Criminal law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Circumstances of the offence - Manslaughter - Accused leaving victim face down in water where she ultimately drowned - Relevant to lack of remorse.

Criminal law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Remission, parole and prisoner classification - Remissions - Less favourable remissions regime at the time of sentencing than at time of commission of crimes - Not a relevant consideration. Prison Regulations 1985 (Tas), reg48(2). Hoare v R [1989] HCA 33; (1989) 167 CLR 348, referred to. Radenkovic v R [1990] HCA 54; (1990) 170 CLR 623, distinguished.

1. The applicant seeks leave to appeal against sentences aggregating sixteen years' imprisonment imposed on his convictions for manslaughter and rape.

2. In the early hours of the morning of 27 July 1980 the deceased, Amanda Carter, met her death by drowning in shallow waters by the northern shore of the River Derwent, upstream from the Bridgewater Causeway. Her body was not discovered for several weeks. It appears that Miss Carter had been celebrating her birthday with friends during the course of the previous evening and that at about 3am she had left a city hotel and walked with her sister and two male companions to the Hobart General Post Office. After a short time she walked to a cab stand on the other side of the road where she called out to Mr Govett, one of her companions, that she was going to catch a taxi to her home at Taroona once she had finished a cigarette. There were then four vehicles on the taxi rank. She was seen to move to a taxi at the front of the rank and appeared to converse with the driver. She was not seen entering that taxi, but shortly afterwards the taxi drove away. It was the Crown case that the applicant was the driver of the taxi and that he drove the deceased, not to her home in Taroona, but, to a secluded area on the road to Boyer where he forcibly removed some of her clothing, punched her, raped her and pushed her face forward into the river shallows before leaving in his taxi.

3. In the course of police investigations at the time, the applicant was spoken to on several occasions, but although eventually admitting to having spoken to a girl at the cab stand at the relevant time, he denied taking her therefrom or having any involvement in the deceased's disappearance and death. Scientists examining his cab observed a stain on the back seat which proved to be a seminal stain. Taxed with this, he denied any activity on his part which would account for it. As was his right, he declined to furnish any blood sample. The investigators stored specimens of the stain and of bodily fluids taken from the deceased and, several years later when advances in DNA technology had occurred, subjected them to further tests from which expert witnesses were able to conclude that their tests were consistent with the deceased having been a contributor to the stain. The applicant, who, in the meantime, had been living on the Mainland, was again interviewed by police (by now it was 1993), he once again denied any involvement in the matter and he was arrested and charged with the crime of murder. A blood sample was taken from him in accordance with the Criminal Process (Identification and Search Procedures) Act 1976 and this, after examination, in turn led to the experts' conclusion that it was consistent with the applicant being a contributor to the stain.

4. The applicant was taken into custody on 26 June 1993. Later that year depositions were taken from some witnesses, although much of the material intended to be adduced at the trial had been the subject of depositions taken by the Coroner in 1980, and the applicant was committed for trial in 1994. An indictment charging the applicant with murder was filed on 22 April 1994. That indictment was amended on 26 August 1994, particulars of the crime being stated as follows:

"GERALD WAYNE HYLAND near Hobart in Tasmania on or about the

27th day of July, 1980 murdered Amanda Susan Carter by one or a

combination of the following acts:

a) By forcing her head under water and thereby drowning her;

and/or

b) By strangling her; and/or

c) Rendering her unconscious, or semi-conscious, by striking

her about the head and/or by strangling her and then by placing

her in or near water and thereby causing her death by drowning."

5. The applicant pleaded not guilty to the amended indictment on 29 August 1994 and pursuant to the Criminal Code, s361A the Court, before any jury was sworn, embarked upon a voir dire. Between that date and 17 October 1994 when the jury was empanelled, the Court sat at Hobart to hear evidence relating to the DNA testing, the admissibility of which was challenged by the defence, on twenty sitting days, on a few occasions concluding before the luncheon adjournment, but on many other occasions sitting well beyond normal court hours. In addition, the case was mentioned on five further sitting days.

6. The pathologist who examined the deceased's body in 1980 and who had given evidence as to the cause of death at the coronial inquiry had, in the meantime, settled in New Zealand. The Crown intended to call him but his physical condition was such as to make his attendance at the Court hazardous, and by agreement between the Crown and the defence, the learned trial judge, together with counsel on each side, travelled to Christchurch in New Zealand and there took evidence on oath from him. The taking of this evidence was video taped and it was the intention of the parties to tender the tape by consent on the trial. The voir dire being conducted in Hobart was interrupted to enable evidence to be taken in this manner from the pathologist on 26 and 27 September 1994.

7. On Friday 14 October 1994 the learned trial judge ruled that the DNA evidence was admissible. On Monday 17 October the jury was empanelled and the trial proper got under way. Evidence was taken over the next three days, the Court did not sit on 20 October (which was a public holiday) and on Friday 21 October the applicant indicated he would plead guilty to the lesser charge of manslaughter and also to a charge of rape, the latter charge not being included on the original indictment by virtue of the Criminal Code, s311(3). The jury was then discharged. The applicant pleaded to the indictment again, offering a plea of not guilty of murder but guilty of manslaughter which the Crown accepted pursuant to the Criminal Code, s355(1)(a); and a second indictment for rape being put to him, he pleaded guilty to that charge. The learned trial judge heard a statement of facts from the Director of Public Prosecutions and a plea in mitigation from the applicant's counsel and on the following Monday, imposed a sentence of six years' imprisonment on the charge of rape to commence on the day the applicant was taken into custody, namely 26 June 1993; and on the charge of manslaughter, a sentence of ten years' imprisonment to commence at the expiration of the first sentence.

"1 THAT the learned Trial Judge erred in law in that he failed

to give any or any sufficient discount to the appellant in

respect of his plea of guilty to the crime of manslaughter

having regard to the finding of the learned Trial Judge:-

(a) that the DNA evidence existing in the case was not, of

itself, capable of establishing the act of violence and the

omissions which led directly to Miss Carter's death.

(b) that the evidence given in the appellant's trial for murder

by Mr Govett of having seen the deceased leave the GPO in a

vehicle other than the taxi of the appellant was an example of

inconsistent evidence in the trial.

(c) that the DNA profiling evidence may have created difficulty

(of proof) particularly in relation to the random match

probabilities which were so contententious (sic) during the voir

dire.

(d) that 'there were various scenarios and hypotheses

consistent with innocence which the jury may have difficulty in

rejecting at the conclusion of the trial'.

2 The sentence imposed by the learned Trial Judge in respect of

the crime of manslaughter a sentence of ten years imprisonment

which sentence was to commence at the expiration of the sentence

of six years imprisonment for the crime of rape offended the

totality principle.

3 The learned Trial Judge erred in his characterisation of the

crime of manslaughter as one the criminal culpability of which

'approached cases of murder' and/or the learned Trial Judge

erred in making a finding that by the accused leaving the

deceased face down in cold water in an isolated place her death

was all but inevitable when such a finding would have grounded a

conviction for murder contrary to Section 157(1)(c) of the

Criminal Code, a crime more serious than that of manslaughter to

which the accused pleaded guilty.

4 The learned Trial Judge erred when imposing sentences of

imprisonment totalling sixteen years, in that he failed to take

any or any sufficient account of the changes effected by the

Prisons Amendment Regulation (No 3) 1993, wherein the Prison

Regulation 48(2) was amended removing the entitlement of

prisoners in Tasmania sentenced after the 1st of January 1994 to

receive remission up to one third of the sentence of

imprisonment and substituting therefor a remission of not

greater than three months.

5 The learned Trial Judge erred in law in imposing a sentence

of sixteen years in respect of the crime of manslaughter and

rape which was excessive in the circumstances.

6 The learned Trial Judge erred in fact and in law in

sentencing the Appellant for manslaughter on an erroneous basis,

namely that he 'left her face downward in cold water at an

isolated place when in such circumstances her death was

inevitable' (that is, an omission) when the plea of guilty had

proceeded on the basis that the Appellant caused death 'by an

act which is commonly known to cause death, that is, pushing a

person face forwards into water, after the person had consumed

alcohol, had been raped and struck a forceful blow to the fact

(sic) and was partially clothed in cold weather conditions, such

act not being justified in law."

