1 On 8 October 2013, Garreth Giles was convicted, after trial in the Supreme Court, of murder, two counts of theft, and arson. On 30 April 2014, he was sentenced as follows:

The judge made no orders for cumulation. The total effective sentence was thus 26 years' imprisonment. The judge fixed a non-parole period of 21 years' imprisonment.

2 Giles now applies for leave to appeal against sentence, relying upon these grounds:

GROUND 1: The Applicant was denied procedural fairness in that the learned sentencing Judge stated in her reasons for sentence that Coulter was 'assessed as functioning within the intellectual disability range, with an overall performance better than only 0.2% of his same aged peers', - a finding that was not the subject of evidence on the Applicant's trial or plea.

GROUND 2: The learned sentencing Judge erred in her characterization of the Applicant's role, criminality and moral culpability, in that she erred by:

1. Relying upon the alleged IQ of Coulter in assessing the Applicant's criminality when this was not evidence led on either his trial or his plea;
2. Making an assessment of the Applicant's role vis a vis Coulter in circumstances where the Judge was not fully aware of the case against Coulter;
3. Allowing the fact that she 'strongly believed' the Applicant strangled the deceased, in circumstances where the admissible facts at trial or on the plea did not support such a belief, to infect her assessment of the Applicant's role and criminality;
4. Adhering to a view as to the Applicant's lack of empathy without sufficient support in the evidence;
5. Finding that the Applicant killed the deceased to see what 'it felt like', when the evidence was insufficient to identify a motive for the crime.

GROUND 3: The learned sentencing judge erred by having regard to the orders made by Hollingworth J in respect of co-offender Coulter's disposition, in determining the Applicant's sentence.

1. imposing a sentence on charge 1; and
2. imposing a non-parole period

which was, in all the circumstances, manifestly excessive.

1. Insufficient weight given to the Applicant's psychiatric disorder/illness in assessing his criminality, moral culpability

1. Insufficient weight given to the assessment of his risk of reoffending
2. Insufficient weight given to the Applicant's hardship in custody

