CITATION: Daley v Tasmania [2016] TASCCA 10

Criminal Law - Appeal and new trial - Grounds for interference - Sentence manifestly excessive or inadequate - Two murders - Premeditated killings when children present - Sentence of 45 years' imprisonment with 25 year non-parole period.

Judgment Number: [2016] TASCCA 10

1. On 16 December 2012 the appellant, Patrick Daley, murdered his former partner, Meagan Wilton, and her new partner, Benjamin Eyles, by shooting them with a shotgun. He pleaded guilty to two counts of murder and was sentenced by Porter J to 45 years' imprisonment, with a non-parole period of 25 years. He appealed to this Court, contending that both the head sentence and the non-parole period were manifestly excessive. At the conclusion of the hearing of the appeal on 16 August 2016, this Court dismissed the appeal, reserving its reasons for publication at a later date. We are now publishing our reasons for dismissing the appeal.
2. The facts relevant to the murders, their impact on others, and the appellant's personal circumstances are set out in substantial detail in the reasons of Estcourt J. For the reasons stated by him, I too concluded that neither the head sentence nor the non-parole period was manifestly excessive. There are some comments that I would like to make.
3. Few sentences have been imposed in Tasmania for double murders since mandatory sentences of life imprisonment for murder were abolished in 1994. It is true that the appellant's sentence is one of the heaviest to be imposed upon a double murderer in this State since then. And it is true that there were mitigating factors that had to be given some weight by the learned sentencing judge, particularly the appellant's previous good character, his lack of serious prior convictions, his confession, his co-operation with the police, his pleas of guilty, and his self-inflicted injuries. The pleas of guilty were by no means early ones, nor were they the result of remorse, but they avoided the cost and inconvenience of a trial, made it unnecessary for Ms Wilton's younger daughter to give evidence about hearing the appellant kill her mother and being left alone in a house with the two dead bodies, and spared 12 jurors from the duty of looking at gruesome photographs. I accept that it was significant, to a degree, that the appellant had practically no memory of the murders, and pleaded guilty on the basis of information and evidence as to what he had done.
4. But in my view all of those factors carried little weight because of the aggravating circumstances of this case. These were deliberate killings. They were premeditated. They were motivated by vindictiveness towards a former partner. She had their son, and the arrangements for the appellant to see him had broken down. About a week before the murders he told a friend, "If I don't see my kid by the end of the week she won't see the week out." He committed the murders very early on a Saturday morning. He expected his son to be in the house, and must have known that one or more other children were likely to be there. After killing Mr Eyles, he next shot Ms Wilton in the arm. Then there was an interval during which she must have known that she would be killed. He advanced towards her, placed the gun against her chest, and fired in the direction of her heart.
5. This is a case in which the impact of the killings on survivors is particularly significant. There were two children in the house - Ms Wilton's 9 year old daughter, and the son of Ms Wilton and the appellant, then aged 21 months. The daughter heard the appellant break into the house, heard the gunshots, heard her mother plead for her life, and heard her brother screaming. The appellant took the boy away, leaving the girl alone in the house with the two bodies. She had to walk past them to get to a telephone. Her mother had fallen to the floor naked, on her right side, with shotgun wounds to her left arm and chest clearly visible. The child rang 000 and waited outside in fear until the police arrived. She and the little boy now live with their mother's parents in another State. She has a half-sister, a few years older than her. That child is now living with her father in Tasmania. Those two girls have not only lost their mother, but have been separated. It is too early to say what the long-term psychological or psychiatric consequences might be for the children who were in the house at the time of the murders. The consequences for either of them could be terrible. The little boy will have to try to come to grips with the information that his father killed his mother, and will have to grow up without either parent.
6. The children are not the only ones who have been affected by this atrocity. Family members have had to take on the tasks of cleaning out the house, caring for the traumatised children, and bringing them up. Police officers and others have had to witness the aftermath of the killings.
7. In all the circumstances it is very clear that the head sentence and the non-parole period were not unreasonable, unjust, or manifestly excessive.

1. The appellant, Patrick Stanley Daley, appeals against a sentence imposed upon him by Porter J on 19 August 2014.
2. His Honour convicted the appellant upon his plea of guilty to two counts of murder and sentenced him to a period of 45 years' imprisonment and ordered that he not be eligible for parole until he had served 25 years of that sentence.
3. The single ground of the appellant's appeal is that both the head sentence and the non-parole period were manifestly excessive. No specific error is alleged.

