That passage of the summing-up relates to the case against the accused Rudman. It is quite irrelevant to the case against the appellant.

(c) The appellant complains that the learned trial judge appeared to support the prosecution's insinuation that "violence was anticipated as a possibility", presumably on the part of the appellant and his companions at the time that they embarked upon their search for Mr Atkins. I infer that the appellant complains of the following passage contained in the summing-up:

"I suppose one comment that can be made is this, that here were these people setting off on a journey to Hobart from Dodges Ferry, it's after dark on a winter's night and you might think, it's a matter for your evaluation of the evidence, that Mr Plumstead was affected by liquor to some way, you might need to consider the extent to which Mr Rudman would have observed that, and then this question comes up. The Crown suggests to you that the fact that the question came up at all is significant, as I see it, or as they see it, that is if this was just a visit to see some friends and discuss a matter why was there any necessity for Plumstead to be worried about what might occur, why was there any necessity for Plumstead to want to take along someone to act as a back-up, if that's what you think he was doing? Does that not of itself suggest that violence was anticipated as a possibility. Now, that's as I understand it the way Mr Jacobs puts it to you. In other words he's saying well violence and the possibility of violence was in the minds of these people before they even left Dodges Ferry and that even on Mr Rudman's version of events he was there, certainly not as a principal assailant, but as someone who would step in if defence of Mr Plumstead was required at some stage during this altercation or this discussion which might occur. Well that's a matter for you to consider. It's the way the Crown puts the case, as I understand it, and you might need to think about that."

I do not accept the submission that the learned trial judge supported the insinuation made by the Crown that "violence was anticipated as a possibility". The learned trial judge referred to the way in which the case was put by the Crown. That case was supported by evidence. The learned trial judge expressed no preference for the Crown case but merely invited the jury to consider it.

(d) The appellant complains that the learned trial judge expressed an opinion concerning the blow struck to the appellant's back during the incident. There was evidence that Mr Fletcher-Jones struck such a blow. The following passage from the summing-up appears to be the subject of this complaint:

"Mr Melick [counsel for the appellant at the trial] said in his address, 'well if he was wanting to mislead you and make things better for himself why didn't he say there was more than one blow from the axe?' That is, he was moderate in what he said because he only described one blow. On the other hand, of course, if he's claimed there was more than one blow there might be some difficulty in explaining why there are no photographs of any other injuries you might think, but that's a matter for you. Certainly there is evidence there that you would no doubt think was consistent with a blow from a blunt axe and that's how Mrs Atkins described it, a very blunt axe, she said it was and you might think it's also consistent with something less than a full blooded blow from that implement. You'll remember that in Trudy Plumstead's interview and that of course is only admissible in the case involving her as I've already said, but you'll remember that she said that it was almost a reluctant blow that Fletcher-Jones struck, it was not a full blooded blow at all, it was hesitant, to use her expression. So you might think that what you see in those photographs is consistent with that sort of proposition. You might think that if someone again was struck a full blooded blow with an axe to the back it would at least fracture some ribs and possibly put a very severe laceration into the skin even if you were wearing a jumper or something of that kind."

I do not think that the learned trial judge expressed the opinion complained of. He quite properly referred to the evidence and invited the jury to consider the question by reference to relevant considerations.

(e) The appellant complains that the learned trial judge expressed an opinion concerning the appellant's explanation to the jury "as to the purpose of a balaclava", presumably as to why the appellant had a balaclava with him when he went to the Atkins' house. It seems that the complaint arises out of the following passage of the summing-up:

"Well you remember Mr Plumstead's evidence, he said it was cold where they were and he mentioned a balaclava for the purpose of keeping himself warm. The Crown obviously say, as I understand them, that the balaclava was to be used as something to wear when he went off to assault Atkins. There's no direct evidence of that but they ask you to infer that from the context of that conversation as I understand it. Mr Plumstead said it wouldn't be any good his wearing a balaclava because he's a distinctive build and he's got a distinctive voice and Atkins would know who attacked him even if he was wearing a balaclava. Well you might need to consider that, you might need to consider whether that point is validly made if the attack was going to occur at night, by surprise in an area of darkness or something like that. That's a matter for you, no doubt. They are the two sides of the proposition as I see it."

