasis given to rehabilitation rather than general deterrence and retribution in the case of a young offender may be moderated when the young person has conducted himself or herself in a way that an adult might have and has committed a crime of considerable gravity: see also the cases relied on by the Crown to which I have referred at [92] above."

144 The actions of the appellants were not typical of an immature youth, spontaneously and unthinkingly engaging in minor criminal activity. As discussed, they behaved like mature adults in planning and executing a cold-blooded murder (having been forced to abandon the first plan). Both during the commission of the killing, and afterwards, the appellants displayed callous indifference to the victim, and behaved in a rational manner when endeavouring to conceal the body. There is no suggestion in the evidence that subsequently either of the appellants demonstrated any form of panic or immature thinking.

145 Protection of the public loomed large, as did both general and personal deterrence, punishment and denunciation. Necessarily, it was impossible for the sentencing judge to assess prospects of rehabilitation in circumstances where it was inevitable that the appellants would be incarcerated in conditions unfavourable to successful rehabilitation for many years.

146 As to the non-parole period in particular, it is well recognised that the sentencing judge was required to fix a minimum period his Honour determined justice required the appellants serve, and that a lengthy non-parole period has the effect of increasing the severity of the punishment.[4] While a long non-parole period might result in a manifestly excessive sentence, there is no presumption that the non-parole period should be the minimum period available to a sentencing judge.[5] The gravity of the crime committed by the appellants required the sentencing judge to give prominence to the factors of general deterrence, denunciation, retribution and vindication of the sanctity of human life.[6]

147 The sentencing judge reduced the non-parole period by two years in recognition of the appellants' co-operation with the authorities. Apart from the general proposition that the non-parole period is manifestly excessive, the appellants did not contend that the sentencing judge erred in allowing a reduction of only two years. Although some information was provided from the bar table about the localities in which it is likely the appellants will serve their time, no evidence was led to suggest that by reason of their co-operation, there will be a real risk to the safety and welfare of the appellants while they are in custody, or that they will serve their time in harsher conditions than the general prison population.

148 Numerous decisions recognise the importance of encouraging offenders to co-operate with authorities.[7] Many factors influence the degree to which a sentence of imprisonment should be ameliorated by reason of an offender's co-operation with authorities. They include the value of the co-operation, and the degree of risk to the safety and welfare of the offender accompanying the co-operation.

149 In the appellants' favour, it should be assumed that their co-operation is valuable. However, in the absence of evidence, no conclusion can be drawn as to any risk that might accompany that co-operation. Nor can this Court assume that their period of incarceration will be more onerous than would otherwise be the case in the absence of co-operation.

150 In these circumstances, while it might be said that the reduction of two years was not generous, in my opinion it was not manifestly inadequate and it did not result in a manifestly excessive non-parole period. It was within the range of the sentencing judge's discretion.

151 The principles governing appeals based on the contention that a sentence, including a non-parole period, is manifestly excessive are well settled and do not require repeating.[8] In my view, although heavy, neither the head sentences, nor the non-parole periods, were unreasonable or unjust.

152 As explained, these were the reasons I prepared for dismissing the appellants' appeals before receiving notice of the Director's intention to appeal against the sentence imposed upon Mr Rothwell. For the protection of Mr Rothwell, I did not set out the detail of submissions to the sentencing judge, and the reasons of the sentencing judge, concerning the nature and extent of the co-operation offered by Mr Rothwell. I emphasise that the facts outlined in these reasons were the facts presented to the sentencing judge and this Court.

153 The Director seeks to appeal against the sentence imposed upon Mr Rothwell on the basis that, contrary to submissions presented to the trial judge and accepted by his Honour, Mr Rothwell has failed to co-operate with authorities. It is necessary therefore, to provide details of the information conveyed to the trial judge and his Honour's reasons with respect to the anticipated co-operation.

154 As discussed, the facts presented to the trial judge and this Court included the critical feature that Mr B instigated the murder and provided the single barrel shotgun used to commit the murder. Further, the shotgun was returned to Mr B after the murder. These were the essential facts of Mr B's involvement conveyed by Mr Rothwell in his police interviews.

155 During the plea in mitigation, counsel for Mr Rothwell referred to his co-operation and subsequently provided a letter to the sentencing judge which contained the following undertaking:

"William Adair Rothwell agrees to give truthful evidence on behalf of the Crown at any subsequent proceedings if he is asked to do so on the trial of [B].

