Cardamone v The Queen [2019] VSCA 190

1 On 30 June 2017, the applicant pleaded guilty in the Trial Division, sitting at Melbourne, to the following charges:

1. Murder of Karen Maria Chetcuti on 13 January 2016;
2. Incitement to murder the prosecution witness, Edward George, between 22 February 2017 and 30 March 2017.

2 The applicant was also dealt with for a related summary offence of breaching a prescribed condition of parole, that breach being the murder of Ms Chetcuti. The applicant also pleaded guilty to that charge.

3 On 25 August 2017, at the Supreme Court sitting in Wangaratta, the applicant was sentenced as follows:

Life Imprisonment [Contrary to s 321G of the Crimes Act 1958]

3 months' imprisonment [Contrary to s 78A(1) of the Corrections Act 1986]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

Other relevant matters: Pursuant to s 6F of the Sentencing Act 1991 on the charges of murder and incitement to murder the prisoner was sentenced as a serious violent offender.

A disposal order was made pursuant to s 78(1) of the Confiscation Act 1997.

4 The applicant now seeks leave to appeal against sentence on the following grounds:

Ground 1

The learned sentencing judge erred in failing to fix a non-parole period.

Particulars

(i) The learned judge placed little or no weight upon the submission by the Crown that a non-parole period be fixed.

(ii) The learned judge placed insufficient weight upon the utilitarian value of the plea of guilty.

(iii) The learned judge placed little or no weight upon the plea of guilty reflecting acceptance of responsibility by the applicant.

(iv) The learned judge erred in taking into account cases in New South Wales where Courts had failed to fix non-parole periods for persons sentenced to life imprisonment upon a plea of guilty to murder.

(v) The learned judge erred in failing to properly take into account 'current sentencing practices' for murder in Victoria.

(vi) The learned judge erred in failing to properly apply principles in relation to the fixing of a non-parole period and in particular saw the fixing of a non-parole period as '...sometimes the crime is so horrific, so cruel and so callous that step towards mercy becomes too difficult to take.'

Ground 2

The sentence is manifestly excessive by virtue of the fact that no non-parole period was fixed.

5 At the commencement of the hearing of this application, senior counsel for the applicant, Mr Dann QC, sought leave to recast his argument somewhat by treating particulars (i)-(iii) of Ground 1 as particulars of Ground 2. He indicated that he proposed to rely upon particulars (iv)-(vi) of Ground 1 as establishing specific error, vitiating the exercise of the sentencing discretion, but also as matters generally relevant to Ground 2. The Court granted leave to reformulate the argument in that way.

6 Before setting out, in detail, the applicant's argument, it should be understood that there was no challenge below, and none before this Court, to the imposition of a life sentence on the charge of murder. The only issue that was raised on this application was whether the sentencing judge erred in failing to fix a non-parole period.

Circumstances surrounding the commission of the murder

7 The victim, Ms Chetcuti, was aged 49 at the time of her death. She was employed in the records department at the office of the City of Wangaratta. The applicant killed her in the early hours of 13 January 2016, at a remote location near Lake Buffalo, which is 20 kilometres south of Myrtleford.

8 The prosecution case was that the likely motive for this crime was the applicant's sexual interest in Ms Chetcuti. As will be seen, this emerged from various admissions made by the applicant after he had been taken into custody. The sentencing judge observed that, in some respects, whether or not that was his true motivation was of little consequence.

9 Relevantly, Ms Chetcuti drove a red two-door Citroen coupe. The applicant, and another man, Eddie George, later burnt that vehicle to conceal what the applicant had done.

10 Ms Chetcuti's two children stayed with her on a regular basis. When they did not, she lived alone on her property at Whorouly, a settlement located about 30 kilometres from Wangaratta.

11 At the time of her death, Ms Chetcuti was living alone at Whorouly. Her children were staying with their father in Wangaratta. The applicant lived with his mother at a neighbouring property. He had previously shown interest in Ms Chetcuti, but she had not reciprocated. The evidence suggested that she was unsettled by his occasional offers to assist her around the farm.

12 Ms Chetcuti was last seen alive at the Whorouly Hotel, between 6.00 pm and 7.45 pm on the night of 12 January 2016. In the past, she and her former husband had been the publicans at the hotel. The hotel was situated only some 200 metres from the entrance to her property.

13 At the hotel that evening, Ms Chetcuti drank some beer. She spoke to a neighbour, and to the hotel publican. She left the hotel at about 7.45 pm and drove the short distance to her home. It appeared from later observations that after arriving home, she ate a meal and drank a glass of wine. She then apparently did a number of other things around the house before the applicant arrived and attacked her, in whatever form that took.

14 At the time of these events, the applicant was on parole for a number of very serious offences. These included the rape of a 15 year old girl, making threats to kill, and to inflict serious injury. Those offences had been committed in March 2005, and had resulted in a lengthy prison sentence. As at January 2016, the applicant still had about nine months of his parole period remaining to be served.

15 On the morning of 12 January 2016, the applicant had been in contact with Eddie George, a man he had known for a number of years. George lived in Myrtleford and was a drug dealer who supplied methylamphetamine to the applicant. The applicant had had longstanding drug dependency issues, and regularly used that and other drugs.

16 At 9.09 pm that night, the applicant rang Ms Chetcuti's mobile phone, but she did not answer. At around that time, she sent a number of Facebook messages to friends. The last of those messages was recorded as having been sent at 9.18 pm. The applicant later falsely told police that Ms Chetcuti had come to his home at 9.15 pm in order to collect some cherry tomatoes.

