DPP v Arthur [2018] VSCA 37

1 Samantha Kelly was a 39-year-old mother of four children who suffered from an intellectual disability. Some of her children were also severely disabled. Ms Kelly and her children lived at a property at Kangaroo Flat (a suburb of Bendigo) with Christine and Ronald Lyons and the respondent from July 2015. Sometime between 21 and 22 January 2016, at the direction of Christine and Ronald Lyons, the respondent brutally murdered Ms Kelly by repeated blows to her head with a hammer. The respondent, Christine and Ronald were charged with murder.

2 On 30 November 2016, the respondent pleaded guilty to one charge of murder, the maximum penalty for which is life imprisonment. Prior to his plea hearing on 3 and 4 April 2017, the respondent gave evidence against Christine and Ronald Lyons at their committal hearing. He also undertook to give evidence against them at their trial for the murder of Ms Kelly. That trial has been fixed for 7 May 2018.

3 On 17 May 2017, the respondent was sentenced to 16 years' imprisonment with a non-parole period of 13 years. In his declaration pursuant to s 6AAA of the Sentencing Act 1991, the judge stated that had the respondent not pleaded guilty and cooperated in relation to his accomplices, he would have imposed a sentence of 26 years' imprisonment with a non-parole period of 22 years.[1]

4 The Director of Public Prosecutions has appealed against the respondent's sentence on the ground that it is manifestly inadequate in all the circumstances.

5 For the reasons that follow, we have concluded that the appeal will be allowed, that the sentence imposed by the judge will be set aside and that the respondent will be resentenced to 22 years' imprisonment with a non-parole period of 18 years.

6 The respondent met Christine Lyons when he was 17 years old. When he was 18, he asked her to marry him but the relationship ended because her family did not approve of it. Many years later, the respondent and Christine reconnected over social media and ultimately moved to Bendigo together. By that stage, Christine had formed a relationship with Ronald Lyons. The respondent, Christine and Ronald Lyons commenced living together at the Kangaroo Flat house, along with Ronald's three children.

7 The respondent maintained his affection for Christine and they participated in an informal marriage ceremony. However, the respondent's perception was that Christine was increasingly directing her affections towards Ronald rather than him. In his sentencing remarks, the judge said that it appeared that the respondent was 'quite devoted to Christine Lyons and [was] prepared to do whatever it took to maintain [his] relationship with her'.[3]

8 Ms Kelly was a friend of Shiralee Lyons, a cousin of Ronald Lyons, who also lived in Bendigo. In June 2015, when Ms Kelly resided in Ballarat with her children, she visited Shiralee Lyons in Bendigo. In July 2015, Ms Kelly decided to live permanently in Bendigo and soon afterwards moved in with the respondent and his accomplices at the Kangaroo Flat house.

9 Christine Lyons was very keen to become a mother but was not able to have children of her own. She had unsuccessfully attempted to procure two vulnerable teenage girls and a neighbour to have a child for her.

10 The respondent and his accomplices began planning the murder of Ms Kelly in December 2015. At that time, Christine Lyons told Shiralee Lyons that she wanted Shiralee to make Ms Kelly 'disappear'. The respondent was involved in that discussion. He and Christine spoke about 'taking Samantha for a drive and for her not to return'. According to the prosecution case, the motive for the murder - which the judge aptly described as 'bizarre'[4] - was to enable Christine to assume the care and custody of Ms Kelly's children.

11 During a second conversation between the respondent, Christine and Shiralee Lyons, Christine asked Shiralee to 'do Sam in' and expressed her wish to have Ms Kelly's children 'signed over' to her. During a third conversation with Shiralee Lyons, Christine and Ronald Lyons discussed potential ways of killing Ms Kelly, including drugging her and disposing of her body down a mine shaft, as well as injecting her with air to cause an 'instant heart attack'.

12 By mid-January 2016, although her children continued to reside at the Kangaroo Flat house, Ms Kelly had been relegated to the bungalow at the rear of the house. In December 2015, Ms Kelly told her friend, Michelle Enright, that she suspected that the respondent and his accomplices were attempting to take custody of her children, and that she did not feel safe. Five days before her murder, Ms Kelly contacted her social worker and made an urgent request for alternative accommodation for herself and her children. The respondent and his accomplices were aware of Ms Kelly's efforts to relocate.

13 After initially denying any involvement in the murder of Ms Kelly, the respondent accepted responsibility for the crime. However, he revised his version of the circumstances of the crime several times. He made further revisions when he gave evidence on the plea. The judge accepted that evidence with some hesitation. Set out below are the events leading up to and including the murder of Ms Kelly, as found by the judge.