9. Whether or not a plea of guilty entitles a prisoner to any, or to any significant, discount has been the subject of comment in a number of recent cases (R v Rouse 64/1990; R v Lyons (1993) 69 A Crim R 307; Pavlic v R A51/1995; R v Inkson A5/1996). It is unnecessary to rehearse all that has been said on the subject, but I accept as correct the following propositions advanced by King CJ in R v Shannon (1979) 21 SASR 442 at 452 - 453:

"(1) A plea of guilty may be taken into account in mitigation

of sentence where

(a) it results from genuine remorse, repentance or contrition,

or

(b) it results from a willingness to co-operate in the

administration of justice by saving the expense and

inconvenience of a trial, or the necessity of witnesses giving

evidence, or results from some other consideration which is in

the public interest: notwithstanding that the motive, or one of

the motives, for such co-operation may be a desire to earn

leniency, and where to allow the plea a mitigatory effect would

be conductive to the public purposes which the sentencing judge

is seeking to achieve.

(2) A plea of guilty is not of itself a matter of mitigation

where it does not result from any of the above motives, but only

from a recognition of the inevitable, or is entered as the means

of inducing the prosecution not to proceed with a more serious

charge.

(3) In cases falling within (1), the judge is not bound to make

a reduction, but should consider the plea with all the other

relevant factors in arriving at a proper sentence.

(4) In assessing the weight to be attached to a plea of guilty

as a factor making for leniency, it is proper for the judge to

bear in mind that it is important to the administration of

justice that guilty persons should not cause expense to the

public and delay to other cases by putting forward false stories

and on the basis of such false stories contesting the charges

against them.

(5) The above propositions are not to be taken as weakening in

any way the principle that there must be no increase in the

sentence which is appropriate to the crime because the offender

has contested the charge."

10. Much debate occurred at the hearing of this appeal as to whether the applicant's plea resulted from "a recognition of the inevitable". I find it unnecessary to go through the details of the evidence available to the Crown and through the criticisms of its force submitted by counsel for the applicant. Suffice it to say that although the applicant gave away a chance of complete acquittal, he gained immunity thereby from the mandatory sentence of life imprisonment of which he stood in jeopardy on the indictment for murder. Both prosecution and defence obviously made a judgment about the strength of their respective cases and accepted a resolution which involved guilt of the lesser crime of manslaughter and of rape. The decision clearly did not flow from any sense of remorse or contrition on the part of the applicant, nor from any desire to save the community the cost of lengthy legal proceedings. The applicant sought to exclude the most damning evidence against him, namely the DNA evidence, and when, after a lengthy voir dire he failed to achieve that objective which almost certainly would have led to his complete acquittal, he agreed to the compromise. Of course, he is not to be penalised for putting the Crown to proof of his guilt; but in my opinion he is not entitled, in the circumstances, to any discount for adopting the expedient which he did. Such a view is consistent with proposition 2 of King CJ (supra) whether or not the plea resulted from a recognition of the inevitable.

11. The learned trial judge, in imposing sentence, said, in any event, that he did take the plea into account and the thrust of the applicant's submission is that he failed to give a sufficient discount, reliance being placed upon the length of the sentence in fact imposed. However, for the reasons which I have given, I am of the view that the giving of any discount was unwarranted in the circumstances of this case and that the first ground of appeal is unsustainable.

12. Ground 2 raises the "totality principle". In Mill v R (1988) 166 CLR 59 the court stated it as follows, at 62 - 63:

"The totality principle is a recognized principle of sentencing

formulated to assist a court when sentencing an offender for a

number of offences. It is described succinctly in Thomas,

Principles of Sentencing, 2nd ed (1979), pp 56-57, as follows

(omitting references):

'The effect of the totality principle is to require a

sentencer who has passed a series of sentences, each properly

calculated in relation to the offence for which it is imposed

and each properly made consecutive in accordance with the

principles governing consecutive sentences, to review the

aggregate sentence and consider whether the aggregate is "just

and appropriate". The principle has been stated many times in

various forms: "when a number of offences are being dealt with

and specific punishments in respect of them are being totted up

to make a total, it is always necessary for the court to take a

last look at the total just to see whether it looks wrong(");

"when ... cases of multiplicity of offences come before the

court, the court must not content itself by doing the arithmetic

and passing the sentence which the arithmetic produces. It must

look at the totality of the criminal behaviour and ask itself

what is the appropriate sentence for all the offences".'

See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

13. The totality principle has been recognized in Australia. In Reg v Knight (1981) 26 SASR 573, at p 576, the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ) said, in a joint judgment:

'it seems to us that when regard is had to the totality of the

sentences which the applicant is required to undergo, it cannot

be said that in all the circumstances of the case, the

imposition of a cumulative sentence was incommensurate with the

gravity of the whole of his proven criminal conduct or with his

due deserts. To use the language of Lord Parker LCJ in Reg v

Faulkner (1972) 56 Cr App R 594, at p 596, "at the end of the

day, as one always must, one looks at the totality and asks

whether it was too much".'"

14. It was submitted by the applicant's counsel that the sentences ought to have been made concurrent with each other, or at least partially concurrent. Reliance was placed on the following dictum of Gaudron and McHugh JJ in Griffiths v R [1989] HCA 39; (1989) 167 CLR 372 at 393:

"It is well established that in sentencing a person in respect

of multiple offences regard must be had to the total effect of

the sentence on the offender: Reg v Smith (1983) 32 SASR 219, at

pp 220, 221, 222; Boyle and Allen, Sentencing Law and Practice

(1985), p 282; Hall, Sentencing in New Zealand (1987), p 195.

This may be done through the imposition of consecutive sentences

of reduced length with or without other sentences to be served

concurrently or through the imposition of a head sentence

appropriate to the total criminality with all other sentences to

be served concurrently."

15. This dictum points to the appropriate ways of ensuring that the total length of the sentences imposed does not exceed what is appropriate for the course of criminality required to be punished. It does not purport to lay down in what circumstances concurrent as opposed to cumulative sentences ought to be imposed. In respect of this question, Wells J said in Attorney-General v Tichy (1982) 30 SASR 84 at 92 - 93:

"It is both impracticable and undesirable to attempt to lay down

comprehensive principles according to which a sentencing judge

may determine, in every case, whether sentences should be

ordered to be served concurrently or consecutively. According

to an inflexible Draconian logic, all sentences should be

consecutive, because every offence, as a separate case of

criminal liability, would justify the exaction of a separate

penalty. But such a logic could never hold. When an accused is

on trial it is part of the procedural privilege to which he is

entitled that he should be made aware of precisely what charges

he is to meet. But the practice and principles of sentencing

owe little to such procedure; what is fitting is that a

convicted prisoner should be sentenced, not simply and

indiscriminately for every act that can be singled out and

brought within the compass of a technically identifiable

conviction, but for what, viewing the circumstances broadly and

reasonably, can be characterised as his criminal conduct.

Sometimes, a single act of criminal conduct will comprise two or

more technically identified crimes. Sometimes, two or more

technically identified crimes will comprise two or more courses

of criminal conduct that, reasonably characterized, are really

separate invasions of the community's right to peace and order,

notwithstanding that they are historically interdependent; the

courses of criminal conduct may coincide with the technical

offences or they may not. Sometimes, the process of

characterization rests upon an analysis of fact and degree

leading to two possible answers, each of which, in the hands of

the trial judge, could be made to work justice. The practice of

imposing either concurrent or consecutive sentences cannot avoid

creating anomalies, or apparent anomalies, from time to time.

What must be done is to use the various tools of analysis to

mould a just sentence for the conduct of which the prisoner has

been guilty. Where there are truly two or more incursions into

criminal conduct, consecutive sentences will generally be

appropriate. Where, whatever the number of technically

identifiable offences committed, the prisoner was truly engaged

upon one multi-faceted course of criminal conduct, the judge is

likely to find concurrent sentences just and convenient. There

are dangers in each course. Where consecutive sentences are

imposed it may be thought that they are kept artificially apart

where they should, to some extent, overlap. Where concurrent

sentences are imposed, there is the danger that the primary term

does not adequately reflect the aggravated nature of each

important feature of the criminal conduct under consideration."

