Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Attempted murder (two counts) - 20 years' imprisonment with a non-parole period of 15 years.

Respondent: Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 15

1 Appeal allowed (insofar as it relates to the non-parole period).

2 The order by which the appellant was granted a non-parole period of 15 years is quashed.

1. The appellant is to be eligible for parole after he has served 12 years of the head sentence imposed.

1. I have had the benefit of reading in draft form the reasons of Estcourt J in this matter. I agree in substance with those reasons and the outcome he proposes. I would also allow the appeal. In doing so, I would not interfere with the head sentence of 20 years' imprisonment. I would however quash the order setting a non-parole period of 15 years, and in its place order that the appellant be eligible for parole when he has served 12 years of the sentence imposed.

1. I agree with Estcourt J that the sentence of imprisonment of 20 years for the commission of the two crimes of attempted murder in this case was not manifestly excessive. In my view, the head sentence was justly proportionate to the gravity of the crimes and met the needs of deterrence, punishment and denunciation.
2. The appellant's submissions related to whether these crimes justified a higher sentence than considered by the Court of Criminal Appeal in Burling v Tasmania [2007] TASSC 104. The sentence in Burling is the heaviest sentence previously imposed in this jurisdiction since 1978 for the crime of attempted murder, with one exception involving 20 counts. In Burling, the Court of Criminal Appeal rejected an appeal with respect to a sentence of 15 years' imprisonment with a non-parole period of 10 years for two counts of attempted murder. Submissions referred to Burling as having extended the range of sentences for crimes of attempted murder, and that the sentence in this case, being five years beyond the "extended range", suggests that excess is plainly apparent. It was submitted that the conduct was not markedly more severe in this case. The Crown was drawn into this debate and submitted to the contrary. I agree with the reasons of Estcourt J that the crimes in this case do justify a higher sentence than that imposed in the case of Burling, but I wish to comment on some matters of principle bearing on the comparative exercise that the Court was invited to undertake.
3. While it is necessary to have regard to past sentences to ensure "reasonable consistency" (Hili v The Queen (2010) 242 CLR 242 at [49] and [53]), such sentences do not set rigid parameters, and the heaviest sentence historically imposed for a particular type of crime does not constrain the court's sentencing discretion. The past sentence of Burling does not set an upper limit for two counts of attempted murder which cannot be exceeded unless justification for a longer sentence is established. Indeed, this was explained in the decision of Burling, where Underwood CJ at [9] considered a contention that undefined error was indicated because the sentence was significantly heavier than past sentences for attempted murder:

"The fact that a sentence for a particular crime is longer than any previous sentence imposed for the commission of the same crime does not, per se, indicate undefined error in the exercise of sentencing discretion. Prior sentences set a framework to which reference should be made, and properly used, that reference will assist maintenance of the consistency principle, but in each case, sentence must be determined having regard to the gravity of the criminal conduct, its impact on, and consequences for, those affected by the conduct, and the circumstances of the individual offender."