14 On 20 January 2016, Christine Lyons visited a medical clinic and obtained a prescription for Temaze. That prescription was filled by the respondent and Christine Lyons and was used later that evening, along with other sedatives already held by Christine Lyons, in an attempt to cause Ms Kelly's death by an overdose of drugs. The large quantity of sedatives which was given to Ms Kelly made her 'real groggy' and she retired to her bungalow. Christine and Ronald Lyons intermittently looked in on her to assess her condition.

15 Ms Kelly was still alive the following morning. She was given more drugs. On the evening of 21 January 2016, Ms Kelly again spoke to Ms Enright and told her that the respondent and his accomplices had made her 'drink stuff that tasted funny'. She also said that she believed 'all of them were in on it and wanted the kids'. Later that night and into the early hours of 22 January 2016, as Ms Kelly was still alive, the respondent and his accomplices discussed what to do next. A fleeting plan to push Ms Kelly into a nearby lake was discussed but quickly abandoned.

16 The judge described the subsequent events of that evening as follows:

[The respondent] and Ronald Lyons went into the bungalow where he showed [the respondent] a hammer which was to be used to kill Samantha Kelly. [They] both then returned to the main house where Ronald told Christine how the hammer would be used to kill Samantha. Christine then responded with 'Yes, go for it'. That description of how [the respondent] came to have the hammer and use it was given by [him] on 3 April 2017 at [his] plea hearing for the first time.

[The respondent] then drank four cans of Jack Daniels before entering the bungalow. When [he] did so [he] observed Samantha standing next to the couch. [He] approached her and struck her with the hammer. She fell to the floor. [He] then remember[s] striking her once more but believe[s] now, on reflection, it was more likely six to seven times. [He] did it because [he was] scared of losing Christine.

Having killed Samantha [the respondent] went back into the main house and told Ronald and Christine what [he] had done. Christine did not believe [him] so [she] sent Ronald out to the bungalow to check. Ronald shortly returned confirming that 'Yes Samantha is dead and yes, you [Christine] are the mother of Samantha's four children and I the father of them'.[5]

17 A post-mortem examination of Ms Kelly revealed at least seven impacts to her head before she finally died. The force required to cause her injuries was considered by the pathologist to have been severe and likely to have been inflicted by a rigid implement, such as a hammer. Toxicology analysis of Ms Kelly's blood detected the presence of eight pharmaceutical medications, including Temazepam. Four of those medications were prescribed to Christine Lyons on 20 January 2016.

18 The respondent and Ronald Lyons buried Ms Kelly's body in a dry creek bed at Shelbourne, approximately 20 kilometres south-west of Bendigo.

19 In the days following the murder, the respondent and his accomplices went to great lengths to conceal their crime and assume custody of Ms Kelly's children. For example, the names of the two youngest children were changed. When Christine Lyons re-enrolled the second youngest child in kindergarten, she filled in an enrolment form and nominated herself as the mother, Ronald as the father and the respondent as 'Pa'.

20 Between 26 January 2016 and 5 February 2016, the respondent withdrew money from Ms Kelly's Bendigo Bank account on four separate occasions.

Police investigation, respondent's changing story and his offer to cooperate

21 On 9 February 2016, the respondent and his accomplices told police that Ms Kelly had abruptly left the Kangaroo Flat property in the middle of the night without explanation. They also falsely stated that Ms Kelly was a regular drug user and was abusive towards her children.

22 When he was interviewed by police on 11 February 2016, the respondent initially maintained the false account that Ms Kelly had left in the middle of the night. However, when, in the course of the interview, he became aware that Christine Lyons had told police that he was responsible for killing Ms Kelly, he altered his story. He said that he went to the bungalow to retrieve something, that Ms Kelly was drug-affected and that, when she lashed out and attacked him with a hammer, he took the hammer from her and hit her over the head with it in response to that attack. He denied that Christine and Ronald Lyons were involved in the death of Ms Kelly. During the course of this interview, the respondent directed police to where Ms Kelly's body had been buried.

23 On 11 February 2016, police charged the respondent with the murder of Ms Kelly. Christine Lyons was also charged with that murder on the same day. Ronald Lyons was charged with assisting an offender.[6]

24 On 23 August 2016, Shiralee Lyons made a statement to police. That statement dealt with her conversations with the respondent and his accomplices which are set out at [10]-[11] above.

