v

TASMANIA, State of

GRAY, Brendan James

v

TASMANIA, State of

WATT, Christopher John

v

DIRECTOR OF PUBLIC PROSECUTIONS

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - Disparity - Co-offenders - Whether disparity between sentences of co-offenders for murder was justified.

Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, applied.

Aust Dig Criminal Law [1005]

Appellant Brendan James Gray: Wallace Wilkinson & Webster

Appellant Christopher John Watt: Legal Aid Commission of Tasmania

Judgment Number: [2007] TASSC 23

CHRISTOPHER JOHN WATT v DIRECTOR OF PUBLIC PROSECUTIONS

1 Appeal of John Frederick Duggan allowed.

2 John Frederick Duggan's sentence of life imprisonment with a non-parole period of 23 years quashed.

3 John Frederick Duggan re-sentenced to imprisonment for 32 years from 4 May 2004 with an order that he not be eligible for parole until 17 years after that date.

4 Appeal of Christopher John Watt allowed.

5 The order that Christopher John Watt not be eligible for parole until 20 years after 4 May 2005 quashed.

6 Christopher John Watt is not to be eligible for parole until 17 years after 4 May 2005.

7 Appeal of Brendan James Gray dismissed.

CHRISTOPHER JOHN WATT v DIRECTOR OF PUBLIC PROSECUTIONS

1 At a joint trial conducted between 15 and 30 June 2005, all of the appellants were found guilty of the murder of Athol John Tollard by shooting him in his home at Rokeby, arson by unlawfully setting fire to his house, aggravated burglary by entering his house as trespassers with a firearm with the intention of assaulting him and the stealing of his firearms, ammunition and firearm cleaning equipment. The crimes were committed on 4 May 2004.

2 On 14 July 2005, the appellant Duggan was convicted and sentenced to imprisonment for the term of his natural life and it was ordered that he not be eligible for parole until 23 years after 4 May 2004, the day upon which he was taken into custody. At the same time, the appellant Watt was convicted and sentenced to imprisonment for 32 years from 4 May 2005 and it was ordered that he not be eligible for parole until 20 years after 4 May 2005. On 25 July 2005 the appellant Gray was convicted and sentenced to imprisonment for 32 years from 4 August 2004 and it was ordered that he not be eligible for parole until 17 years after 4 August 2004.

3 All have appealed against the sentences. Duggan's grounds are that the sentence was manifestly excessive and an error in law having regard to considerations of parity. Gray's sole ground is one of manifest excessiveness. Watt's grounds are that the sentence failed to recognise sufficiently issues of disparity between Watt and Duggan, that it failed to recognise sufficiently issues of parity between Watt and Gray, and that the sentence and the non-parole period were manifestly excessive.

4 The facts were as follows. The victim was a 79-year-old man who lived in a somewhat isolated farmhouse. The appellants had been drinking together for much of the day. During the afternoon, Gray acquired a .22 calibre Winchester self-loading rifle from a man who had acquired it from a person he met at a party a couple of weeks previously. Gray and Duggan made unsuccessful attempts to obtain ammunition for the rifle from other people. Gray knew, or at least suspected, that Mr Tollard had several firearms at his home as well as ammunition for them. The appellants decided to go to his home and to steal from him. Duggan borrowed a car and they travelled in it to Mr Tollard's house, taking the Winchester with them. They had no ammunition. They intended to burgle Mr Tollard's home together and to rob him at gunpoint if they found him there.

5 Their entry into his house was an aggravated burglary because one of them was carrying the Winchester and also because it was a place of human habitation. Mr Tollard was at home alone. He grabbed the muzzle of the Winchester, apparently trying to seize it, whereupon Watt punched him to the face so hard that he fell to the floor. He was cruelly beaten and shot at least twice with his own .22 calibre Remington self-loading rifle. The house was then set on fire.

6 Mr Tollard died before the fire. His injuries included three fractured ribs on the right side and four fractured ribs on the left side. The fractures were associated with large bruises on each side of his chest, suggesting that he had been beaten or kicked. There was a lot of bruising over the lower back around the right kidney and a fracture of a vertebra just above the pelvis suggesting a traumatic injury. The fractures and bruises made it clear that Mr Tollard was very cruelly assaulted, quite likely by more than one assailant. He had also suffered a fracture of the thyroid cartilage, suggesting compression of the neck, either manually or by means of a blunt force. He had been shot in the right leg, the bullet passing up the leg and lodging in the head of the femur. Another bullet, which killed him, entered his back at the right shoulder, hit a rib, passed through his right lung and struck the thoracic spinal column. Death was caused by consequent bleeding from the lung. The learned judge rejected Watt's evidence at the trial that in the course of the struggle with Mr Tollard for control of one of his rifles, it accidentally discharged twice.

7 The house was set on fire in order to incinerate Mr Tollard's body and destroy evidence as to his murder. His body was burned beyond recognition. The house and practically all of its contents, along with a kitten, were destroyed by the fire.

8 It is not known which of the accused fired the fatal shot, caused the serious injuries or lit the fire. They were all to be treated as equally responsible.

9 The three men stole from the house an air rifle, a double-barrel shotgun, the Remington rifle, three other rifles and a large quantity of rifle and shotgun ammunition. Watt gave evidence that the purpose of going to Mr Tollard's home was to steal ammunition so that Gray could take revenge against a man named Mabb who had broken Gray's arm, by firing shots into Mabb's car. Duggan told the police much the same, as did Gray to a psychiatrist. The learned judge thought that the quantity of firearms and ammunition stolen by the three men suggested that they may have intended to do worse than damage Mabb's car and frighten him, but accepted that there was insufficient evidence upon which a finding could be made that they had any worse intentions concerning what they would do after leaving Mr Tollard's home.

10 A few hours after leaving, two police officers found them, each armed with a loaded gun. They were drunk, irresponsible, amoral, capable of extreme aggression and very heavily armed and it was lucky that the police officers were able to disarm them without anyone being shot.

11 Mr Tollard was a bachelor. He was loved and respected by members of his extended family and by friends in the Rokeby area. Despite his age, he led an active life, working on his farm and helping others. No doubt his murder had a significant impact on those who were close to him. The learned judge acknowledged, nevertheless, that it would be wrong to take into account the popularity of the victim in the sentencing process, since the fact that a human life was taken was what was overwhelmingly significant. His Honour's acknowledgement accorded with Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1 at 30 - 31.

12 The appellant Duggan was 37 years old at the time of the crimes and 38 when sentenced. From about the age of 12 his behaviour deteriorated, he said because of disabling injuries suffered by his father. He was educated to Year 11 or 12, but by then he was drinking excessively and missing school, and he did not matriculate. He moved on to use marijuana, amphetamines and heroine. His worse abuses were of alcohol and amphetamines. He had some employment of a labouring kind. However, over the last year or two before these crimes he was in receipt of a disability pension as a result of his alcohol and drug abuse. His record of offending was a very poor one. A large proportion of his offences were connected with his abuse of alcohol or substances. He had eight convictions under the Road Safety (Alcohol and Drugs) Act 1970 and in addition, three convictions for driving while disqualified. His offences also included abusive or indecent language (4), obstruct, threaten or resist police (9), assault police (6), assault, wounding, drug offences (5), drunk and disorderly or disorderly conduct (13), destroying or injuring property (5), offences of dishonesty (21), and other miscellaneous offences. He had been sentenced to imprisonment many times. On my assessment, after allowing for the possibility of remissions for good behaviour, he had been in prison serving sentences of imprisonment for a total of at least 2 years 4 months over six periods between 1986 and 2000. Unlike Gray and Watt, two of his prior offences were crimes and because he was sentenced for them in the criminal court, the comments on passing sentence were available and provided to the learned judge. In 1990 he received a wholly suspended sentence of 4 months' imprisonment for assault, as a result of pointing a rifle at somebody when he was intoxicated. In 2000 he was convicted of wounding as a result of an incident on a Metro bus, when he was drunk. He became involved in a fight with another drunk, produced a knife and slashed the other's throat. He had twice been imprisoned for assaulting police and related charges. When untreated he suffers from mood swings and anger problems. In prison he had been prescribed Prozac, which he thought worked. He said that he felt much better since he had lost the opportunity to have alcohol and drugs and he had given up smoking. At the time of sentencing, he had been in prison for 14 months and had undertaken Year 12 studies.