This was communicated to the State by open letter on 16 December 2019."

156 In his reasons, the sentencing judge referred to the issue of co-operation and his conclusion that, by reason of the co-operation, the non-parole period should be reduced by two years. The full passage of his Honour's reasons is as follows:

"Mr B has also been charged, I assume with murder. Rothwell has indicated that he is prepared to give evidence in the trial of Mr B. He asks that it be taken into account in his sentence. The Director did not make a submission to the contrary. No assessment of the value of Mr Rothwell's evidence has been offered, but from what I have been told my own assessment is that it is likely to strengthen the Crown case to a considerable extent. It is the policy of the criminal law to allow a reduction in sentence in return for giving evidence in relation to co-offenders. That is so for many reasons, including that it is inherently right to assist in the prosecution of offenders guilty of such serious crimes as this, it indicates some contrition and insight on the part of the person to be sentenced, and the indication of a willingness to give evidence, if it becomes known, is likely to make life more difficult both in prison and possibly after release. Mr Brennan has also indicated a willingness to give evidence but his evidence is of little value because he had no contact with Mr B. A case like this is, in my view, to be distinguished from a case in which a person who played a lesser role in a crime is willing to co-operate in the prosecution of the principal offender. Here, Mr B instigated the crime but Mr Rothwell carried it out. The sentence I impose must adequately reflect his criminality. It would be unfair to give Mr Brennan a longer sentence or non-parole period just because he was not able to give evidence of the same value, notwithstanding his willingness to do so. A reduction in the parole non-eligibility period for both defendants constitutes a significant incentive for both to co-operate as promised. A failure to do so would much lessen the indication of acceptance of responsibility for the crime. If they fail to do so, the sentence may be reviewed and increased on appeal. I specify therefore that, for that factor, I would reduce the parole non-eligibility period by two years."

157 Mr B was charged with murder and the preliminary proceedings with respect to that charge occurred on 8 December 2020. Prior to the preliminary proceedings, two officers from the Office of the Director conferred with Mr Rothwell. The facts that follow are taken from an affidavit of one of those officers filed by the Director.

158 On 23 October 2020 the officers explained to Mr Rothwell the nature of the preliminary proceedings and emphasised the importance of him telling the truth. There is no dispute that Mr Rothwell indicated he did not wish to give evidence, but realised he had said he would do so. Mr Rothwell indicated he was worried about "dealing with people afterwards", and that giving evidence "paints a target" on his back.

159 A discussion occurred about the substantive elements of Mr Rothwell's evidence. In that context, the officer states:

"Mr Rothwell was generally co-operative at this time and spoke about aspects of his evidence including that he knew Billy Waters had stolen drugs from [B], that [B] had asked if he knew anyone who could 'teach him (Billy) a lesson, get rid of him', that after the firearm was returned a few days later 'I got given an ounce of cannabis to give to Jacob and he halved it and gave half to me'."

160 The hearing of the appeals by Mr Rothwell and Mr Brennan occurred on 11 November 2020. At the conclusion of the appeal, counsel for Mr Rothwell was provided with an envelope containing transcripts of Mr Rothwell's records of interview conducted on 16 and 18 August 2019.

161 The same two officers again spoke with Mr Rothwell (via a video link) on 7 December 2020. Mr Rothwell indicated he had not read the transcripts of his interviews with police. Senior counsel for the Director explained the process to be followed during the preliminary proceedings, and the areas of cross-examination that would be permitted by the magistrate. Counsel also explained that there were potential serious consequences for not telling the truth when under oath or affirmation.

162 During the discussion on 7 December 2020, Mr Rothwell confirmed that Mr B had said he "needed someone who could get rid of Billy", and that the Mr Rothwell had told Mr B he knew someone who could help him. Mr Rothwell also confirmed he had received the firearm from Mr B and gave it to Mr Brennan. Significantly, he confirmed it was true that he had received payment for the murder and took that payment to Mr Brennan.

163 Senior counsel advised Mr Rothwell to seek advice from his solicitor about the potential consequences of not giving truthful evidence in accordance with his undertaking to do so. Mr Rothwell was given an envelope containing transcripts of his two records of interview. When Mr Rothwell indicated some unease about giving evidence concerning the drugs because of the risk of prosecution, he was advised about the availability of s 128 certificates, and about asking the magistrate for a certificate during the proceedings.