1. In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, Pearce J, with whom Blow CJ and Porter J agreed, summarised the principles relevant to appeals such as the present at [8]-[9] as follows:

"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336_. Excess or inadequacy is either apparent or it is not_: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539.

It is opportune to refer again to the oft quoted passage from the joint decision of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476:

'However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions'." (Emphasis added.)

1. In the course of his sentencing remarks the learned sentencing judge set out the relevant facts, necessarily at some length, as follows:

"On 16 December 2012, the defendant murdered his ex-partner, Meagan Wilton, then aged 31, and her new partner of about four months, Benjamin Eyles, then aged 34. The defendant at the time was almost 60. Before the murders the defendant and Ms Wilton had been in a de-facto marriage relationship for about five years. They had a young son who was 21 months old at the time of the murders. Ms Wilton had two older daughters, aged 12 and 9. At the time of their deaths, Ms Wilton and Mr Eyles were living together, together with Ms Wilton's three children, although the oldest daughter spent some time with her father. The defendant and Ms Wilton separated in July 2011, after which the defendant had some contact with his son. However, the relationship between the defendant and Ms Wilton deteriorated to the extent that contact arrangements broke down. The defendant suggests that the arguments were about money, and that ultimately Ms Wilton declined to allow him access to his child. The defendant contacted a counselling organisation. Ms Wilton was spoken to and gave a different version of events. In any event, about a week before 16 December, the defendant spoke to a friend by telephone and said to him that if he did not see the child by the end of the week, Ms Wilton would not see the week out.

At about 4am on 16 December the defendant left his farm at Hamilton and went to Ms Wilton's home not far away. As was later established, the defendant had two firearms, one of which was a double barrel shotgun. As it will emerge, he had taken steps to put his affairs in order, and had left a note and some documents in an envelope at his home intended for his adult children by an earlier marriage. Ms Wilton, Mr Eyles and the two youngest children were in the house asleep. Ms Wilton's daughter heard the sound of breaking glass and heard the defendant's voice. He said words to the effect of 'That's what you get for messing with people's lives'. The daughter heard her mother say, 'No, Patrick don't do it'. It was later established four shots were fired. After that, the daughter heard the young boy screaming, and heard the defendant call to him, shortly after which she heard the defendant's vehicle leave. She hid for a time in her bedroom. When she came out she saw the two bodies in the lounge area and then rang the 000 emergency number. This was at about 4.56am. Police immediately went to the scene. The body of Mr Eyles was located immediately inside the front door with his head almost in the door of the children's bedroom. He was shirtless but had his trousers on, although undone. Ms Wilton's naked body was found in the lounge room nearby. A detailed inspection of the scene and forensic examinations revealed that Mr Eyles had been shot twice with a shotgun, once to the left side, and once to the upper right side of his chest. The left side wound suggested a more distant shot, whilst the wound to the upper right chest was consistent with the firearm being held in close contact to the body at the time of discharge. Similarly, Ms Wilton had been shot twice with a shotgun. There was a wound to the upper left arm which fractured the left humerus. This wound would not have been immediately fatal but could have caused death due to eventual blood loss. However, the second wound was to the left chest and was consistent with the muzzle of a shotgun being in contact with her body at the time of discharge. The location of shotgun pellets and the results of other forensic examinations are consistent with Ms Wilton being shot first in the hall outside the bedroom and then her moving to the living area where she has been shot again. Mr Eyles may have died swiftly but there is evidence to suggest that Ms Wilton was able to see the threat of the shotgun, was wounded by the first shot, and was aware of her impending fate.