16. The rape of the deceased was an act quite distinct from the act of pushing her into the water in circumstances which led to her death. The learned Director of Public Prosecutions put the facts to the sentencing judge in the following terms:

"The Crown Case is that Miss Carter entered the cab intending to

travel to her home at Taroona but more than likely she fell

asleep shortly after entering the cab. The accused, Gerald

Wayne Hyland, then drove the taxi without Miss Carter's

approval, to the secluded spot on the bank of the Derwent River

near where her body was later recovered. At this location he

commenced to undress her in the back of the taxi. Miss Carter

awoke or became fully conscious and resisted or objected to an

act of intercourse. She was overpowered by the accused when she

was struck a forceful blow to the right upper lip. He then had

intercourse with her. After the act of intercourse was

completed Miss Carter left the taxi distressed and partially

clothed. The accused confronted her outside the cab, there was

an altercation, he pushed her from behind into the river

Derwent. He then removed her clothing from the cab balled it,

rolled it up that is, and left it on the back of Miss Carter

whilst her head was face down in the water and rove away leaving

her where he had pushed her.

The Crown Case is that the accused raped Miss Carter in the

circumstances described. He then, by an unlawful act, and I'm

now addressing section 156 of the Criminal Code, and an act

which is commonly known to be likely to cause death, that is,

pushing a person face forwards into water, after the person had

consumed alcohol, had been raped and struck a forceful blow to

the face and was partially clothed in cold weather conditions,

such act not being justified at law.

Miss Carter died as a result of drowning, being unable, in the

circumstances to save herself from such drowning."

17. In these circumstances I am of the view that it was entirely appropriate for cumulative sentences of imprisonment to be imposed provided that in aggregate the sentence to be served was not disproportionate to the totality of the applicant's conduct. The learned trial judge acknowledged the obligations imposed by the totality principle in his comments on passing sentence, saying that he had been "mindful of the totality principle and the need to consider the overall effect of cumulative sentences for separate crimes". I can detect no error in principle as claimed in ground 2. Whether the aggregate sentence of sixteen years' imprisonment was so great as to demonstrate that his Honour was in error in applying the principle, notwithstanding his express words, can be conveniently considered in due course with ground 5 which complains that the total sentence was excessive.

18. Grounds 3 and 6 were argued together. I have set out above the factual basis upon which the Crown relied to establish the crime of manslaughter. The learned trial judge in passing sentence said:

"The Crown case is that you caused Miss Carter's death by an

unlawful act which was commonly known to be likely to cause

death, that is by pushing a person face forward into water after

that person had consumed a significant amount of alcohol, had

been struck a forceful blow to the face, had been raped and was

only partially clothed in cold weather conditions.

Miss Carter died as a result of drowning, being unable in the

circumstances to save herself from that fate.

...

By accepting your plea in this case the Crown has accepted that

you neither intended to kill Miss Carter, nor knew that your

actions were likely to cause her death. On the other hand, you

acted with cold blooded disdain and contempt for your young

victim after having over powered and sexually assaulted her.

She was in no state to extricate herself from the danger in

which you placed her. You left her face downward in cold water

at an isolated place. In such circumstances her death was all

but inevitable. Some cases of manslaughter approach cases of

murder in terms of criminal culpability and in my opinion, this

is such a case."

19. It was submitted on behalf of the applicant that the learned trial judge, in determining the level of the applicant's culpability took into account not only the act relied upon by the Crown, but the fact of leaving the deceased face down in cold water in an isolated place. Such a scenario would have grounded a conviction for murder under s157(1)(c), so it was submitted, and his Honour had accordingly sentenced the applicant for a crime of greater gravity than that of which he was convicted (R v de Simoni (1980 - [1981] HCA 31; 1981) 147 CLR 383; Lovegrove v R (1961) Tas SR 106; R v Causby (1984) Tas R 54; Inkson v R (supra)).

20. Counsel for the respondent submitted that the learned trial judge had correctly stated the basis of criminal liability that was before him and that by stating "you left her face downward in cold water in an isolated place in such circumstances her death was all but inevitable", his Honour was not referring to the acts that caused death, but the applicant's response to those acts once the enormity of the consequence of the conduct was known to him. In other words, so counsel submitted, he showed a complete lack of remorse at the fate of Miss Carter and did nothing to mitigate his previous conduct. His Honour, he submitted, had not therefore sentenced on an erroneous basis nor did he sentence on the basis that the crime involved leaving the deceased face down in the water. His approach to sentence was not on the basis that the applicant was guilty of murder, but rather on the basis that the conduct in some cases of manslaughter can approach the seriousness of murder in other cases. In my opinion those submissions are correct. The learned trial judge correctly identified the unlawful act of pushing as that which caused death and that which required punishment. The surrounding circumstance of driving away, quite indifferent to her plight, was indicative of a complete lack of remorse for that act and its consequence and was quite properly taken into account in assessing his culpability for the crime of manslaughter. Whether or not a sentence of ten years' imprisonment was excessive in the circumstances, it fell far short of the mandatory sentence of life imprisonment then obtaining for murder, or of the range of finite sentences for a case of murder under s157(1)(c) which would be appropriate since the amendment of s158. There is no basis for concluding that his Honour regarded the crime as equivalent to that form of murder or that the sentence he imposed was inflated by such a consideration.

21. The defendant's crimes were very grave. The rape involved taking a defenceless young woman who was, to some extent, affected by alcohol and to whom he was totally unknown, to a remote area and there subjecting her forcibly to intercourse without her consent. She had entrusted herself to the applicant in the expectation that she could rely upon him, as a taxi driver plying his calling from a public taxi stand, to drive her to her home; but instead, in breach of the trust she reposed in him, he travelled in the opposite direction, out into the country, away from any habitation and there subjected her to violence and indignity. A sentence of six years' imprisonment was well merited. Indeed, a sentence of even greater severity would, in my view, have been justified. Having completed that crime, he inflicted further violence upon her. She was only partly clothed, it was a winter's night, she was affected by the alcohol she had consumed and the assaults already made upon her, and yet by an act commonly known to be likely to cause death, he pushed her face forward into water in circumstances where she could do little to save herself from drowning and he thereby caused her death. It was an atrocious act and little can be said to mitigate its seriousness. Not only did it deprive her of her life, it caused her family the anxiety of not knowing her fate for several weeks and the distress of coming to terms with it when the body was eventually found in circumstances indicative of foul play. For fourteen years they had to wait until the perpetrator was called to account for his actions. He was so callously indifferent to his victim's plight that he left the scene without any effort to forestall the fatal consequences of his act. When questioned by police and confronted with the evidence of the seminal stain in his vehicle, he resorted to lies in order to brazen his way out.

22. The crime of manslaughter covers a wide spectrum. In R v Withers (1925) 25 SR(NSW) 382 at 394 - 395, Street CJ said of it:

"There is no offence in which the permissible degrees of

punishment cover so wide a range, and none perhaps in which the

exercise of so large a discretion is called for in determining

the appropriate penalty."

23. A sentence of ten years' imprisonment was imposed by the Court of Criminal Appeal in R v Lyons (supra) but, terrible though that crime was and outrageous the drunken vindictiveness of that offender who had already demonstrated, by several prior convictions, his propensity to violence, the instant case is no less deserving of those epithets, and the terrifying circumstances in which the applicant perpetrated the act which caused the victim's death would justify, in the exercise of the judicial discretion, an even greater penalty. Having regard, however, to the totality principle earlier adverted to, the learned trial judge contained the sentence for manslaughter at ten years' imprisonment additional to the sentence he imposed for rape. I am quite unpersuaded that the sentences, singly or collectively, can be said to be manifestly excessive.

24. The remaining ground of appeal, ground 4, complains that the learned trial judge erred in failing to take account of the changes in the remission system effected by amending Regulations under the Prison Act 1977 which took effect on 1 January 1994. Had sentence been imposed prior to that date, the applicant might have been the subject of a partial or total remission of the balance of his sentence on the expiration of two-thirds thereof. The effect of the amending Regulation is to prevent the Director of Corrective Services remitting any greater period than the last thee months of a sentence imposed after 1 January 1994.

25. As the High Court remarked in Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 353, the practice of allowing remission for good behaviour of the service of part of a sentence of imprisonment has existed from the earliest times of European settlement in this country. The Court pointed out that:

"It is well settled as a matter of principle that the existence

of a remissions system such as that contained in Pt VII of the

Correctional Services Act is not, of itself, a circumstance

justifying an increase in the head sentence." (Ibid 353 - 354.)