17 At 9.40 pm, the applicant again rang Ms Chetcuti's mobile phone. It seems that she answered, and a call of one minute and six seconds' duration was recorded. There was further contact between the applicant's phone and Ms Chetcuti's phone at around 9.55 pm. However, it is not known whether she actually participated in any of those calls. The sentencing judge concluded that, in all likelihood, she had not.

18 It was accepted on the plea that between 9.18 pm and 10.30 pm that night, the applicant attacked Ms Chetcuti. The sentencing judge found that, following that attack, the applicant must have bound, and possibly gagged, her. He then left her for some period of time, either at her home, or at his premises. His Honour noted that the likely scenario was that she had been left, restrained, in a shed on his property. That was because the applicant was seen, on the following day, to have 'sprayed out' the floor of that shed.

19 All the while that Ms Chetcuti was restrained, she was alive. Self-evidently, if she were conscious, the experience must have been terrifying.

20 At about 10.30 pm, the applicant drove Ms Chetcuti's Citroen to Myrtleford. This was ascertained because his mobile phone had registered in the Myrtleford area. So too, did Ms Chetcuti's mobile phone, which had remained in the Citroen. The sentencing judge found that it was unlikely that she was in the vehicle when it was driven to Myrtleford.

21 After making contact with George, the applicant obtained methylamphetamine from him. Later that night, he drove back to Whorouly in the Citroen, arriving at close to midnight.

22 His Honour found that whatever may have occurred during the applicant's initial attack on Ms Chetcuti, he must have decided to kill her by the time he returned home. He had obviously also come to realise that, in order to conceal his crime, he needed to do something about her car. In the early hours of the following morning, 13 January 2016, he once again drove the Citroen to Myrtleford, where he left it parked. He subsequently engaged a taxi to drive him back to Whorouly, returning there at about 3.30 am.

23 The applicant then drove his own vehicle, a Nissan Patrol, back towards Myrtleford. His Honour found that, during this trip, Ms Chetcuti, probably still restrained, must have been in that vehicle with the applicant. Records showed that the applicant's phone interacted with phone towers for about two and half hours, in the Lake Buffalo area.

24 His Honour found that it was during that time that the applicant murdered Ms Chetcuti. That conclusion was based upon physical evidence located at the scene where Ms Chetcuti's body was subsequently discovered, as well as toxicology findings, the opinion of the pathologist, and certain things said by the applicant, at a later stage.

25 The sentencing judge's findings as to how Ms Chetcuti met her death may be briefly summarised.

26 As previously stated, sometime between 9.00 pm and 10.30 pm on 12 January 2016, the applicant, for reasons known only to himself, attacked Ms Chetcuti, and bound and gagged her. He used cable ties, duct tape, and rope to bind her wrists and ankles.

27 The applicant took Ms Chetcuti to the Lake Buffalo area in the early hours of the following morning. While she was incapacitated, he administered, whether orally or by injection, Xylazine, a powerful animal tranquiliser. A toxicologist later found that substance in Ms Chetcuti's blood and stomach contents. The applicant also injected methylamphetamine and battery acid into her.

28 The applicant inflicted severe injuries to Ms Chetcuti's head and torso. The blows to her head caused a fracture to the right side of her skull. He fractured six of her ribs, and the signs of haemorrhage indicated that those injuries had been inflicted while she was still alive.

29 Finally, while Ms Chetcuti was still alive, bound and incapacitated, the applicant doused her with petrol, and set her body alight. The sentencing judge found that it was likely that her death had resulted from the inhalation of gases, associated thermal injury from the fire, and deprivation of oxygen. The presence of various chemicals found in petrol, which were identified in parts of her body, meant that she had inhaled the vapour, thus indicating that she had been burnt alive.

30 In all likelihood, after Ms Chetcuti had died, the applicant drove his Nissan Patrol over her body, fracturing her vertebrae, pelvis and scapula. Although he initially told police that it was George who had murdered Ms Chetcuti, the Crown submitted, on the plea, that he subsequently admitted to police that he had been in the car, and that Ms Chetcuti's body had become stuck under the vehicle, and had been dragged for some distance. Counsel for the applicant on the plea did not contest this summary of facts. However, his Honour, in his sentencing remarks, did not make a positive finding as to whether it was, indeed, the applicant who drove over Ms Chetcuti's body.

31 The applicant then left Ms Chetcuti's body by the side of the road, close to where she had been killed. His Honour observed that the applicant had treated her with absolute contempt. He described the applicant's behaviour as providing an illustration of his inability to see women as 'individual human beings.'

32 With regard to the suggestion that the applicant may have sexually assaulted Ms Chetcuti while she was incapacitated, his Honour found that he could not be satisfied, to the requisite degree, that there had been actual sexual abuse.

33 The applicant then returned to Myrtleford, still in the early hours of the morning of 13 January 2016. After going to a service station and purchasing two cigarette lighters, he left the store. He was seen on CCTV footage to have been bare footed, apparently having disposed of his shoes.

34 Later that morning, the applicant attended a car wash, where he had his Nissan Patrol washed. Some hours later, he returned and had his car washed a second time. In the afternoon he returned to Myrtleford, and for a third time, had his car washed. On that occasion, he not only washed the car, but vacuumed it throughout, including in the general area of the driver's door. He was also seen in Myrtleford later that day driving Ms Chetcuti's Citroen.