25 At the respondent's request, police again interviewed him on 12 September 2016. On that occasion, he told the police the following:

(a) his story about Ms Kelly abandoning her children was a lie that was made-up by his accomplices;

(b) his accomplices had given Ms Kelly tablets over a number of days, incrementally increasing the dosage, until they were administering tablets every three hours;

(c) while Ms Kelly was sedated in the bungalow, his accomplices told him that 'sooner or later she had to be killed' and that, moments later, he entered the bungalow and killed Ms Kelly in response to a weak physical attack initiated by her.

26 On 19 September 2016, the respondent signed a statement based on what he had told police on 12 September 2016.

27 Ronald Lyons was charged with murder on 26 September 2016.

28 When the respondent was arraigned before the judge on 30 November 2016, he pleaded guilty to the murder of Ms Kelly and gave an undertaking to give evidence against his accomplices in accordance with his statement dated 19 September 2016.

29 The respondent gave evidence against his accomplices at their committal on 13 January 2017.

30 At the plea hearing on 3 and 4 April 2017, the respondent's statement dated 19 September 2016 was to be the basis upon which he was to be sentenced. However, following a question by the judge to defence counsel about whether the respondent went to the bungalow and killed Ms Kelly with the hammer on his own initiative or at the direction of his accomplices, the respondent gave evidence on the plea which accorded with the sequence of events set out at [16] above.

31 On 4 October 2017, at a pre-trial hearing for the respondent's accomplices, the respondent gave evidence against them at a Basha inquiry.

32 The respondent was 44 years of age at the time of the offence and 45 at the time he was sentenced. He had a disadvantaged upbringing. His father died when he was six months old and his mother's new partner was a violent alcoholic who subjected the respondent and his mother to domestic abuse.

33 After the respondent's relationship with Christine Lyons ended due to her family's disapproval, he moved to New South Wales. He found work as a cattle drover and lived an isolated existence. Although he has six siblings or half-siblings, he maintains regular contact only with his sister, Leanne. She is about 47 years old and has two children. She has continued to support him.

34 The respondent experienced depression from his mid-30s, while he lived in New South Wales. However, it was not diagnosed until 2013. A clinical and forensic psychologist, Dr Simon Kennedy, linked this diagnosis with childhood trauma. Dr Kennedy described the respondent's personality style as inadequate and concluded that there were some cognitive difficulties. His performance IQ was in the average range and his verbal IQ was in the low-average range. Dr Kennedy said that statements the respondent had made about his remorse appeared to be genuine.

35 On 21 December 1989, the respondent was placed on a good behaviour bond and fined $250 by the Moulamein Local Court in New South Wales for the offences of breaking and entering with intent and taking and using a motor vehicle. On 18 February 1993, he was fined a total of $600 by the same court for two charges of breaking and entering and stealing and one charge of malicious damage. On 17 January 2007, he was convicted by the Moama Local Court in New South Wales of four charges of breaking and entering a building and four traffic offences. He was sentenced to 8 months' imprisonment, wholly suspended, and fined a total of $800.

36 At the plea hearing, the prosecution accepted that the respondent was remorseful, that he had pleaded guilty at the earliest reasonable opportunity and that the plea had significant utilitarian benefit. The prosecution also accepted that the respondent's undertaking to give evidence at the trial of his accomplices was of considerable value. However, the prosecutor emphasised that the respondent's vacillating position on the relevant events detracted from the utility of his evidence.

37 The prosecution tendered three victim impact statements from each of Ms Kelly's mother, Vivian Kelly, brother, Michael Kelly, and close friend, Tracey Lubcke. Vivian Kelly stated that she has panic attacks every time she sees her grandchildren because they remind her of Samantha. Michael Kelly, who with his partner now has custody of Samantha's children, stated that Samantha's death has been very traumatic for her four children and for his family and has required dramatic lifestyle changes to accommodate the needs of the four children. He said that he struggles with motivation and stress and has become a different person as a result of Samantha's death, which will haunt him for the rest of his life. Ms Lubcke stated that she suffers from depression and has nightmares as a result of Samantha's death, that she has difficulty going near places or things that remind her of Samantha and that one of her daughters, who was close to Samantha, has suffered an emotional breakdown.

38 Defence counsel submitted that the respondent's moral culpability was less than that of Christine Lyons. This was said to be because she was the architect of the joint criminal enterprise and the only one who sought to gain from the death of Ms Kelly. Further, so it was submitted, the respondent was manipulated by Christine Lyons and participated in the murder to maintain his relationship with her.