164 On 8 December 2020, prior to the commencement of the preliminary proceedings, in response to a question by senior counsel for the Director, Mr Rothwell indicated he had read the transcripts of his records of interview. Asked whether there was anything he wanted to say about them, Mr Rothwell responded to the effect "No, nothing". Counsel asked Mr Rothwell whether he wished to give evidence from a remote witness room, but he indicated he did not require the use of such a room.

165 Senior counsel explained the oath and affirmation options, and Mr Rothwell indicated he wished to take the affirmation.

166 In the hearing before the magistrate, in answer to counsel for the Director, Mr Rothwell confirmed he had pleaded guilty to the murder of the victim, and was currently serving a sentence. He was then cross-examined. He gave the following evidence of significance:

• At the relevant time he was using drugs which he obtained from various persons, but not Mr B.
• He did not sell drugs. Nor did he tell people he was a dealer in cannabis.
• He was unable to remember if there was a photograph of a firearm on his mobile telephone.
• He was under the influence of a lot of drugs and alcohol and "pretty much anything before September [2019] is a blur and I can't really remember anything".
• The victim was a friend and he was involved in his killing, but he was "not too sure" why he killed his friend.
• He could not remember whether anything happened that caused the friendship to cease.
• He could not remember anything about doing a burglary at Bridport.
• The meeting that occurred between Mr Rothwell, Mr Brennan and the victim was arranged by the victim through Snapchat.
• He could not remember taking anything with him to the meeting. As to whether someone had a firearm, he answered "possibly". He was unable to remember whether anyone had a knife or a bat.
• As to what happened to the victim, including whether he was shot in the leg, Mr Rothwell was "not sure". He could not remember how the victim ended up dead.
• As to why the victim was killed, Mr Rothwell could not remember, and was unable to remember any discussions between him and Mr Brennan, or any other person, about why anyone would want to hurt the victim.
• He was unable to remember doing two records of interview with police.
• As to the content of the interviews, although he had read the transcript:

"I can't remember the interviews. I can't remember saying the things in them."

• He was unable to remember phone calls he had made or received on the day the victim was killed.
• As to whether he remembered meeting Mr B and getting a gun from him, Mr Rothwell answered "I can't remember".
• He was unable to remember anything about items being taken from the victim after he was killed, including the sneakers, hat and ring.
• He was unable to remember whether he had ever been to Mr B's house or met his children.
• Asked if he could recall receiving any payment for the murder, he answered "No, no really. No. I can't remember".
• He was unable to recall receiving an ounce of cannabis for any reason during the relevant period.
• The cross-examination concluded with the following passage of evidence:

"Q So as it stands today, Mr Rothwell, you have no idea why Billy Waters was killed.

1. No.
2. You have no idea what part you played in it.
3. Not really.
4. You don't know what Jacob Brennan did.
5. Not really.
6. You couldn't say whether or not [B] asked you to do it.
7. Like I said, I can't remember."

167 The trial of Mr B on the charge of murder was scheduled to commence on 15 March 2021. Senior counsel for the Director and the other officer met with Mr Rothwell on 23 February 2021. During this meeting, counsel asked Mr Rothwell whether he had any concerns for his own safety, to which he replied in the negative.

"37 During this meeting, Mr Rothwell said that [B] had not instructed him to murder Billy Waters, and that it was Jacob Brennan's wish to commit a murder, and his own suggestion that the victim be Billy Waters because of his knowledge that [B] 'had a problem' with him. This was in direct contrast to what was contained in his record of interviews. At that time, [senior counsel] said that we would not take further details from Mr Rothwell until he had watched his video recorded interviews."

169 On 25 February and 1 March 2021, the two video recorded interviews with the police were played to Mr Rothwell. He "identified as lies any references to [B's] involvement in the instigation of the murder, in addition to matters relating to having been given the firearm by [B] (instead asserting that it was bought from him), providing Billy Waters' ring to [B] as 'proof' of the killing and being paid cannabis for the commission of the murder". Mr Rothwell "asserted that [B] had 'freaked' when provided the firearm and told about the murder".