35 By the evening of 13 January 2016, the applicant had become aware of the police interest in Ms Chetcuti's disappearance. He approached police officers who were searching for her, and told them a series of lies, including when he had last seen her, and the reasons for that contact. He also suggested that they search in the vicinity of the Ovens River, which he knew, of course, would be futile.

36 Part of the applicant's false narrative regarding his last contact with Ms Chetcuti on 12 January 2016 included a claim that she had come to his home that night to collect some cherry tomatoes. He said that she had arrived sometime after 9.00 pm. As his Honour observed, that particular lie was intended to provide an innocent explanation for his contact with her on the night she disappeared. In order to bolster this story, he placed a container of those tomatoes in her refrigerator. What he failed to appreciate was that the container bore only his fingerprints, and not hers.

37 Later that night, the applicant again drove to Myrtleford. The purpose of that trip was to obtain more methylamphetamine from George. He also asked George to help him in carrying out an insurance job for some drug dealers, which would involve the destruction of a motor vehicle.

38 George agreed to assist. Sometime after 4.30 am on the morning of 14 January 2016, the applicant drove Ms Chetcuti's Citroen to a location along Halls Road, near Lookout Hill. George, driving the applicant's Nissan Patrol, also attended the scene. There, the Citroen was set alight. Following this, the applicant and George left the scene together in the Nissan Patrol.

39 Having done all this, the applicant then took every conceivable step to avoid responsibility for Ms Chetcuti's murder.

40 On the afternoon of 14 January 2016, police came to the applicant's house and asked him to make a sworn statement about his last contact with Ms Chetcuti. In that statement, he told a series of elaborate lies. He described having had a conversation with her on the night of 12 January and inviting her to come to his house in order to collect some tomatoes. He said that she had given him her mobile phone number. After she had arrived, they had chatted about 'farm stuff.' He told police that she had left his house at about 9.15 pm, and that this was the last time he had had any contact with her.

41 His Honour observed that the lies told by the applicant were designed to explain why his mobile phone would record telephone contact with her. After completing his written statement, the applicant again approached police and told still more lies. He said to them that he had been in the Citroen 'the other day', which would explain why they might find his cigarette lighter in that vehicle.

42 On 15 January 2016, it was proposed that the applicant, his mother, and his sister would all go on holiday together to Lakes Entrance. However, having set off on the trip, he decided, after a short distance, to return home. As his Honour observed, by this stage, he was clearly feeling the pressure of the investigation, and the need to monitor its progress closely.

43 Later that day, the applicant had a lengthy conversation with two members of the Homicide Squad. He continued to deny any involvement in Ms Chetcuti's disappearance. He claimed that locals were 'pointing the finger' at him simply because he was on the sexual offender's register, by reason of his earlier conviction for rape. He said that he hoped Ms Chetcuti would be found safely, or if not, that the police would find the person who had 'done it.' His Honour commented that bearing in mind what the applicant had done, his callousness and lack of any regret was extraordinary.

44 That day, the applicant also had a conversation with a journalist from The Age. He acknowledged having had contact with Ms Chetcuti on the night of 12 January 2016. He said that the person or persons who killed her must have been waiting for her when she returned home. He claimed to have heard cars leaving the area at night, and to have seen Ms Chetcuti's car in Myrtleford.

45 On 16 January 2016, the applicant's elaborate charade continued. At about 1.47 pm, he phoned his solicitor and told him that he had been kidnapped by two Lebanese men. He said that he was being held in the boot of his car. As a result, the solicitor rang the police, who circulated a description of that vehicle throughout Victoria.

46 In fact, at that stage, the applicant was in Melbourne, having driven there in his white Holden Calais. His image was recorded on CCTV withdrawing cash from various ATMs.

47 In the early hours of Sunday 17 January 2016, police identified the Calais in St Kilda. They attempted to intercept the applicant. This led to a high-speed pursuit which occupied more than an hour. It ended in Ringwood, where the applicant was arrested.

48 In an interview with police which followed, the applicant put forward yet another version of the circumstances surrounding the death of Ms Chetcuti. He now introduced two fictional Lebanese men who, he suggested, must have murdered her. He claimed that there was little that he could say about those men because they had threatened both his family and him.

49 The applicant later told police that the men had told him where Ms Chetcuti's body was located. He offered to assist them with that information. Plainly, he was also seeking to implicate George in Ms Chetcuti's murder.

50 Meanwhile, police and volunteers searched the Lake Buffalo area for Ms Chetcuti's body. On the plea, the applicant claimed that the only reason that the police had searched in that area was because of the information that he had provided to them, and sought to rely upon that as a mitigating factor. In fact, the police were searching in that area because they had received information from another source about possible scuff marks at the spillway area of the lake. As the sentencing judge noted, everything the applicant had said to police was intended to divert them from the truth, and to protect himself from being charged with murder.

51 Late in the evening of 17 January 2016, police took the applicant to Myrtleford. He offered to show them where Ms Chetcuti's body was located. He directed police to various off-roads, pretending to disclose the correct location. This charade went on into the early hours of 18 January.

52 During that time, the applicant gave a series of false accounts as to what had happened to Ms Chetcuti. He claimed that the two Lebanese men had bound and gagged her in her car, and that they had threatened him with a gun not to say anything. He claimed that these same men had later told him how they had killed her by setting fire to her body, bashing her with bars, torturing her, and driving over her with a car. Later, he seemed to suggest that George had somehow become involved with the two men, and expressed concern that, because he had assisted in the disposal of the Citroen, he may inadvertently have become more involved with her disappearance than he originally thought.