In the earlier case of R v Paivinen [1985] HCA 39; (1985) 158 CLR 489 at 494, the Court said:

"It has often been held that a judge in passing sentence should

impose the appropriate sentence for the crime and should not

impose a longer sentence merely because the offender may

possibly earn remissions for good conduct or be released on

26. Remission is not a matter of right and whether, if the applicant had been sentenced prior to 1 January 1994 he would have been granted remission of any greater part of his sentence than the maximum the present regulations permit, is unknown. Equally, the Court has no way of predicting whether or not he will be released on parole at the expiration of half his sentence as the Parole Act 1975, s12A allows. The case of Radenkovic v R [1990] HCA 54; (1990) 170 CLR 623, upon which the applicant relied, is distinguishable as the issue there involved resentencing the offender where sentence had been quashed by a Court of Criminal Appeal. Mason CJ and McHugh J, at 632, said that in those circumstances:

"... considerations of justice and equity ordinarily require

that the convicted person be resentenced according to the law as

it stood at the time that he was initially sentenced,

particularly when that law was more favourable to him than the

law as it existed at the hearing of the appeal."

Had the applicant chosen to tell the truth to the investigating police when he was first questioned in 1980, he would have had whatever benefits the old system might have afforded him. His present predicament is very largely of his own making but, whether that be so or not, the Court's duty, save in exceptional circumstances such as Radenkovic (supra) and the instances given in Hoare v R (supra) at 355 and following, is to impose an appropriate sentence without regard to the remission policy of the Executive to whom the orderly and humane running of the prison system is entrusted.

27. I would refuse the application for leave to appeal. CRAWFORD J

28. The applicant seeks leave to appeal against cumulative sentences of six years' imprisonment for one count of rape and ten years' imprisonment for one count of manslaughter, the first sentence to commence on 26 June 1993, which was the day on which he was taken into custody.

29. The Chief Justice has explained the facts of the case and the course of proceedings. The first ground of the application effectively complains that the learned sentencing judge failed to give any discount, or a sufficient discount, from the sentence which would otherwise have been appropriate for his crime of manslaughter, in recognition of his plea of guilty to that crime, having regard to the findings of the learned judge that:

(a) Available DNA evidence was not of itself capable of

establishing the violent acts or the omissions which led

directly to Miss Carter's death.

(b) The evidence of Mr Govett of having seen the deceased leave

the GPO in a vehicle other than the applicant's taxi was

inconsistent with other evidence.

(c) The DNA profiling evidence was contentious, particularly in

relation to random match probabilities.

(d) There were various scenarios and hypotheses consistent with

innocence which a jury might have had difficulty rejecting.

30. It appears to be increasingly common for applicants for leave to appeal against sentence to assert in the grounds specific errors which cannot possibly be maintained, in circumstances where the real complaint is that the sentence was manifestly excessive. This ground, that the sentencing judge failed to sufficiently discount the sentence in recognition of a plea of guilty, is a frequent example. In his comments on passing sentence, the learned judge dealt at some length with all of the matters in pars(a) - (d) above in the context of the applicant's plea of guilty to manslaughter. His Honour said that he mentioned those matters:

" ... to explain that this is a case where some discount should

be given in the sentencing process consistently with the views

which I expressed in Dowie's case, ie, that credit must be given

for the fact that by entering guilty pleas, you have abandoned

all prospect of an outright acquittal."

The reference was to his Honour's judgment in R v Dowie [1989] TASSC 44; (1989) Tas R 167 at 182 - 188.

31. The applicant has not established that the learned judge failed to give any discount in recognition of the plea of guilty. Having regard to what his Honour said the contrary is plainly the case. The applicant has not established that whatever unspecified discount was allowed was insufficient and therefore erroneous. The applicant can only rely now on his plea of guilty, if he can rely on it at all, as a factor to which regard should be had when considering whether the sentence imposed was manifestly excessive, under ground 5, or whether it offended the so called totality principle, as asserted by ground 2. I will deal with those grounds later. At this point I determine that the specific error raised by ground 1 has not been established.

32. I deal next with grounds 3 and 6, which were argued together. The grounds raised the following matters:

(a) the learned judge's characterisation of the applicant's

criminal culpability, with respect to the crime of manslaughter,

as approaching that for a case of murder was erroneous;

(b) the learned judge stated that:

"You left her face downward in cold water at an isolated

place. In such circumstances her death was all but inevitable."

That was erroneous because:

(i) it amounted to a finding that a murder had been committed

by the applicant contrary to the Code, s157(1)(c), which was a

crime more serious than the crime of manslaughter to which the

applicant had pleaded guilty; and

(ii) the applicant's plea had been made, and was accepted by

the Crown, upon the basis that he caused death by an act which

is commonly known to be likely to cause death and which is not

justified in law (a form of culpable homicide under the Code,

s156(2)(a)), namely by pushing the deceased face forward into

water after she had consumed alcohol, after she had been raped

and struck a forceful blow to the face, and at a time when she

was partially clothed in cold weather conditions. The statement

of the learned judge asserted that death was caused by the

applicant's OMISSION IN LEAVING the deceased face down in the

water, whereas he was only liable to be sentenced for PUSHING

her into that position.

33. The statement characterising the applicant's crime of manslaughter, in terms of criminal culpability, as approaching cases of murder, needs to be placed in context. The only lawful sentence for murder was imprisonment for life. The provisions of the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994, which presently allow the imposition of terms of imprisonment of less severity than life, did not commence to operate until over eight months after the applicant was sentenced. The sentence of ten years' imprisonment for the applicant's crime of manslaughter was not close to life imprisonment in terms of severity, nor was it close to a sentence of twenty-one years' imprisonment which was the maximum sentence permitted by the Code for manslaughter. In terms of criminal culpability, the applicant's crime was a very bad one. In terms of the Code it fell not far short of a case of murder, contrary to the Code, s157(1)(c) "by means of an unlawful act or omission which the offender ... ought to have known, to be likely to cause death in the circumstances". It is worth reflecting on what was said by the English Court of Appeal in Cascoe (1970) 54 Cr App R 401, in the course of imposing sentence for manslaughter, at 409:

"As for sentence, manslaughter is, of course, a crime which

varies very greatly in its seriousness. It may sometimes come

very close to inadvertence. That is one end of the scale. At

the other end of the scale, it may sometimes come very close to

murder. In the view of this Court, this is about as serious a

case of manslaughter as can be imagined. ...

So we approach the case on the basis of manslaughter, a very

grave case of manslaughter, indeed as grave as any which can be

imagined. In those circumstances it would be wholly wrong if

this Court were to impose any sentence other than a sentence of

life imprisonment ...".

34. The other complaints of the applicant, as raised by grounds 3 and 6, plainly have no merit and the applicant's counsel substantially retreated from them in the course of his submissions. The facts which were not in issue included that the applicant placed the deceased face down in water and that her death was caused as a result. Implicit in that state of affairs is, that having so placed her, he left her in that position. If he had not so left her, having placed her there, she would not have died. That is obvious and to complain about a statement of what is obvious and could not be disputed, is of no assistance to the applicant. As was said by Barwick CJ in R v Phillips (1971) ALR 740 at 744:

"The act of placing her on the beach cannot be disassociated

from the fact that the respondent left her there: and it would

be possible to regard his relevant act as the act of placing and

leaving the deceased where he did, the entirety being a positive

act on his part. It would in my opinion be a mistake to sever

what he did into an act, namely, the placement of her and an

omission, namely, the failure to remove her. Having himself

placed her there, there was, in my opinion, no omission in the

sense of the language of the Code in not lifting her into some

other position, or in not taking her to some other place."

There is no warrant for concluding that the learned sentencing judge treated this case as one of murder, nor that his Honour sentenced the applicant upon any factual basis other than the one which was common to both the Crown and the applicant. Indeed the Director of Public Prosecutions, when addressing the learned judge, specifically referred to the applicant having pushed the deceased from behind into the river and of subsequently driving away, leaving her where he had pushed her. Counsel for the applicant did not contest that version of the events.

35. Prisoners sentenced prior to 1 January 1994 could earn a remission of one third of their sentence in return for good behaviour. Ground 4 complains of specific error by the learned judge in failing to take into account, sufficiently or at all, the changes effected by the Prison Amendment Regulations (No 3) 1993 as a result of which prisoners sentenced on and after 1 January 1994 (the applicant was sentenced on 24 October 1994) were limited to a chance of remission for no greater period than three months. Counsel for the applicant abandoned the ground as one alleging specific error, instead arguing that the alteration in the remission regulations ought to have been taken into account when determining the appropriate sentence and ought therefore to be considered by this Court when determining ground 5 which complains that the sentence was manifestly excessive. As I propose to next deal with ground 5, and also at the same time, ground 2, which complains that the overall sentence of sixteen years' imprisonment for manslaughter and rape offended the so called totality principle, I will deal with it now.