1. The correct approach to seeking consistency with sentences imposed in other cases is well-established. The consistency that is sought is not demonstrated by, and does not require, "numerical equivalence", but rather, consistency in the application of the relevant legal principles: Hili at [48] and [49]. By considering the circumstances that have given rise to the sentence, unifying principles may be discerned. Previous sentences encapsulate the "accumulated wisdom and experience of first instance judges and appellate courts": Hili at [48]-[54], quoting Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [303]. Sometimes a history of sentences can establish a range of sentences. Even if there is an established range, that history does not mean that the range is the correct range, or that the upper or lower limits are the correct upper and lower limits: see Hili at [48]-[54], again quoting Simpson J in DPP (Cth) v De La Rosa at [303]-[304]. Moreover, an established or discernible range has not been established for attempted murder. In Burling, Underwood CJ at [18] stated that, "having regard to the wide variety of conduct constituting the crime it cannot be said that there is really any 'tariff' for the crime of attempted murder".
2. It was argued that the sentence imposed on the appellant approached the range of sentences imposed for murder. A feature of this case of attempted murder is that the appellant very nearly effected his purpose. If not for the fact that a door or window of the motor vehicle was slightly open, the children and the appellant would have perished. Further, we are here concerned with two counts of attempted murder, and a comparison with sentences for one count of murder, for the purpose of showing excess, is not a valid exercise. It appears from a consideration of past sentences imposed for cases involving premeditated murder and two victims, that, generally, such sentences are a great deal longer than that imposed in this case. Such cases have attracted a term of imprisonment of double or more than double the length of that imposed in this case.
3. While I am in agreement with Estcourt J as to the head sentence, I disagree with his conclusion as to the non-parole period. In my view, the setting of a period of 15 years before the appellant may be eligible to apply for parole was not an erroneous exercise of the sentencing discretion.
4. In a case where the head sentence is not manifestly excessive, and 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]. The question is to be framed in this way because there is no ground asserting specific error with respect to the fixing of the non-parole period; the only ground of appeal is that the sentence was manifestly excessive. To succeed in this appeal, the appellant must show that the sentence as a whole was unreasonable or plainly unjust. To demonstrate undefinable error of this kind, manifest excess in the sentence must be plainly apparent by reference to all the matters that were relevant to fixing the sentence (and fixing the non-parole period).
5. As will be discussed, the fixing of the non-parole period is an exercise of discretion undertaken with reference to established sentencing principles, requiring consideration of the individual facts of the particular case. It is acknowledged that the non-parole period imposed may render the sentence manifestly excessive in view of the circumstances of the case, even though the particular head sentence is not excessive: Groenewege per Porter J at [57]-[60]. In setting a non-parole period beyond the minimum period, a sentencing judge is increasing the severity of the punishment by delaying the possible time for release from prison: Gill v The Queen unreported_,_ Supreme Court of Tasmania, 17 August 1990, per Crawford J (as he then was) at 7. 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 the light of the head sentence: Groenewege per Porter J at [57]. It could not be otherwise: the non-parole period is integral to the sentence. This proposition from Groenwege was emphasised by the respondent in the context of a submission that a non-parole period of 75% of the head sentence was a relatively high percentage, and that percentage made the non-parole period and the overall sentence manifestly excessive. Implicit in this submission is that departure from the usual approach of the court, in terms of the ratio of non-parole period to head sentence, is in itself indicative of error.
6. In Hili, consideration was given to a similar argument in relation to a sentence imposed under the Crimes Act 1914 (Cth) of 18 months' imprisonment with a recognizance release order to take effect after seven months. On re-sentencing, the New South Wales Court of Criminal Appeal sentenced the appellant to a term of three years with a recognizance release order to take effect after 18 months. Such orders fixing a pre-release period fulfil a similar role to orders for parole eligibility. The High Court rejected a standardised approach to fixing the period to be served in prison before release on a recognizance release order. In the plurality judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, it was said at [13] that there neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence or otherwise) for the period of imprisonment that should actually be served before release. The norm for non-parole periods for federal offences was said to be between 60% and 66%. The joint judgment characterised a reference to a norm of this kind as misleading, distracting attention from the applicable statutory provisions: Hili at [38]. Their Honours rejected a "mechanistic or formulaic approach". The joint judgment at [42] quoted with approval from a decision of the Queensland Court of Appeal in R v Ruha [2010] QCA 10; (2010) 198 A Crim R 430 at [47]: "the relevant factors and the relative differences in the weight to be afforded to each factor in the different aspects of the overall sentencing process may differ according to infinitely variable circumstances". In rejecting any standardised approach and reference to a usual proportionate relationship that should exist, between the time that is to be served in prison and the length of the head sentence imposed, departure from which must be warranted, their Honours highlighted the terms of the statutory provision, which were unfettered. Reference was also made to the sentencing principles identified in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, Deakin v The Queen [1984] HCA 31; and ; , regarding the court's discretion in fixing non-parole periods. provides clear authority that, subject to any prescriptive terms in the legislation with respect to the exercise of the court's discretion, departure from the court's usual approach with respect to the ratio of non-parole period to head sentence (if there is one), would not of itself reveal error.
7. It follows from the analysis in Hili that viewing any sentence in the abstract without regard to the facts of offending or the offender, there can be no expectation of a particular ratio of non-parole period to the head sentence. I note that, if it were otherwise, and the ratio alone could give rise to a conclusion of manifest excess, regardless of the circumstances of the offence or the offender, it would mean that by merely adjusting the head sentence, the error may be resolved.
8. I turn to a consideration of the governing legislation and principles to consider whether, in light of the circumstances in this instance, the non-parole period rendered the sentence plainly unjust. 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 (see, by contrast, the former Parole Act 1925 (Tas), s 12A), which may be departed from by the sentencing court and that will take effect in the event an order is not made.
9. In fixing the non-parole period there is guidance in the legislation and in sentencing principles. The starting point is the Sentencing Act, setting out considerations that bear on the court's discretion:

"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:

(a) the nature and circumstances of the offence;

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

1. It can be seen that the court's discretion is not fettered. The factors set out in the sub-paragraphs may be taken into account, but the section allows the court to have regard to other "such matters as it considers necessary or appropriate". The section is also non-prescriptive in allowing the sentencing court to allocate its own weighting to the matters in (a), (b) or (c), or indeed, any other matters. In any particular case there may be factors that weigh for or against parole, and the court is entrusted with a wide discretion in balancing these considerations and determining the appropriate outcome. The role of sentencing aims such as rehabilitation and deterrence also bear on the exercise of discretion. Again, such matters are left to the court's discretion. The provision allows for cases where the court may, because of the particular circumstances, not allow any opportunity to apply for parole.
2. The overarching guiding principle in exercising the discretion to fix a non-parole period is provided by Power. In Power, the High Court at 629 concluded that 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". 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": per Barwick CJ, Menzies, Stephen and Mason JJ at 629; see also Deakin v The Queen (above) and Bugmy v The Queen (above). Other considerations are general and personal deterrence, the prisoner's capacity for reformation (see Power at 628-629) and the necessary punitive effects of sentences (Hili at [41]).
3. The test in Power, that the sentencing court must consider what "minimum time justice requires that the prisoner must serve, having regard to all circumstances of his offence" applies to the parole regime in Tasmania: Carr v The Queen [2002] TASSC 60; (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5 at [10] per Blow CJ. In fact, it was applied as well in relation to the former regime under the Parole Act: Adams v The Queen [1998] TASSC 41 per Cox CJ at 2, and Gill per Green CJ at 2. It may be noted that s 17(4) of the Sentencing Act makes specific reference to the nature and circumstances of the offence, reflecting the test in Power.
4. There are other principles which assist in the court's sentencing discretion. The cases provide useful statements of principle regarding the effect of non-parole orders in terms of general and personal deterrence and protection of the public, and the benefits of parole in terms of rehabilitation, reintegration into the community, supervision of the offender and restraints before unconditional freedom: see, for instance, Gill per Crawford J at 7-8.
5. There are also contextual considerations such as the parole scheme. The court, by its parole order, specifies the period during which a person is ineligible to apply. If an order is made, parole is not, of course, automatic. If a prisoner is eligible, he may make an application for parole to the Parole Board and the application may be refused. 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 1997, s 72(4)(a)-(l).
6. In setting the non-parole period in this case, Blow CJ expressly applied the test in Power. His Honour adverted to his discretion to impose separate sentences totalling more than 21 years' imprisonment, stating that he did not think that course was warranted in this case. His Honour went on to say: "However I will impose a very long parole ineligibility period which, in my view, represents the minimum period of actual imprisonment that these crimes require. See Power v R [1974] HCA 26; (1974) 131 CLR 623 at 628." These words of his Honour reveal the deliberate consideration he gave to the application of that test.
7. Returning to the factors in the Sentencing Act, s 17(4), it is evident from the comments made by Blow CJ that it was the nature of the crimes which, in his Honour's view, warranted that the appellant should serve no less than 15 years in prison. Other than the nature of the crimes, the factors and circumstances of the appellant did not suggest a lengthy non-parole period. The appellant does not have a prior record of relevant offending and there does not seem to be a likely prospect of reoffending. The crimes arose from a discrete set of circumstances involving the breakdown of his relationship with his wife and his mindset of vengeance.
8. It is worth noting that there have been past cases where the courts have considered this provision and the former Parole Act, and recognised that the singular factor of the nature of the offending can be sufficient justification to warrant a lengthy non-parole period. So, for example, murder has been described as a particularly serious crime which may justify the fixing of a lengthy period of parole ineligibility: Adams per Cox CJ at 2-3.
9. The question, though, is whether, in this case, the learned sentencing judge erred in determining that the nature of the crimes warranted a lengthy non-parole period of 15 years. In my view, it was reasonable for his Honour to conclude that they did.
10. The "nature of the crimes" encompasses a number of considerations: the appellant's moral culpability, the gravity of his criminal conduct, and the consequences of his crimes. The comments of the learned sentencing judge, set out in the reasons of Estcourt J, provide details of these matters and it is not necessary that I set them out here. However, I mention the following to demonstrate all that the expression captures in this instance. The appellant's moral culpability involved deliberative acts to kill his two young children, his determined efforts to carry out his decision, and extended to his vindictive motive to inflict maximum anguish and emotional trauma upon his wife. The gravity of the conduct captures that he almost succeeded in carrying out his purpose, that it was the "worst possible kind of abuse of trust", and the vulnerability of his victims. The severe, life-threatening injuries he caused to his sons fall within the nature of the crimes, as do as the victims' permanent scarring, prolonged hospitalisation and extensive surgical intervention. So, too, their "extraordinarily traumatic experience", the degree of emotional suffering and physical pain they have endured and difficulties they will continue to experience for the duration of their lives, as well as the risks to their psychological wellbeing. The nature of the crimes includes the emotional torment and harm the appellant in fact caused his wife, not just his intention to do so. It also includes the risk of grave harm to which others were exposed in endeavouring to save the lives of the victims. The nature of the crimes also captures the broader harm that is inevitably caused to the community when crimes such as these are committed.
11. In deciding the minimum period the appellant should serve, it was open, indeed, appropriate, for the sentencing judge to give prominence to the aims of denunciation and retribution. That is, the goal of assuaging informed moral outrage of the community, reasserting society's values and giving proper weight to the harm done to the victims: DPP v NOP [2011] TASSC 15 at [41].
12. It is my view that the learned sentencing judge did not err in his discretion in holding that the minimum period that the appellant should serve in prison should be very lengthy and in fixing the non-parole period at 15 years. The non-parole period did not render the sentence manifestly excessive and was a proper exercise of discretion, having regard to the nature of the crimes and the sentencing aims of punishment and denunciation. I would dismiss the appeal.