53 The applicant was told that police had spoken to George, who had made a statement concerning the assistance he had provided to the applicant in destroying the Citroen. As a result, the applicant abandoned the story of the two Lebanese men and gave yet another version of events to police. Now, he claimed that it was George who had killed Ms Chetcuti, although he acknowledged that he had been present when that had occurred.

54 On 18 January 2016, in the holding cell at Wangaratta Police Station, the applicant spoke to another police officer and outlined to him his newest and latest set of lies. He said that he was 'not the one who knocked her' but that it was 'all Eddie.' He claimed that George had been at his place at Whorouly when Ms Chetcuti was there having coffee. He said that George had drugged her coffee with animal tranquiliser. He claimed that George had driven off with her in the Citroen, and had later returned to the applicant's house with her bound and gagged body in the boot. He said that George had subsequently killed her by running her over, but before doing so, George had tried to set her on fire.

55 The applicant expressed frustration to the police at having to tell this story a number of times. He complained that although George was responsible for Ms Chetcuti's death, he was now seeking to put the blame on him.

56 The applicant offered to identify the place where all this had occurred. In order to allow him to do so, the police drove him, that morning, to the Lake Buffalo area. However, before they arrived there, Ms Chetcuti's body had been located by searchers.

57 Police did not tell the applicant that Ms Chetcuti's body had been found. Nonetheless, he did direct them to the exact location where she had met her death. At that scene, he again provided a description of what he claimed had occurred. In all likelihood, this was an accurate account of what had taken place, except that it was the applicant, and not George, that carried out all of the various criminal acts.

58 At the scene, the applicant claimed that George had taken Ms Chetcuti out of the car, removed her clothing and gagged her mouth. He claimed that George had then doused her with petrol and injected battery acid into her arm. George had then ignited the petrol. He said that Ms Chetcuti was still alive at that stage as she could be heard screaming in pain through the gag. The applicant then claimed that George reversed over her with the car, and that he had then pushed her body off to the side. Her discarded clothing was later located among the blackberries near the side of the road.

59 On 19 January 2016, a post-mortem was conducted on Ms Chetcuti. That examination revealed just how violent an attack had been mounted against her. It revealed that she had been administered Xylazine and methylamphetamine. The immediate cause of death was described as burning, and the effects of fire, coupled with blunt force trauma to the head and torso.

60 The applicant was charged with murder on 19 January 2016. His Honour described the case against the applicant as 'almost overwhelming', as indeed, it was.

Circumstances surrounding the incitement to murder

61 After his arrest, the applicant was held in custody at the Metropolitan Remand Centre ('MRC'). He subsequently became aware that George had made a statement to police about how he had assisted the applicant in the destruction of Ms Chetcuti's car.

62 Some months later, in September 2016, the applicant became friendly with BC, another prisoner at the MRC. He began to discuss his general circumstances and his case with that prisoner.

63 The applicant originally told the other prisoner that George had murdered Ms Chetcuti and that he had simply been present when that occurred. Ultimately, however, the applicant confessed to BC that is was he who had murdered her. He also told BC that he had been sexually attracted to her. He gave BC quite a detailed account of what he had done, and why. He also told him that George's only involvement in this matter was when George and himself had set fire to her motor vehicle.

64 By this stage, the applicant knew that George would be a prosecution witness. He told BC that George represented 'a big problem', and that he needed to 'get rid of him.' He asked BC whether he knew anyone who would, for payment, murder George.

65 BC passed on that information to police. The result was that the applicant was later provided by BC with a name and phone number for a man who, it was said, would kill George for a price.

66 The man was, in fact, a covert police operative. The applicant came to know him as 'Matty Thompson.' Thompson had several conversations with the applicant, and had visited him in custody on 6 March 2017. The agreement reached was that Thompson would murder George, and that his death would be made to look like a suicide by drug overdose. George was to be forced to write a suicide letter, confessing to the murder of Ms Chetcuti. The applicant provided Thompson with details of where George could be found. He also told Thompson that it was George who had, in fact, murdered Ms Chetcuti.

67 The applicant promised to pay Thompson $25,000 for killing George. Given that he was in custody, he told Thompson that the money would be handed to him in two tranches by the applicant's mother, Maria Cardamone. The applicant confirmed on a number of occasions that he did want George killed. On 23 March 2017 a package containing some $9,000 in cash was delivered by his mother to another covert police operative. His mother was subsequently charged in relation to her role in this offending.

68 On 29 March 2017, the applicant was falsely told that George had been murdered. Pursuant to the arrangement, Thompson was required to provide a photograph of George's body. The applicant told Thompson to show the photograph to his mother. Police then intervened. The applicant was charged with incitement to murder, as was his mother.

69 The sentencing judge observed that the crime of incitement to murder was, on its own, a very serious offence. That was evidenced by the fact that it carried a maximum penalty of life imprisonment. The applicant's conduct, in that regard, was not only aimed at the murder of another person, but was intended to gain a benefit for himself by striking at the heart of the very process of criminal justice upon which the community depended. His Honour was there referring to the fact that a witness in the case against him was the target for murder with the intention of preventing him from giving evidence.

70 The sentencing judge, who has, of course, been involved with the criminal law for literally decades, commenced his sentencing remarks by presenting a brief overview of the overall offending. In the course of doing so, he observed:

... I believed I had ceased to be amazed at the level of violence that some men are capable of inflicting on defenceless women, but what you did to Karen Chetcuti over a number of hours and for no apparent or logical reason, does indeed amaze me.

...