Returning to the narrative, the defendant left the property at about 5am and tried to contact his adult children by phone. Shortly after 5.30 he left two messages for his daughter. In the first, he said that he had done what he said he was going to do and that he had the boy with him. In the second, he said that she would find papers and money in her horse float. He said, 'I'm sorry I can't help it, but she torments the piss out of me'. Shortly after, he rang again and spoke to his daughter, saying that he had 'Done them in'. He outlined what he wanted for his funeral arrangements, told his daughter to take his son to the police station, and said he was going to kill himself. The defendant then telephoned his adult son, told him that he had shot them, and asked him to come and get the boy. The defendant terminated the call when told that his son was not at home, and the son immediately contacted police. At 5.55am the defendant phoned police radio despatch. He admitted to the shooting, said he had his 21-month old son with him, that he wanted to give himself up, and wanted the police to meet him on Lachlan Road at New Norfolk. He said he had firearms with him but he was not going to hurt the child and was going to give himself up. He identified his vehicle and said where he would be. In a phone call shortly after with a police officer approaching in a car, he said that Ms Wilton had tormented him, that she had let him see the boy every weekend for some time until about five or six weeks ago, that she kept demanding money and would not let him see the child. He said that he had been stewing over it for a few weeks and could not cope. He said that he could see the police car coming, shortly after which, he seems to have got out of his utility vehicle, stood beside it and shot himself in the head. When police arrived, the defendant was lying on the ground with a gunshot wound to the right side of his head. He had a rifle in his hand with his finger on the trigger. The boy was standing in the front passenger seat of the vehicle. A double barrel shotgun was found on the passenger seat with two empty shells in the breach."

1. The learned sentencing judge set out the appellant's personal circumstances as follows:

"At the scene, the defendant lapsed in and out of consciousness and at one stage inquired of the officers as to whether the two people he had shot were dead yet. The defendant was taken by ambulance to the Royal Hobart Hospital in a critical condition. He underwent surgery immediately, and again about a month later. He has suffered a brain injury with significant damage to the right front temporal and parietal lobes. He is wheelchair bound and unlikely to again walk independently. He has limited independence with meals, but is otherwise reliant on prison staff. He requires visual and hearing aids.

The defendant is now 61. He has no convictions for offending. He grew up in the central highlands area. He left school after grade 6 because of the isolation of where his family lived. He worked on the family farm, and from his late teens travelled interstate working as a shearer. In the mid-1970s, he married and the couple bought a property at Strickland, later moving to a property near Hamilton. He had the two children, to whom I have referred, now in their 30s. He became a shearing contractor and, with his wife, ran a successful business. In 2007, unexpectedly from the defendant's perspective, his wife left him. He unsuccessfully sought her return and became depressed. His former wife has said that the defendant was a good father, not violent towards the children, a hardworking family man who was generally happy and loved children. She has also said that he did not threaten her at all after the separation; that he was quite the opposite. The defendant became the manager of a farm property also near Hamilton. He met Ms Wilton due to a mutual interest in race horses and they lived together from 2008 to July 2011.

When his son was born in early 2011, I am told that the child basically became the centre of the defendant's existence. In the aftermath of the separation and the tussle about access, the defendant became distressed and spoke of suicide. He mentioned this to his daughter in mid-October. An additional complicating factor about this time seems to have been a further stressor in that the defendant was required to sort out a dispute over an amount payable to Mr Eyles for work done on the property which the defendant managed. A few days before the murders, the defendant had tried to ring Ms Wilton but she did not answer his calls due, he thought, to the identity of the caller being shown on her phone. He tried to ring from a phone box but she refused to speak to him. I am told, without dispute, that Ms Wilton had said to him that unless he paid her $30,000, to which she believed she was entitled by way of a property settlement, he would not be seeing his son. It is put that this is clearly the trigger for what happened."

1. The learned sentencing judge next dealt in his remarks on sentence with the impact of the appellant's crimes. His Honour said:

"Although it is self-evident, it needs to be said that the murders of Ms Wilton and Mr Eyles have had a devastating effect on the families. Ms Wilton's mother not only lost her child to whom she was very close, but she and her husband are now having to care for the two youngest children. The children have been deprived of the love and care of their mother. The two youngest children, who were present in the house, particularly the daughter, show signs of emotional trauma. Perhaps more so in the daughter's case, it is possible that long term psychological harm may have been caused. I should say that the defendant's own family are no doubt very hurt by what he did."