39 Defence counsel placed particular reliance on the following mitigating factors: the respondent's early plea of guilty; his undertaking to give evidence at the trial of his accomplices; his remorse; the threats to his life by other prisoners due to his decision to give evidence against his accomplices; and the hardship he is enduring in prison as a protected prisoner.

40 The judge described the respondent's offending in the following terms:

This was a vicious, calculated and planned killing by [the respondent] urged by [his] accomplices and carried out for an entirely bizarre reason. [His] conduct is to be condemned. [He] launched a vicious attack on a defenceless woman who did nothing to explain, in any sense, what [he] did to her.[7]

41 In assessing the respondent's culpability for the murder of Ms Kelly, the judge accepted that the respondent was 'beholden' to Christine Lyons and that, in terms of the 'household pecking order' at the Kangaroo Flat property, 'Christine [was] at the top, Ronald [was] in the middle and [the respondent was] at the bottom'.[8] The judge also accepted that the respondent participated in the crime in order 'to retain something from [his] relationship' with Christine Lyons, even though he regarded this motive as 'extraordinary'.[9]

42 The judge sentenced the respondent on the basis that 'Christine Lyons was the architect of this murder and she was the one who, as she saw it, had something to gain from the death of Samantha Kelly'.[10] The judge also accepted that the respondent was manipulated by Christine Lyons. He said that the respondent's 'somewhat blind devotion to [Christine Lyons] explains why [he was] willing to commit this terrible offence' and that he was 'always the one that Christine Lyons nominated to be the killer of Samantha Kelly'.[11] However, while the judge was 'content to accept Christine largely orchestrated Ms Kelly's murder', he observed that the respondent 'made a conscious and selfish choice to play a central role in order to elevate [his] standing with Christine or at least maintain what was left of that relationship'.[12]

43 Under the heading 'Aggravating factors', the judge said the following:

[T]his was an extraordinary, calculated and planned attack on an extremely vulnerable woman who had accepted the assistance of [the respondent] and [his] accomplices believing it to be well intentioned.

Samantha Kelly was, at least initially, oblivious to [his] true and thoroughly reprehensible intention, the carrying out of which [he] stood to gain least. [His] foolish and pathetic devotion to a woman who had clearly used [him] explains to a degree why [he] became involved in this awful criminal enterprise. However [he] knew and agreed to the objective that being to deprive Samantha Kelly's children of their mother by killing her.

A further aggravating feature of [his] offending is [his] participation in its concealment in which [he] played a central role by both disposing of the body and perpetuating the lie made up by Christine and Ronald Lyons about the reasons for Ms Kelly's disappearance. I do however accept ... that [his] involvement in disposing of the body should be somewhat mitigated by [his] subsequent cooperation with police in revealing its location.[13]

44 The judge regarded the respondent's plea of guilty and undertaking to give evidence against his accomplices as significant mitigating factors. He said the following:

[The respondent] pleaded guilty on 30 November 2016 having offered to do so on 11 February 2016, albeit on a different set of facts to those now before the Court. The Prosecution accept, as do I, that this was the earliest reasonable opportunity for [him] to make that offer. The utilitarian benefit afforded the Court and the community by virtue of [his] plea of guilty is therefore significant and I take that into account.

[A]fter being arraigned [he] gave a sworn undertaking to give evidence in the trial of [his] accomplices. [He has] already given evidence against [his] accomplices at their committal hearing which proceeded on 13 January 2017.

That being the case [he is] entitled to a substantial discount on [his] sentence for the information [he has] provided and for [his] willingness to give evidence in the forthcoming trial.

[The respondent's] evidence, as the prosecution submitted is of considerable value. However its utility and value may be somewhat tempered by [his] failure to initially disclose the full sequence of events leading up to [him] killing Samantha Kelly, as became apparent during [his] plea hearing. Even after [he] decided to take responsibility for having caused Samantha Kelly's death [he] continued to withhold the detail of how [he] came to use the weapon, and whose idea it was, until recently.

Nevertheless, [the respondent is] entitled pursuant to s 5(2AB) of the Sentencing Act 1991 (Vic) to a sentencing discount and I declare accordingly that I am imposing a less severe sentence than I otherwise would have because of the undertaking [he has] given to assist after [he has] been sentenced, and I direct that the undertaking [he] gave to give such assistance be noted in the records of the Court. Principle requires that those who are willing to give evidence against their accomplices should be encouraged to do so and encouraged by significant sentencing discounts.