13 The appellant Watt was 26 years old at the time of the crimes and 27 when sentenced. He was educated to Grade 9. Following the breakdown of his parents' relationship when he was 12 years old, his behaviour deteriorated. He left home when aged 15 and lived a transient lifestyle, at times living on the streets. From the age of about 14 or 15 he abused alcohol. His record of offences makes that clear. According to his counsel he was regularly employed as a fisherman from about 1995 until about 2004 and on returning to land he would spend much of his spare time drinking alcohol to excess. His record for offending was a very poor one, notwithstanding that none of his convictions were in the criminal court. A large proportion of his offences were connected with his abuse of alcohol. He had eight convictions under the Road Safety (Alcohol and Drugs) Act and in addition, eight convictions for driving while disqualified. His offences also included offensive or abusive language (8), threatening or resisting a police officer (7), assaulting a police officer, assault (3), destroying or injuring property (4), offences of dishonesty (5), drunk and disorderly or disorderly conduct (4), dangerous driving and many other miscellaneous offences. He had been sentenced to short terms of imprisonment many times. On my assessment of his record, after allowing for the possibility of remissions for good behaviour, he had been in prison serving sentences of imprisonment for a total of at least 1½ years over six periods between 1998 and 2003. He was in a relationship with a woman. They had two children aged 7 and 3 at the time of sentencing. As a result of a motor vehicle accident in July 2003, which was caused by his dangerous driving, he suffered several fractures and other serious injuries which left him with no sensation in the lower half of his face, no teeth and fairly constant aches and pains resulting from a fracture of his collarbone. At the time of sentencing he had been in prison for 18 months and had undertaken Year 10 studies. He had enrolled to commence an apprenticeship as a furniture restorer.

14 The learned judge noted that since his current imprisonment commenced on 4 May 2004, Watt had been sentenced to a total of 15 months' imprisonment for earlier offences. His Honour took into account the totality principle discussed by the High Court in Mill v R (1988) 166 CLR 59 and determined that the sentence of imprisonment he was imposing for the crimes should commence one year after Watt's custody commenced, with his arrest, on 4 May 2004.

15 The appellant Gray was 29 years old at the time of the crimes and 31 when sentenced. He had a very difficult childhood and much of it was spent living on the streets. He abused alcohol and drugs for many years and his poor record reflects that. It commenced when he was 13 years old and includes no convictions in the criminal court. A large proportion of his offences were connected with his abuse of alcohol and substances. His record includes offences under the Road Safety (Alcohol and Drugs) Act (2), disturbing the peace or behaving in a violent manner (6), disorderly conduct, drunk and disorderly or drunk and incapable (25), indecent or abusive language (9), obstructing, resisting or threatening a police officer (18), assaulting a police officer (10), assault (11), destroying or injuring property (8), possession, manufacture or use of drugs (6), breaches of bail and failing to appear (22) and many other miscellaneous offences. He had received many sentences of wholly suspended imprisonment but only a few of actual imprisonment. On my assessment, he had spent about seven weeks in prison serving sentences between 1995 and these crimes. The fact that prior to his current incarceration the sentences were not severe suggests that courts recognised him as a hopeless drunk whose offences were not overly serious. However, after his custody commenced on 4 May 2004, he was sentenced to six months' imprisonment from that date for three assaults on Mabb and other offences committed on a number of dates between November 2003 and March 2004. As with Watt, the learned judge took into account the totality principle discussed by the High Court in Mill v R (supra), and determined that the sentence of imprisonment for the crimes before him should commence three months after the current period of custody commenced on 4 May 2004.

16 The learned judge had the benefit of reports from a forensic psychologist and a forensic psychiatrist concerning Gray, but not concerning Duggan and Watt. Although his schooling was disrupted, his education extended to completing Year 12. The learned judge found that despite his unfortunate background, his alcohol and drug problems and poor record, he had been making significant progress in rehabilitating himself for some years prior to committing these crimes. The learned judge said that from about 1998 to 2002 he led a stable life, working in the marine industry. He obtained a Small Boat ticket and an Open Water Diver's ticket. He attended the Australian Maritime College. He began an Associate Diploma course in Aquaculture in 2002 and continued that course in 2003, although it was interrupted by a remand in custody arising out of an assault charge, for which a community service order and a probation order were eventually imposed. In 2004 he commenced a science degree course. He was a family man with a supportive partner and a young child. Over the years he had problems with panic, anxiety and depression. Those problems were controlled with an anti-depressant. He had a significant personality disorder and problems with anger control. He had shown a degree of ambition to improve his circumstances through education, an ability to make use of mental health resources that were available to him, and a degree of willingness to accept assistance in dealing with his anger and his use of violence. The learned judge thought it particularly tragic that, despite the progress he had been making, he did not control himself on the day of the crimes, but drank an enormous amount of alcohol, instigated the burglary of Mr Tollard's home and was involved in and responsible for the crimes that were committed there. The learned judge thought that Gray had experienced significant remorse. He was distressed during a videotape recorded walk-through with police and the forensic psychiatrist reported that he expressed remorse. However, counsel for Watt made the point to this Court that his distress during the walk-through was likely to be attributable to his own self interest rather than remorse, if regard is had to the fact that what he asserted to the police at the time in support of a claim to innocence of the murder was rejected by the jury.

17 When sentencing all three appellants, the learned judge said:

"I accept the submission made by the Director of Public Prosecutions that this was one of the worst types of murder. It involved the invasion of a respectable citizen's home by three aggressive and drunken men who were intent on robbing him at gunpoint, and willing to inflict very serious violence if he resisted. It involved extraordinary cruelty as well as murder. It involved the destruction of the victim's residence in order to conceal the commission of the murder. Crimes like these cause lasting fear in the community, especially amongst older people, those who live alone, and those who live in isolated residences. These crimes call for a very long sentence of imprisonment."

18 When sentencing Duggan and Watt, the learned judge said that unlike Gray, neither of them had shown any remorse. His Honour continued:

"I think the most appropriate course in relation to each of these prisoners is for me to impose on each a single sentence of imprisonment under the Sentencing Act 1997, s11, rather than imposing separate sentences for each crime. Because of Duggan's previous crimes of violence, I think the protection of the public requires that, if he is released on parole, as he probably will be one day, his release should be a conditional release that can be revoked at any stage during the rest of his life should he not observe the conditions of his parole. I do not think the same can be said in relation to Watt, since his prior convictions for assault were all imposed by magistrates, apparently for offences not involving the same level of violence as some of those committed by Duggan. However Watt must still receive a very long sentence of imprisonment. In fixing non-parole periods for these two men, I am taking into account the savagery of their crimes, but I am also taking into account the possibility that either of them might show substantial signs of reform in the years to come. I think Duggan's non-parole period should be longer than that of Watt because he has a worse record."

"I think the most appropriate course in sentencing this prisoner is to impose a single sentence of imprisonment under the Sentencing Act 1997, s11, rather than imposing separate sentences for each crime. I sentenced Duggan to life imprisonment because his previous crimes of violence suggested that, once he was released from prison, a lifelong parole order was appropriate. Because Watt's prior convictions for assault seemed much less serious than those of Duggan, I did not impose a life sentence, and imposed a shorter non-parole period. To a small extent, it counts against this prisoner that he was the instigator of the burglary - a burglary involving a rifle. However it counts very much in his favour that he had been making significant progress towards rehabilitation before committing these crimes. I think the positive signs that I have referred to warrant a shorter non-parole period than I imposed upon Watt, but I think the same head sentence would be appropriate."

20 Before considering the individual appeals, some comments should be made that are applicable to all of them. It was submitted by counsel for Gray that as it could not be established who fired the fatal shot, who administered actual violence to the deceased (apart from Watt's admitted punch at the outset) and who lit the fire, and it could not be established that there had been a plan to kill the deceased, it would have been an error if the learned judge had sentenced all three offenders upon the basis that the criminal responsibility of each was at a high level, that is to say as if each was the principal offender or even a principal offender. It was submitted that in the circumstances, Gray should not have been sentenced upon the basis that he fired the fatal shot or lit the fire and that he should have been sentenced only upon the basis that under the Criminal Code, s4, he was a person who was criminally responsible for the crimes because they were probable consequences of the joint prosecution of an unlawful purpose.

21 An argument that a sentencing judge must sentence upon a basis most favourable to the accused has long been discredited. Any doubt about the matter was put to rest by the High Court in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. Gleeson CJ, Gaudron, Hayne and Callinan JJ made it clear at 277 - 278, that the identification of the precise nature of an accused person's involvement is not an essential aspect of the sentencing process, and particularly not in a case when that involvement cannot be determined. At 279, their Honours stressed that it is always necessary to bear steadily in mind the offence for which the offender is to be sentenced and at 280, that a judge is not obliged to sentence upon a version of the facts that is favourable to the offender merely because the prosecution cannot prove the contrary beyond reasonable doubt. The rule as to the standard of proof that is to be applied to the determination of facts for sentencing purposes is that the sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt" and "on the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities." R v Storey [1998] 1 VR 359 at 369. See R v Olbrich at 281.