36. It is a long accepted and universal rule that a sentencing judge is required to impose the sentence appropriate for the crime and that, except in highly exceptional cases, remissions are not a relevant consideration in imposing or reviewing the length of a sentence. R v Yates [1985] VicRp 3; (1985) VR 41; Menz v R (1967) SASR 329; Maguire v R (1956) 40 Cr App R 92; Burke v R (1983) Tas R 85; R v Breckenridge (1966) Qd R 189. Counsel for the applicant accepted that general rule but argued that this is an exceptional case. If the applicant had been sentenced at any time between the commission of the crimes on 27 July 1980 and 31 December 1993, he may well have become entitled to release for good behaviour after serving ten years eight months of the sentence whereas, having been sentenced after 31 December 1993, he will now have to serve fifteen years six months without prospect of remission. In submitting that this was an exceptional circumstance counsel relied on an argument that the delay in reaching the day of sentencing was not the "fault" of the applicant. I find that argument of little persuasive value, having regard to the fact that the real cause of the applicant's predicament is his criminal conduct and his successful avoidance of detection for so long.

37. Notwithstanding that last remark, the applicant's argument that regard ought to have been had to the change in the law regarding remissions, is not completely without merit. It was stressed by the High Court in Hoare v R [1989] HCA 33; (1989) 167 CLR 348 that the general rule is not that a judge must pay no regard whatsoever in the sentencing process to the availability of remissions for good behaviour while a prisoner is in custody. "The general rule is that it is not permissible for a sentencing judge to treat the likelihood of remissions for good behaviour as itself constituting a ground for increasing what would otherwise be the appropriate head sentence" (my emphasis). Hoare at 355. However I am not persuaded that the regulations concerning remissions ought to have been regarded in this case. Regulatory provisions for remissions have varied over time. Some variations have provided a more generous regime than before and others have been less generous. I will give some examples. The Prison Regulations 1937, reg71, had a relatively complicated scheme of remissions depending on whether the sentence exceeded three months but did not exceed three years, or exceeded three years, and upon whether the prisoner had no previous convictions, one previous conviction, two previous convictions or more than two previous convictions. Depending on those matters, the possible periods of remission varied between one sixth and one third of the sentence. The Prison Regulations 1961, reg53, provided simply for a remission not exceeding one quarter of the sentence, with the proviso that the sentence to be served could not be reduced to less than three months. For some prisoners that was more generous and for others less generous than the 1937 Regulations. The Prison Regulations 1977, reg43, were, in turn, more generous in providing for the possibility of remission of one third of the sentence with the same proviso. That provision was continued into the Prison Regulations 1985, reg48, but by the Prison Amendment Regulations (No 3) 1993, that regulation was amended so that the rule for remissions came to be in its present form and far less generous than immediately before. If courts had regard to movements in the remission rules when fixing sentences of imprisonment but only when they became less generous than immediately before and not when they became more generous, the logical and inevitable result would be that over time the length of sentences of imprisonment would be forced down. As a matter of general principle therefore, the availability of remissions, and variations in regulations in that regard, ought to be disregarded when fixing the appropriate sentence for the crime of a particular offender.

38. There are other reasons. With a variation in the remission rules there would be no satisfactory formula for the adjustment of subsequent sentences, particularly having regard to the fact that at the time of sentence remission is not guaranteed. A prisoner must behave while in prison and receive the favourable exercise of a discretion. The maximum possible remission is not guaranteed for any prisoner. Another matter which might have to be factored in would be the possibility of parole and possible legislative or executive variations in that regard. It therefore seems to me that in the absence of statutory directions to the contrary, courts should continue to endeavour to achieve consistency in sentences, within the legislative framework applicable to them leaving questions of remissions and parole to the executive arm of government. There will be exceptional cases where regard to the prospect of remission ought to be had. See, for example, Radenkovic v R [1990] HCA 54; (1990) 170 CLR 623; R v T (1989) 47 A Crim R 29; R v Town (1987) 30 A Crim R 220 at 228. But this is not a case which ought to be regarded as exceptional.

39. Counsel for the applicant did not seek to argue that the sentence of six years' imprisonment was manifestly excessive, although he submitted that it was a high one. In my view it was appropriate for the applicant's crime. The community is entitled to expect that taxi drivers can be trusted. That particularly applies to the carriage of female passengers at night. The applicant's privileged position as a licensed taxi driver carried with it a responsibility to conform with the trust the deceased and other passengers reposed in him. His crime must have been premeditated, involving as it did his transportation of the deceased for a considerable distance in a direction opposite to that in which she wished to travel. Then, in a lonely and dark place, he used substantial force to overcome her resistance and to have his way with her. He showed no regard for his victim and has shown no remorse since. The learned judge was correct to describe it as a shocking offence meriting a substantial sentence.

40. It was submitted by the applicant's counsel that the sentence of ten years' imprisonment was manifestly excessive for the crime of manslaughter. I do not agree although I accept that the sentence was at the high end of the range of sentences which have been imposed for manslaughter in recent years. It was the same as that set by this Court in R v Lyons (1993) 69 A Crim R 307. It was however an appalling crime committed against a defenceless young woman who he had just overpowered and raped. Semi-naked, she was pushed by him, face down in the water and abandoned in the cold and dark in a remote place, where she drowned. He subsequently showed no remorse. Ten years' imprisonment was, in my view, justified.

41. The total of sixteen years' imprisonment was certainly high and it has troubled me whether or not to condemn it as manifestly excessive. If the applicant was entitled to a significant discount because of his plea of guilty I would categorise it in that way. However, I am not persuaded that he was entitled to consideration of that kind. Much argument from counsel concerned whether, by pleading guilty, he was entitled to a substantial reduction in his sentence. His counsel accepted that there was a high likelihood of a conviction for rape but submitted that by pleading guilty to manslaughter the applicant gave up a real chance of absolute acquittal on the indictment for murder, and was therefore entitled to a substantial reduction in his sentence for that reason.

42. The applicant's pleas of guilty were not made out of remorse or out of any altruistic motive. They plainly arose out of fear that he might be convicted of murder. Having failed to exclude DNA evidence which was highly probative, he entered into a compromise with the Crown because he perceived it in his best interests to do so, thereby making sure that he avoided a sentence of life imprisonment. Providing that the sentence was otherwise within the acceptable range, the learned judge was not in error when he had regard to the pleas of guilty, but notwithstanding that, the applicant had no entitlement to have his sentence reduced for his pleas. See R v Shannon (1979) 21 SASR 442; R v Gray [1977] VicRp 27; (1977) VR 225 at 232; R v Lyons (supra).

43. I am not persuaded that the total of sixteen years' imprisonment offended the so called totality principle. See Griffiths v R [1989] HCA 39; (1989) 167 CLR 372 at 393. I regard his overall criminal conduct as extremely serious. A somewhat lower sentence in total would have been in order but sixteen years' imprisonment ought not to be regarded as manifestly excessive for what was done by the applicant.

44. For these reasons I would refuse leave to appeal. ZEEMAN J

45. On or about 27 July 1980 Amanda Susan Carter met her death by drowning in the Derwent River near Riverside Drive, Bridgewater as a result of the act of the applicant. The applicant, who was a taxi driver, had been engaged by the deceased to drive her to her home at Taroona. Instead of taking her there, the applicant drove her to Riverside Drive. Before the events which led to her death, he raped her whilst they were on the back seat of the taxi. The body of the deceased was not discovered until 11 September 1980. An inquest into her death was held in September 1981. It was not until 26 June 1993 that the applicant was arrested and charged with the murder of the deceased.

46. The applicant was presented for trial in September 1994 on an indictment charging him with murder. The particulars contained in that indictment alleged that the applicant had murdered the deceased:

"... by one or a combination of the following acts:

(a) By forcing her head under water and thereby drowning her;

and/or

(b) By strangling her; and/or

(c) Rendering her unconscious, or semi-conscious, by striking

her about the head and/or by strangling her and then by placing

her in or near water and thereby causing her death by drowning."