In the event [the respondent does] not properly comply with the undertaking [he has] given to give evidence when called upon, an application can be made that [he] be brought back to this Court and a consequence of that, in all likelihood, will be that a different and heavier sentence will be imposed on [him].

As [the respondent is] aware, a consequence of [his] giving evidence and undertaking to do so again is that [his] prisoner status has changed from mainstream to protected. That being the case [he] will now serve out [his] sentence in custodial conditions of significant deprivation compared to those [he] would have been afforded in mainstream custody. [He has] given evidence about the present circumstances of [his] custody which involved being moved from the Metropolitan Remand Centre to Port Phillip where threats have been made against [him] and [his] family. [He has] also been physically attacked and injured as a result. [He has] since been moved back to the Melbourne Assessment Prison.

In addition, when [the respondent gives] evidence at the trial of Christine and Ronald Lyons [he] can expect to have [his] credit and reliability substantially attacked.[14]

45 The judge took into account in favour of the respondent that his depressive condition will make his time in custody more difficult and that his plea of guilty and willingness to give evidence were a sign of his remorse for what he had done.[15] He also took into account general deterrence, denunciation and just punishment. In relation to specific deterrence he said that, while it remained a relevant sentencing factor, given the respondent's age and the unusual nature of the crime, it was not 'particularly significant'.[16]

This Court's decision in Director of Public Prosecutions v Cooper

46 Before summarising the parties' submissions on whether the sentence imposed by the judge was manifestly inadequate, we will briefly discuss this Court's recent decision in Director of Public Prosecutions v Cooper.[17] We will do so because that case featured prominently in the parties' submissions.

47 In that case, Cooper was sentenced at first instance to a total effective sentence of 16 years' imprisonment with a non-parole period of 13 years for the offences of murder, aggravated burglary and theft. The individual sentence for murder was 15 years and the key reasons given by the sentencing judge for that sentence were Cooper's plea of guilty and offer to give evidence against his accomplice, Williamson.

48 The circumstances of the offending in Cooper were as follows. Cooper and Williamson, both of whom were users of 'ice', broke into the victim's property at about 12:47 am for the purpose of stealing cash that they believed to be located there. The victim, an 89-year-old decorated war veteran, was known to Williamson. Williamson had falsely stated to Cooper - who had been sexually abused as a child - that the victim was a paedophile. The victim was asleep when Cooper and Williamson entered his property but he heard them and woke up while they were in his bedroom. They tied his hands behind his back and bound his ankles together with a cord which was then anchored to a bed leg. Cooper struck the victim with a torch and placed a knife that he had brought with him to the side of the victim's body. The victim pleaded for the intruders to leave him alone. When Williamson rolled up the balaclava he was wearing and the victim recognised him, Cooper stabbed the victim 13 times in the back. Cooper and Williamson stole cash totalling $3,900 and other items - including the victim's war medals - and left him tied up and bleeding from the stab wounds. The victim died four hours and 38 minutes later.

49 Cooper pleaded guilty to the offending and undertook to give evidence against Williamson. The sentencing judge described the offending as a 'grave' example of murder. In her declaration under s 6AAA of the Sentencing Act 1991, the sentencing judge stated that, but for Cooper's plea of guilty and cooperation with the authorities, she would have sentenced him to a total effective sentence of 27 years' imprisonment with a non-parole period of 25 years. Although she did not quantify the discount on sentence based solely on Cooper's cooperation, she noted that, in some cases, such cooperation merits a discount of 50 per cent or even two thirds.

50 On appeal, this Court described the offence of murder as 'an extremely serious example of a very serious offence' and said that it was 'at the high end of the spectrum of seriousness for the offence'.[18] The Court emphasised that the victim 'was attacked whilst alone in his home, assaulted, trussed-up, terrorised, stabbed multiple times and left to slowly die'.[19] The Court concluded that the sentence of 15 years' imprisonment was 'so disproportionate to the seriousness of the crime as to demonstrate error in principle'.[20] The Court resentenced Cooper to 22 years' imprisonment for murder and a total effective sentence of 24 years. A non-parole period of 20 years was fixed. The Court stated that, had Cooper not pleaded guilty and provided assistance, the offence of murder would have warranted imprisonment for life and a non-parole period of 30 years.[21]

51 The Court said the following about the principles for assessing a discount on sentence for an offender's cooperation with the authorities and how those principles were to be applied to Cooper:

The present is not ... a 'true informer' case, where a discount anywhere near the order of fifty per cent - let alone two thirds - could have been considered appropriate. As Weinberg JA observed in Cottee:

The extent of any sentencing discount given to an informer will, of course, vary from case to case. Discounts of up to two thirds have been given for the highest level of cooperation, the so-called 'true informers'. Recently, this Court regarded a discount of 50 per cent as being appropriate for an applicant who had pleaded guilty to murder, kidnapping and trafficking in large commercial quantities of drugs in circumstances where that offender made a statement implicating his co-offenders, and undertook to give evidence against them.