22 It follows that the learned judge was not obliged to sentence the appellants upon the basis that their criminal responsibility only depended on "common purpose" principles or any other less serious basis for liability. However, it would have been erroneous if the learned judge had sentenced them upon the basis that they each fired the fatal shot, that they each administered all of the violence to the accused (apart from Watt's admitted punch at the outset) and that they each lit the fire. See R v Olbrich at 280. In a particular case, the rules I have been discussing may work against the prosecution and the defence. The prosecution may be unable to establish the highest level of criminality and the defence may be unable to establish the lowest level.

23 In this case, the learned judge did not breach those rules. He made it clear that it could not be determined who fired the fatal shot, who administered violence to the deceased and who lit the fire. Having acknowledged those matters, the learned judge said that the appellants would be sentenced upon the basis that all three were criminally responsible for the killing and for setting fire to the house. There was no error in that. No finding could be made that the individual offenders did or did not personally commit the acts in question.

24 The view of the learned judge that this was one of the worst types of murder was a correct one, notwithstanding that worse examples might come to mind. It involved the invasion of a man's home by three aggressive and drunken men intent on robbing him at gunpoint and willing to inflict considerable violence if he resisted. They chose him simply because they believed he had firearms and ammunition which they wanted for themselves. Extreme cruelty was administered to him before he was killed. Not only were they to be sentenced for murder. They were to be sentenced as well for an aggravated burglary which fell within the worst of its type. They were also to be sentenced for a particularly bad case of arson, involving the destruction of a house to destroy evidence of their crimes, including the incineration of the householder's body, and they were to be sentenced for what was a bad example of stealing, because it concerned firearms and ammunition.

25 It is a ground of each of the appeals that the sentence was manifestly excessive. Having regard to the serious nature of the crimes and the almost total absence of mitigatory factors, the sentence of life imprisonment that was imposed on Duggan was not manifestly excessive. It fits comfortably with a number of other sentences of life imprisonment that have been imposed for murder. His record reveals a propensity to commit offences of violence and includes, in 1989, the crime of assault, and in 2000, the crime of wounding, for which he was sentenced to 18 months' imprisonment, six months of which were suspended. It was particularly because of his record for crimes of violence that the learned judge determined that for the protection of the public, future release on parole should remain conditional for the rest of his life. There was nothing novel in that. The need to protect the public has influenced judges in other cases of murder to impose life sentences. See A J Smith, 17 June 1997; Kemp, 3 December 1997; J L Smith, 24 April 1998; Hunt, 1 June 1999; Brown, 27 October 2000; Marlow, 12 April 2001; Baker, 2 May 2002; Watson, 23 October 2002. The non-parole period of 23 years did not result in Duggan's sentence being manifestly excessive either, when regard is had to his crimes and to his record.

26 The sentences imposed on Watt and Gray, including the non-parole periods, were not manifestly excessive, having regard to their crimes and records. Counsel for Watt drew the attention of the Court to a number of other cases of murder in which sentences of imprisonment for a lesser term of years or with lesser non-parole periods were imposed for murder than were ordered for Watt. See for example McDonald, 18 May 2001; Kelly, 12 April 2001; Witzerman, 28 September 2000; Butwell, 13 December 2000. Nevertheless, more severe sentences can also be found in sentencing records and following an overall consideration of sentences in past cases, particularly for murder, I have concluded that it has not been established that their sentences were manifestly excessive.

27 It was a ground of Duggan's appeal that his sentence reflected an error of law, given considerations of parity. It was a ground of Watt's appeal that his sentence failed to recognise sufficiently issues of disparity between him and Duggan and issues of parity between him and Gray. Principles concerning parity and disparity are settled. They are summarised in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301 - 302 in the judgment of Dawson and Gaudron JJ:

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611, per Mason J). In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error (Lowe at 617 - 618, per Brennan J). Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance' (Lowe, esp at 610, per Gibbs CJ; at 613, per Mason J; and at 623, per Dawson J). If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

28 Therefore, it is necessary for the Court to consider the differences, if any, between the degrees of criminality of the three appellants and their own circumstances. The differences between their respective criminalities, so far as they can be determined, are slight, although they favour Duggan and Watt when compared with Gray. He was the instigator of the burglary, which involved a rifle. It was he who acquired the .22 calibre Winchester self-loading rifle. He and Duggan made unsuccessful attempts to obtain ammunition for it. He had information that Mr Tollard had several firearms at his home as well as ammunition for them. Duggan borrowed a car for the purposes of them all travelling to Mr Tollard's home. They all entered. Watt punched Mr Tollard in the face when he grabbed hold of the muzzle, the blow being sufficiently hard that he fell to the floor. Their criminal plan was a joint one, but it had as at least one of its objects the acquisition of ammunition so that Gray could take some form of revenge against Mabb by firing shots into his car. The conclusion is open that the actions and wishes of Gray were central to the plan in which they all participated.

29 The reason of the learned judge for imposing a life sentence of imprisonment on Duggan, and not on the others, was his perception that Duggan's record revealed a propensity to commit crimes of violence whereas that was not the case, or at least not to the same extent, with Watt and Gray. Similarly, the reason of the learned judge for imposing a non-parole period for Duggan of 23 years, which was three years longer than that of Watt, was his perception that Duggan's record was worse than Watt's record. In his comments when sentencing Gray, the learned judge acknowledged that "to a small extent it counts against this prisoner that he was the instigator of the burglary, a burglary involving a rifle", but added that "it counts very much in his favour that he had been making significant progress towards rehabilitation before committing these crimes". His Honour concluded as to Gray that "the positive signs that I have referred to warrant a shorter non-parole period than I imposed upon Watt, but I think the same head sentence would be appropriate."

30 As a result, Duggan was sentenced to life imprisonment and Watt and Gray were sentenced to imprisonment for 32 years, and their non-parole periods were fixed at 23, 20 and 17 years respectively.

31 Numerically, Gray's record for offences of violence was the worst of them all. He had committed 18 assaults on police officers and 11 other assaults. In addition he had committed 18 offences of obstructing, resisting or threatening police. Duggan, who was 10 years older than Gray and 13 years older than Watt, had committed six assaults on police, one other assault and one wounding. In addition he had committed nine offences of obstructing, resisting or threatening police. Watt had committed the least of them all, one assault on a police officer and three other assaults. In addition he had committed seven offences of obstructing, resisting or threatening police and one offence of dangerous driving.

32 Gray had received the following sentences of imprisonment, on the dates stated, for offences of violence:

33 Duggan had received the following sentences of imprisonment for offences of violence:

34 Watt had received the following sentences of imprisonment for offences of violence:

In addition, on 31 August 2004, Watt was sentenced to 12 months' imprisonment for dangerous driving committed on 11 July 2003, before these crimes.

35 The observations of the learned judge that Gray had made significant progress in rehabilitating himself for some years prior to committing these crimes and that from about 1998 to 2002 he led a stable life was understandably challenged by Watt's counsel. Between 1998 and the commission of these crimes on 4 May 2004, Gray committed 49 offences on 31 different dates throughout 1998 and 1999, in September 2002 and from November 2003 until the commission of these crimes. Most of those offences were not for violence and many were relatively minor, but they included two assaults on police, six other assaults and six offences of obstructing, resisting or threatening police. The assaults were committed on 17 January 1998, 27 February 1999 (two), 6 September 1999, 28 September 2002, 20 November 2003, 29 November 2003 and 14 December 2003. There was a gap in his offending between the end of 1999 and September 2002, followed by another gap of a little over a year, but from 20 November 2003 until these crimes he regularly offended.

36 In the same period, 1998 to the commission of these crimes on 4 May 2004, Duggan committed 26 offences on 17 different dates. They included two assaults on police, one wounding and five offences of obstructing, resisting or threatening a police officer. In the same period Watt committed 51 offences on 32 different dates. They included one assault on police, two other assaults, five offences of obstructing, resisting or threatening police and one offence of dangerous driving.

37 Ignoring obstructing, resisting or threatening a police officer, the appellants' records for offences of violence from 1998 until the commission of these crimes may be summarised in the following way. Gray committed eight assaults, Duggan committed two assaults and one wounding and Watt committed three assaults (and one dangerous driving). If regard is had to the entirety of their records, they may be summarised as showing that Gray committed 21 assaults, Duggan committed seven assaults and one wounding and Watt committed four assaults (and one dangerous driving).

38 With respect, I conclude that the learned judge erred. Notwithstanding that Duggan's record included the 1990 conviction for the crime of assault and the 2000 conviction for the crime of wounding, and Gray's record contained no crimes of violence but only summary offences for violence, a comparison of their records did not support a conclusion that Duggan should be sentenced to life imprisonment and Gray to 32 years' imprisonment, Duggan's record did not support an order that he should serve six more years of imprisonment than Gray before becoming eligible for parole and Watt's record did not support an order that required him to serve three more years than Gray before becoming eligible for parole. It is at the very least arguable that Gray's record was as bad as Duggan's record, if not worse. It was much worse than Watt's record. Having regard to Gray's record, the findings that from 1998 to 2003 he led a stable life and had been making significant progress towards rehabilitation were erroneous. He may have had some employment in that period and he undertook some courses, but his record during that time was a bad one. Watt was also employed during that time and his record was much better.