1. Insufficient weight given to his previous good character and youth

1. Imposing a sentence well above the median sentence for murder where the circumstances did not warrant it.

3 In her sentencing remarks, the judge described the offending as follows:

1. You committed these offences in company with Christopher Leigh Coulter. Coulter was dealt with by Hollingworth J for the same charges of which you have been convicted. Coulter was found unfit to be tried by a jury on 10 September 2013 and, after a special hearing conducted under Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, he was found to have committed all of the offences charged, namely, one charge of murder, one charge of arson and two charges of theft. Her Honour subsequently determined that, there being no practical alternative to imprisonment and no services suitable or available in an 'appropriate place' as specified in the Act, a nominal term of 25 years should be imposed. No review period was specified.
2. At the time of the offending you were 24 years of age and are currently 26. Your cooffender, Christopher Coulter, was aged 18 at the time of the offending. He was assessed as functioning within the intellectual disability range, with an overall performance better than only 0.2% of his same aged peers.
3. The victim in this matter, Russell Hammond, was the oldest of three children and was 49 years of age, almost 50. You originally met Mr Hammond some years earlier when you were both involved in a work for the dole scheme, which he had begun after his return from Japan. You became the beneficiary of his generosity when he permitted you to share the accommodation of his home at Drysdale during the time that you had been homeless and having difficulties with your mother and siblings. The circumstances relating to that are that approximately five years before the murder of Mr Hammond, you had left home after some sort of dispute with your family. Mr Hammond allowed you to stay at his premises in the spare room and assisted you financially and in respect of things such as the use and obtaining of a computer. You stayed there for some time until your mother eventually tracked you down and you returned home to live with her. There was nothing sought by Russell Hammond from you in return for his kindness. After you returned home to live with your mother you had no further contact with Mr Hammond over a period of some years.
4. Subsequently some time in 2011, you saw Mr Hammond driving his motor car one day, in an area not far from your home, and he stopped his car to speak to you on that occasion, and apparently you spoke in a friendly manner about what you had both been up to since you had last seen each other. It is believed that you may have been to visit him once since that time, other than on the occasion of his death, but that is not a matter about which I can be certain.
5. On 5 January 2012, you, together with Christopher Coulter, left your mother's premises in Leopold, saying that you were going to the local service station to obtain some cigarettes, which was clearly untrue. You and Christopher Coulter, who was also residing at your mother's premises, being your sister Brianna's partner and father of her then unborn child, went to the bus stop and caught a bus from Leopold to Drysdale. You had with you at that time your backpack. It is not possible to state with certainty everything that was contained in the backpack, but I am satisfied beyond a reasonable doubt that you had with you some materials which you intended to use in respect of the killing of Mr Hammond, as well as your computer.
6. You caught a bus to Drysdale and walked from the bus stop to the home of Russell Hammond. What occurred from that point on is, by necessity, a matter of circumstantial and inferential reasoning, in that you and Christopher Coulter both denied killing Mr Hammond, with each of you claiming in your interviews that you emerged from Mr Hammond's toilet to discover the other strangling Mr Hammond. It would appear, however, that when you knocked at Mr Hammond's house, he invited you both in, made you a drink and behaved in a friendly manner towards you. This was the situation in which he found himself; Mr Coulter, he did not know, and you were a person he would have considered a friend. You had with you rope, duct tape, all of which was similar to the material used to tie Mr Hammond up. At some point, you, and in all probability assisted by Mr Coulter, started choking Mr Hammond. I am unable to say whether he was tied up first or subsequent to the choking, but to a large degree that is irrelevant. Nothing had been done or said by Mr Hammond to in any way provoke or cause feelings of anger, outrage or any other possible motivation for your actions. This was a senseless, inexplicable, vile, random murder of another human being.
7. The body of Mr Hammond was placed in the boot of his Mercedes motor vehicle, which was stored in the garage under the house. You and Mr Coulter took from the house a laptop computer, a flat screen television and a wallet. From the garage you took two shovels and a can of petrol. You drove from Drysdale through Geelong to an isolated part of Corio, near to where Coulter lived with his father, and transported his body to the top of a hill in that isolated location, doused it in petrol and set it alight. You then drove back through Geelong to an area near your home a few hundred metres away.
8. You removed from the vehicle the items that you had stolen, being the wallet, the television and the computer, leaving the shovels and petrol can in the car. You doused the car in petrol and set it alight. The two of you then walked up the track to your home. The flat screen television was found in Mr Coulter's bedroom. Mr Hammond's wallet was found in your bedroom lying casually under some shelves.
9. In relation to this matter, I am satisfied beyond reasonable doubt that this was a premeditated and planned murder on your part. You had previously had discussions with a young man with whom you had been friends for many years, about what could be described as odd and unusual matters, some of which were about killing innocent people, about going to gaol and wondering what gaol was like. Equally, and far more significantly, the police located in a file on your computer a step-by-step murder plan which had been created in November 2011, some two months or so prior to the murder of Russell Hammond. The document found on your computer was called "The Advocate document". It was an 18-step plan and corresponds in a breathtaking way to a large number of the steps that you took this night. I shall read only those that matched:

(1) Catch bus to vic's house.

(2) Advocate makes an entrance (I omit what follows that, being "baseball bat to vic's kneecaps").

(3) Tie vic up with rope and duct tape.

(4) Take vic's possessions, ie car keys, shovels, wallet.

(5) Take vic out back.

(6) Throw vic in back of vic's car.

(7) Throw vic's possessions in back of car.

(8) Drive to burial site.

(13) Cover up blood with dirt.

(14) Pack up tools.

(15) Drive car to burning or drowning site.

(17) Burn or drown vic's car.

(18) Leave?