I do not consider there to be any substance in that submission that thereby the learned trial judge appeared to be expressing an opinion concerning the appellant's explanation to the jury as to the purpose of a balaclava. The learned trial judge quite properly referred to both the Crown case and the defence case on this issue, indicated that there were two sides to the matter and left it to the jury for their consideration.

(f) In a submission not in any way elaborated upon, the appellant submitted that at a particular page of the transcript of the summing-up, the learned trial judge appeared to be expressing an opinion concerning the commencement of "the incident" in the way the complainant, presumably Mr Atkins, had described it. I have not been able to identify, on the page referred to, any observation made by his Honour which could reasonably be construed as expressing such an opinion.

(g) The appellant complains that the learned trial judge appeared to express an opinion as to the identity of the person who was talking to the complainant at the commencement of the "incident". I have been unable to identify such an expression of opinion at the page referred to.

(h) The appellant complains that the learned trial judge appeared to express an opinion as to the reaction of the appellant in finding the complainant in residence in Mason Street, Claremont. It appears that that complaint is based on the following passage of the summing-up:

"This is what Mr Atkins told the police at 10.30 that night:

'At about 9 pm tonight, on the 20th of August, I went to my mother's place where I currently live at 11 Mason Street, Claremont. At that time I was having a chat to my mother when someone knocked on the door, the back door. My mother answered the door. Mum looked at me and said, "It's for you." I then went to the rear door, I saw a male person who is unknown to me. This person said, "Paul?" I said, "Yeah." He said, "Is Stephen here?" I said, "Who are you?" He said, "Oh, Shane."'

Well now just pausing there, that might be of some significance, it might not. That Mr Rudman, if that's the person who's speaking, and you might think it is, asks for Stephen. Why would he ask for Stephen? They weren't going there to see Stephen. Was that perhaps an unrehearsed reaction to suddenly finding Mr Atkins there when they thought they were simply going to make enquiries of his mother, where he was? It might be a matter for you to consider."

The learned trial judge expressed no opinion. He merely posed some questions for the jury's consideration. They were questions which reasonably arose. The matter was left entirely for the jury's consideration, without the learned trial judge expressing any preference for any particular view.

(i) The appellant complains that the learned trial judge appeared to express an opinion concerning the discrepancies between the version of events which the complainant gave to the police and that which he gave in evidence. No particular opinion is complained of. It seems that the appellant complains of the following passage in the summing-up:

"Now you'll remember Mr Wilkinson's comments about what he suggested were discrepancies between Mr Atkins' version to the police and what he said in sworn evidence. That is, he said that in the statement to the police that Mr Atkins did not say that he had - Rudman had clasped his hands in the way that he told you he clasped his hands. Well this is what he said in the statement, 'I took his hand to shake, this person Shane then pulled me outside.' So he didn't mention hands at all but you might wonder whether he was asked about hands, he said that's one of the reasons why he hadn't previously mentioned it and you were also reminded of what he'd said in Lower Court proceedings about being pulled out by the hand but not saying that a second hand came across and clasped him in a double handshake.

Well they are matters for you to consider, they're also one or two other discrepancies that Mr Wilkinson suggested were there about whether there were blows struck, who was on the knees and matters of that kind and I don't think I need go into them in any great detail."

There is no basis for the complaint made. The learned trial judge did no more than to draw attention to a submission made by Mr Wilkinson, who was counsel for the accused Rudman, and tell the jury that this was a matter for them.

