DPP v Graham [2001] VSCA 221

10. With a case like this, it is best to take the facts from the sentencing remarks. Addressing the respondent, the learned judge said:

"You met the deceased early in 1999. You were then 43 and she was 21. A close relationship developed. By September 1999 the interest of the deceased in you was waning. On 30 September you went out to dinner with the deceased. You then went on to play on the poker machines at a local hotel. You drove her home in your car. In the driver's side pocket of that car you were accustomed to carrying a large knife. You parked your car opposite the house where she lived. You walked with her towards the house. You then had with you a knife. You went at the deceased with the knife. Only you could explain what precipitated you doing so and you have chosen not to give an explanation that accords with evidence from other sources on which I base my conclusions. When you attacked Hilary Stevens with your knife she used her arms to try to ward off your blows. Several times you struck her with the knife on her arms and hands as she tried to protect herself. You then plunged the knife four times into her back. You ran to your car and drove quickly away from the scene. You took the murder weapon with you. You drove a few kilometres to your office; you then drove home. The police spoke to you. You told them a story that was a mixture of truth and lies. You also passed on false information to them. Your plan was to deflect their investigations away from you. Over four months later the police interviewed you again. You told them then a different story. It, too, was a mixture of truth and lies."

14. His Honour was not prepared to accept that the respondent acted on the spur of the moment but, he observed, it was not clear why the respondent acted as he did. The respondent's own accounts were not credible: at times he merely twisted the truth: at other times he was a brazen liar. In those circumstances, it was impossible to be satisfied where the truth lay but, his Honour continued, it was "very clear that this was a very serious case of a very serious crime".

17. After referring to the victim impact statements, the judge turned to the respondent's personal circumstances. As I have said, he had no previous convictions. It was acknowledged that, up to a point, he had co-operated with the police and the judge was prepared to find, on balance, that at times there had been some remorse. Material placed before him as to programs that the respondent had undertaken and as to his conduct in prison were "strongly suggestive of [his] having very good prospects of rehabilitation". His Honour also referred to the respondent's medical condition, a topic to which I shall return.

20. In R. v. Clarke[1] Charles, J.A. gave examples of the occasions which may arise for the bringing of a Crown appeal. One of them was where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle. The Director began his submissions by contending that this was such an occasion, the sentence being manifestly inadequate both in relation to the head sentence and the non-parole period.

23. He reminded us that the judge had found that this was "a very serious case of a very serious crime", that the maximum sentence is life imprisonment and that his Honour was not prepared to find that the respondent acted on the spur of the moment. He had had a knife in his possession and had taken the knife with him from the car. That amounted, so the submission proceeded, to a finding that the killing had, at least to that extent, an element of pre-meditation. Only limited remorse had been shown and the reason for the killing was unexplained.

26. In those circumstances, the Director submitted, the respondent's prospects of rehabilitation were limited. Although no specific objection had been taken in the grounds of appeal to his Honour's finding that the respondent had very good prospects of rehabilitation, it was submitted that that finding was generous. Finally, it was submitted, the non-parole period was unduly low.

29. Mr Taft submitted that the sentence, although merciful in some respects, was within the range and emphasized the mitigatory factors to which the judge had evidently given weight.

32. I should say at once that I accept that the sentence imposed was lenient. I might well have imposed a heavier sentence, but that is a long way from saying that the sentence was manifestly inadequate. It is both elementary and basic that this Court has no jurisdiction to substitute its own opinion for that of the sentencing judge in the absence of manifest excess or inadequacy or specific error.[2] Although its propriety depends on the circumstances, a gap of four or five years between the head sentence and the non-parole period is not at all unusual or ill-advised in cases of murder. If there is a suggestion to the contrary in R. v. DeMarco[3], it is mistaken.

35. Even if I thought that the sentence warranted appellate intervention but for the incidence of double jeopardy, the latter would preclude such intervention. Any realistic increase would be cancelled out by the need to moderate the sentence on account of the respondent's standing twice in jeopardy at the instance of the Crown. But I do not rely on that consideration for the disposition of this case. In my opinion it was open to his Honour to moderate the sentence because of the respondent's medical condition. It is that factor which, I think, explains the leniency of the sentence.

38. Dr Lester Walton is a consultant psychiatrist, but his qualifications are not limited to psychiatry. The last paragraph of his report, which was tendered on the plea, reads:

"There would appear to be no immediately relevant psychiatric consideration specifically in relation to disposition. Of more general medical concern is the fact that Mr Graham is a member of a family with an extensive history of heart disease. Mr Graham has already experienced his first episode of myocardial infarction at the relatively young age of 45 years old and since he was incarcerated. The prognosis is not especially favourable and there is at least some risk that this man will die in prison."

42. The learned judge clearly had that in mind when, immediately before pronouncing sentence, he referred to Dr Walton's report and said that the information therein provided as to the respondent's heart condition was relevant to his avoiding the imposition of "a crushing sentence". The respondent's father had died of a heart condition at the age of about 47. The sentence was passed on the respondent on 18th June 2001. In November of the previous year, at the age of 45, he had suffered a myocardial infarction.

45. The difference between a crushing sentence and a sentence that infringes the principle of totality was explained in R. v. Saunders[4]. In the present case there was no question of totality: there was a single sentence on one count. The learned judge meant only that the respondent had a markedly shorter life expectancy than most men in their middle 40s and he was prepared to take that into account in fixing the sentence. That view was open. It is not for us to interfere.

53. I agree that the appeal should be dismissed for the reasons advanced by Callaway, J.A.

[1] [1996] VICSC 30; [1996] 2 V.R. 520, referred to with approval in the joint judgment of Gleeson, C.J., Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan, JJ. in Lowndes v. R. [1999] HCA 29; (1999) 195 C.L.R. 665 at [15].

[3] [1999] VSCA 69. The Director relied on this case in his outline of argument but resiled in the light of the statistics and the authorities, both in the High Court and in this Court, as to the principles governing the fixing of non-parole periods. As I said, sitting with Phillips, C.J. and Chernov, J.A., in Director of Public Prosecutions v. Adajian [1999] VSCA 105 at [30], R. v. DeMarco heralded no departure from those principles.

[4] [2000] VSCA 58 at [22]. It is a common occurrence for a judge to refer to the avoidance of a crushing sentence when he or she means compliance with the principle of totality, but such language rarely, if ever, betokens appellable error.