47. The applicant pleaded not guilty to the charge of murder. Before empanelling a jury, the learned trial judge conducted a lengthy voir dire hearing concerning the admissibility of certain DNA evidence. The significance of the DNA evidence was that, by means of it, the Crown sought to establish that there was a high degree of probability that a seminal stain found on the rear seat of the applicant's taxi contained bodily fluids of the deceased and of the applicant. A finding to that effect virtually required a conclusion that the stain was the result of an act of sexual intercourse between the deceased and the applicant.

48. On 14 October 1994 the learned trial judge ruled that he would admit the evidence. On 17 October 1994 a jury was empanelled and the trial proceeded. The trial came to an end on 21 October 1994 when the applicant, with the consent of the Crown, pleaded guilty to the crime of manslaughter. On the same day the applicant pleaded guilty to a charge of rape contained in a further indictment. The learned trial judge sentenced the applicant to six years' imprisonment in respect of the crime of rape and ten years' imprisonment in respect of the crime of manslaughter. He directed that the sentences be served cumulatively and that the first sentence date from 26 June 1993, since which date the applicant had been in custody.

49. The applicant now seeks leave to appeal against those sentences upon the following grounds:

"1 THAT the learned Trial Judge erred in law in that he failed

to give any or any sufficient discount to the appellant in

respect of his plea of guilty to the crime of manslaughter

having regard to the finding of the learned Trial Judge:-

(a) that the DNA evidence existing in the case was not, of

itself, capable of establishing the act of violence and the

omissions which led directly to Miss Carter's death.

(b) that the evidence given in the appellant's trial for murder

by Mr Govett of having seen the deceased leave the GPO in a

vehicle other than the taxi of the appellant was an example of

inconsistent evidence in the trial.

(c) that the DNA profiling evidence may have created difficulty

(of proof) particularly in relation to the random match

probabilities which were so contententious (sic) during the voir

dire.

(d) that 'there were various scenarios and hypotheses

consistent with innocence which the jury may have difficulty in

rejecting at the conclusion of the trial'.

2 The sentence imposed by the learned Trial Judge in respect of

the crime of manslaughter a sentence of ten years imprisonment

which sentence was to commence at the expiration of the sentence

of six years imprisonment for the crime of rape offended the

totality principle.

3 The learned Trial Judge erred in his characterisation of the

crime of manslaughter as one the criminal culpability of which

'approached cases of murder' and/or the learned Trial Judge

erred in making a finding that by the accused leaving the

deceased face down in cold water in an isolated place her death

was all but inevitable when such a finding would have grounded a

conviction for murder contrary to Section 157(1)(c) of the

Criminal Code, a crime more serious than that of manslaughter to

which the accused pleaded guilty.

4 The learned Trial Judge erred when imposing sentences of

imprisonment totalling sixteen years, in that he failed to take

any or any sufficient account of the changes effected by the

Prisons Amendment Regulation (No 3) 1993, wherein the Prison

Regulation 48(2) was amended removing the entitlement of

prisoners in Tasmania sentenced after the 1st of January 1994 to

receive remission up to one third of the sentence of

imprisonment and substituting therefor a remission of not

greater than three months.

5 The learned Trial Judge erred in law in imposing a sentence

of sixteen years in respect of the crime of manslaughter and

rape which was excessive in the circumstances.

6 The learned Trial Judge erred in fact and in law in

sentencing the Appellant for manslaughter on an erroneous basis,

namely that he 'left her face downward in cold water at an

isolated place when in such circumstances her death was

inevitable' (that is, an omission) when the plea of guilty had

proceeded on the basis that the Appellant caused death 'by an

act which is commonly known to cause death, that is, pushing a

person face forwards into water, after the person had consumed

alcohol, had been raped and struck a forceful blow to the fact

(sic) and was partially clothed in cold weather conditions, such

act not being justified in law."

50. This ground is directed solely to the sentence of ten years' imprisonment imposed in respect of the crime of manslaughter. In the course of his comments on passing sentence, the learned trial judge said that:

"... this is a case where some discount should be given in the

sentencing process consistently with the views which I expressed

in Dowie's case, ie, that credit must be given for the fact that

by entering guilty pleas, you have abandoned all prospect of an

outright acquittal."

51. The learned trial judge's reference to what he had said in R v Dowie [1989] TASSC 44; (1989) Tas R 167 undoubtedly was intended to be a reference to the following passage appearing from his judgment in that case, at 183:

"... I would accede to the proposition that a plea of guilty

entitles the sentencing court to reduce an otherwise appropriate

sentence, not only because such a plea is a concrete

illustration of a genuine remorse, but also because it normally

enables a considerable saving in public expense in the

disposition of the case, and furthermore, on occasions it

shields the complainant and other witnesses from the undoubted

trauma of participation in a protracted trial."

52. That accords with other decisions of this Court, although it must be said that an offender who pleads guilty is not always entitled to some discount from what otherwise would be the appropriate sentence. That appears from the passage in Dowie and was made clear by this Court in R v Lyons (1993) 69 A Crim R 307 at 310, 314 and 317. On the view which I take of this matter, the learned trial judge may have been unduly generous to the applicant in allowing any discount for his plea of guilty.

53. Counsel for the applicant submitted that notwithstanding what the learned trial judge said, the sentence actually imposed indicated that little or no discount had been given. He submitted that the circumstances of the case called for a substantial discount. There are a number of reasons why, as a matter of policy, it is often appropriate to ameliorate the severity of a sentence because the offender has pleaded guilty. Often it is an indication of remorse. Usually there will be a substantial saving of public resources as a result of such a plea. Relevant also is that, by pleading guilty, an offender is giving away the chance of an outright acquittal or conviction for a lesser offence.

54. Counsel for the applicant did not submit that the plea of guilty was any indication of remorse. Plainly there was no evidence which would justify a conclusion that the applicant was remorseful. His rather hollow apology to the family of the deceased, expressed by him through his counsel during the course of the plea in mitigation, counts for nothing. Counsel did not place any reliance on the public interest served by the plea of guilty. Although some public resources must have been saved by the plea, it only occurred after there had been a lengthy, and no doubt expensive, voir dire hearing and the trial had proceeded before the jury for a number of days. It was only after the learned trial judge had ruled that he would admit crucial Crown evidence that the plea was forthcoming.

55. The thrust of the applicant's submissions is that by pleading guilty to manslaughter the applicant gave away a real chance of a complete acquittal on the charge of murder. Counsel for the applicant conceded that it was highly likely that the jury would have accepted the thrust of the DNA evidence and that if they had, a conviction for rape would have followed. That concession was upon the basis that an acceptance that the DNA evidence established that intercourse between the applicant and the deceased had occurred on the back seat of the taxi and that in all the circumstances, including evidence of injury to the deceased, it was highly unlikely that any act of intercourse had been consensual.

56. I consider that it would be an unprofitable exercise to attempt to predict the degree of likelihood of a jury convicting the applicant of murder. It could not be said that a conviction for murder was inevitable or virtually inevitable. However, if it can be said that there was a substantial risk that the jury would have convicted the applicant of murder had the trial proceeded to its conclusion then, whilst by his plea the applicant gave away the chance of outright acquittal, he thereby gained the benefit of not being exposed to a real risk of a conviction for murder. In such a case it will often be that it is not appropriate to ameliorate punishment by reason of the plea of guilty because the offender already will have obtained a sufficient benefit by the removal of the risk of conviction of the more serious crime.

57. There was ample evidence available to the Crown which would have justified a jury in reaching the following conclusions. At about 3.30am on 27 July 1980 the deceased, who was somewhat inebriated, entered the applicant's taxi which was on a rank opposite the Hobart GPO. She asked the applicant to take her to her home at Taroona. He did not do so. He drove her to Riverside Drive, Bridgewater intending to have sexual intercourse with her, whether or not she consented. Upon arrival he brought the taxi to a stop. He then raped the deceased whilst on the back seat of that taxi. A relatively short period of time later the deceased's body entered the nearby Derwent River where she drowned. Had the trial proceeded to its conclusion, it may be assumed that the most difficult matters for the jury to determine would have been as to how the deceased came to drown and the degree of criminal responsibility, if any, of the applicant for her death.