(j) The appellant complains that the learned trial judge appeared to express an opinion concerning the position of the complainant's vehicle at the time that he was assaulted. It seems that the appellant claims that such an opinion was expressed in the course of the following passage of the summing-up:

"The next evidence I want to remind you about is that of Fay Wilson, that is, Mr Atkins' mother. So don't get confused about that, Fay Wilson and Faye Atkins are one and the same. She told us that she went to the door, she heard the knock. Trudy Plumstead and Shane Rudman were there almost side by side. Trudy asked for Paul. I asked her, 'Which Paul?' And she said, 'Your Paul.' You remember Paul Miller was also in the house. She said there was good lighting and it lit up the backyard. She said the light was on, she turned it on when she opened the door. She said to Paul, 'You're wanted at the door.' That's Paul Atkins. He walked out and he pulled the door too and I walked back in the kitchen and seconds after I looked out and saw movement through the window. I went to the door and that's when I saw Fred Plumstead bashing him. 'Can you describe the noise you heard?' 'It was just a sort of thumping. Paul was laying on the ground trying to shield his face and Fred was hitting him with a piece of wood. Paul had his hands up over in front of his face. He was being hit with a pick handle or an axe handle.' She said that the force being applied by Plumstead was pretty hard. 'Are you able to tell us how many blows you believe you saw?' She said , 'About two or three.' She said, 'Trudy Plumstead was standing in front of the Kombi and Shane was standing between the two cars that were there.' Now that would seem to suggest, having regard to the way that Mr Paul Atkins described his Kombi as having been parked with its nose down the drive and its rear up. That Trudy was standing at the front of the Kombi and Shane Rudman was standing between the two vehicles."

What the learned trial judge did was no more than to remind the jury of the evidence as to the position of the vehicle and to tell them that that evidence suggested that at the relevant time Mrs Plumstead was standing at the front of the vehicle and Rudman was standing between it and another vehicle. It might be said that that amounted to an opinion but I am quite unpersuaded that it was in any way indicative of the learned trial judge expressing a preference for the Crown case.

(k) The appellant complains that the learned trial judge appeared to express an opinion concerning the force of the blow inflicted by Fletcher-Jones upon the appellant. I have not been able to find any passage of the summing-up in which such an opinion is expressed. The learned trial judge did no more than to refer to the evidence touching on this question and to then invite the jury to make up their own minds.

(l) The appellant complains that the learned trial judge expressed an opinion supporting the consistency of the evidence between two witnesses, Paul Miller and Mrs Wilson. The learned trial judge referred to the evidence given by those witnesses. He expressed no opinion that the evidence of the two witnesses was consistent.

(m) The appellant complains that the learned trial judge expressed an opinion that Rudman produced a knife before Fletcher-Jones produced an axe. It seems that this complaint arises out of the following passage of the summing-up:

"So obviously Mr Miller is saying that the knife waving, keep back, keep back, attitude by Mr Rudman occurred before the time when Stephen grabbed the axe and went into the back yard with it and that of course might be very significant in light of the Prosecution Case and of course the defence which has been made by Mr Rudman."

No opinion is expressed in that passage. It merely refers to the evidence and left the matter to the jury.

(n) The appellant complains that the learned trial judge expressed the opinion that the appellant was not as drunk as some of the evidence suggested. No such opinion was expressed. The learned trial judge referred to evidence that, at a relevant time, the appellant did not appear to be affected by alcohol and then told the jury that this was a matter for them. His Honour said that perhaps they might think that the appellant was not as drunk as some of the other evidence suggested. As there was a body of evidence, not all of it consistent, as to the extent to which the appellant appeared to be affected by alcohol, it was perfectly appropriate for the learned trial judge to remind the jury of it and indicate that various views appeared open. The learned trial judge did not suggest what view should be taken by the jury on this question. No valid complaint can be made about this direction.

(o) The appellant complains that the learned trial judge expressed an opinion as to the reasons for the visit to Mason Street and as to why the appellant initially remained in the vehicle. The learned trial judge merely indicated to the jury possible views which were open to them by reference to particular evidence, but made it clear that it was a matter for them. He did not suggest that they should take any particular view. No complaint can reasonably be made about this part of the summing-up.

(p) The appellant complains that the learned trial judge expressed the opinion that Rudman was involved in the incident as a willing agent for the appellant. I do not read the summing-up as including any such expression of opinion. If such an opinion was expressed it is difficult to see how it could have affected the case against the appellant.