1. What is not included are items (9) to (12), which detail the burying of the victim and the collecting of his skull. The victim does not have a name, it is just "vic". It is a chilling document, because it is a plan to kill an unknown, random person. Here, you killed a known person, albeit one you had not seen or had dealings with for many years. Whether this document was created before or after you met up again with Russell Hammond is something I am unable to determine.
2. The Crown put the case before the jury as being one in which you were either the perpetrator of the actual crime or you were party to a joint criminal enterprise to murder Russell Hammond and steal his property. Whilst I strongly believe that you are the person who did in fact strangle him, I am not in a position to say that I am satisfied of that beyond any reasonable doubt. Despite that, I am certainly satisfied to the required standard that you were the instigator of this plan, this decision to murder Russell Hammond, and that you did it just to see what it felt like. Equally I have no doubt that you were the leader and Coulter with his low-level intelligence was no more than a follower of you and your plan. I have no knowledge at all of Coulter's motivation, as I have not dealt with his circumstances at all. Your crime is callous, despicable and utterly devastating to both the Hammond family and the wider community.
3. Russell Hammond was a real person. One who was loved and who loved in return. You have taken his life wantonly and in the most callous and chilling way, just to see what it felt like. I am unsure whether it really fits the category of what some may call a "thrill kill", as I do not believe you have sufficient emotional awareness to even understand the feeling of being "thrilled". But regardless of that, I am satisfied that your crime falls into one of the higher categories of murder, requiring significant and appropriate punishment.
4. You then exacerbated your crime by taking his body away and burning it to such an extent that his parents were advised not to view his body, denying them the opportunity to at least say farewell to their son. It is hard to comprehend how a human being can do this to someone else. Snuff out a human life as though it was worth nothing. Kill someone just to see what it felt like.[1]

(1) The judge's observation at [3] in her sentencing remarks that the co-offender, Coulter, was assessed as functioning within the intellectual disability range, with an overall performance better than only 0.2% of his same aged peers, was not before the Court (he must have meant that the precise extent of Coulter's disability was not in evidence).

(2) The prosecutor's attempts to tender a psychologist's report relating to Coulter at the plea hearing had been successfully resisted.

(3) Applicant's counsel had not been forewarned of the judge's intention to use the precise assessment referred to above.

(4) That assessment informed other parts of the judge's sentencing remarks. It was used adversely to the applicant, and it could not be said that the sentencing discretion would have been exercised in the same way had the judge not relied upon it.

(1) The judge needed, for completeness in her sentencing remarks, to refer to the proceedings and outcome referable to Coulter.

(2) Coulter's intellectual disability was squarely raised on the plea by the prosecution as being relevant to the sentence to be passed on the applicant. Counsel for the applicant had been provided with relevant psychiatric reports.

(3) The judge had said on the plea that she did not need the psychiatric reports. Coulter had been found unfit to plead because of cognitive impairment. She, the judge, accepted that. It was a finding.

(4) The judge had directly put to applicant's counsel at a resumed plea hearing the proposition that the applicant had recruited a person 'who was basically intellectually disabled, almost'. Counsel's response had only been that the judge needed to have 'some caution in how [her Honour] approach[ed] the question of Mr Coulter'. The judge had then referred to the finding of a jury that Coulter had been unfit to stand trial because of his poor intellectual functioning. The applicant had, she expressed the view, 'got someone involved who had a much lower level of reasoning that [sic] he has'.

(5) The finding of Coulter's unfitness to stand trial was a matter of record 'known to the Court'.

(6) Unlike the situation which arose in R v Downie and Dandy,[2] relied upon by the applicant, Coulter's intellectual functioning was squarely before the Court as a matter of potential relevance to the sentence to be imposed upon the applicant.

6 In my opinion, this ground is not reasonably arguable. Accepting it as a fact, for present purposes, that the judge did not have before her evidence as to the precise extent of Coulter's intellectual functioning, it was clear that her Honour did have legitimate access to material which showed that Coulter was intellectually disabled to a significant degree. A jury had so found; and another judge had made orders accordingly. Applicant's counsel was on notice of those matters, and of the potential relevance which the judge perceived them to have in sentencing the applicant. There was no want of procedural fairness.

7 Counsel for the applicant submitted that, although the judge was entitled to find that his client instigated the plan to kill the victim, that it was his idea, nonetheless -

(1) The judge had employed untested views as to Coulter's intellectual capacity in forming her 'strong belief' that it was the applicant who had strangled the victim, and the extent to which the applicant had led Coulter into the commission of the crime. Had the issue of Coulter's capacity been fully ventilated, counsel could have adduced evidence bearing on the man's capacity. The judge was not well placed to make findings as to the level of Coulter's participation in the events in the absence of full evidence. Further, the judge's 'strong view' that the applicant had strangled the victim, although it led to no finding adverse to the applicant, was indicative of her approach to the matter in the absence of full evidence about Coulter's role.