Johnston was a case in which the Crown conceded that the applicant's cooperation was such that he was 'entitled to the maximum discount on sentence which proper sentencing practice is able to afford him'. Nettle JA (with whom Buchanan and Ashley JJA agreed) said:

... Although, recognising that the quantification of informer discount involves a degree of arbitrariness which adherents to the shibboleth of intuitive synthesis may prefer to avoid, in the circumstances of this case I would set the discount at 50%.

So to say is not to suggest that the level of discount could not be less or more in another case involving drug-related offences. Each case is unique. Nor is it to say that it is necessarily the only figure to which one could properly come in the circumstances of this case. It goes without saying that, within a given range of acceptability, views may reasonably differ. But, in my view, less than 50% would be an inadequate recognition of the quality of the information which the applicant has provided to authorities in this case, and the risks to which he has subjected himself by agreeing to do so; and more would tend to undermine public confidence in the sentencing process in relation to serious offences which arise out of organised drug trafficking activities on the scale here involved. I am strengthened in that conclusion by the analysis undertaken by Wells J in R v Golding.

A discount of fifty per cent on sentence was thought to be justified in Johnston because of the very high level of assistance provided to authorities. It should not be thought, however, that there is a 'tariff' or standard discount, or that the assessment of the discount that should be given can generally be approached in a mechanical or mathematical way. The amelioration of sentence to be afforded for cooperation in every case must be determined according to a range of factors, including - but not limited to - the nature and extent of the cooperation; any willingness to give evidence against co-offenders; and any danger flowing from the cooperation. As was said in Freeman, however:

... it is the genuine co-operation of the person furnishing the assistance which is important, whether or not the information turns out in fact to have been effective. The information must be such as could significantly assist the authorities. Any such discount should not be lost, for example, by reason of the offender not having to give evidence because the person the subject of the information pleads guilty.

As we have said, a 'discount' in the order of fifty per cent could not be considered warranted in the circumstances of this case. In an attractive argument, counsel for Cooper in this Court submitted that, although the prosecutor conceded that the statement of 31 January 2017 was 'of significance', Cooper's cooperation should be characterised as being 'mid to high level'. The real benefit of Cooper's cooperation is that he identified who had inflicted the stab wounds to [the victim] and assisted in the resolution of the case against Williamson. Counsel pointed out that, after he had been sentenced, on 7 September 2017 Cooper gave evidence against Williamson in a Basha hearing, following which Williamson pleaded guilty to murder, aggravated burglary and theft.[22]

Parties' submissions on whether the sentence was manifestly inadequate

52 The Director submitted that the sentence of 16 years' imprisonment imposed by the judge was manifestly inadequate because it failed to properly reflect the gravity of the respondent's offending and gave too much weight to mitigating factors, particularly the respondent's undertaking to give evidence at the trial of his accomplices.

53 In relation to the gravity of the offending, the Director stated in its written submissions that the offence was 'truly wicked' and 'heinous'. He also stated that the motive for the crime - enabling Christine Lyons to assume the care and custody of Ms Kelly's children - was senseless, required 'the strongest condemnation from the courts' and placed the offending 'at the highest end on the spectrum of offence gravity'.

54 However, in his oral submissions, counsel for the Director stated that the respondent's culpability was less than that of Christine Lyons. He said that her culpability was in the 'worst case' category and the respondent's culpability was 'one rung below the worst case, but not by much'. This was said to be because, even though the respondent inflicted the fatal injuries, Christine Lyons was the architect of the crime and the respondent was doing her bidding. Counsel stated that, as this Court in Cooper had characterised Cooper's offending as 'at the high end of the spectrum of seriousness', the respondent's offending could not be placed in the same category as that of Cooper.