(q) The appellant complains that, during the course of his summing-up, the learned trial judge "highlighted" those passages in the appellant's record of interview which were indicative of the appellant wishing to unlawfully assault the complainant. The learned trial judge certainly did read some of the salient questions and answers. It was perfectly proper for him to do so because they formed an important part of the Crown case. In no way can it be said, as is asserted by the relevant ground of appeal, that by referring to this evidence the learned trial judge indicated that he had formed an opinion favourable to the Crown case.

None of the specific matters relied upon by the appellant, either individually or collectively, support the proposition that the learned trial judge failed to give a balanced summing-up. I have read the whole of the summing-up. In my view it fairly put both the Crown case against the appellant and the appellant's own case. Ground 3 is not made out.

The trial was conducted on the basis that evidence would not be led concerning the death of Mr Fletcher-Jones. It may be assumed that this was done by agreement between the Crown and the defence. It is an agreed fact that at his trial the appellant believed that it was not open to him to reveal the circumstances leading to the death of Mr Fletcher-Jones in either his examination-in-chief or cross-examination before the jury.

The issue was raised with the learned trial judge in the absence of the jury after the appellant had commenced to give evidence. The following exchanges then occurred:

"MR MELICK: Your Honour, then there's the other matter of the concern expressed by my client which I can't articulate.

HIS HONOUR: I'm sorry?

MR MELICK: There's the other of the concern expressed by my client in that - and I certainly don't suggest that there's any intention on the Crown and Mr Jacobs has said he will try to avoid this occurring again, but my client is concerned that he's been cross-examined with one hand tied behind his back because he can't say anything to the jury about the fact that he was reasonably compliant in relation to an assault, admitting to an assault because he had a murder charge hanging over his head. And that's -

HIS HONOUR: Well what do you want me to do about that?

MR MELICK: Well I just bring it to the court's attention.

HIS HONOUR: Well I can't - well, I won't comment upon it as to its validity or its strength or any other aspect of it, Mr Melick. I'd just like to know what you want me to do as trial judge in relation to that difficulty.

MR MELICK: As I understand it, Mr Plumstead feels that he might have to mention the murder, I then become very concerned as to the prejudice that will cause, especially Mr Rudman. Now I don't think it's in your Honour's power to order that he doesn't undertake such a course.

HIS HONOUR: No. It might lead to certain undesirable consequences, Mr Melick, but I can't advise your client how he should answer his questions.

MR MELICK: No, no, I don't think -

HIS HONOUR: I would have thought there'd been ample legal advice about the undesirability of mentioning other matters well before this trial commenced.

MR MELICK: Yes. I can assure your Honour there certainly has been. I was instructed to raise the concerns, I can't take them any further, your Honour.

HIS HONOUR: Well. I don't think I can do anything about it, Mr Melick.

MR JACOBS: Could I just say on that, your Honour, certainly it's not my wish to be unfair to Mr Plumstead and I don't mind at all if he speaks to Mr Melick about it now or some other time, I'm happy for a brief adjournment if he would like to, but I assume he's got to consider his position, Mr Plumstead, if he, for example, wants to say 'I was confessing to more than I did because I wanted to be involved with this but not another matter' that they were also interested in that evening, well so be it, it's really up to him.

HIS HONOUR: Yes. Well look, it's not for me to comment on the validity of the proposition that's been and I refrain from doing so."

The appellant submits that there was a miscarriage of justice because, as the result of his understanding as to what he could not mention, he was embarrassed in providing complete answers asked of him before the jury. In Re Knowles [1984] VicRp 67; [1984] VR 751 it was held that a failure by an accused person to call evidence because of an erroneous belief that it is inadmissible may give rise to a miscarriage of justice.