39 When comparing the respective sentences, it must not be overlooked that Gray appears to have been the instigator of the burglary because of his desire for revenge against Mabb.

40 I conclude that Duggan has a justifiable sense of grievance arising out of the fact that he was sentenced to life imprisonment with a non-parole period of 23 years, whereas Gray was sentenced to 32 years' imprisonment with a non-parole period of 17 years. I also conclude that Watt has a justifiable sense of grievance arising out of the fact that he was required to serve three more years of imprisonment than Gray before becoming eligible for parole. In all the circumstances, their sentences should have been the same.

41 Accordingly, I would allow the appeal against sentence of John Frederick Duggan. I would quash his sentence of life imprisonment with a non-parole period of 23 years and in its place sentence him to imprisonment for 32 years from 4 May 2004 and order that he not be eligible for parole until 17 years after that date. I would also allow the appeal of Christopher John Watt, quash the order that he not be eligible for parole until 20 years after 4 May 2005 and in its place order that he not be eligible for parole until 17 years after that date. I would dismiss the appeal of Brendan James Gray.

File No CCA 55/2005

CHRISTOPHER JOHN WATT v DIRECTOR OF PUBLIC PROSECUTIONS

42 Each appellant appeals against the sentence he received upon his conviction on charges of murder, arson, aggravated burglary and stealing. They were jointly charged. They pleaded not guilty and were convicted by a jury.

43 It was for the learned sentencing judge to determine the facts for sentencing purposes. His findings, common to each appellant, are as follows save for two sentences that I have highlighted by printing them in italics. These sentences were only expressed at the time of the joint sentencing of Watt and Duggan on 14 July 2005. They were probably excluded for grammatical reasons when his Honour subsequently sentenced Gray on 25 July 2005. The sentences are implicit in what his Honour said when he sentenced Gray:

"The victim of all these crimes was a man named Athol John Tollard. He was 79 years old. He lived alone in a somewhat isolated farmhouse on a property at Droughty Point Road, Rokeby. These crimes were committed on the night of 4 May 2004.

[The prisoners] had been drinking together for much of the day. During the afternoon, Gray acquired a .22 calibre Winchester self-loading rifle from a man named Bailey. Bailey had acquired it from a person he met at a party a couple of weeks previously. Bailey did not have any ammunition for the rifle. Gray and Duggan subsequently made unsuccessful attempts to obtain ammunition for the rifle from other people. Mr Tollard had several firearms at his home, as well as ammunition for them. Gray apparently knew, or at least suspected, that this was the case. [The] prisoners decided to go to Mr Tollard's home, and to steal from him. Duggan borrowed a car. The three men travelled in it to Mr Tollard's home, taking the Winchester with them. I infer that they still had no ammunition, but I am satisfied beyond reasonable doubt that they intended to burgle Mr Tollard's home together, and to rob him at gunpoint if they found him there. They entered his house as trespassers, intending to steal from him. Their entry amounted to the crime of aggravated burglary because one of them was carrying the Winchester.

Mr Tollard was at home alone. I accept evidence given by Watt to the effect that Mr Tollard grabbed the muzzle of the Winchester, apparently trying to seize it, whereupon Watt punched him to the face so hard that he fell to the floor. I have no reason to doubt the truth of that part of Watt's version of events, especially since DNA matching that of Mr Tollard was found just inside the muzzle of the Winchester. However it is evident that the jury rejected the exculpatory evidence given by Watt, and the exculpatory statements made to interviewing police officers by Duggan, and I think they were right to do so.

After the three men invaded Mr Tollard's home, he was cruelly beaten, and shot at least twice with one of his own rifles, a .22 calibre Remington self-loading rifle. The house was set on fire. A post mortem examination established that Mr Tollard died before the fire.

The post mortem examination revealed three fractured ribs on the right side and four on the left. These fractures were accompanied by large bruises on each side of the chest, suggesting Mr Tollard had been beaten or kicked. There was a lot of bruising over the lower back around the right kidney, and a fracture of a vertebra just above the pelvis, suggesting a traumatic injury. These fractures and bruises make it clear that Mr Tollard was very cruelly assaulted, quite likely by more than one assailant. The post mortem examination also revealed fracturing of the thyroid cartilage, suggesting compression of the neck, either manually or by means of a blunt force.

There was a gunshot wound to the right leg. Part of that leg had been burned away in the fire, but the post mortem examination revealed that a bullet has passed up the upper right leg, lodging in the head of the femur. The bullet that killed Mr Tollard entered his body at the back of the right shoulder, hit a rib, passed through the right lung, and struck the thoracic spinal column. Apparently it was the bleeding from the lung that caused Mr Tollard's death.

Watt gave evidence at the trial that he had struggled with Mr Tollard for control of one of his rifles; that the rifle turned out to be loaded; and that it accidentally discharged twice during the struggle. Watt was such an unreliable witness that I do not accept any part of that evidence. I am certainly not satisfied beyond reasonable doubt that he fired the fatal shot. The pathologist's evidence as to the entry point and trajectory of the fatal bullet are inconsistent with Watt's evidence as to a struggle for control of a rifle. There is no other evidence as to which of the three men fired the fatal shot. The verdicts of the jury on the murder charge mean that all three men are criminally responsible for the killing of Mr Tollard. I will sentence them accordingly.

I infer that the house was set on fire in order to incinerate Mr Tollard's body and destroy evidence as to his murder. There was no evidence at all as to who started the fire. There is a possibility that two fires were started in different parts of the house. If that is what happened, the two fires could have been started by different people. The verdicts of the jury on the arson charge mean that all three men were criminally responsible for setting fire to the house. I will sentence them accordingly.The three men stole from the house an air rifle, a double-barrel shotgun, the Remington rifle, three other rifles, and a large quantity of ammunition, including both rifle and shotgun ammunition.

Watt gave evidence that the purpose of the expedition to Mr Tollard's home was to steal ammunition so that Gray could take revenge against a man named Mabb, who had broken Gray's arm, by firing shots into Mabb's car. Duggan told the police much the same. The quantity of guns and ammunition stolen by the three men would suggest that they might have intended to do worse than damage Mabb's car and frighten Mabb, but there is insufficient evidence for me to make a finding that any of them had any worse intentions as to what they would do after leaving Mr Tollard's home.

The three men happened to be drawn to the attention of two police officers a few hours after leaving Mr Tollard's home. Each of the three was armed with a loaded gun. They were all drunk, and apparently not perturbed by the crimes they had committed, nor by the presence of the police. This was a particularly serious case of stealing because the stealing resulted in the three men becoming extremely dangerous. They were drunk, irresponsible, amoral, capable of extreme aggression, and very heavily armed. It is lucky that the police officers disarmed them without anyone getting shot.

Although Mr Tollard was a bachelor, it is clear that he was loved and respected by members of his extended family and by friends in the Rokeby area. Despite his age, he led an active life, working on his farm and helping others. No doubt his murder has had a significant impact on those who were close to him. However, in determining the appropriate sentences for a group of murderers, it would be wrong to take into account the popularity or unpopularity of their victim, since the fact that they took a human life is of overwhelming significance.

As well as taking Mr Tollard's life, the three men destroyed a family home and practically all its contents. The front rooms contained furniture and family memorabilia dating from the 1920's. A kitten died in the fire. The Fire Service extinguished the fire but the house had to be demolished. Mr Tollard's body was burned beyond recognition. The scene that confronted the fire officers and police officers after the fire had been extinguished was no doubt particularly disturbing.

...

I accept the submission made by the Director of Public Prosecutions that this was one of the worst types of murder. It involved the invasion of a respectable citizen's home by three aggressive and drunken men who were intent on robbing him at gunpoint, and willing to inflict very serious violence if he resisted. It involved extraordinary cruelty as well as murder. It involved the destruction of the victim's residence in order to conceal the commission of the murder. Crimes like these cause lasting fear in the community, especially amongst older people, those who live alone, and those who live in isolated residences. These crimes call for very long sentences of imprisonment.

I think the most appropriate course in relation to each [prisoner] is for me to impose on each a single sentence of imprisonment under the Sentencing Act 1997, s11, rather than imposing separate sentences for each crime."