(2) There was not sufficient evidence for the judge to conclude, as her Honour did, that the applicant killed to 'see what it felt like'. Her conclusion as to motive was skewed by the fact that she was not apprised of the entire case against Coulter.

(3) Expert reports, did not contain explicit references to the applicant having an inability to empathise. But the judge had concluded, at several points in her sentencing remarks, that the applicant had such an inability.

(1) A good part of the submissions for the applicant on ground 2 was a re-working of the ground 1 complaint, and led nowhere. Coulter's disabilities were a matter of record, and had been taken into account by the judge in a limited way. Counsel for the applicant knew what view the judge was, prima facie, taking about their relevance. He could have referred to matters in the depositions - including Coulter's record of interview and his prior history - had he chosen to do so. But even if he had chosen to go down that path, it would not have affected the limited findings made by the judge as to Coulter's intellectual deficits and their relevance in sentencing the applicant. Further, incontestable facts pointed to the applicant's leading role in the crime.

(2) The judge had not made a finding that the applicant, rather than Coulter, had strangled the victim. She had not converted her 'strong belief' that this was so into a finding adverse to the applicant.

(3) Respecting lack of empathy, there was objective evidence which entitled the judge to make such a finding. Further, counsel for the applicant had submitted, in answer to a question asked by the judge, that his client's schizoid personality disorder was 'to do with an inability to understand the subjective position of others'. Further again, Professor Mullen had stated in his report, referred to by the judge in her sentencing remarks, that the applicant had 'an inability to maintain any sense of being able to understand others or feel understood by others'.

(4) The Crown case respecting motive had been that this was a 'thrill kill'; or, improbably, that the motive was theft. A witness had given evidence of being told by the applicant that he, the applicant, wanted to know what it would be like to kill an innocent person.

8 In my opinion, each aspect of the submissions made for the respondent with respect to this ground should be accepted. They leave no room for it being successfully contended that any part of the ground is reasonably arguable.

9 I only add that the judge was extremely careful in her evaluation of evidence pertaining to the applicant's personal circumstances. She analysed psychological, neuropsychological and psychiatric evidence in considerable detail. Her Honour was certainly entitled to conclude, on consideration of all the material before her, that the applicant had 'an inability to understand or empathise with people on any ordinary, recognised level';[3] and that his lack of remorse was unsurprising because he did not 'have any real understanding or genuine feelings of empathy towards other people'.[4]

10 According to the submissions for the applicant, the judge was of opinion that in sentencing the applicant, she had to consider Coulter's sentencing disposition. Then, in her sentencing remarks, although she mentioned that disposition, she had said nothing about its relevance to the sentence passed upon the applicant. She had not disavowed remarks that she had made in the course of the plea hearing, nor stated that she had given Coulter's disposition no consideration. It must be concluded that her Honour had impermissibly taken Coulter's disposition - he was ordered to be held in custody, in prison, for a nominal term of 25 years without review - into account when sentencing the applicant.

11 Counsel for the Crown submitted that when the issue of Coulter's disposition was raised on the plea, the prosecutor had submitted that such disposition would not have a bearing on the sentence to be imposed on the applicant. The applicant and Coulter were to be sentenced under different statutory regimes. Applicant's counsel had agreed.

12 Counsel further submitted that all the judge had done in her sentencing remarks pertaining to Coulter's disposition was to mention it as a matter of history.

13 In my opinion, this ground is not reasonably arguable.

14 In the course of the plea hearing, the judge observed that she would have to consider what would happen to Coulter. The position was complicated because his disability was not a 'mental health disease', but 'cognitive deficit'.

15 The prosecutor then submitted that the question of what disposition was made in Coulter's case would not have a bearing on the sentence to be imposed on the applicant by reason of parity considerations. The judge demurred. She added that she would 'continue to try and look at it'.