58. Counsel for the applicant addressed the question of the likelihood of a conviction for murder by examining each of the particulars contained in the indictment and submitting, as to each, that there was insufficient evidence to establish it. The proof of one or other of the particulars was not required before the jury could have convicted the accused of murder. If the jury had not been satisfied that a specific particular had been proved they could still have convicted if satisfied beyond reasonable doubt that one of some or all of the particulars had been made out without being able to say which. That is not to say that the Crown was bound by the particulars in the way contended for by counsel for the applicant, the particulars being no more than an indication of the Crown case. The ultimate question for the jury would have been whether guilt had been established beyond reasonable doubt, although their consideration of this was limited by the parameters of the case advanced by the Crown, those parameters being indicated by the particulars (see Parker v R A57/1994). It is unnecessary to pursue this aspect any further because I have concluded that there was ample evidence to justify a finding by the jury that the applicant had murdered the deceased in the manner indicated by the first of the particulars, namely that he had forced her head under water and had thereby drowned her.

59. The applicant had the opportunity of committing the crime of murder and he had a motive. Once having raped the deceased, it must have been apparent to him that, if he allowed her to go free, his detection for that crime would have been virtually inevitable. When the body of the deceased was found, her hands were at the back of the head. Dr Cummings, a pathologist of more than thirty years standing who had much relevant experience, had never before encountered a case of drowning where the deceased person had had his or her hands behind the head, the natural inclination being to have the arms out in an endeavour to save one's self. The jury could have used this evidence to support a conclusion that the deceased's hands had been held behind her head as her head was forced into the water.

60. That part of the river where the body of the deceased was found was only a few feet deep. It may be assumed that there was nothing which would have prevented the applicant from saving the deceased had he been minded to do so. He did not, but instead drove off. Some items of the deceased's clothing had been bundled up and placed on her back. It is inconceivable that a person other than the applicant placed them there. Those actions of the applicant could have been used by the jury to support the proposition that he had deliberately drowned the deceased. As the water was shallow, the jury might have concluded that if the deceased had accidentally entered the water she might have been expected to get out again. The fact that she did not might have been used by the jury as evidence that the applicant had prevented her from leaving the water.

61. Counsel for the applicant advanced what he submitted was a reasonable hypothesis consistent with innocence which would have been open on the Crown case as it was intended to be presented. It relied on evidence given by Dr Cummings on the voir dire hearing. That evidence was given in the course of evidence as to the findings necessary to come to a conclusion of death by drowning. Having discussed those necessary findings, Dr Cummings said:

"This describes what is classically known as 'dry drowning'.

There is also a category of drowning known as 'dry drowning' in

which the mechanism of death is such that when a person falls

into the water they inhale sooner or later that water and if the

water in particular happens to be particularly cold, or comes as

a shock to the person, that water can cause spasm of the vocal

chords in the neck, and in consequence cut off the air supply

and water supply to the lungs, and they die, again, from

asphyxia, but simply because their air passages are totally

blocked by the spasm."

62. The hypothesis consistent with innocence advanced by the applicant was to the following effect:

1 If the deceased fell rather than was pushed into the cold

river, the "dry drowning" process described by Dr Cummings may

have started immediately upon water being inhaled.

2 If that process had started, the deceased may have risen from

the water, either fully or to her knees. Because air was unable

to get in she would instinctively reach up her arms behind her

head and her fists would be clenched in extremis.

3 From that position, the deceased may have fallen forward,

back into the water and have been dead or apparently so, when

the applicant, who had bundled her clothing, threw them on her

and decamped.

63. In my view the scenario suggested by the applicant is a fanciful one. It was not put to Dr Cummings. The matter of "dry drowning" was not explored with him. There is no suggestion that any evidence was available which would lend support to the hypothesis suggested by the applicant. It would have been difficult for the jury to have come to the conclusion that the suggested hypothesis was credible in the absence of such evidence. The hypothesis could only have been advanced for the jury's consideration if the applicant had not given evidence. Had he given evidence, it must be assumed that that evidence would have been in accordance with the version of the facts which formed the basis of the plea of guilty to manslaughter, so that the hypothesis would not have arisen. A failure of the applicant to give evidence would have enabled the jury to more readily come to the conclusion that any hypothesis consistent with innocence should be rejected. This is because "hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused" (per Mason CJ, Deane and Dawson JJ in Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 at 228).

64. There was ample evidence which would have justified a conclusion by the jury that the first of the particulars was made out and that the applicant had murdered the deceased. The applicant, by his plea and its acceptance by the Crown, avoided the risk of being so convicted. I do not consider that the circumstances were such that the learned trial judge was required to give any discount. His Honour said that he did and it must therefore be accepted that he did. If the complaint that any discount given was minimal is well founded, it does not lead to the conclusion that error occurred. At best the applicant was only entitled to a minimal discount. Ground 1 is not made out.

65. On indicating that the Crown accepted the plea of manslaughter, counsel who then appeared for the Crown said to the learned trial judge:

"... I can indicate that the Crown is prepared to have this

matter resolved on that basis because on a plea of manslaughter

the reasonable hypothesis consistent with the evidence which the

Crown is in a position to adduce at this trial which would

constitute the crime of manslaughter and also involve the

essential ingredients of the crime of rape is made out on this

basis and I understand that the accused's plea of guilty

acknowledges that situation. And that is that the deceased,

Amanda Carter, I'm in a position to give your Honour a typed

copy of this, met her death by drowning in the early hours of

the morning of Sunday the 27th of July, 1980. The location of

the site approximates the place at which the body was recovered

in early September, 1980, approximately six weeks later.

Miss Carter had, at approximately 3.30am on the morning of the

27th of July, 1980, entered as a passenger, the taxi cab of

Gerald Wayne Hyland at rank number seven near the corner of

Elizabeth and Macquarie Streets. The Crown Case is that Miss

Carter entered the cab intending to travel to her home at

Taroona but more than likely she fell asleep shortly after

entering the cab. The accused, Gerald Wayne Hyland, then drove

the taxi without Miss Carter's approval, to the secluded spot on

the bank of the Derwent River near where her body was later

recovered. At this location he commenced to undress her in the

back of the taxi. Miss Carter awoke or became fully conscious

and resisted or objected to an act of intercourse. She was

overpowered by the accused when she was struck a forceful blow

to the right upper lip. He then had intercourse with her.

After the act of intercourse was completed Miss Carter left the

taxi distressed and partially clothed. The accused confronted

her outside the cab, there was an altercation, he pushed her

from behind into the river Derwent. He then removed her

clothing from the cab balled it, rolled it up that is, and left

it on the back of Miss Carter whilst her head was face down in

the water and rove away leaving her where he had pushed her.

The Crown Case is that the accused raped Miss Carter in the

circumstances described. He then, by an unlawful act, and I'm

now addressing section 156 of the Criminal Code, and an act

which is commonly known to be likely to cause death, that is,

pushing a person fact forwards into water, after the person had

consumed alcohol, had been raped and struck a forceful blow to

the face and was partially clothed in cold weather conditions,

such act not being justified at law.

Miss Carter died as a result of drowning, being unable, in the

circumstances to save herself from such drowning."

66. That statement of facts was accepted by counsel who appeared for the applicant at his trial and therefore represents the version which is relevant on a consideration of grounds 2 and 5. Counsel for the Crown also referred to the effect of the disappearance of the deceased on her immediate family, which he described as having been devastating, causing great anguish. He mentioned that her body had not been discovered, and therefore her fate not known, for some six weeks after her disappearance. He adverted to the fact and that it had been some fourteen years since the commission of the crime before the applicant had been charged. In this connection it is relevant to note that the applicant was a suspect at a very early stage. He was interviewed by police on a number of occasions when he maintained denials of having had the deceased in his taxi. It was only the availability of the DNA evidence which led to the applicant being charged.

67. In mitigation, counsel for the applicant referred to his background, including a somewhat troubled youth and an early criminal record which included a sentence of two years' imprisonment for various offences of dishonesty imposed in 1972. Those matters were unlikely to have any great impact on sentence. The learned trial judge was also informed of the applicant's conduct since the commission of the crimes. He moved to Melbourne in 1981 and then to Sydney where he obtained employment with a charitable organisation. Subsequently he returned to Melbourne to take up a responsible managerial position with that same organisation. He left that employment to engage in various business ventures but then returned to it. About a year before his arrest he again left this employment and set up in business once again. His counsel described the applicant as a good citizen who had worked consistently and who had been in a position of trust with the charitable organisation. At the time he was sentenced the applicant was aged 44 years and could be described as a person who, over the preceding fifteen years or so, had rehabilitated himself. The conduct of the applicant since the commission of the crimes was of little weight. He was able to rehabilitate himself only because he had managed to avoid detection and by telling lies to investigating police officers.