44 When sentencing Christopher Watt and John Duggan, the learned sentencing judge relevantly said:

"Duggan is 38 years old. He has been sentenced to imprisonment on ten previous occasions. That figure does not include his wholly suspended sentences. Many of his prior convictions have been alcohol related. In 1990 he received a wholly suspended sentence of four months' imprisonment for assault as a result of pointing a rifle at somebody when he was intoxicated. In 2000 he was convicted of wounding as a result of an incident on a Metro bus, when he was drunk, became involved in a fight with another drunk, produced a knife that he had been carrying, and slashed his opponent's throat. He might have inflicted more serious injuries, but his opponent disarmed him. He has twice been imprisoned for assaulting police and related charges. He has had problems involving alcohol and drugs for some years. He has been in custody since the night of the murder, and has therefore had no alcohol since then. His counsel said he feels a lot better for it, and that he has even given up cigarettes since he has been in custody. He has also undertaken educational courses, with good results, and been prescribed Prozac, which he believes has helped him.

Watt is 27 years old. He has been sentenced to imprisonment on eight previous occasions, excluding wholly suspended sentences, mainly for alcohol related driving offences. However he has convictions for assaults committed in 1997, 1998, 2000 and 2001. He has been in custody since the night of the murder, but whilst in custody has been sentenced to a total of fifteen months' imprisonment for earlier crimes and offences including possession of stolen property and dangerous driving, the latter being alcohol related. I must therefore take into account the totality principle, which was discussed by the High Court in Mill v R (1988) 166 CLR 59. I think the most appropriate course is to backdate his sentence for these crimes to a date 12 months after his arrest. Watt has had an alcohol problem since his early teens. He too has furthered his education whilst he has been in custody. The incident that resulted in his conviction for dangerous driving also resulted in facial injuries, for which he is awaiting treatment, and a permanent deformity relating to his collarbone. He will be somewhat disadvantaged in the prison environment as a result.

Neither of these men has shown any remorse.

...

Because of Duggan's previous crimes of violence, I think the protection of the public requires that, if he is released on parole, as he probably will be one day, his release should be a conditional release that can be revoked at any stage during the rest of his life should he not observe the conditions of his parole. I do not think the same can be said in relation to Watt, since his prior convictions for assault were all imposed by magistrates, apparently for offences not involving the same level of violence as some of those committed by Duggan. However Watt must still receive a very long sentence of imprisonment. In fixing non-parole periods for these two men, I am taking into account the savagery of their crimes, but I am also taking into account the possibility that either of them might show substantial signs of reform in the years to come. I think Duggan's non-parole period should be longer than that of Watt because he has a worse record.

John Frederick Duggan, I convict you and sentence you to imprisonment for the term of your natural life. I order that you not be eligible for parole until 23 years after 4 May 2004.

Christopher John Watt, I convict you and sentence you to 32 years' imprisonment with effect from 4 May 2005. I order that you not be eligible for parole until 20 years after that date."

45 When sentencing Brendan Gray, the learned sentencing judge relevantly said:

"The prisoner is 31 years old. He has a long record of convictions, but before these crimes had gone to prison to serve sentences only twice, in 1995 and 1996. On each of those occasions, he was convicted of assault. He has received numerous suspended sentences and community service orders. After his arrest for these crimes, he was sentenced to six months' imprisonment for various offences committed in late 2003 and early 2004, including three assaults on Mabb. I must therefore take into account the totality principle, which was discussed by the High Court in Mill v R (1988) 166 CLR 59. I think the most appropriate course is to backdate his sentence for these crimes to a date three months after his arrest.

He had a very difficult childhood. He has lived on the streets. He has had an alcohol problem and a drug problem since his early teens, as many of his convictions indicate. Despite his unfortunate background, his alcohol and drug problems, and his bad record, he had been making significant progress in rehabilitating himself for some years prior to committing these crimes. From about 1998 to 2002 he led a stable life, working in the marine industry. He obtained a small boat ticket and an open water diver's ticket. He attended the Australian Maritime College. He began an associate diploma course in aquaculture in 2002, and continued that course in 2003, though it was interrupted by a remand in custody relating to an assault charge, for which a community service order and a probation order were eventually imposed. In 2004 he had commenced a science degree course. He is a family man, with a supportive partner and a young child.

Over the years the prisoner has had problems with panic, anxiety and depression. Those problems are controlled with an antidepressant. He has a significant personality disorder. He has problems with anger control. He has shown a degree of ambition to improve his circumstances through education, an ability to make use of mental health resources that are available to him, and a degree of willingness to accept assistance in dealing with his anger and his use of violence. In fact he had been to see a psychiatrist on the morning of the day in question. It is particularly tragic that, despite the progress that he had been making, he did not control himself on that day, but drank an enormous amount of alcohol, instigated the burglary of Mr Tollard's home, and was involved in the other crimes committed there, including the murder of Mr Tollard. It seems he has experienced significant remorse. He was quite distressed during one of the videotaped police interviews. A psychiatrist has also reported that he expressed remorse.

...

I sentenced Duggan to life imprisonment because his previous crimes of violence suggested that, once he was released from prison, a lifelong parole order was appropriate. Because Watt's prior convictions for assault seemed much less serious than those of Duggan, I did not impose a life sentence, and imposed a shorter non-parole period. To a small extent, it counts against this prisoner that he was the instigator of the burglary - a burglary involving a rifle. However it counts very much in his favour that he had been making significant progress towards rehabilitation before committing these crimes. I think the positive signs that I have referred to warrant a shorter non-parole period than I imposed upon Watt, but I think the same head sentence would be appropriate.

Brendan James Gray, I convict you and sentence you to 32 years' imprisonment with effect from 4 August 2004. I order that you not be eligible for parole until 17 years after that date."

46 Each appellant contends that the sentence imposed on him is manifestly excessive. Duggan contends that for reasons of parity with Gray and Watt, his life sentence should be reduced. Duggan and Watt contend that for reasons of parity with Gray, their parole eligibility periods should be reduced. A separate contention advanced in the interests of Gray is that he was wrongly sentenced for the crimes of murder and arson on the basis that he was a principal offender. I turn to this submission first, it being the only submission that asserts specific error. If established, the error would apply to the sentencing of each appellant.

47 It is correct that each appellant was sentenced as a principal offender insofar as each offender was tried and convicted on each charge on the basis that he was criminally responsible as a participant in an unlawful common purpose or as an accessory. Accordingly, pursuant to the Criminal Code Act 1924 ("the Code"), s3(1) and s4, each appellant is deemed to have committed each crime. In advancing the contention that Gray was wrongly sentenced as a principal offender, his counsel used the term "principal offender" to mean the person who actually committed the crime, the perpetrator. For example, in relation to the charge of murder, the person who fired the bullet that killed Mr Tollard as distinct from a person convicted of that crime as an accessory or a participant in a common purpose. When the term "principal offender" is understood in this sense, it is immediately apparent that this submission must fail. The learned sentencing judge did not sentence any appellant on the basis that he was the actual perpetrator of the murder or the arson as distinct from an accessory or a participant in a common purpose. In the course of his comments when passing sentence, the learned sentencing judge, having referred to evidence that might have suggested that Watt fired the fatal bullet, said that he did not accept any part of that evidence and that there was no other evidence as to which of the three men fired the fatal shot. As to the arson charge, his Honour said there was no evidence at all as to who started the fire. In these circumstances, his Honour correctly stated that the verdicts of the jury on the murder charge and on the arson charge meant that all three men were criminally responsible in respect of those charges. This was clear recognition that no appellant could be sentenced on the basis that he was the actual perpetrator of either of these crimes, that is, the man who fired the fatal shot or the man who started the fire. Where, as here, the facts did not enable the learned sentencing judge to differentiate between the roles played by each appellant in the commission of the crimes, it was not necessary for him to purport to do so, see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [13 and 14]. Whilst it would have been an error for the learned judge to have sentenced an appellant on the basis that he was the one who actually fired the fatal shot or lit the fire, his Honour did not do so.

48 I have had the benefit of reading the reasons for judgment prepared by Crawford J and agree with him that the sentences imposed on the appellants were not manifestly excessive. However, this does not resolve the appeals of Duggan and Watt. Duggan contends that for reasons of parity with Gray and Watt, his life sentence should be reduced. Duggan and Watt contend that for reasons of parity with Gray, their parole eligibility periods should be reduced. The parity principle in relation to the sentencing of joint offenders is a reflection of the notion of equal justice_._ In Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 309, McHugh J cited the following succinct enunciation of the principle by the Court of Criminal Appeal in South Australia in R v Tiddy [1969] SASR 575 at 577:

"Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made."

A discrepancy between the sentences imposed on co-offenders will attract appellate intervention:

• where the magnitude of the discrepancy is manifestly excessive; Lowe v R [1984] HCA 46; (1984) 154 CLR 606, Mason J (as he then was) at 614 - 615 and Dawson J, agreed with by Wilson J, at 624, and Postiglione v R (supra), McHugh J at 309 and Gummow J at 323; and

• where the discrepancy is such as to give rise to a justifiable sense of grievance and appearance of injustice; Lowe, Gibbs CJ at 610, Mason J at 613 and Dawson J, agreed with by Wilson J, at 623 and Postiglione, Dawson and Gaudron JJ at 301, McHugh J at 309, Gummow J at 323 and Kirby J at 342.