I will shortly return to the detail of that but this much is clear on the material. Your conduct in relation to the murder of Ms Chetcuti was extraordinarily vicious, callous and thoroughly unprovoked. The crime you committed was, quite simply, horrifying, depraved and disgusting.[1]

71 His Honour dealt, at some length, with the applicant's personal circumstances, including his mental state, lack of remorse and poor prospects of rehabilitation. He noted that the applicant did not take issue with the proposition that the only appropriate sentence in respect of the murder of Ms Chetcuti was one of life imprisonment. The only question to be considered was whether a non-parole period should be fixed.

72 His Honour said that the applicant's counsel had placed heavy reliance upon his client's plea of guilty, and 'acceptance of responsibility' as the basis for the submission that a non-parole period should be fixed. This was not an early plea, but had been entered some 17 months after the murder of the deceased, and only a month before the trial was scheduled to take place.

73 The plea itself only came after the applicant's mother had been arrested in relation to the plan to murder George. Up to that point, the applicant had done everything he could to avoid the consequences of his actions. He had lied repeatedly to police, and devised a series of elaborate measures to throw them off the track.

However I do accept, as your counsel pressed, the utilitarian value of your plea of guilty. It avoided the need for a trial that was estimated to take as much as six weeks, with the associated trauma and upset for the family and friends of the deceased. Your plea also reflects your acceptance of responsibility for what you have done. Your counsel has argued that your plea of guilty was a strong reason for me to fix a non-parole period if I were to sentence you to life imprisonment. In the written submissions, the Chief Crown Prosecutor submitted that you are entitled to a sentencing discount for the utilitarian value of your plea.[2]

75 His Honour then set out, with some care, his reasons for imposing a life sentence on the charge of murder, and a term of eight years' imprisonment on the charge of incitement. On the summary charge of breach of parole, the applicant was sentenced to the maximum penalty of three months' imprisonment.

76 Turning to the question whether there should be a minimum term fixed, his Honour referred to s 11(1) of the Sentencing Act 1991 which governs the fixing of non-parole periods. That subsection provides as follows:

(1) If a court sentences an offender to be imprisoned in respect of an offence for -

(a) the term of his or her natural life; or

(b) a term of 2 years or more -

the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.

77 His Honour then went through the exercise of balancing the competing considerations, both in favour of, and against, the fixing of a non-parole period in the circumstances of the present case. He said:

As I have said previously, to refuse to fix a minimum term is an exceptional step and is a dreadful punishment; but this was a dreadful crime. It is true, as Mr Tehan put to me, that civilisation is judged by how we treat people like you and very often mercy is appropriate. However sometimes a crime is so horrific, so cruel and so callous that a step toward mercy becomes too difficult to take.

...

In Victoria, as I have mentioned, the only sentences for murder where a minimum term was not fixed after a plea of guilty have been in cases where the accused had one or more prior convictions for murder.[3] Obviously you do not fall into that category of offender. This however is not the case in NSW. In that state, there have been a number of cases in which offenders have been sentenced to life without parole for murder following a plea of guilty and in the absence of prior convictions for that offence.[4] Indeed, in Standford and Knight neither offender had any prior convictions at all.

Returning to Victoria, in Coulston,[5] the Court of Appeal, I acknowledge speaking in the context of three verdicts of guilty for murder and other offences after a trial, said:

Sentencing judges must remain fully conscious of what has been said in decisions of the highest authority about rehabilitation and the beneficial objects to be served by the fixing of a non-parole period. They will remain well aware that a sentence of life imprisonment with no possibility of parole is a sentence of the utmost severity. It is a dreadful sentence, at all events for an offender who is not of advanced age. But dreadful crimes, especially where the past history is bad, may require a dreadful punishment.

As I noted above, Mr Silbert submitted that the utilitarian benefit of the plea entitled you to a sentencing discount. That was a matter that your counsel heavily relied upon during argument. I am not, however, bound by the prosecutor's submission to the extent that it suggests that a non-parole period should be imposed. That the benefit must be given weight in the sentencing exercise does not necessarily lead to that conclusion.

As to whether your plea of guilty with its utilitarian benefits should result in a minimum term being fixed ultimately depends on my assessment of whether or not this case is in an exceptional category because of the gravity of your offending. I do consider your conduct to be of such an order that the fixing of a non-parole period is not appropriate.[6]

78 Mr Dann commenced his submissions by acknowledging that his client's overall offending fell into the worst category, reserved for the imposition of the maximum penalty, as set out by the High Court in R v Kilic.[7]

79 He submitted, however, that the failure to set a non-parole period had been 'unprecedented' in this State. There had been two other instances where individual accused had pleaded guilty to murder, but had not received a minimum term. However, these were both cases where the offenders had prior convictions for that very offence.[8]

80 In Hunter v The Queen ('Hunter'), the applicant had a prior conviction for murder some 26 years earlier. There were similar aggravating circumstances regarding the commission of the offence. In addition, the applicant had both concealed and destroyed the body of the deceased. He was in breach of parole when he committed the instant offence.

81 The majority (Maxwell P and Coghlan JA) ordered that the appeal be dismissed. That was so, notwithstanding the sentencing judge having properly acknowledged the utilitarian benefits of the applicant's plea of guilty, and the strong public interest in encouraging those charged with serious offences to acknowledge their guilt, and plead guilty. When the competing considerations were weighed up, their Honours said it was simply not possible to conclude that it had not been reasonably open to the sentencing judge to decline to fix a non-parole period.