1. His Honour set out the basis upon which he proposed to sentence the appellant. He said:

"There is no reason not to think, and I am satisfied on all of the material, that the shots were fired with the intention of killing both persons. This was not impulsive or impetuous conduct; the killings were premeditated. The defendant went to the house fully armed and forced his way in at about 4am, a time when it might be expected the occupants were asleep and vulnerable to attack. The defendant must have been aware of the likely presence of a child or children other than his son. In a real sense the acts were at the extremity of selfishness, the defendant obviously taking the view that if he could not have access to the child, he would destroy the mother, her partner, and forfeit his own life. Plainly such conduct does not suggest rational thinking in the abstract, but the defendant was able to plan the killings, organise his affairs, and advise of where various notes and documents might be found. At the same time, I accept that the defendant was in a very distressed state and had been for a time, and that violence was out of character for him. But that does not in any way excuse his conduct.

I take into account that as part of all of this, the defendant attempted to commit suicide but failed, and did himself permanent and serious injury as a result. The defendant is not of an advanced age, but that has to be put in the context of the likelihood of a very lengthy term of imprisonment. As to age and state of health, the essential principles are as follows. Such factors are relevant but not determinative as to the length of sentence. Depending on the circumstances of the case, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody. That is a weighty consideration which may need, in an appropriate case, to yield to some extent to compassionate considerations of the fact that the defendant may not live until release, and that ill-health will make the period of incarceration onerous. However, advanced age and ill-health do not justify the imposition of an unacceptably inappropriate sentence. These statements are taken from Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539, R v R L P [2009] VSCA 271 and S v Tasmania [2007] TASSC 62. In cases of very serious offending, there is no conceptual bar to imposing both a head sentence and a non-parole period likely to exceed the life expectancy of the offender: see R v Cave [2012] SASCFC 42 and R S J v The Queen [2012] VSCA 148. In my view the defendant's age is of little, if any, weight. It was not submitted otherwise, but I should add that there is nothing to suggest that imprisonment will make his health and disabilities more burdensome, or deprive him of appropriate treatment.

The killings of Mr Eyles and Ms Wilton were pre-planned, and determined and callous in nature. The conduct is significantly aggravated by the presence of the children. There is a need for clear denunciation of violent manifestations of obsessive and possessive behaviour following the break-up of relationships, and of course of the taking of human life." (Emphasis added.)