49 The assessment of whether the circumstances of a discrepancy give rise to a justifiable sense of grievance and appearance of injustice must be objective as a sense of grievance can only be said to be justified if it can be so established. See Lowe, Mason J at 613 and Postiglione, Gummow J at 323 and Kirby J at 342.

50 At the time of the sentencing, Duggan was 38 years of age. The life expectancy of an Australian male aged 38 is 40 years; Luntz Assessment of Damages for Personal Injury and Death, 4 ed, LexisNexis Butterworths 2002. Accordingly, from the standpoint of Duggan's potential life expectancy, his head sentence was eight years more than those imposed on his co-offenders. In addition, a life sentence is more crushing than a fixed term sentence as it offers no hope of release, save on parole. These consequences are, however, well justified where a life sentence is appropriate in order to protect the public. As to that need, the learned sentencing judge in substance said that because of Duggan's previous crimes of violence, a life sentence was warranted. When referring to Duggan's prior convictions, the learned sentencing judge made particular reference to a conviction for assault by pointing a rifle at a person, and a conviction for wounding. When the sentence for the assault conviction was imposed in 1990, Green CJ remarked that he had been told that Duggan had changed his drinking behaviour. It is apparent from Duggan's subsequent record that such change, if any, as he made to his drinking habits was short lived. He has seven subsequent convictions for being drunk and disorderly and a number of other convictions for offences that are likely to have involved the abuse of alcohol, including four convictions for disorderly conduct and three convictions for consuming alcohol in a public street. In the course of the sentencing hearing, counsel for Duggan observed that his whole criminal history was the product of a drinking problem, systemic, deep and untreated. Duggan's conviction for wounding was recorded in 2000. At the time of that offence Duggan was intoxicated. When travelling in a Metro bus he became involved in a drunken argument and then a fight with another passenger. In the course of the fight, Duggan took a knife from its pouch and slashed the other man's throat from his ear to his Adams apple. Whilst numerically Duggan's record for offences of violence was less than that of Gray's, the important point of distinction between Duggan, Gray and Watt was Duggan's capacity when intoxicated for potentially lethal violence. By contrast, Gray's many convictions for offences involving violence and Watt's lesser number of those convictions did not include one offence of sufficient gravity for it to be dealt with in the Supreme Court.

51 Whilst there is a manifest difference between the head sentence of life imprisonment imposed on Duggan and the fixed term sentences of 32 years imposed on his co-offenders, I am not persuaded that this difference is a discrepancy that gives rise to a justifiable sense of grievance. Duggan's record, which shows that he has a history of resorting to potentially lethal violence, is good reason for the discrepancy and to a degree the impact of the discrepancy is ameliorated by the order that Duggan be eligible to apply for parole.

52 I turn to the different parole eligibility periods fixed in relation to each appellant. When sentencing Gray, the learned sentencing judge explained that he had sentenced Duggan to life imprisonment because his previous crimes of violence suggested that, once he was released from prison, a life long parole order was appropriate. His Honour also said that because Watt's prior convictions for assault seemed less serious than those of Duggan, he had not imposed a life sentence on Watt and had given him a shorter non-parole period. As to Gray, his Honour said that to a small extent it counted against Gray that he was the instigator of the burglary, however, it counted very much in his favour that he had made significant progress towards rehabilitation before committing the crimes. His Honour referred to positive signs referable to Gray that warranted a shorter non-parole period for him than the period of 20 years imposed on Watt. Gray was given a non-parole period of 17 years. His head sentence was the same as Watt's, 32 years.

53 Putting to one side Duggan's capacity for violence, Crawford J's analysis of the record of each appellant demonstrates that there was no basis for drawing a distinction in favour of Gray based on his record. The learned sentencing judge did not do so when distinguishing between the parole eligibility periods he imposed on Watt and Gray. His Honour's explanation for the difference between those periods was positive signs referable to Gray, they being his remorse and his progress towards rehabilitation. As to the latter, his Honour referred to Gray's work in the marine industry, his demonstrated ambition to improve his circumstances through education, his willingness to make use of mental health resources and his willingness to accept assistance in dealing with his anger and his use of violence. When sentencing Duggan and Watt, his Honour said that Duggan's non-parole period should be longer than that of Watt because of his worse record. I take this to be a reference to Duggan's convictions for more serious crimes of violence than Watt.

54 In result the non-parole periods fixed by the learned sentencing judge were 23 years for Duggan, 20 years for Watt and 17 years for Gray. In summary, the differences between these periods was attributed, as between Gray and Watt, to Gray's remorse and better rehabilitation prospects and, as between Watt and Duggan, to Duggan's worse record.

55 In fixing a non-parole period for each appellant, the task of the learned sentencing judge was to determine the appropriate minimum term of imprisonment for that appellant in all the circumstances. As explained in Deakin v R (1984) 58 ALJR in the joint judgment of five members of the High Court:

"The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."

56 There is no question that a prisoner's prospects of rehabilitation are relevant to the length of a parole eligibility period, both by way of mitigation and because the community benefits from the reform of one of its members. Conversely, the community needs to be protected from some offenders. See Bugmy v R [1990] HCA 18; (1990) 169 CLR 525, Mason CJ and McHugh J at 532. However, the importance of factors such as these when fixing a long non-parole period is significantly diminished because of the inability to forecast what a prisoner's prospects will be so far into the future. This difficulty was addressed in Bugmy v R (supra). Bugmy was convicted of murder and given a mandatory sentence of life imprisonment. Following the enactment of legislation entitling life prisoners to apply for parole after serving a minimum term of imprisonment, Bugmy's minimum term was fixed at 18 years 6 months. He appealed against the length of that term and in the course of allowing his appeal, Dawson, Toohey and Gaudron JJ said at 537:

"... it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term. The risk that the applicant might re-offend was of course a relevant factor in fixing a minimum term. But a minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation. The applicant was twenty-seven years of age when the minimum term was fixed. He will be over forty-five before the likelihood that he will re-offend will become a matter for assessment. It is not possible to say now what the likelihood will be then. Equally, the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead. Again, while the desire on the part of his Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance."

57 Consistent with the views expressed in the above passage, I conclude that where the non-parole period under consideration for co-offenders is very long, considerations such as the prospects of each offender reforming or re-offending will rarely warrant any marked difference between the non-parole period fixed for each offender. If and when one of the offenders applies for parole, the Parole Board will be in a far better position than the sentencer to examine those considerations. The first three considerations that the Board must address pursuant to the Corrections Act 1997, s72(4), in determining whether or not to release a prisoner are:

• the likelihood of the prisoner re-offending;

• the protection of the public; and

• the rehabilitation of the prisoner.

58 In the circumstances of this case, in my respectful view, forecasts as to the prospects of each appellant re-offending or reforming and the comparison of those prospects, are too unreliable to warrant the manifest differences between the non-parole periods fixed by the learned sentencing judge for each appellant and that the differences are such as to give rise to a justifiable sense of grievance on the part of Duggan and Watt. For reasons of parity, I conclude that the non-parole period of 17 years fixed in relation to Gray should also have been applied to both Duggan and Watt. If 17 years is the period after which each appellant is eligible to apply for parole, their ages when they become eligible will be, Duggan 54, Gray a few days short of 48, and Watt 43. At that age and after that period of time, the circumstances of each appellant are likely to be considerably different than they were when they were sentenced.

59 I would dismiss Gray's appeal but allow the appeals of Duggan and Watt insofar as I would substitute an order that they be eligible for parole 17 years after the commencement of their sentence for the orders made as to their eligibility for parole.

CHRISTOPHER JOHN WATT v DIRECTOR OF PUBLIC PROSECUTIONS

60 Following a joint trial, the appellants were found guilty on 30 June 2005 of the murder of a 79-year-old farmer, Arthur Tollard, at his Rokeby home on the 4 May 2004. They were also convicted of one count of aggravated burglary, having entered Tollard's home armed with a weapon intending to steal from him, one count of stealing and one count of arson. On 14 July 2005 Duggan was convicted and sentenced to a term of imprisonment for the term of his natural life, with an order that he not be eligible for parole until he had served 23 years after 4 May 2004. On the same date, Watt was convicted and sentenced to a term of imprisonment of 32 years, with an order he not be eligible for parole until he had served 20 years after 4 May 2005. The appellant Gray was convicted and sentenced on the 25 July 2005. He was sentenced to a term of imprisonment for 32 years with effect from 4 August 2004, with an order that he not be eligible for parole until 17 years after that date.