16 Counsel for the applicant then submitted that parity would not be an issue. It would be 'comparing apples and oranges'. The judge responded that she would have to bear in mind the disposition in Coulter's case, even if sentences were to be disparate because of the different regimes which applied.

17 The ultimate submission made by applicant's counsel was that, if an appropriate sentence was fixed upon for the applicant, it should not be 'altered upwards because of what might be the effects of a nominal term potentially in respect to' Coulter.

18 The judge's final observation was that she did not think 'anyone really knows'; that she 'didn't think we've had the situation arise as yet'. It was 'not normal that we have unfit to plead on that sort of basis'.

19 The foregoing shows that the issue of what, if anything, was to be made of Coulter's disposition was fully ventilated, and that the judge had not resolved that issue when argument ended.

20 In her sentencing remarks, the only mention which the judge made of Coulter's fate was in the course of setting out the history of the matter. Her Honour made no mention of parity. The sentence which her Honour imposed on the applicant did not imply, in my opinion, that it had been 'altered upwards' by reason of the nominal term of 25 years' custody without review which had been imposed upon Coulter. There is no basis for converting the judge's various observations in the course of argument into a conclusion that, lurking unstated in her sentencing remarks, there is some error of principle.

21 Counsel for the applicant accepted that his client's offending was very serious, being premeditated and involving considerable planning. He submitted, nonetheless, that -

(1) The disturbance of his client's mind did not deprive him of, or seriously impair, his understanding, reasoning and self-control. The applicant's psychological make-up was complex. He was not a psychopath. His future risk assessment was far from dire.

(2) When those matters were considered together with the applicant's youth, lack of criminal history, and the hardship he would experience in custody as a result of his odd personality traits, there should have been greater moderation of sentence.

(1) This was a calculated and premeditated murder of an innocent man in his own home.

(2) After he had been gagged, bound hand and foot, and strangled, the victim's body had been desecrated. The killing was in the highest category of seriousness.

(3) The judge had examined and commented at length on the psychiatric material available to her. Ultimately, it could not be said that the applicant suffered psychiatric illness. Rather, he suffered a personality disorder.

(4) The applicant's disorder did not entitle him to a reduced sentence, save in respect that his time in prison would thereby be the more difficult for him to bear.

(5) The applicant's social deficits, isolation and eccentricity did not entitle him to any reduction on what would otherwise be an appropriate sentence for his crime.

(7) The judge had considered the concept of parsimony and totality. For that reason, she had made no orders for cumulation of sentences.

(8) The judge had given appropriate weight to the applicant's youth and lack of prior convictions.

(9) The judge had been well aware that she was sentencing the applicant to a period of imprisonment which was higher than the median sentence for murder. Such a sentence was justified in all the circumstances.

23 The applicant presented, as the very experienced judge recognised, a most difficult sentencing problem.

24 For all that the applicant was relatively young and had no prior convictions, it must be recognised that this was a terrible, planned killing, of which the applicant was the instigator. The killing did not end there. The victim's body was desecrated.

25 The applicant was best diagnosed as having a schizoid personality disorder. According to Professor Mullen, using the usual risk assessment tools, the applicant would probably be regarded as having a low risk of re-offending. But the risk might be considered higher in circumstances where the applicant 'carried out a planned attack which had been generated over a long period of reflection and fantasising'. Further in the Professor's opinion, assuming that the applicant had a disorder in the schizophrenic spectrum, the more likely situation was that the applicant would 'become more withdrawn and eccentric as time passes'.

26 In my opinion, the judge was evidently correct to consider that the applicant's prospects of rehabilitation, in all the circumstances, were 'certainly and unfortunately not high'. She was also correct to conclude that the protection of the community was 'an active consideration'.

27 It is not contended that her Honour omitted to consider any relevant circumstance. The particulars subjoined to Ground 4 all relate to matters which the judge considered.

28 The judge identified and carefully evaluated all relevant sentencing considerations. In my view, it is not reasonably arguable that any aspect of the sentence imposed which her Honour imposed was manifestly excessive.

29 I dismiss the application for leave to appeal against sentence.

[1] R v Giles [2014] VSC 210.

[2] (1998) 2 VR 517.

[3] R v Giles [2014] VSC 210, [39].