No suggestion is made in the present case that the appellant's legal advisers believed that the relevant evidence was inadmissible. Had evidence of the death of Mr Fletcher-Jones at the hands of Rudman been given before the jury, that might have created prejudice in the minds of the jury against Rudman. No complaint is made about Rudman having been tried jointly with the appellant and no application for a separate trial was made. In addition, it might be thought that the appellant and his legal advisers would have considered it to be in his best interests that evidence of the events leading to the death of Mr Fletcher-Jones and of his death should not be led. Evidence of the ultimate fatal result of the incident which commenced with the appellant going to seek out Mr Atkins might have the effect of prejudicing the jury against the appellant.

The agreement that the circumstances of Mr Fletcher-Jones' death be kept from the jury involved a tactical decision on the part of the defence. It was not an unreasonable decision. It required a balancing of the possible prejudicial effect of this evidence against the use that might be made of it by the appellant for the purposes of his defence. The appellant does not complain of any inadequacy of the legal advice which he received on this issue. The competence of counsel who appeared for him at the trial, who was quite experienced, has not been questioned. In general, this Court should not go behind a deliberate decision taken at a trial by the accused and his legal advisers (R v Sarek [1982] VicRp 99; [1982] VR 971; see also R v Green [1997] 1 Qd R 584 at 586).

In essence, the appellant's complaint is that had the evidence been led before the jury, he might more readily have been able to explain why he gave incriminating answers when interviewed by the police, namely that he admitted to an assault because he did not wish to be charged with murder. At the same time, had that evidence been before the jury, they would have been aware of the fatal outcome of the series of altercations between the appellant and his companions and the occupants of the house. That might have created prejudice against the appellant in the minds of the members of the jury.

There was nothing unreasonable about the decision which was made. It having been made for the perceived advantage of the appellant, it should not now be open to him to suggest that there was a miscarriage of justice by reason of adhering to it. In any event, I do not consider that any miscarriage has been made out. I do not think that there is any significant possibility that the jury, acting reasonably, would have acquitted the appellant if that evidence had been before it. That is the relevant test (Gallagher v R [1986] HCA 26; (1986) 160 CLR 392). This ground is not made out.

It follows that, in my opinion, the appeal against conviction should be dismissed.

I turn to the application for leave to appeal against sentence. There are two grounds. The appellant asserts that the sentence imposed was manifestly excessive, and, in addition, seeks to have the sentence varied by reason of events which have occurred since he was sentenced. I deal with the latter matter first.

In January 1997, whilst the appellant was serving his sentence, his wife and two young children died in tragic circumstances as the result of a fire at their home. One cannot but be sympathetic to the appellant. The question is whether this matter makes it appropriate to interfere with the sentence. This raises an important matter of principle which makes it appropriate that leave to appeal against sentence should be granted.

The jurisdiction conferred on this Court by the Criminal Code, s402(4) on an appeal against sentence is expressed in the following terms:

"(4) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

It might be thought that as s402(4) authorises the imposition of a substituted sentence which is a sentence which "should have been passed" the appropriateness of a substituted sentence is to be judged by reference to the circumstances as they existed at the time of sentencing. That view was taken in R v Cornale [1993] 2 Qd R 294. However, that is not the approach which has been taken by this Court in relation to appeals where the appellant complains of an undue disparity between the sentence passed upon him and a sentence subsequently passed upon a co-offender. A recent example of where the Court has interfered in such circumstances is Deane v R (1996) 88 A Crim R 36.

The basis for interference in such circumstances was discussed by Mason J (as he then was) in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 613 - 614:

"This brief review of the authorities raises two questions. The first is: is discrepancy a ground for intervention in itself or is it merely indicative of undisclosed error in the sentencing process? Logic and reality combine to compel an answer in favour of the first alternative. The undisclosed error, as we have seen, may have occurred in the sentencing process as it affected the co-offender. The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.

What I have already said provides an answer to the second question: what is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."

In the same case, Gibbs CJ said, at 609 - 610, that the words of the relevant section in the Queensland Criminal Code, which are indistinguishable from s402(4):

"... are wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal."