1. In considering the question of manifest excess it is helpful, given the thankfully relatively small occurrence of multiple murders, to consider other sentences for such crimes in the State since mandatory life imprisonment for murder ceased to be the only punishment for that crime in 1995. Some of the sentences are by way of resentencing of life prisoners which was provided for by the Criminal Code Amendment (Life Prisoners and Dangerous Criminals Act) 1994, at the same time as life imprisonment was abolished.
2. In Hutton, 4 October 1999, the defendant had been living in a de facto relationship with Lesley Boyd, a married woman with two young children, who was then in the process of obtaining a divorce from her husband. She and the defendant had intentions of marrying. She had been pregnant to him but had suffered a miscarriage. The second victim, a Mr Reid, was a friend of both of them who had recently returned from Sydney and was staying with them. Both men went out hunting during the day and on their return left the rifle they had been using in Mrs Boyd's home. During the evening an argument occurred between the defendant and Mrs Boyd, culminating in her ordering him to leave. He took some of his belongings and put them in his car and went to a hotel where he unsuccessfully sought accommodation. He decided to return to his home but left his car at some distance from it so as to enable him to return unanticipated. He suspected that a relationship had developed between Mrs Boyd and Mr Reid. He entered the house and surprised them on the floor in the lounge room embracing. In what can only be described as a jealous rage he seized the .22 rifle which was up against a chair where he had left it and shot them both. His sentence of life imprisonment was annulled and he was resentenced to 30 years' imprisonment.
3. In JW, 6 December 2000, the prisoner, a 15 year old boy, after an argument with his parents, told his school friends that he would kill his parents if they did not let him go to the swimming pool. As he anticipated, he was refused permission to go to the swimming pool. He considered himself committed to go through with the killings, rather than face embarrassment and humiliation from his friends. He shot each of his parents twice, since the first shot had not resulted in instant death in either case. He subsequently shot and killed his brother as he attempted to flee the house. The reason for doing so was not established. He was resentenced to 28 years' imprisonment.
4. In Riley, 4 December 2002, the defendant was found guilty by a jury of killing two men on two separate days. On the evening of 4 March 2002 he murdered Stefan Gil, an old man aged 87, who had given the defendant a home when he needed it, in return for doing odd jobs for him. The defendant was an alcoholic but Mr Gil almost never drank. Mr Gil insisted on the defendant being home before dark, otherwise he would lock him out. This was in an effort to limit the defendant's drinking. Why the defendant killed Mr Gil was not known. It was presumed by the learned sentencing judge that they had argued over something. The defendant bashed Mr Gil about the face and head, causing numerous bruises and grazes, and he plunged a large knife into his chest killing him.
5. The learned sentencing judge was also unable to find what caused the defendant to subsequently kill his next victim Mr Stones. The defendant had been drinking a great deal during the afternoon and at about 8.45pm he arrived at Mr Stones' home, armed with the same knife that he had used to kill Mr Gil. His Honour presumed that Mr Stones had offended the defendant in some way, but he had "no real idea" concerning the defendant's motive. From the fact that Mr Stones' blood was spilled in his doorway, his Honour found that the defendant had plunged the knife into his chest when at the door, probably when he opened it. The defendant then waited for him to die. Mr Stones staggered to the home of his neighbour, Mr Shields, for help, with the defendant following him. Mr Shields was confronted by Mr Stones, covered in blood and about to die, and by the defendant holding the knife from which Mr Stones' blood was dripping. The defendant was sentenced to 40 years' imprisonment with a non-parole period of 22 years.
6. In Stokes and Lambert, 24 October 2005, both defendants were found guilty by a jury of two counts of murder. The learned sentencing judge accepted that the defendants' plan was conceived after Lambert agreed to assist Stokes in obtaining money. Stokes was also to benefit from the estate of Anthony McHugh, and the plan to kill both Mr McHugh and his father, Lehman McHugh, was designed to achieve that end. Upon arriving at Mr McHugh's unit both defendants went to the back door and, finding it locked, they went to the front of the house. Lambert, armed with a tomahawk entered the house by breaking the glass in the front door and Stokes remained outside. On entering the house, Lambert was the one to strike the blows and killed both deceased. Anthony McHugh was struck a total of 72 times with the tomahawk, and Lehman McHugh 15 times. Both suffered horrific and fatal head injuries, as well as Anthony receiving significant defensive injuries. The defendants were sentenced to 42 years' imprisonment with a 28 year non-parole period.
7. In Harper, 1 October 2007, the defendant had pleaded guilty to two counts of murder. On 30 August 2006 he murdered both his parents by hitting each of them a number of times with an axe. His father was 88 years old. His mother was 77. He was 43 at the time. He killed them inside their home. Mr Harper had been leading quite a lonely existence, living alone in his flat, and not working. He had qualifications in psychology, and had been working on a doctoral thesis in neuropsychology. He was very attached to his cat, who was 10 or 12 years old. On the day in question, he found his cat outside his flat in a very unfortunate state. It died in his arms. Rightly or wrongly, he formed a belief that his mother had poisoned it. He lost self-control. He went into his flat and smashed a lot of his property. He then went into the house. He and his mother had a conversation about the cat. She said something unpleasant and laughed at him. He hit her and she fell to the ground. He noticed that his father had arrived on the scene, armed with an axe. He took the axe from his father and hit him with it a number of times. He even hit him with it as he was falling to the floor. His father lay on the floor motionless. He then took the axe to his mother and deliberately killed her.