61 Each appellant has appealed against his sentence. As to the appellant Duggan, his grounds of appeal were that the sentence imposed was manifestly excessive and that the learned sentencing judge erred in law given considerations of parity. As to the appellant Gray, his sole ground of appeal was that his sentence was manifestly excessive. As to the appellant Watt, the grounds of appeal were that the head sentence and non-parole period were both manifestly excessive and that the sentence failed to sufficiently recognise issues of disparity between he and Duggan and parity between he and Gray.

62 On the night of 4 May 2004, the appellants entered Tollard's home, which was relatively isolated. They had been drinking together for most of the day. The appellant Gray had a .22 calibre Winchester rifle and he and the appellant Duggan had made unsuccessful attempts to obtain ammunition for it. Tollard had a number of firearms and ammunition at his home which Gray either knew about or suspected existed. The three appellants decided to go to Tollard's home and steal from him. The appellant Duggan borrowed a car and all three travelled to Tollard's home intending to burgle it. The learned sentencing judge was satisfied that their intention was to rob Tollard at gunpoint if they found him at home.

63 Tollard was in fact at home. The appellants entered. Watt had the rifle. Tollard grabbed the muzzle of the gun. The appellant Watt then punched him to the face so hard that Tollard fell to the floor. Tollard was then badly beaten. A post mortem examination revealed a number of fractured ribs with bruising over the areas suggestive of his having been kicked. There was bruising over the lower back and a fracture of the vertebra just above the pelvis. There was a fracture of the thyroid cartilage, suggestive of either manual strangulation or blunt force to the neck. He had been shot in the leg and then shot again in the back. He died from internal bleeding after the second bullet passed through his right lung.

64 Tollard was shot with one of his own rifles. The learned sentencing judge was unable to determine precisely which of the appellants caused the injuries to Tollard or fired the fatal shot. He sentenced them on the basis that all three were criminally responsible for the killing.

65 Tollard's house was then set on fire. The house was destroyed, as were almost all its contents. The learned sentencing judge inferred that the fire was for the purpose of destroying evidence. He was unable to determine who had set the fire, identifying the possibility more than one fire had been set. For the purpose of sentence he accepted that all appellants were criminally responsible for the arson. Before setting fire to Tollard's house the appellants stole several firearms and a large quantity of ammunition. All three appellants, either in evidence or to a health professional, said that they went to Tollard's home to steal ammunition because Gray wanted to take revenge on one, Mabb. The learned sentencing judge felt that the quantity of firearms and ammunition stolen appeared to be disproportionate to that purpose, but was unable to make any precise findings about just what the appellants intended to do with what they stole.

66 The appellants came to the attention of police a few hours after leaving Tollard's home. Each was armed with a loaded gun and was drunk. It seems they were indifferent to the crimes committed or the presence of police.

67 At the time of sentence the appellant Duggan was 38 years old. He began offending as an 11 year old, appearing before children's courts five times between 1977 and 1982 for offences involving dishonesty and destruction of property. The start of this behaviour appears to have coincided with his father suffering a severe work accident which left him with disabling injuries. Duggan attended school through high school but did not matriculate. He became involved with alcohol, marihuana, amphetamines and heroin. He had sporadic unskilled employment. However for the last couple of years before these crimes were committed he was in receipt of a disability pension because of his drug and alcohol abuse.

68 His offending history as an adult began in 1985. Between then and up to the day before these crimes were committed, that is over a period of some 19 years, he was convicted in respect of four occasions of drink driving, numerous minor alcohol related street offences, eight occasions of offences of dishonesty, seven assaults and a wounding. As a consequence, he served several terms of imprisonment. A conviction in 1990 for assault was as a consequence of his pointing a gun at a person when he was drunk. The conviction for wounding in 2000 arose from his slashing at a person's throat when he was drunk.

69 He had been in custody since the night of the offending, that is for a little over a year, and his counsel noted he had had no alcohol during that period and felt better for it, and that he had also given up smoking. He had been prescribed Prozac while in custody. He had also undertaken educational courses with good results.

70 As to appellant Watt, he was 27 years old at the time of sentence. He was educated only to Grade 9. His parent's relationship ended when he was about 12 and his behaviour deteriorated after that. He began to abuse alcohol when he was about 14 and left home shortly thereafter. Alcohol played a major role in his life, as was apparent from his record of offending. He had numerous drink driving convictions starting in 1996. These saw him incarcerated for the first time in 1998 and then again in 1999, 2000, 2003 and 2004. He had been convicted of assault on four occasions between 1998 and the date of these crimes, serving terms of imprisonment for some. These were all, however, dealt with in the Magistrates Court, the inference being that they were not as serious as those for which the appellant Duggan had been convicted. He also had convictions for a number of what appeared to be relatively minor dishonesty offences, street offences and breaches of bail over the years. While he had been in custody since the night of the offending, he had been sentenced to terms of imprisonment since. An incident which resulted in a conviction for dangerous driving in August 2004 saw him receive facial injuries, for which he was awaiting treatment, and a permanent deformity to his collarbone. It was accepted he would be disadvantaged in prison as a result. He had also undertaken some education courses while in custody. As a result of terms of imprisonment imposed while awaiting trial for the present crimes, the learned sentencing judge did not backdate his sentence to the date of the crimes but only to 4 May 2005. No issue was taken with that on appeal.

71 The appellant Gray was 31 years old at the time of sentence. He clearly had an unstable upbringing, ending up on the streets. He began to abuse alcohol and his offending history reflects that. He also began offending as a child, being dealt with for shoplifting at age 13. His record contained numerous convictions for assault, assault police, burglary and stealing, street offences and drink driving. He had served four terms of imprisonment, but overall had been incarcerated for less time than the other appellants. He also was convicted of offences after his remand for these crimes and sentenced to imprisonment. As a consequence the learned sentencing judge backdated his term of imprisonment to August 2004 rather than the date of the crimes. No issue was taken with this on appeal.

72 Before sentencing the appellant Gray, the learned sentencing judge had the benefit of a report from a psychiatrist from the Forensic Mental Health Service. It was apparent from the report that prior to the night of thee crimes, the appellant Gray had been diagnosed with various psychiatric and psychological difficulties. He had been on various medications and had attempted suicide. He also had anger management problems which were exacerbated by alcohol. The source of his difficulties was felt to be prolonged sexual abuse as a child. At the time of the offending, Gray reported he had been taking his medication appropriately. However on the day he had gone to the hotel and begun drinking and become consumed with the need to take revenge on a person he perceived had caused his girlfriend's father grief. The psychiatric report noted that to Gray's credit, prior to this offending, he had demonstrated the capacity to use psychological therapies and to control his anger. However, that capacity was disrupted by stress and substance and alcohol abuse. His enforced absence from substance and alcohol abuse while in custody had positive effects, although it was noted that at the time of trial he remained vulnerable to loss of control. Continuing treatment was recommended. He expressed remorse to the psychiatrist, and the learned sentencing judge noted he had experienced significant remorse, unlike the appellants Watt and Duggan.

73 The learned sentencing judge accepted the submission of the Director of Public Prosecutions about the nature of these particular crimes and concluded that they deserved lengthy periods of imprisonment. He also determined that he would sentence each appellant globally as opposed to sentencing for the individual crimes, and he dealt with the offending history of each appellant, comparing them. He dealt with issues of signs of reform. As to Gray, he dealt with his progress towards rehabilitation prior to the crimes as set out in the Forensic Mental Health report.

74 The only ground of appeal appearing in his notice of appeal was that the sentence imposed was manifestly excessive. However in written submissions and in the course of argument counsel also argued as part of this ground that the learned sentencing judge sentenced Gray on the basis he was a principal offender in respect of all the crimes when he should not have, ordered a non-parole period in excess of half the appellant's sentence without giving reasons, and generally that a non-parole period greater than half the head sentence was too much.

75 The first argument was based on the premise that while the Criminal Code provided for parties to be deemed principal offenders, that did not equate to providing that all should be treated equally in sentencing. The court, he submitted, should distinguish between persons who were actually involved and those, in effect, deemed involved. If a court were unable to determine the degree of responsibility of co-offenders, it could find as a fact there was equal responsibility or otherwise. Counsel referred to the matter of R v McNellee, Tucker and Dalley [2000] NSWSC 1154, a case involving the sentencing of multiple offenders on a charge of murder in which the Crown relied on the doctrine of common purpose. There is no doubt that the learned sentencing judge in that case, notwithstanding findings of guilt on the basis of common purpose, treated each prisoner differently having regard to their degree of actual involvement in the crime. However, he did so after making a number of findings of fact about that direct involvement.