In my view, the opinions expressed by Gibbs CJ and Mason J throw light on the ambit of the power conferred by s402(4). In the absence of that authority, I might have concluded that a sentence is to be judged by reference to the circumstances as they existed at the time of sentencing. That authority leads me to the opposite conclusion. In R v Babic (unreported, 27 May 1997) the Victorian Court of Appeal, without reference to the basis on which an appellate court may interfere on the ground of disparity but after reference to a number of authorities, took the view that when a sentence is attacked as excessive, regard may be had to events occurring after sentence only for the purpose of showing the true significance of facts existing at the time of sentence.

Brooking JA, with whom the other members of the court agreed, said:

"The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court: R v Munday (1981) 2 NSWLR 177 at 178; R v Cartwright (1989) 17 NSWLR 243 at 257 per Hunt and Badgery-Parker, JJ; R v Many (1990) 51 A Crim R 54 at 61-2; R v Maslen & Shaw (1995) 79 A Crim R 199 at 206-7. So it was laid down in R v Dorning (1981) 27 SASR 481 that evidence of a prisoner's marked psychological reaction to imprisonment cannot be used to show that the sentence is manifestly excessive, the significance of that event occurring after sentence being a matter for the Executive, not the appellate court. See further R v O'Shea (1982) 31 SASR 129 and R v Smith (1987) 44 SASR 587.

These authorities recognise, as did two early decisions of the Court of Criminal Appeal in England (R v Green 13 CAR 200 and R v Ferrua 14 CAR 39) that where it is sought to establish that the sentence was excessive evidence of events occurring after sentence may be received by an appellate court in the exercise of its discretion in appropriate circumstances if those events may be said to be relevant, not, so to speak, in themselves, but for the light which they throw on the circumstances which existed at the time of sentence. So in Ferrua evidence from a warder of what had taken place after sentence showed how infirm the prisoner had already been at the time of sentence and in Smith the fresh evidence showed the extent and implications of the AIDS condition from which the appellant was already suffering at the time of sentence. A similar case is R v Bailey (1988) 35 A Crim R 458.

The decision most often cited in Victoria on the reception of evidence of events occurring after sentence in support of an application for leave to appeal is that of the Court of Criminal Appeal in R v Eliasen (1991) 53 A Crim R 391. That too was a case of AIDS, where the applicant was sentenced before the results of testing for AIDS were known and after sentence those results showed that at the time of sentence he was suffering from the disease. Crockett, J, speaking in effect for the Court, endorsed the view taken by the Court of Criminal Appeal of South Australia in Smith that when a sentence is attacked as excessive it is permissible to have regard to events occurring after sentencing for the purpose of showing the true significance of facts which were in existence at the time of sentence. Crockett, J went on to endorse also the view taken in Smith that generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk that imprisonment will have a gravely adverse effect on the offender's health. This has recently been called the second wing of Eliasen: R v Morgan (1996) 87 A Crim R 104 at 107-8 per Southwell, AJA. It need not be mentioned further in this case.

An anticipation of the view now accepted in Victoria will be found in R v Bruzzese (Court of Criminal Appeal, unreported, 8 December 1982), where McInerney, J, with the concurrence of the other members of the Court, spoke of an appellate court's looking at matters which properly raise questions canvassed before the sentencing judge and concerning which possibilities have become actualities subsequent to the date of sentence, an approach which the Court of Criminal Appeal was disposed to endorse in R v Prideaux (1988) 36 A Crim R 114. In that case at 116 Crockett, ACJ referred to s568(4) of the Crimes Act as in effect tying the sentence to the facts existing at the date of sentence. R v Prior [1966] VicRp 64; (1966) VR 459 was a case where the evidence was of events occurring after sentence but that evidence was relied on as bearing on the applicant's prospects of rehabilitation. That evidence may therefore be said to have thrown light on the circumstances which existed at the time of sentence. It is also possible to support on this ground the reception of evidence of restitution after sentence in R v Martin (Court of Criminal Appeal, unreported, 26 March 1990), a case in which the trial judge had evidently considered that there was no prospect of restitution."