170 Two officers met with Mr Rothwell via a video link on 4 March 2021. The following is a summary of that meeting:

"40 In summary, during the briefing Mr Rothwell outlined to Ms Mason and I that his evidence at trial would be that [B] had no involvement in or knowledge of the murder of Billy Waters. In respect of his actions with the firearm, Mr Rothwell outlined that after the murder of Mr Waters, he returned the firearm to [B] because he was a person who could get rid of it. He described that he then used the giving of the firearm to [B] after the murder as 'leverage' to obtain drugs from [B]. He denied being paid for the murder of Mr Waters. He made a number of assertions contrary to what was asserted in the Crown Statement of Facts at his sentencing hearing, including that he had not told Paige Archer anything about the killing of Billy Waters."

171 As a consequence of the briefings with Mr Rothwell, on 10 March 2021 the Director filed a nolle prosequi with respect to the indictment charging Mr B with murder. A new indictment was filed and Mr B pleaded guilty to a number of offences, including trafficking in a controlled substance, dealing in firearms and being an accessory after the fact to murder.

172 The principles governing the reception of evidence concerning facts arising after sentence on the hearing of an appeal against sentence were recently discussed by this Court in Director of Public Prosecutions v Dunne [2021] TASCCA 5. In a judgment with which Geason J agreed, Pearce J summarised the relevant principles at [10] and [11]:

"The Criminal Code, by s 402(4), provides that on an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal. The Code, s 409(1)(c), confers a general power on this Court to receive evidence upon the hearing of an appeal. The issues to be considered in this appeal were considered and determined by this Court in R v Stanley (1998) 7 Tas R 357. There is no need to repeat all of what was said in that case. Although Underwood J (as he then was) dissented on the ultimate result, each member of the Court was agreed on the law to be applied. Evidence of post-sentence facts upon the hearing of an appeal against sentence on the ground of manifest inadequacy or excessiveness is relevant and admissible if it shows the true significance of facts which were in existence at the time of the imposition of sentence, or if it explains facts that were before the sentencing judge so as to put them in a new light. In Stanley, the Court applied the following passage from the judgment of King CJ in R v Smith (1987) 44 SASR 587 at 588:

"The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence, R v O'Shea (1982) 31 SASR 129 and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence."

The basis of appellate intervention is not to punish an offender for failing to comply with his or her promise or stated intention to give evidence, but because the sentence was imposed on a wrong basis. Leniency has been granted on a ground which has proved to be baseless: R v J [1992] SASC 3639; (1992) 59 SASR 145 per King CJ at 148, applied in Stanley by Underwood J at 363, Wright J at 369 and Slicer J at 380. There is no reason for this Court to depart from those statements of principle, with which I agree. Section 409(2) of the Code does not present a statutory bar to increasing the sentence for the reasons explained in Stanley by Underwood J at 363-364 and by Wright J at 370-371."

173 In R v J [1992] SASC 3639; (1992) 59 SASR 145, to which Pearce J referred, King CJ emphasised the importance of integrity in the sentencing process (at 147):

"The question of re-opening a sentence by reason of a failure of an offender to carry out his undertaking to give evidence against co-offenders, is a delicate one. The purpose of sentencing an offender before he is called upon to give such evidence, is to remove any incentive to implicate others falsely in order to obtain leniency for himself. If the offender gives evidence in the shadow of the fear that the prosecution may appeal, that purpose is to some extent frustrated.

On the other hand, it is most important for the integrity of the sentencing process that an offender should not be permitted to obtain leniency by reason of an undertaking which he does not carry out. To allow that to occur would provide encouragement to mislead the sentencing court by means of false undertakings." (My emphasis.)

174 Pearce J also discussed the issues of public policy and the importance of ensuring that undertakings to co-operate are fulfilled [19]:

"As the sentencing judge correctly recognised, it is the policy of the criminal law to allow discounts in sentence in return for co-operation with the police and for giving evidence in relation to co-offenders. It encourages guilty persons to disclose and provide evidence to the police and to courts with the aim of bringing other offenders to justice. The criminal justice system is assisted by the preparedness of offenders to co-operate with the prosecution, including by informing upon, and if necessary giving evidence against, others who may have offended. However, there is an equally strong public policy consideration in favour of permitting appellate intervention when necessary to ensure that undertakings to co-operate are taken seriously, and that offenders do not receive a benefit from disingenuous or unfulfilled undertakings to co-operate: R v J (above); R v Stanley (above) at 370, 375;

R v X [2016] NSWCCA 265 at [54]- [55]; R v Haklar-McCarthy; R v Summerhill [2017] SASCFC 129, 129 SASR 1. I agree with Wright J's statement in Stanley at 370 that 'broken promises of co-operation are a discrete and special area in which the Court must be able to reconsider the sentence if the quid pro quo offered by the prisoner is repudiated by him'. It is strongly in the public interest, and of importance to the administration of justice, to ensure that undertakings of co-operation are observed, and that there are consequences if they are not: R v Haklar-McCarthy per Doyle J at [78]."