1. The appellant has appealed against a sentence imposed on him by Blow CJ on 23 December 2013.
2. The appellant had been found guilty by a jury of two charges of attempting to murder his two sons aged five and eight and was sentenced by the learned sentencing judge to a term of 20 years' imprisonment with a non-parole period of 15 years.
3. The notice of appeal contains one ground only, namely that the sentence was manifestly excessive in all the circumstances.

1. The following statement of the facts of the case is taken from the comments on passing sentence of the learned sentencing judge:

"Last year, on the afternoon of Wednesday 5 December, he attempted to murder his two sons, who were then aged 5 and 8, and to kill himself, by blowing up the family car when the boys were sitting in it with him in the back yard of the family home. He did not succeed, but he caused an explosion and a very fierce fire. The boys suffered terrible burns as a result. Their injuries were serious and life-threatening.

The prisoner did this because of a deterioration in his relationship with his wife. She told him in October of last year that she had had a sexual relationship with another man. They had been to see a counsellor a few times after that. On the evening of Sunday 2 December, his wife told him that she wanted to live separately from him for a time. She did not tell him that the marriage was over. He did not cope with the news that his wife would be moving out. He drove off into the night and took an overdose of Stemetil. The dose that he took was too small for there to be any risk of death. The police were called. He returned home in the early hours of the morning, was taken to a hospital by police officers, and was subsequently discharged.