55 The Director relied on the following aggravating features:

(a) Ms Kelly suffered an intellectual disability and was thus particularly vulnerable;

(b) the crime was committed in company with two other co-offenders;

(c) Ms Kelly had four young and vulnerable children, with various disabilities, who have been left motherless as a result of the crime;

(d) the crime was planned for several weeks between December 2015 and January 2016, during which period various ways of killing Ms Kelly were discussed;

(e) Ms Kelly became aware of the plan to kill her, and the motive of obtaining custody of her children, shortly before her death;

(f) Ms Kelly was drugged before her death and became aware that she was being drugged;

(g) Ms Kelly was defenceless and was struck seven times to the head by a hammer;

(h) the respondent assisted in burying Ms Kelly's body in a dry creek bed;

(i) the plan to take custody of Ms Kelly's children was put into effect after her death; and

(j) the respondent falsely claimed that Ms Kelly was a regular drug user who was abusive towards her children and that she abandoned them in the middle of the night.

56 In relation to the gravity of the offending, the respondent conceded that his offending had the aggravating features upon which the Director relied. While he also conceded that the offending was 'towards the higher end on the spectrum', he did not accept that it was 'at the highest end' as asserted in the Director's written submission. The respondent contended that his offending was less culpable than that of Christine Lyons because she was the architect of the crime and manipulated him into participating in it. He also contended that his offending was less serious than the offending in Cooper because the victim in that case was left tied up and died a slow death whereas Ms Kelly died swiftly.

57 In relation to the respondent's undertaking to give evidence at the trial of his accomplices, the Director accepted that this warranted a discount on sentence, but submitted that the judge had given it too much weight, resulting in an excessive discount. The Director emphasised that the different versions of events that the respondent had provided diminished the value of his undertaking, as the inconsistencies had the potential to undermine his credit, as recognised by the judge. He also submitted that there was strong evidence against the accomplices independent of the respondent, including, in particular, the statement of Shiralee Lyons.

58 The respondent submitted that the judge gave proper weight to the aggravating features of his offending as well as to the mitigating factors upon which he relied. They included:

(a) the plea of guilty at the earliest available opportunity;

(c) the respondent's disadvantaged background and lack of relevant convictions;

(d) the respondent's pre-existing depressive condition and the impact of that condition on his time in custody;

(e) the respondent's status as a 'protection' prisoner;

(f) the unlikelihood of further offending upon release;

(g) the respondent's general cooperation with the authorities; and

(h) the fact that Christine Lyons was the architect of the offending and the respondent was manipulated by her.

59 In relation to his cooperation with the authorities, the respondent submitted that a substantial sentencing discount was warranted in the circumstances for four key reasons. First, his evidence has already proven very useful to the authorities because the respondent's implication of Ronald Lyons in the murder of Ms Kelly enabled the charge against him of assisting an offender to be upgraded to murder. Further, the independent evidence about earlier plans by his accomplices to kill Ms Kelly would be insufficient, in the absence of his evidence, to implicate them in the fatal injuries that were inflicted upon her. Secondly, there is a public interest in encouraging those who commit serious offences such as murder to inform on their co-offenders so that the co-offenders can be brought to justice. Thirdly, the respondent has received threats in prison and has experienced hardship there as a result of his cooperation. Fourthly, the judge saw the respondent give evidence on the plea and was able to assess and take into account any diminution in the value of his evidence resulting from his prior inconsistent statements.

60 The respondent contended that, while the sentence was at the very lowest end of the permissible range, it was not manifestly inadequate.

61 Finally, the respondent submitted that, even if this Court were to find that the sentence was manifestly inadequate, it should exercise its residual discretion to dismiss the appeal.

62 In our opinion, the sentence of 16 years' imprisonment imposed by the judge is manifestly inadequate.

63 The judge was right to describe the murder of Ms Kelly as a 'vicious, calculated and planned killing' and 'an extraordinary, calculated and planned attack on an extremely vulnerable woman'.[23] The aggravating features of the offending to which the Director referred and those discussed below placed it at the high end of the spectrum of seriousness for the offence of murder.

64 We do not accept the Director's submission that the fact that Christine Lyons was the architect of Ms Kelly's murder, had a motive for the murder and directed the respondent to commit it necessarily means that the respondent's culpability for the offence was less than hers. Whether the culpability of the person who instigates a murder is greater than that of the person who commits it at the direction or exhortation of the instigator will depend on the circumstances of each case. In the present case, as the judge found, the respondent was a willing participant in the joint criminal enterprise, played a 'critical role' by striking the horrific fatal blows and had a motive for killing Ms Kelly. That motive - to retain Christine Lyons's affection - was in addition to his and Christine's shared motive that she gain the care and custody of Ms Kelly's children. The respondent's offending was extremely egregious and it is not particularly helpful to analyse it, as the Director sought to, in terms of whether it fell within the 'worst case' or 'one rung below [it] but not by much'.