8. Mr Harper did not present with signs or symptoms, although he had a long-standing adjustment disorder which may well have reduced his capacity to cope with the stresses of his cat's death and his perception that his mother was responsible for it. He was sentenced to 32 years' imprisonment with a non-parole period of 16 years.
9. In Standage, 18 August 2014, the defendant had been found guilty by a jury of two counts of murder by shooting Ronald Frederick Jarvis at Nugent on 31 July 1992, and by shooting John Lewis Thorn at Lake Leake on 24 August 2006. As the sentencing judge I was satisfied that they were both pre-meditated cold blooded murders of people who trusted the defendant, and that they were committed for financial gain. I remarked that they were therefore among the worst types of murder. There were no mitigating circumstances, and having regard to the fact that the murders were committed some 14 years apart, and were not directly related in their occurrence, I sentenced the defendant to 48 years' imprisonment with a non-parole period of 24 years. The defendant was 62 years old at the time of sentencing.
10. In Rusterholz, 1 May 2015, the 48 year old defendant was found guilty by a jury of the murders of Angela Hallam and Joshua Newman. Between 9.30pm and about 10.30pm on 15 August 2012, he went to Miss Hallam's unit in Ravenswood. He entered and killed her with a sharp instrument, probably a heavy knife, by stabbing her once in the back and then inflicting deep incised wounds to both sides of her neck. Miss Hallam's boyfriend, Joshua Newman, was also at the unit. He was also killed by the defendant, who inflicted deep incised wounds to his neck. Miss Hallam was known to the defendant. Their association arose from a personal relationship and also because she, for a time, was one of a group of persons who sold illicit drugs for him. There were a number of probable motives for her murder which may have operated individually or in combination. The learned sentencing judge was satisfied that the crime was at least, in part, motivated by the defendant's wish to impress another woman with whom he was in a relationship at the time, because he took some of Miss Hallam's hair to her as a trophy. His Honour found it likely that the motivation for the crime was added to by the desire for retribution for some sort of perceived deception or dishonesty in the trafficking of drugs. The murder of Miss Hallam was a pre-meditated and cold blooded execution, but his Honour was not satisfied that the murder of Mr Newman was planned. He happened to be present and was intentionally killed in a brutal and callous fashion. After the crimes the defendant doused the bodies with petrol and set fire to them in an attempt to destroy possible evidence. He boasted to others of what he had done. He was sentenced to 45 years' imprisonment with a non-parole period of 25 years.
11. Whilst appreciating the dangers in comparing sentences in apparently similar cases (Director of Public Prosecutions v Harris [2013] TASCCA 5, per Wood J at [15]), nonetheless, at a relatively high level of abstraction, the cases I have just canvassed cause me to conclude that excess is not apparent in the sentence under appeal. Certainly some of the aggravating factors present in some of the other cases are not present in the appellant's case; however the opposite is also true. As was pointed out by the learned sentencing judge, the appellant's conduct was not impetuous or impulsive, but rather the killings were premeditated and carefully planned. They were determined and callous as his Honour noted. An egregious aggravating factor (Family Violence Act 2004, s 13) is that they were not only committed in the presence of children but were planned and committed by the appellant at a time when he must have appreciated that a child or children must be present. He fired the second and fatal shot into Ms Wilton, despite her plea for him not to which was heard by her 9 year old daughter, who then had to walk past the two dead bodies to reach the telephone to call police. Finally, the murders were a violent manifestation of obsessive and possessive behaviour following the break-up of a relationship. These factors, to my mind, place these murders very much at the upper end of the range of seriousness, and while they are different to cases such as Riley, Stokes, Lambert, Standage and Rusterholz, by no means can the appellant's overall criminal culpability be differentiated from that of those defendants.
12. Conversely, the appellant's criminal culpability cannot be viewed on a par with cases where lesser sentences have been imposed, such as Hutton, where the defendant acted in the moment in a jealous rage; or Johnson, where the defendant was extremely young and immature; or Harper, where once again the murders were not planned or premeditated, but in the moment in a rage in a defendant who had suffered a long-standing adjustment disorder which may well have reduced his capacity to cope with the stress of the killing of his cat.
13. Nor can it be said that the single sentence imposed by the learned sentencing judge in the present case exceeded what might be regarded as double that of an otherwise appropriate sentence for a single murder. While the range of sentences for single counts of murder has varied, as might be expected since the abolition of mandatory life sentences in 1995, it cannot be said that single sentences are always in the area of 20 to 25 years. An example of the upper end of the range for a single count is Streets, 12 October 2009. In that case the 25 year old defendant, who posed a risk of re-offending, was sentenced to 35 years' imprisonment with a non-parole period of 22 years for the murder of a 49 year old man who was disabled and confined to a wheelchair as a consequence of a stroke. The defendant punched and kicked the man with whom he lived, and stomped on his head, throat and chest. He then stabbed him eight times in the chest.
14. As contrasted with the imposition of separate sentences, the notion of "cumulation" and the totality principle do not appear as starkly as considerations when a single sentence for multiple crimes is imposed as is permitted by the Sentencing Act 1997, s 11(1) (subject to s 11(2) which provides that a court must not impose a penalty exceeding the sum of the maximum penalties that could otherwise have been imposed for those offences). However, "cumulation" is never mandatory. In DPP v Marino [2011] VSCA 133, Kyrou AJA, with whom Buchanan and Nettle JJA agreed, said at [53]:

"It is understandable that, in relation to death and serious injury involving multiple victims, ordinarily, some cumulation is required in respect of the offences relating to each victim. The cases, however, are not authority for the proposition that, where the offending results in any injury to more than one victim, a sentencing judge must provide for some cumulation in respect of the offences relating to each victim. Cumulation may well be appropriate in many such cases. However, as I have already stated, cumulation must be applied in the light of the principle of totality."

1. In R v Walkuski [2010] SASC 146, Doyle CJ observed at [5]-[6]:

"5 The concept of totality, as an aspect of sentencing, is well established. In R v Place [2002] SASC 101; (2002) 81 SASR 395 at [84]- [90] this Court reviewed the authorities on the point, and in particular observations made by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 and in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. There is no need to repeat what the Court said there, because the concept is well established. In R v E, AD [2005] SASC 332; (2005) 93 SASR 20 I endeavoured to summarise the position at [37]-[38]:

[37] The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that 'the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307-308 (McHugh J). The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so 'crushing' as to call for some reduction in the aggregate: see King CJ in R v Rossi (1988) 142 LSJS 451, cited by McHugh J in Postiglione (at 308). I refer also to the remarks of Kirby J on this point in Postiglione (at 340-341). As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.

[38] In recent times there has been a tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.

6 It can also be said that the concept of totality reflects two particular considerations. One of them is proportionality. The sentence must bear an appropriate proportion to the overall criminality involved. The other is mercy. As King CJ said in R v Rossi (1988) 142 LSJS 451 at 453, the concept of totality operates:

'... where the total effect of the sentences merited by the individual crimes become so crushing as to call for the merciful intervention of the Court by way of reducing the total effect ...'."

1. In my view the sentence imposed upon the appellant bore, for the reasons I have already mentioned, an appropriate proportion to the overall criminality involved, and the sentence was not so crushing as to call for merciful intervention. As pointed out by counsel for the State, Ms Hartnett, in her written submissions, the non-parole period represented only 55% of the head sentence. It could properly have been longer, Adams v The Queen [1998] TASSC 41.
2. The learned sentencing judge was well aware of the appellant's age and state of health, and of the impact of the sentence and non-parole period he was about to impose. He canvassed the relevant authorities in his comments on passing sentence. However he was of the view, correctly in my respectful opinion, that the appellant's age and ill-health did not justify the imposition of an unacceptably inappropriate sentence.
3. In my view his Honour took into account all relevant considerations and did not err in imposing the sentence that he did. Although his Honour did not refer to it specifically, the sentence, in my view, reflects a reduction in what would otherwise have been an appropriate sentence to take account of the utilitarian benefit of the appellant's plea of guilty. I would not have regarded a head sentence of 48 years' imprisonment as excessive.

1. The full text of the passage from the judgment of Kirby J in Postiglione referred to above in the reasons of Pearce J in Pearce is as follows:

"Out of recognition of the discretionary character of the sentencing function, and the unavoidable scope for disparity where that function is performed by different judicial officers, it is well established that when performing their function sentencing judges must be accorded a wide measure of latitude which will be respected by appellate courts. So long as the sentencing judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders. Similarly, this Court will respect the discretion which the law reserves to courts of criminal appeal and their equivalents, acting under their respective statutes, in disposing of sentencing appeals and applications for leave to appeal against sentences, including on the ground of suggested disparity. The proper approach is one of vigilance within a context of appellate restraint. It was recently expressed by Lamer CJC for the Supreme Court of Canada in R v M (CA) in words which are applicable here:

'Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada ... But in exercising this role, courts of appeal must still exercise a margin of deference before interfering in the specialized discretion that Parliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime ... Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the 'just and appropriate' mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred'." (Footnotes omitted and emphasis added.)

1. Bearing those considerations in mind I do not apprehend that the sentence imposed by the sentencing judge is "unreasonable or plainly unjust" as to justify appellate intervention. It has not been established that the sentence is manifestly wrong such that it could only be the result of some undefinable error in the exercise of the judicial discretion. The learned sentencing judge took into account the relevant considerations of law and fact. To the extent that there might be some arguable discrepancy between the appellant's sentence and some other sentence or sentences in a superficially similar case or cases since 1995 involving multiple murders, this Court should not intervene, absent error amounting to injustice. Such error is not apparent to my mind.