On the Monday, his wife moved out of the family home. He continued to live there with the two boys. His sister and her husband visited him on the Tuesday night. On the Wednesday morning, he went to see his sister. He told her that he was glad that she and her husband had come around on the Tuesday night because he had been going to put the boys to bed, wait until they were asleep, turn on two LPG gas bottles, light his cigarette lighter, and blow the house up. He told her that his wife did not want the boys. That was untrue. He said that he loved his boys but that, if his wife did not want them, he would take them with him.

I am satisfied beyond reasonable doubt that the prisoner decided to kill the boys in order to deprive his wife of them. That is to say, he decided to kill the boys in order to spite his wife.

On the Wednesday afternoon, the prisoner collected the 8-year-old from school and the 5-year-old from childcare. He took them to McDonalds, and bought them some junk food that they really liked. He drove home, and parked the car in an unusual position behind the house, where it could not be seen from the street. He told the boys that they were going to have a picnic in the car. He had two LPG gas bottles under the house. They were both the size that people have for gas barbecues. The family car was a hatchback - a Hyundai Getz. He placed each bottle in the rear of the car, and turned on the gas from both bottles. The 8-year-old heard the hissing noise of the escaping gas and asked his father what it was. The prisoner replied that it was just a new noise that the car was making. The child, of course, trusted his father to have given an honest answer. The prisoner was carrying cigarettes and a lighter. After the gas had been escaping into the car for some time, he used his lighter to ignite it. There was an explosion. The car was engulfed in flames.

That happened at about 5.01pm. The prisoner had an arrangement for his wife to arrive to collect the boys at 6pm. I infer that he intended that she would turn up to collect them, and find that they had been burned to death.

At the time the prisoner ignited the gas, the car was not fully sealed. Either the driver's window or the driver's door was partly open. If both had been sealed and secured, nobody would have survived. However all three occupants of the car managed to get out.

Several neighbours heard the explosion, and hurried to the scene in order to give any assistance that might be required. The prisoner and his wife had been in the habit of locking the side gate so that the children could not get out onto the street when they were playing in the back yard. The neighbours found the side gate locked and chained. A couple of them jumped over the gate to look after the injured. One man produced a tyre iron. Another man used it to smash the padlock so that the gate could be opened and the injured brought to safety. Fire-fighters arrived and brought the fire under control. That took an unusually long time because the fire was being fed both by escaping gas and by escaping petrol from a fuel line that had ruptured during the fire.

The 5-year-old was admitted to the North West Regional Hospital with full thickness burns - burns through every layer of the skin - to the face, burns inside his mouth, a circumferential burn around his neck, full thickness burns to the right shoulder and both hands, and less severe burns to both knees. He had burns to about 30% of his body.

The 8-year-old was also admitted the North West Regional Hospital. He had full thickness burns to his face. All his eyebrows, eyelashes, and head hair was singed or burnt. He had full thickness burns to both ears, the backs of his hands, and his elbows. There were burns to the right side of his head, the back of his forearms, the front of the right forearm, and both knees. He had burns to about 28% of his body."

1. On passing sentence the learned sentencing judge, after summarising the circumstances of the crime, said:

"Both boys spent months in the Royal Children's Hospital. The older boy had 13 operations there, and his brother had 12. Initially they were in the intensive care unit for some weeks. Eventually each of them was transferred to a general medical ward.

After being discharged from hospital, they returned to live with their mother in Tasmania. In both cases, their wounds have healed, but they have substantial scarring. Both will require intensive physiotherapy and speech therapy from time to time in order to maintain function as their scars mature. Both are likely to require more surgery to correct future deformities. Each of them will have functional and cosmetic problems for life as a result of their burns.

From psychological, social and emotional perspectives, each of the boys has had an extraordinarily traumatic experience. They were in extreme pain for many weeks. They have required skin grafting, splints, special arm and leg garments, and face masks. Since being discharged from hospital in April, they have had extensive outpatient follow-up, involving daily scar management. The wearing of special garments is expected to be required for a total of at least two years. The boys have experienced anxiety, and disruptions to their schooling. Their Christmas in hospital was difficult for them.