82 The majority referred to two previous cases where life without parole had been imposed for murder.

83 The first was R v Coulston ('Coulston'),[9] where the applicant had been convicted, after a trial, of the murder of three young people. Each of them had been shot at close range, in the back of the head, after being bound and gagged. The sentencing judge spoke of the 'wicked nature' of the crime as sufficient, in itself, to justify a refusal to fix a non-parole period.[10]

84 In Hunter, the majority agreed with the reasoning in Coulston in rejecting several propositions that had been advanced in that case. In particular, the majority said that it was wrong to start with the assumption that it would scarcely ever be appropriate to refuse to fix a non-parole period in a case of murder, and that such a refusal could be expected to arise only very rarely, perhaps once in a decade. It was also wrong to approach the fixing of a non-parole period on the basis that many cases of murder involve sickening conduct on the part of the accused, so that too much weight should not be given to the horrific circumstances present in any given case. Finally, it was wrong to think that the fact that an offender was to be sentenced for more killings than one was irrelevant, or of little weight, in deciding whether to fix a non-parole period.

85 In Coulston, this Court observed that horrifying murders were not as rare as they used to be. That should not lead to the conclusion that they might not, in appropriate circumstances, be punished with the utmost severity.

86 The majority in Hunter also referred to R v Lowe,[11] where a sentence of life imprisonment without parole was upheld. The applicant in that case had been convicted after a trial of the kidnapping and murder of a six year old girl. He was aged 57 when sentenced. The crime in question was a particularly vile one, with no redeeming features. The applicant had previous convictions which were also relevant and taken into account in the decision to refuse a minimum term.

87 Returning to Hunter, the applicant in that case had been convicted in 1986, when aged 20, of the murder of a young girl with whom he had been working at a local supermarket. When she resisted his advances in a secluded carpark, he stabbed her with a knife seven times in the throat and heart. He attempted to conceal his crime by taking his victim's body to a remote location, where he splashed petrol over the body and set fire to it. He was sentenced for that original murder to 16 years' imprisonment with a non-parole period of 13 years.

88 After being released on parole for that offence, the applicant committed other offences involving violence. In April 2011, he was released on parole for those other offences, and in October 2012, he completed that period of parole. Within weeks, he murdered his second victim, a young woman aged 22. He was aged 47 at the time. The circumstances of that murder involved the applicant having lost self-control, and struck the victim to the head with a hammer. He then stabbed her repeatedly, some 10 separate times to the head and neck, seven times to the chest and abdomen, and twice to the upper limbs. Shortly thereafter, as he had done in 1986, the applicant went to great lengths to conceal the crime and dispose of his victim's body. He concealed the body in a wheelie bin, inside a garage, embedded within a quantity of rapid-set concrete and lime.

89 Although the murder was unplanned, unpremeditated and spontaneous, the majority in Hunter accepted that the sheer brutality of the killing, coupled with the applicant's concealment and ultimate destruction of the body, had justified the refusal to fix a non-parole period.

90 Justice Priest dissented. He noted that there had only been one occasion in more than two decades where a person pleading guilty to murder had been denied a non-parole period. That was the matter of R v Coombes ('Coombes'), where Nettle JA declined to fix a non-parole period for the strangulation murder of a young woman, whose body had been dismembered in circumstances where the offender had two previous convictions for murder. He pointed to a number of other cases which, he considered, involved murders every bit as horrific as that of Hunter, where nonetheless, minimum terms had been fixed.[12]

91 Put simply, Priest JA considered that the sentencing judge had given excessive weight, in determining not to fix a minimum sentence, to the applicant's risk of future violence. That constituted specific error, which vitiated the decision not to grant a non-parole period. In addition, his Honour considered that the sentence was manifestly excessive, having failed to give sufficient weight to the utility of the plea of guilty. He would have fixed a non-parole period of 35 years.

92 We have already said enough about Coombes to explain why, in that case, no non-parole period was considered appropriate.

93 As mentioned earlier, Mr Dann relied on these two cases, Hunter and Coombes, to make good his point that the refusal to grant a non-parole period in the present case was relevantly unprecedented, and not in accord with 'current sentencing practices.'

94 In effect, Mr Dann relied upon these introductory remarks to support particular (v), dealing with the failure adequately to have regard to 'current sentencing practices' when the sentencing judge denied a minimum term.

95 Next, Mr Dann turned his attention to particular (iv), irrelevant considerations, bearing in mind that this was said to constitute specific error.

96 It will be recalled that the point made was that the sentencing judge had erred by taking into account a series of New South Wales cases where courts had failed to fix non-parole periods for persons sentenced to life imprisonment, despite their having pleaded guilty to murder.

97 Mr Dann submitted that insofar as his Honour had thought it appropriate to refer to those cases (as cited in his Honour's sentencing remarks, set out and emphasised at [77] of our reasons), he had taken into account an irrelevant consideration. It was submitted that the New South Wales cases were of no relevance at all because the legislation governing the fixing of non-parole periods in that State, at the relevant time, had precluded the fixing of a minimum term whenever a sentence of life imprisonment had been imposed for murder. Mr Dann pointed out that in one of the New South Wales cases to which his Honour referred, the Court had indicated that had it not been for that legislative prohibition, a non-parole period would have been fixed.

98 The next stage of Mr Dann's argument on this point was that the reference by the sentencing judge to these New South Wales cases may just have tilted the balance against fixing a non-parole period. Even the possibility that this may have occurred was said to be sufficient to vitiate the exercise of the sentencing discretion.