175 There is no doubt that before the sentencing judge, through counsel, the appellant conveyed to his Honour that his interviews with the police were a truthful account of Mr B's involvement in the murder, and that he would give evidence of that involvement in accordance with those statements. On the material before this Court, there is no reason to doubt the veracity of that version to the extent that it implicates Mr B as the instigator of the murder. I am satisfied that the subsequent statements by Mr Rothwell that Mr Brennan instigated the murder, and suggested the victim be Mr Waters, are false. In any event, Mr Rothwell obtained leniency by reason of an undertaking which he did not carry out. On any version, Mr Rothwell gave false evidence before the Magistrate.

176 The factual basis upon which the sentencing judge imposed sentence, and in particular fixed the non-parole period, was false. Put neutrally, through no fault of the sentencing judge, his Honour incorrectly took into account a significant fact to which his Honour should not have had regard. By reason of Mr Rothwell's conduct, if the sentence is permitted to stand, the integrity of the sentencing process will be significantly compromised.

177 Further, as a consequence of the fact that Mr Rothwell's proposed co-operation was wrongly taken into account, if the sentences were permitted to stand, Mr Brennan would be entitled to experience a justified sense of grievance. Mr Brennan fulfilled his undertaking to co-operate and yet, as the sentences stand Mr Rothwell, who failed to fulfil the undertaking, is subject to the same sentence as Mr Brennan. It is important that the sentences imposed upon each appellant reflect appropriately all relevant matters relating to each appellant, including co-operation with authorities, or lack of it. This issue of parity in sentencing is a significant consideration, particularly as one offender co-operated with authorities and the other did not.

178 The Director seeks only an increase in Mr Rothwell's non-parole period by two years. Counsel for Mr Rothwell did not present any submission in opposition to that course.

179 The failure of Mr Rothwell to comply with his undertaking did not occur until the expiry of the time limit within which the Director is able to appeal. The extent of his lack of co-operation did not become apparent until he gave evidence on 8 December 2020.

180 The Director filed the application for an extension of time on 22 December 2020. It is in the interests of justice to grant the extension.

181 For the reasons earlier discussed, in my view the sentence was imposed on an erroneous factual basis which resulted in an unreasonable and unjust sentence with respect to the non-parole period. The parity issue discussed earlier is part of the unreasonable and unjust nature of the sentence. The sentence should be set aside.

182 This Court should re-sentence Mr Rothwell. I discern no reason why the head sentence should be altered, but the non-parole period should be increased by two years.

183 For these reasons, in my view, the appeals by the appellants should be dismissed. The Director's appeal with respect to Mr Rothwell's sentence should be allowed to the extent of increasing Mr Rothwell's non-parole period by two years to 17 years.

[1] 2nd ed, The Federation Press 2002 Sydney, pages 269-271.

[2] Director of Public Prosecutions v Fletcher-Jones [2018] TASCCA 9; [2018] 28 Tas R 49 at 57 [25].

[3] A reduction of 10% was given to reflect the pleas of guilty.

[4] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623; Butt v Tasmania [2018] TASCCA 3 at [68]; Connolly v Tasmania [2015] TASCCA 15 per Wood J at [14]-[18].

[5] Pickrell v Tasmania [2011] TASCCA 13 at [13].

[6] Braslin and Cowen v Tasmania [2010] TASCCA 1, per Porter J at [23] and [29]; Director of Public Prosecutions v Fletcher-Jones [2018] TASCCA 9, 28 Tas R 49 at [25].

[7] Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 239; York v The Queen [2005] HCA 60, 225 CLR 466 at [3] and [21]-[23].

[8] Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 at [6] and [58], Wong v The Queen [2001] HCA 64, 207 CLR 584 at 605 [58].