Experiences like theirs involve both short-term and long-term risks to their mental health. They have experienced the separation of their parents. They have been witnesses to and victims of a life-threatening event. They have suffered extensive burns and undergone invasive medical treatment. Their father has been lost to them. They know he is in gaol.

I do not think I need to list the psychological consequences that have been observed by professionals who have been looking after the boys. I think it can fairly be said that, whilst each has difficulties, and whilst their difficulties are ongoing, they are coping with their altered lives, at least to a reasonable degree. However I think it also fair to say that their mental health should be regarded as at risk for a very long time yet. In the future, their experiences may very well have a significant impact on their abilities to express and regulate emotions, their capacity to relate to others, their formation of close relationships, and their behaviour in relation to others.

The impact on their mother has been devastating. She spent weeks in Melbourne not knowing whether her boys were going to live or die. The burden of looking after the boys as a single parent has been enormous. She has received substantial support from her parents, friends, and the community.

The prisoner's attempt to kill these boys has had consequences for a wide range of people. The neighbours who came to the rescue of the boys and him were exposed to a shocking scene that could well have had serious consequences for the mental health of any one of them. Some of them exposed themselves to the risk of a further explosion in order to rescue the injured. A number of fire-fighters took risks for their own safety in order to extinguish the fierce fire. An enormous amount of very difficult work was undertaken by paramedics, nurses, surgeons, physicians and other health professionals. The cost to the community of the boys' medical and surgical treatment must be enormous.

The prisoner was 49 years old when he committed this atrocity. He is now 50. He has been in custody since 3 January. Before then he was a disability support pensioner. He suffered a serious head injury as the victim of a hit-and-run accident in 1988. He also walks with a limp as a result of that accident. He made a little money mowing lawns before all of this happened. He had few friends. He finds imprisonment more difficult than many prisoners because of his old injuries, because of the injuries he suffered in the fire, and because of his reputation as a would-be child-killer. Insofar as his difficulties result from his attempt to kill himself and his sons, I do not regard them as having any significance.

A lot of common mitigating factors are absent in this case. The prisoner did not plead guilty. He is not in prison for the first time, having served some short partly suspended sentences for driving offences in 1986. He has shown almost no remorse in relation to the children, though he did say, 'Sorry boys' before they were taken away by ambulance. He has shown no regret for the burden that has fallen upon his wife.

Some cases of attempted murder are worse than others. This is a particularly bad example of that crime, for a number of reasons:

• Both victims have suffered severe life-threatening injuries that have resulted in great pain, prolonged hospitalisation, many surgical operations, permanent scarring, and a need for ongoing intense treatment, as well as leaving their mental health at risk.

• He was their father, with a duty to protect them. Attempting to kill them involved the worst possible breach of trust.
• He caused an explosion in a residential area, placing the safety of neighbours and emergency workers at risk.

• The prisoner planned what he did, at least over a number of hours.

• His motive was hostility to his wife, not his victims.

The only appropriate penalty is a very long prison sentence. Under s389(3) of the Criminal Code, the maximum penalty that a judge of this Court may impose for any crime other than murder or treason is 21 years' imprisonment. In an appropriate case, a judge can impose sentences totalling more than 21 years by imposing separate sentences for separate crimes. Terrible as these crimes were, I do not think that such a course is warranted in this case. However I will impose a very long parole ineligibility period which, in my view, represents the minimum period of actual imprisonment that these crimes require. See Power v R [1974] HCA 26; (1974) 131 CLR 623 at 628. I think it appropriate to make some provision for parole, since the prisoner is likely to benefit from the supervision and assistance of a parole officer when he returns to live in the community, but I do not foresee any need for that arrangement to continue for more than five years."

1. In Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34], Porter J said of the approach of this Court to sentencing appeals of this type:

"31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R [1936] HCA 40; (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police [2008] SASC 279; (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.'