1. At the conclusion of the hearing, I joined with the other members of the Court in an order that the appeal be dismissed. In respect of my reasons for doing so, I have since had the benefit of reading draft reasons prepared by the Chief Justice and Estcourt J. I agree with all that their Honours have written and respectfully adopt those reasons as my reasons for dismissing the appeal.
2. However, I wish to add some comments in relation to the use made by the appellant's counsel of sentences in other cases said to be comparable to this case. The appellant's argument was primarily based on a comparison between the circumstances and sentences in those cases and in this case. The purpose of doing so, according to the appellant's counsel, was to engage the principle of consistency in sentencing.
3. In Connolly v Tasmania [2015] TASCCA 15, Wood J said at [5]:

"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]."

1. Insofar as it may be suggested that reference to comparable decisions may establish a range of sentences for the crime in question, I refer to comments by the majority of the High Court in Barbaro v The Queen [2014] HCA 2, 253 CLR 58 at [40]- [41]:

"40 The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.

41 As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect cf Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 606 [59]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 537 [54]; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at 71 [304] per Simpson J. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677 at 711 [130] per Buchanan JA; at 716 [147] per Kellam JA, the synthesis of the 'raw material' which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel."

1. For myself, I would be hesitant to conclude that a review of sentences imposed in this State for murder, since the introduction of finite terms in 1994, permits the discernment of an established range of sentences for that crime. There is little distinction, in my view, between the appropriateness of standardisation in respect of murder and attempted murder. Each is a crime which can encompass a "wide variety of conduct". (In respect of attempted murder, see Burling v Tasmania [2007] TASSC 104, per Underwood CJ at [18], referred to by Wood J in Connolly (above) at [5]). The same has been said in respect of the crime of manslaughter (see R v Lyons [1993] TASSC 90, 69 A Crim R 307, per Cox J (as he then was) at [13]). The relevance of these comments to the crime of murder is apparent from a review of the relatively small number of cases of murder for which sentence has been imposed in this State since 1994, and the significant variation in circumstances of offence and offender apparent in same. For the same reasons as attempted murder and manslaughter, murder is not susceptible to standardisation.
2. As the above cases demonstrate, apart from crimes in respect of which a sentencing range can appropriately be established, an appeal court will have regard to comparable decisions for the purpose of identifying "unifying principles". However, there is little to be gained by embarking on what is in reality a misconceived quasi-mathematical exercise of comparing individual sentences, adjusting for aggravating or mitigating factors which may or may not appear in the sentences under comparison, weighting same and then arriving at a position that a sentence was too high or too low by reference to such comparison. Such a process cannot possibly account for the variation in the multiple individual factors and their relative significance that appear in each case, or the need and reality of an individualised approach by the sentencing judge. Ultimately, sentencing is an intuitive process in which the discretion is exercised within wide parameters, proportionate to the circumstances of the offence and the offender in the particular circumstances of the case.
3. In this case, the Court was referred to a limited number of cases which involved multiple murders. As Estcourt J has demonstrated, none of these cases could be said to be directly comparable to this case, and reference to them certainly does not enable the Court to discern an established range of sentencing for cases such as this. The global sentence in this case was imposed for the deliberate taking of two human lives during the course of a planned and premeditated invasion of domestic premises early in the morning. The fact that the appellant must have realised that young children, including his own 21 month old son, would in all probability be present in the house, that children were actually there, and that, at the very least, the 9 year old child heard the murders take place, including her mother's plea for mercy, and was then left by the appellant in the house alone with the bodies of her mother and her mother's partner, are most serious and disturbing aggravating features of this case. While it was proper to acknowledge and place some weight on the mitigating factors, including the plea of guilty, particularly because the plea meant that there was no need for that child to give evidence, the weight to be placed on these factors was relatively small when balanced against the aggravating and serious features of the appellant's conduct and the effect of that conduct on others. A more detailed analysis of the circumstances and the aggravating and mitigating factors is contained in the reasons for judgment of the learned Chief Justice and I agree with that analysis and his Honour's observations.
4. I am satisfied that the sentence, including both the head sentence and the non-parole period, was well within an appropriate exercise of sentencing discretion by the learned sentencing judge. The sentence was not manifestly excessive.