68. The applicant submitted that a sentence of six years' imprisonment for a single count of rape committed without a weapon, not in the company of or with the assistance of others and without additional features or acts of degradation, was significantly higher than would be indicated by the range of sentences imposed in the past. The difficulty with that submission is that it categorises the rape of the deceased by reference to the absence of particular aggravating features but ignores the other aggravating features which were present.

69. The deceased had entrusted her safety to the applicant. The applicant was engaged in an occupation which required him to safely transport his passengers. Instead of doing what he had been engaged to do, the applicant took advantage of the deceased's inebriated state to drive for a considerable distance to a secluded place, which was in the opposite direction to the deceased's home, where he raped her, having first overpowered and assaulted her. The circumstances indicate a considerable degree of premeditation. It is invidious to make comparisons, but on any view this was a very bad case of rape, involving callous premeditated conduct on the part of the applicant who was prepared to take advantage of his position and of the deceased's condition and to have his way regardless of resistance. The relationship between the applicant and the deceased was such that the sentence was required to have a considerable element of general deterrence. I am not persuaded in the slightest that this sentence is excessive. In the circumstances I consider it a moderate sentence. I doubt whether I would have been minded to interfere with a sentence of somewhat greater length had that been imposed, at least if it had stood alone.

70. Counsel for the applicant placed reliance on the substituted sentence imposed by this Court in R v Lyons (1993) 69 A Crim R 307 as indicating that the sentence of ten years' imprisonment imposed for the crime of manslaughter was very much at the upper end of the range of appropriate sentences for this crime, without submitting that in itself that sentence was indicative of error, other than in the manner asserted by ground 1. In general I would accept that submission, whilst rejecting the suggestion that a sentence of ten years represents the upper limit of the sentencing discretion in all cases of manslaughter.

71. The principle relied upon by ground 2 is that in sentencing a person in respect of multiple offences, regard must be had to the total effect of the aggregate of the sentences imposed upon the offender (eg, Griffiths v R [1989] HCA 39; (1989) 167 CLR 372 at 393). The totality of the criminal conduct encompassed by the commission of the two crimes is compendiously described in the statement of the facts put before the learned trial judge by the Crown. It is unnecessary to repeat that statement. Not only did the applicant commit very serious crimes, they were committed with a considerable degree of callousness in circumstances which warranted the strongest condemnation by way of a denunciatory sentence. I am not at all persuaded that the imposition of sentences totalling some sixteen years discloses error or that it offends any sentencing principle. In my view such a total sentence was entirely appropriate and called for by the applicant's criminal conduct.

72. The applicant abandoned his initial submission in support of ground 3 that certain of the comments made by the learned trial judge during the course of sentencing indicated that he was sentencing him on a version of facts which, if proved, would have amounted to the crime of murder.

73. Counsel then retreated to a submission, essentially in support of ground 6, that the learned trial judge had taken into account an irrelevant consideration when he referred to the applicant having left the deceased to her fate after he had pushed her into the water. Two observations made by his Honour were complained of by the applicant in this context. Having recited the events which led to the death of the deceased, the learned trial judge said that "you then drove away leaving her in the position into which you had pushed her." Later, referring to the fact that the Crown had accepted that the applicant had neither intended to kill the deceased nor known that his actions were likely to cause her death, the learned trial judge said:

"On the other hand, you acted with cold blooded disdain and

contempt for your young victim after having over powered and

sexually assaulted her. She was in no state to extricate

herself from the danger in which you placed her. You left her

face downward in cold water at an isolated place. In such

circumstances her death was all but inevitable. Some cases of

manslaughter approach cases of murder in terms of criminal

culpability and in my opinion, this is such a case."

74. The learned trial judge's references to the applicant having left the deceased whilst she was face downward in cold water at an isolated place were factually correct. The complaint made by the applicant was that they were facts irrelevant to the sentencing process. Plainly they were relevant. They formed part of the total circumstances and in particular were indicative of a lack of any immediate remorse on the part of the applicant. That is sufficient to dispose of these grounds.

75. At the time that the applicant committed his crimes, provision was made for the remission of sentences by the Prison Regulations 1977, reg45. Subsequently, that regulation was substantially re-enacted by the Prison Regulations 1985, reg48. In each case it was provided that a prisoner might be granted a remission of sentence for good conduct and industry, provided that the remission could not exceed one-third of the period of the sentence or operate so as to reduce a sentence to less than three months. At the time that the applicant was sentenced, quite different provisions were made for remissions.

76. The applicant referred to the amendments made to reg48 by the Prison Amendment (Remission) Regulations 1993, reg4 and the Prison Amendment Regulations 1994, reg4. They are irrelevant. I assume that the applicant intended to rely on the amendment effected by the Prison Amendment Regulations (No 3) 1993, reg5, whereby reg48(2) was omitted and the following substituted:

"(2) A remission of sentence granted under this regulation is

not to:

(a) exceed 3 months if the period of imprisonment to which the

remission relates is imposed after 1 January 1994; and

(b) exceed one third of the total period of imprisonment to

which a prisoner is sentenced; and

(c) operate so as to reduce the total period of imprisonment

served by a prisoner to less than 3 months."

77. It is common ground that prior to a limit of three months being imposed on the length of a remission of sentence, most prisoners had been granted the full remission then provided for by the Regulations. Remissions of sentence are acts of an officer of the Executive, pursuant to regulations specifically authorised by statute. Regardless of any policy which may be adopted from time to time governing the exercise of the discretion to grant remissions, a prisoner has no enforceable right to be granted a remission of sentence, even though the prerequisites to the grant of remission exist (Flynn v R [1949] HCA 38; (1979) 79 CLR 1, per Dixon J at 7 - 8; In re Jennings (1979) 22 SASR 274).

78. A remission system is predicated upon the functioning of ordinary sentencing procedures (Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 356). It has that feature in common with the parole system. Generally speaking, courts should not have regard to the possibility of parole or remissions in fixing an appropriate sentence. Both a parole system and a remissions system operate on the sentence rather than being factors relevant to fixing the sentence. Legislative and Executive policy as to how sentences ought to be so affected by such systems have changed from time to time, and it may be assumed that they will change in the future. The effect of parole and remissions upon a particular sentence may alter during the course of that sentence. An alteration may have the result that the prisoner spends a greater or a lesser period in prison than might have been anticipated at the time that the sentence was imposed. There is substantial authority for the proposition that a sentencing judge may not take into account the possibility of remissions (eg, R v Yates [1985] VicRp 3; (1985) VR 41; R v Binder [1990] VicRp 50; (1990) VR 563; R v Maguire (1956) 40 Cr App R 92). Although the possibility or likelihood of remissions operating on a sentence previously imposed and yet to be served may be a relevant fact to take into account when sentencing a prisoner, it may not be taken into account in relation to the sentence intended to be imposed (Burke v R (1983) Tas R 85, per Cox J at 91).

79. Counsel for the applicant principally relied on R v T (1989) 47 A Crim R 29 and Radenkovic v R [1990] HCA 54; (1990) 170 CLR 623 for the proposition that the learned trial judge should have taken into account that at the time of sentencing there was in force a relevant remissions regime considerably less favourable than that which had been in force prior to 1 January 1994. Those cases are clearly distinguishable because they concerned the re-sentencing of prisoners in accordance with a new sentencing regime and in accordance with specific statutory authority for such re-sentencing. The statute which authorised the re-sentencing had an underlying policy that prisoners who were re-sentenced should not be required to spend longer in custody than if the new sentences had been imposed in the first instance. It necessarily followed from an acceptance that that was the legislative policy to which effect was to be given, that the operation of the remission system became a relevant consideration. Nothing that was said in those cases justifies a departure from the well established principle that in the normal case a sentencing judge is to disregard the possibility of remissions.

80. Even if the proposition advanced by the applicant, that special circumstances may justify or even require a departure from this principle, were to be accepted it would not avail the applicant. It is true that had he been sentenced prior to 1 January 1994 he might have been granted remissions more extensive than those provided for at the time that he was sentenced. However the delay in the applicant being charged was no fault of the Crown. Had the applicant given a truthful account, rather than lying, when he was first interviewed by the police, he would have been charged at a much earlier time. In one sense he has brought the possibility of having to serve a much greater proportion of his sentence upon himself. This ground is not made out.

81. Accordingly, it is my view that the application for leave to appeal should be refused.