32 In Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:

'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted]

33 Later, in Wong v R (above) at [58] Gaudron, Gummow and Hayne JJ said:

'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'

34 In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. ... ."

1. On behalf of the appellant, Ms Jago SC submits that the learned Chief Justice was entitled to impose a sentence which reflected a high level of punishment, denunciation and retribution and provided the victim with appropriate vindication, protected the public and marked in a responsible way the proper feelings of outrage the commission of such a crime would raise in the minds of the community. She submitted however that the imposition of a 20-year head sentence with a non-parole period of 15 years, was disproportionate to the gravity of the appellant's offending as a whole, and demonstrates error.
2. It was submitted by Ms Jago that the decision of this Court in Burling v Tasmania [2007] TASSC 104 extended the range of sentences for crimes of attempted murder considerably but that the imposition of a sentence of five years beyond that "extended range", absent markedly greater aggravating circumstances or severity of criminal conduct, suggests "excess is plainly apparent".
3. In Burling the appellant's argument was based upon the single contention that with one exception (Martin Bryant), since 1978 the Supreme Court of Tasmania had not imposed a sentence in excess of 10 years for attempted murder, and that that indicated that some undefined error attended the exercise of the sentencing discretion in the case before the Court.
4. The learned sentencing judge in Burling said in his comments on passing a sentence of 15 years' imprisonment with a 10 year non-parole period:

"On the morning of 9 May 2006, the defendant was driving north on the Midlands Highway, south of Brighton. His manner of driving was so dangerous that the police were notified. He was swerving from one side of the road to the other and nearly collided with oncoming vehicles. His driving must have improved as Sergeant Leslie Cooper, who was travelling south on the Midlands Highway passed the defendant without noticing anything untoward. After Sergeant Cooper was notified of the reports of the defendant's driving, he turned around and drove north to check on the defendant. As the sergeant came up behind the defendant's vehicle he did not notice anything unusual about the defendant's driving although it was not until the sergeant had driven alongside the defendant, sounded the horn and indicated to the defendant to pull over that he did so. The sergeant was travelling in a marked police vehicle and he was wearing police uniform.

As Sergeant Cooper walked to the defendant's vehicle the defendant opened the driver's door and turned towards the sergeant but remained seated in his vehicle. The sergeant asked the defendant if he was alright, inquired whether he had been drinking and told him there had been a complaint about his driving. The defendant did not reply but moved his right hand in a manner that suggested to Sergeant Cooper that he had a firearm. The defendant had a .22 calibre Colt self loading shortened pistol. As the sergeant stepped back the defendant shot him in the face. The bullet entered the sergeant's right cheek and fractured part of his jaw, passed through the back of his mouth damaging his soft palate, and traumatised his carotid artery. The sergeant headed for the rear of the vehicle. He was losing copious amounts of blood from his mouth. At the rear passenger side corner of the vehicle, the sergeant stumbled and fell face down on the gravel. He lay still in the hope the defendant would go away. The defendant did not. He got out of his vehicle, walked to where the sergeant lay on the ground and shot him in the back twice in rapid succession. The bullet entry wounds are in the mid-thoracic region of his back. One is within a centimetre of the spinal column and the other a little further to the right. A large bullet fragment shattered his eighth rib on the right and there are bullet fragments abutting parts of his T8 vertebra and his T7 transverse process. After shooting the sergeant, the defendant knelt beside him, said words to the effect of, how does that feel, or how does that make you feel and laughed."

1. To my mind the present case does exhibit markedly greater aggravating circumstances and severity of criminal conduct. As Mr Coates SC submitted on behalf of the State, as appalling as the crimes were in Burling, there are some significant serious features of the case that were not present in Burling, including:

(c) the victim in Burling was a police officer involved in the execution of his duty, whereas in the present case the victims were the appellant's own children;

(d) the appellant planned an explosion in a residential area which had the potential to cause serious harm to many people and a number of people were in fact put at risk and had to view horrific scenes;

(e) the crimes in Burling were committed under the influence of alcohol and drugs, whereas the appellant committed his crimes in calculated revenge against his wife.