99 Mr Dann's submission was met with a question from the President, inviting him to consider whether the reference to the New South Wales cases might have been entirely appropriate, as a response to the submission put on the plea that the refusal of a minimum term was unprecedented. The fact that murder was a common law offence, the elements of which were broadly the same throughout this country, must have meant that it was relevant to have regard to how other courts, in other States and Territories, had dealt with particularly horrendous examples of this offence.

100 Mr Dann took issue with the President's question, and maintained his submission that the sentencing discretion had miscarried by reference to an irrelevant consideration.

101 The reference to the New South Wales authorities does not amount to a vitiating error. The mention of those authorities is of no moment when they are read in the context of the whole of his Honour's sentencing remarks and taking into account the submissions made at the plea which invited a response.

102 The next matter to which Mr Dann drew attention arose from his Honour's observation, in his sentencing remarks, that 'sometimes the crime is so horrific, so cruel and so callous that a step towards mercy becomes too difficult to take.' It will be recalled that this complaint is embodied within particular (vi), as what is postulated to be specific error.

103 Mr Dann developed his submission regarding this particular point by arguing that the imposition of a minimum term, and whether, in a particular case, it should be denied, could only be determined in accordance with the strict language of s 11 of the Sentencing Act 1991. Assuming that his Honour considered that fixing the non-parole period, in a case such as the present, required a resort to the notion of 'mercy', that would constitute an error of a kind that vitiated the decision under challenge.

104 Mr Dann's submission in this regard was challenged by the Court, having regard to the fact that counsel on the plea, on behalf of the applicant, had specifically sought to invoke 'mercy' in support of the contention that a minimum term should be fixed. In these circumstances, it could hardly be said that his Honour's response, as set out above, demonstrated some form of vitiating error. In particular, as the President observed, if the sentencing judge had prefaced his observation about 'mercy' by simply stating that he had been asked to accord 'mercy' to the applicant by fixing a non-parole period, there could never have been a legitimate basis for criticism.

105 At that point, Mr Dann turned his attention to Ground 2. He referred to Phillips v The Queen,[13] where a specially constituted bench of five had stated that a discount for the utilitarian benefit of a plea of guilty was always to be allowed save for the 'exceptional category of case.' That exceptional category arose where the gravity of the offending conduct was of such an order that no discount from the maximum sentence was appropriate. The Court went on to lay down a number of principles governing the application of s 5(2) of the Sentencing Act 1991, which requires a sentencing judge to have regard to 'whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so, or indicated an intention to do so.' Among other matters, the Court considered the weight to be accorded to a plea of guilty in the face of a strong prosecution case.

106 Mr Dann noted that had the applicant not chosen to plead guilty, the trial would have been a particularly long one, estimated to be about six weeks. That meant that the plea had significant utilitarian value. In addition, although there was no remorse, there was 'acceptance of responsibility.'

107 The Court noted that one difficulty with that submission was that these factors had been specifically, and carefully, considered by the sentencing judge, and treated as significant factors pointing towards the fixing of a non-parole period. However, after giving them full weight, his Honour had concluded that the balance fell against the fixing of a minimum term, and there was nothing to suggest that it had not been reasonably open to him to arrive at that conclusion.

108 Mr Dann submitted that, realistically, any non-parole period fixed in the present case would be of such duration that the applicant would have only a slender chance of ever being released on parole for anything other than an extraordinarily short period. He spoke of a non-parole period exceeding 30 years being the figure that he had in mind.

109 Finally, Mr Dann addressed particular (i) which, it will be recalled, asserted that the Crown (through the Chief Crown Prosecutor who appeared on the plea) had submitted before the sentencing judge 'that a non-parole period be fixed.'

110 One difficulty with that submission, as was pointed out by the Court, is that it misstated what had occurred before the sentencing judge.

111 When Mr Tehan QC was addressing the sentencing judge, he said this:

The issue of a non-parole period. And let me put it straight up to Your Honour, that the Crown accept - their position is that a non-parole period should be imposed in this case, and my learned friend and I naturally had discussions about that matter, as Your Honour would undoubtedly appreciate, and that is the position of the Crown.

112 The transcript of Mr Silbert QC's reply to Mr Tehan, regarding the Crown's position with regard to a minimum term being fixed, makes it clear that Mr Tehan's submission did not accord with the position that the Crown asserted. The transcript of Mr Silbert's submissions on this point reads as follows:

Now, dealing with some of the matters raised yesterday by my friend, my friend's account of our discussions is slightly nuanced, Your Honour, and I need to clear it up. We certainly did have discussions and what I said to my friend is that without a plea of guilty he had no hope of a minimum term. With a plea of guilty he had a chance and with a plea of guilty I said I would not object to his submission that a minimum term was appropriate.

Now, Your Honour, it was said it was ultimately a matter for Your Honour and it remains a matter for Your Honour. That is the form of the agreement that was made. I say that just to emphasise that certainly I've honoured what I said and I have said nothing in opposition to my friend's application. The matter is entirely one for Your Honour and I don't say any more in relation to it.

113 Plainly, there is a significant difference between Mr Tehan's formulation of the Crown's position, and that adumbrated by Mr Silbert. One might ask, in any event, why, in the light of Barbaro v The Queen,[14] the Crown's position as regards the fixing of a non-parole period should be regarded as having any special significance. Certainly, any such concession, if made, could not bind his Honour.

114 A number of the Director's submissions, in oral argument, have already been brought out in the summary of the applicant's arguments set out above.