With respect, I consider that the view expressed there, and in the authorities referred to, may not be entirely consistent with the underlying basis of the decision in Lowe v R (supra). There is authority for the proposition that evidence of later events may be received with a view to a court of criminal appeal determining what sentence is appropriate although the Court retains a discretion as to whether to receive it (R v Gavin (1992) 6 WAR 195; R v Maniadis [1996] QCA 242; [1997] 1 Qd R 593). In that latter case R v Cornale (supra) was distinguished as being concerned only with changes in the law between the imposition of the impugned sentence and the imposition of the substituted sentence. There are important policy reasons for this Court not to receive evidence on an appeal against sentence as a matter of course. The Court should not become a forum for convicted persons to have their sentences reconsidered upon the basis of whatever factual material they are minded to put before it, including material which they might have placed before the sentencing judge. It is in the public interest that there be finality to litigation. The reception of evidence on the hearing of an appeal is discretionary, with the discretion to be exercised by reference to what is necessary or expedient in the interests of justice (Criminal Code, s409(1)(c)). The true explanation for the decision in R v Babic (supra) may be that it concerned the question as to whether the evidence sought to be placed before the court by the appellant should be received. In the present case the evidence was received without objection from the respondent.

I tend to the view that the events occurring after sentence relied upon by the appellant are capable of providing the foundation for justifying interference with the sentence passed. However I do not think that they should result in such interference. If the sentence imposed was appropriate at the time that it was passed, the subsequent death of the members of the appellant's family, which has been dealt with by the prison authorities in a compassionate manner, should not result in its variation. The subsequent events are not said to have made it more difficult for the appellant to serve his sentence. They have not had the result that the appellant is prevented from attending to necessary related matters by reason of his imprisonment. There are no other persons who require his care. There is no suggestion that, as a result of the deaths, the appellant has become better able to control his urges to inflict violence on other persons.

As to whether the sentence is manifestly excessive, it is appropriate to note the comments made by the learned sentencing judge when he sentenced the appellant. His Honour said:

"Frederick Herbert Plumstead, you have been convicted of committing an unlawful act intended to cause bodily harm. Implicit in this verdict is a finding by the jury that you intended to cause grievous bodily harm to Paul Atkins at the time that you assaulted him with a pick axe handle, striking him about the head and back, in August 1995. I accept that you were acting under the disinhibiting affect of alcohol and that you had been harbouring a smouldering resentment against Atkins for a long time as a result of your belief that he had stolen your property whilst ostensibly looking after your interests while you were in prison. However, you are no stranger to violence and I regard it as particularly relevant, despite submissions to the contrary by your counsel, that on 17 February 1993 you were sentenced by another judge of this Court to a term of imprisonment in respect of causing grievous bodily harm and assault with a pick axe handle at your son's home at Dodges Ferry in May 1992. On the same day as you were sentenced for those crimes, you were also sentenced for assaulting a male prostitute with a rifle and damaging property. You were sentenced to a total of two years' imprisonment for all these offences. The present crime was committed within a reasonably short period of your discharge from prison for these earlier crimes. Plainly the deterrent effect intended by that earlier sentence has not been achieved.

You involved both your wife and your friend Rudman in your quest for revenge against Atkins and as a consequence, both of them have been convicted of assault for their part in aiding and abetting you and Rudman also faces another very grave charge arising out of the same series of events. Whether or not Atkins stole from you, you were not entitled to take the law into your own hands.

You are 47 years of age, and in light of your prior history, including the offences to which I have already referred, a gaol sentence is plainly required. I am aware that you were remanded in custody for some 2.5 months after being charged in August last year and I have taken that period into account in assessing the sentence which I am about to pronounce."

No challenge was made to any of those observations. In my view, they were appropriate comments, and, in the circumstances of this case, the sentence imposed, including the order under the Parole Act, was fully warranted. The appellant committed an outrageous act of violence. He had has a history of such conduct. Personal deterrence was an important factor. In the past, imprisonment had not deterred him from such conduct. I would dismiss the appeal against sentence.

In accordance with my reasons, I would propose the following orders:

2 That the appellant have leave to appeal against sentence.