1. I am wholly unable to conclude that error in the learned Chief Justice's imposition of a head sentence of 20 years is plainly apparent. Indeed the head sentence properly reflects the gravity of the appellant's offending in my view. In saying that, I am mindful of Ms Jago's submission that there was one act which contemporaneously impacted the two victims and that whilst the appellant was to be sentenced for the whole of his criminal behaviour he was not to be sentenced for the whole of his criminal behaviour twice over.
2. Ms Jago further submitted that even if the head sentence could not properly be characterised as plainly unjust such as to warrant appellate intervention then the period of 15 years in which the appellant is not to be eligible for parole makes the sentence manifestly excessive. She argued that the following were factors relevant to the imposition of a shorter non-parole period:
   • no prior record of relevant offending;
   • the unlikelihood of any re-offending given the crime was directly related to his family circumstances;
   • it could not be said that the appellant's "incorrigibility" justified the setting of the non-parole period at 75% of the head sentence.
3. In Groenewege v Tasmania [2013] TASCCA 7, Porter J, with whom Tennent and Wood JJ agreed, said at [56]-[59]:

"56 I turn to the order in relation to parole eligibility. The question is whether the period for which an appellant is not eligible for parole makes the sentence manifestly excessive; 'sentence' in this context, being used in a broader sense. Under the Sentencing Act 1997 s17, there is no parole eligibility unless it ordered that the offender is not eligible for parole before the expiration of a specified period. That period must be not less than one half of the head sentence. A non-parole period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances. The fixing of a parole eligibility period gives a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom once the prisoner has served the minimum period the judge determines: Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629; Carr v R [2002] TASSC 60; (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47].

57 Obviously, whether a non-parole period is appropriate has to be assessed not only on the basis of the whole of the circumstances of the case, but in the light of the length of the head sentence. There are several recent instances in which this Court has taken the view that although the particular head sentence was not shown to be manifestly excessive, the non-parole period made the sentence a manifestly excessive one. In Johnstone v Tasmania [2011] TASCCA 9, the non-parole period was set at 2½ years (a little over 70%) of a 3½ year term. The court concluded that having regard to mitigating circumstances, particularly the appellant's age, his general good character and lack of prior convictions, and attitude to offending after it was detected, the minimum period required to be served was out of proportion to moral culpability. The sentence was varied by a reduction of the non-parole period to 21 months.

58 Similarly in Pickrell v Tasmania [2011] TASCCA 13, factors of mature age with no record of offending and an extreme unlikelihood of re-offending, were said to justify the reduction of a 2½ year non-parole period of a four year term (62.5%), to two years. In Richman v Tasmania (above), a non-parole period of 15 months of a two year term (62.5%),was reduced to one half on the basis of 'many mitigatory matters that the appellant can claim in aid coupled with my view that [the] head sentence was at the upper end of the applicable range ... .': Evans J at [48].

59 Of course, there is no presumptive starting point for parole eligibility, but those cases provide an indication of the types of matters which may justify the benefit of the total available opportunity for parole. Without wishing to be prescriptive, apart from the nature of the offending itself, one factor which would justify a requirement to serve a greater proportion of the head sentence than one half, is a bad criminal record: Enniss v Tasmania [2012] TASCCA 10 at [21]; Wahl v Tasmania [2012] TASCCA 5. Other, perhaps associated, factors would be the protection of the community as a whole: Mabb v Tasmania [2008] TASSC 22 at [27], and a poor previous parole history."

1. Bearing those observations of Porter J in mind and notwithstanding the appellant's almost complete lack of remorse, I accept Ms Jago's submission on this aspect of the appeal. Given the appellant's lack of any prior record of relevant offending, the unlikelihood of any re-offending, given that the crime was directly related to his family circumstances, and given that it could not be said that the appellant's "incorrigibility" justified the setting of the non-parole period at 75% of the head sentence, I am of the view that although the head sentence has not been shown to be manifestly excessive, the non-parole period makes it so. To my mind the non-parole period of 15 years cannot be justified on the basis of the nature of the offending alone.
2. It follows that I would allow the appeal and set aside the order that the appellant not be eligible for parole until after he has served 15 years of his sentence. I would substitute a non-parole period of 12 years. I would not disturb the head sentence of 20 years' imprisonment.