115 There are one or two additional matters. The first is the Director's submission that the reference to the New South Wales cases should be understood as nothing more than a 'passing reference', and one that could not be shown to have influenced, to any significant degree, his Honour's ultimate decision to refuse to fix a non-parole period.

116 The Director submitted that the cases upon which Mr Dann had relied, including, in particular, Hunter and Coombes, as well as Phillips, were of no assistance to the applicant's position. They did not support any principle to the effect that a sentencing judge could only decline to fix a non-parole period (where the accused had pleaded guilty to murder), if he or she had a prior conviction for that offence. Any such gloss upon s 11(1) of the Sentencing Act 1991 would be entirely unwarranted. We agree.

117 As regards the contention that his Honour had fallen into specific error with regard to his comment about 'mercy', the Director simply submitted that there was no justification for any such conclusion. There was nothing to suggest that he had approached the matter of the non-parole period through the 'prism of mercy.' Rather, he had simply responded to an attempt by counsel for the applicant, on the plea, to invoke that concept in support of a minimum term.

118 With regard to the submission that the sentence overall, which of course included the refusal to fix a non-parole period, was manifestly excessive, the Director drew attention to several relevant matters. She argued that the applicant's past history, and in particular, his prior conviction for the violent rape of a young girl, showed him to be a danger to women, and someone who had no realistic prospects of rehabilitation. The rape itself had been committed against a 15 year old girl while threatening her with a large wrench, and threatening to kill her and her family if she did not comply with his demands, or if she said anything about his offending to anyone.

119 To make matters still worse from the applicant's point of view, the offence of incitement to murder was itself extremely serious, demonstrating, yet again, that he had no regard for human life, and would inevitably pose a danger to the community if he were ever to be released.

120 It was a further aggravating factor that the offences before the sentencing judge were committed whilst the applicant was still on parole for the various 2006 charges.

121 Finally, it was noted that the applicant was a serious violent offender for these offences.

122 It need hardly be said that the murder of Karen Chetcuti was a horrendous crime, committed in the most appalling way. It was, as the sentencing judge observed, 'unprovoked and extraordinarily violent' as well as being 'horrifyingly callous.'

123 In addition, the applicant's conduct in the days after the offence included numerous elaborate acts, and lies told, in order to avoid detection and focus the investigation elsewhere. His attempt to implicate George in the death of the deceased was reprehensible. So too was his attempt to have George murdered in order to 'save his own skin.'

124 The plea of guilty was by no means an early plea. There was no remorse at all, nor even any expression of regret. Apart from his previous conviction for rape, the applicant's other 2006 convictions also involved serious offending.

125 The murder of Ms Chetcuti was pre-meditated, and committed in circumstances of the utmost cruelty. It was committed by an offender who had already shown himself to be a serious threat to women, and who had offended again not long after being released from two very long stints in prison.

126 To make matters worse, the applicant then set about trying to have another murder committed, this time solely to save himself from his just deserts. He had also involved his mother in that enterprise, resulting in her having been charged.

127 There was no suggestion that the applicant suffered from any mental disorder, or other impairment, of a kind that could give rise to Verdins[15] considerations. The material before the sentencing judge suggested that the applicant was nothing more than an unfeeling sociopath, who was perfectly prepared to inflict the most extraordinary suffering on his victim.

128 Giving full weight to the utilitarian value of the plea of guilty, there was really nothing else that the applicant could call in aid, by way of mitigation, to support his claim to a minimum term.

129 The sentence of life imprisonment with no non-parole period was, as his Honour stated, a dreadful punishment. It was, however, a punishment for a dreadful crime. It was, in the exceptional circumstances of this case, well merited.

[1] R v Cardamone [2017] VSC 493 [5]-[7] ('Reasons').

[3] See R v Hunter [2013] VSCA 385; R v Coombes [2011] VSC 407. In relatively similar cases where pleas of guilty were entered, non-parole periods were fixed - see R v Bayley [2013] VSC 313 ('Bayley'); R v Dinsley [2013] VSC 631.

[4] R v Stanford [2016] NSWSC 1434; Knight v The Queen [2006] NSWCCA 292; R v Leonard (Unreported, New South Wales Court of Criminal Appeal, 7 December 1998); R v Harris [2000] NSWCCA 469; (2000) 121 A Crim R 342.

[5] [1997] 2 VR 446 ('Coulston').

[6] Reasons [90]-[95] (emphasis added).

[7] [2016] HCA 48; (2016) 259 CLR 256.

[8] Hunter v The Queen [2013] VSCA 385 ('Hunter'); R v Coombes [2011] VSC 407 ('Coombes').

[9] (1997) 2 VR 446.

[10] The majority referred to R v Denyer [1995] VicRp 12; [1995] 1 VR 186 ('Denyer'); R v Iddon (1987) 32 A Crim R 315 as examples of horrific murders where, notwithstanding the nature of the offending, non-parole periods had been fixed.

[11] [1997] 2 VR 465, 488 (Winneke P, Brooking JA and Southwell AJA).

[12] Denyer; R v Beckett [1998] VSCA 148; R v Camilleri [2001] VSCA 14; (2001) 119 A Crim R 106; R v Brazel [2005] VSCA 56; (2005) 153 A Crim R 152; R v Williams [2007] VSC 131; Hudson v The Queen (2010) 30 VR 610; Bayley [2013] VSC 313.

[13] [2012] VSCA 140; (2012) 37 VR 594.

[14] [2014] HCA 2; (2015) 253 CLR 58.

[15] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.