65 The circumstances of the offending in the present case fall into the same category as the offending in Cooper. Both victims were vulnerable, were attacked at night in their own residence and were subjected to a violent and gruesome death. It is true that the present case lacks some of the aggravating features in Cooper, such as a prior assault, the tying up and terrorising of the victim and the victim's slow death from his stab wounds. On the other hand, some of the aggravating features of the present case were absent in Cooper. They include the premeditated - as distinct from opportunistic or spontaneous - nature of the murder, the prolonged prior attempts to kill Ms Kelly through a drug overdose, the ample opportunities that the respondent had to withdraw from the criminal enterprise, the shared motive of depriving Ms Kelly of her children, the lies about Ms Kelly's character and her attitude towards her children, the concealment of Ms Kelly's body and the impact of the crime on Ms Kelly's children.

66 As in Cooper, in the absence of the respondent's plea of guilty and undertaking to give evidence at the trial of his accomplices, the callous, cold-blooded and senseless killing of a vulnerable mother of four children in the present case would have warranted the maximum penalty of life imprisonment. The question is whether those mitigating factors were sufficient to justify a sentence of 16 years' imprisonment. In our opinion, they were not. That sentence is so disconnected from the gravity of the respondent's offending that, in the absence of discernible specific error, we can only infer that the judge gave too much weight to these mitigating circumstances.

67 As this Court stated in Cooper, there is no 'tariff' for determining the sentencing discount to be accorded to an offender's cooperation with the authorities.[24] In the present case, the judge said that the respondent was entitled to a 'substantial' discount for his cooperation.[25] Although the judge did not separately quantify that discount, in his declaration under s 6AAA of the Sentencing Act 1991, he assigned a discount of 10 years for the combined effect of the plea of guilty and the undertaking to cooperate, with the caveat that the process of assigning a discount was 'artificial'.[26]

68 As in Cooper, the respondent was not a 'true informer'. The fact that he has already given evidence against his accomplices means that they are aware of his cooperation. They are unlikely to pose a serious threat to his safety, although we accept that the respondent is at risk of reprisals within the prison system due to his cooperation. Furthermore, as was common ground, while the respondent's undertaking to cooperate has been and remains valuable, the numerous changes in his version of events have the potential to seriously undermine the credibility of his evidence at the trial of his accomplices.

69 It follows that, in our opinion, the sentencing discretion seriously miscarried in the present case. The sentence of 16 years' imprisonment is so disproportionate to the seriousness of the offence that it bespeaks of error in principle in the exercise of that discretion. In these circumstances, the sentence cannot be allowed to stand. Accordingly, we are satisfied that this is not an appropriate case for the exercise of the Court's residual discretion to dismiss the appeal.[27]

70 The respondent will be resentenced to 22 years' imprisonment. We will fix a non-parole period of 18 years' imprisonment. This sentence is less severe than it would otherwise have been due to the respondent's undertaking to give evidence at the trial of his accomplices.[28] In the absence of that undertaking and the respondent's plea of guilty, we would have sentenced him to life imprisonment with a non-parole period of 28 years. Our declaration under s 6AAA of the Sentencing Act 1991 will reflect this.

[1] DPP v Arthur [2017] VSC 263R [64] ('Sentencing remarks').

[2] Our discussion of the background to, and the circumstances of, the offending draws heavily on the judge's sentencing remarks.

[6] See s 325 of the Crimes Act 1958.

[15] Sentencing remarks [50], [59].

[17] [2018] VSCA 21 ('Cooper').

[18] Cooper [2018] VSCA 21 [46].

[19] Cooper [2018] VSCA 21 [46].

[20] Cooper [2018] VSCA 21 [46].

[21] Cooper [2018] VSCA 21 [51], [56].

[22] Cooper [2018] VSCA 21 [43]-[46] (citations omitted).

[23] See [40], [43] above.

[24] See [51] above.

[27] See DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 658-60 [103]-[115]; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 477-80 [36]-[44]; R v Yuan (2015) 252 A Crim R 422, 437, [64]-[66]; DPP v O'Neill [2015] VSCA 325; (2015) 47 VR 395, 422-4 [103]-[111]; DPP v Basic [2017] VSCA 376 [112]-[116].

[28] See s 5(2AB) of the Sentencing Act 1991.