76 In the present case, such findings were largely not made because they could not be. Counsel for the appellant Gray submitted that in such circumstances the court could not impose sentences as if offenders were equally responsible. In effect, because the learned sentencing judge could not determine who had actually shot Tollard, who had beaten him and who had lit the fire, none of the appellants should have been sentenced on the basis that they had carried out the shooting, administered the blows or lit the fire.

77 Counsel was unable to provide any direct authority for his proposition, referring the Court to the words of their Honours Dawson and Gaudron JJ in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301 - 302, in particular those words appearing at 302:

"In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v R [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

Counsel also dealt with passages appearing in R v Olbrich [1999] HCA 54; (1999) 166 ALR 330 in the headnote and at pars27 and 28.

78 With respect, the authorities to which counsel referred did not support his argument. I will not repeat the assessment of the law nor the conclusion reached outlined by Crawford J at pars21, 22 and 23 of his reasons. I agree with both his assessment and conclusion.

79 As to the issue raised about the non-parole period, there appeared to be a presumption that prima facie the Sentencing Act 1997, s17, provided for a non- parole period equal to half a head sentence unless a court determined otherwise. That is not the case. Section 17(3) simply provides that where a non-parole period is ordered, it is not to be for less than half the head sentence. In relation to the appellant Gray, the non-parole period was 17 years, that is marginally over half the head sentence. Counsel for the appellant accepted that if the head sentence of 32 years were to stand, the issue about the non-parole period really could not be pursued.

80 Was the sentence of 32 years manifestly excessive? This issue needs to be considered in light of the crimes for which the appellant was sentenced, the circumstances in which they were committed and in light of the conclusion in par19. The learned sentencing judge accepted a submission by the Director of Public Prosecutions that this was one of the worst types of murder. He said:

"It involved the invasion of a respectable citizen's home by three aggressive and drunken men, who were intent on robbing him at gunpoint and willing to inflict very serious violence if he resisted. It involved extraordinary cruelty as well as murder. It involved the destruction of the victim's residence in order to conceal the commission of the murder. Crimes like these cause lasting fear in the community, especially amongst older people, those who live alone and those who live in isolated residences. These crimes call for very long sentences of imprisonment."

"This was a particularly serious case of stealing because the stealing resulted in the three men becoming extremely dangerous. They were drunk, irresponsible, amoral, capable of extreme aggression and very heavily armed."

81 All of those conclusions were clearly open to him. The crimes manifested behaviour of an appalling nature. There appears to have been no regard had at all for a man, who, though active for his age and independent, was still elderly and vulnerable. The treatment of him before his death was unnecessarily vicious.

82 The learned sentencing judge noted against Gray "to a small extent" that he was the instigator of the burglary which involved a rifle. He also noted in his favour the significant progress towards rehabilitation. These factors were recognised by a significant head sentence with a non-parole period slightly more than half. The sentence was within the range open to the learned sentencing judge in dealing with an offender with a history of violence and alcohol abuse and who had demonstrated a callous disregard for human life. I am not satisfied it has been demonstrated that the sentence imposed was manifestly excessive.

Appeals of Duggan and Watt - were their sentences manifestly excessive?

83 As to the appellant Duggan, he was unrepresented at the hearing of his appeal, although his written notice raised issues of manifest excessiveness and parity. As to the first of those issues, the appellant demonstrated no remorse and there were minimal mitigating factors. He had a history of offending going back 20 years which involved numerous acts of violence and offending involving alcohol. The sentence imposed, while significant, was not one which was outside the range of those imposed for murder. Clearly the learned sentencing judge took into account the need to protect the public from a man who had, as noted in respect of the appellant Gray, demonstrated a deliberate and callous disregard for the life of another human being. The additional crimes for which each appellant was sentenced, while it is acknowledged they formed part of the same course of conduct over a relatively short time in which the murder also occurred, reinforce the view that the sentence was within the range available to the learned sentencing judge. I am not satisfied that it has been shown that the sentence imposed was manifestly excessive.

84 As to the appellant Watt, similar comments apply. An additional factor was his quite vicious assault on Tollard which felled him at the start of the events. I am not satisfied it has been demonstrated his sentence was manifestly excessive.

85 The appellant Gray, over the period 1993 to 2004, had been dealt with for 21 offences of either assault or assault police. All were dealt with in the Magistrates Court and he was incarcerated in respect of five of them. As to the appellant Watt, between 1995 and 2004 he was dealt with for four offences of assault or assault police. All were dealt with in the lower court and he was incarcerated in respect of three of them. As to the appellant Duggan, over the period 1985 to 2000, he was dealt with for eight offences of violence, which included six of assault police, one Criminal Code assault and one wounding. He was incarcerated in respect of six of these. While clearly in a numerical sense the appellant Gray has been involved in more violent offending, some regard needs to be had to the seriousness of it. It should be noted that Gray served less time in custody for such offending than the others, all of it was dealt with in the lower court and in a number of cases was dealt with in the context of a run-in with police as opposed to gratuitous violence towards a stranger. Duggan's past offending, by its nature and the penalties imposed, could be seen as the most serious.

86 The submissions in respect of parity were largely directed to the non-parole periods, although in respect of the appellant Duggan they also related to the head sentence.

87 The practical effect of the non-parole orders was that the appellant Duggan would be eligible for parole in 2027, Watt in 2025 and Gray in 2021. Counsel for the appellant Watt submitted that the learned sentencing judge failed to adequately recognise issues of disparity between Watt and Duggan. The two matters identified by counsel as warranting a much greater difference between the respective non-parole periods were the differences in the respective offending records of the two men and the prospects of rehabilitation. The second aspect of the submission was that the learned sentencing judge failed to sufficiently recognise issues of parity between the appellants Watt and Gray. Again it was the differences in the non-parole periods which underpinned this argument. In practical terms, the appellant Watt was not eligible for parole until four years after Gray. The learned sentencing judge identified factors which warranted differences as being Gray's expression of remorse and his steps towards rehabilitation. Both of these factors, it was submitted by counsel for Watt, were without foundation. Counsel also referred to what was submitted was a significantly higher number of convictions for offences of violence.

88 Quite clearly the offending history of Watt, in terms of offences of violence, was much less serious than that of Duggan or Gray. However, as between those two it is hard to say which record was the worse because it was a case of balancing a large number of perhaps less serious offences against a small number of more serious ones. If regard is had to offending history without more, it is hard to see how it could be said the appellant Duggan should serve at least six more years than Gray, and that Watt should serve any more at all.

89 As to the issue of remorse, the learned sentencing judge found Duggan and Watt expressed none, while Gray did. That finding was open to him on the material before him. It was reflected in the report from Forensic Mental Health in respect of Gray.

90 As to prospects of rehabilitation, the appellant Watt had maintained a role in the life of his children and partner and made significant attempts to further his education while in custody. Time in custody had also assisted him with addressing his problems with alcohol. His much lesser history of offending suggested these factors would stand him in good stead on release. As to Gray, despite the fact that he had been engaging with mental health professionals over a number of years and had been able to develop strategies for coping with stress and resultant anger, he had continued to offend and consume alcohol. It was open to the learned sentencing judge to find those facts. However, there was nothing in the material from the Forensic Mental Health Service which indicated that the appellant Gray had benefited significantly from his interaction with professionals such that, when these crimes were committed, he was on the way to a resolution of his problems and this was a single aberration.

91 With respect, I am of the view the conclusion reached by the learned sentencing judge in relation to Gray's prospects of rehabilitation such as to entitle him to a lesser sentence was not open on the material before him.

92 There were two other factors which were considered by the learned sentencing judge in considering any differences between the sentences imposed. These were that the appellant Watt was found to have punched Tollard to the face such that he fell to the ground before any other attack upon him. Further, the appellant Gray could be said to be the instigator of the events in that, but for his possession of a rifle, his desire to take revenge on Mabb and his perceived need for ammunition to do so, the events of the night may not have begun.

93 Taking into account the erroneous finding as to the appellant Gray's steps towards rehabilitation, the comments about the respective offending histories of the appellants and the factors in the preceding paragraph, I am of the view that the appellant Duggan would have a justifiable sense of grievance arising from the fact that the head sentence imposed upon him was for the term of his natural life and that he should serve at least six years more than Gray. I am also of the view that Watt would have a justifiable sense of grievance arising from the difference in the non-parole period imposed upon him by comparison with that imposed on Gary. I agree with Crawford J that the sentences of all three should have been the same.

94 I would, in all the circumstances, allow the appeals of the appellants Duggan and Watt and dismiss that of the appellant Gray. I would quash the sentences in respect of both the appellants Duggan and Watt and order that the appellant Duggan serve a period of 32 years with effect from 4 May 2004 and that he be eligible for parole after serving 17 years and that the appellant Watt serve a period of 32 years with effect from 4 May 2005 and that he be eligible for parole after serving 17 years.