Kelson v The Queen [2020] VSCA 112

1 On 2 June 2018, the applicant, Thomas Kelson, pleaded guilty before Tinney J, in the Trial Division, to a charge of murder. He was sentenced to a term of 24 years' imprisonment with a non-parole period of 19 years. He now seeks leave to appeal against that sentence upon the following grounds:

Ground 1: The sentencing judge erred by making findings that were not reasonably open on the evidence.

Particulars:

His Honour erred by finding that:

(a) The applicant formed an intention to kill Hough while at the house in Collingwood;

(b) The applicant acted with that intention when he killed Hough; and

(c) Hough had fabricated his assertion that he had been [involved] in raping and killing the applicant's father in response to the applicant's violence.

Ground 2: The sentence imposed (24 years), and the non-parole period fixed (19 years), are both manifestly excessive.

2 For the reasons that follow, we would refuse leave to appeal.

Circumstances surrounding the commission of the offence

3 At the time of the offending, the applicant was aged 26, and Hough aged 17. Despite the disparity in their ages, they were friends. Both had regularly used drugs for a considerable period, including cannabis and methamphetamine.

4 On Friday 18 December 2015, the applicant and Hough attended a party in Skye, near Frankston. That party continued on and off until the early hours of Sunday 20 December 2015. Both men were observed to have consumed alcohol, and to have used drugs, including cannabis, methamphetamine, and ecstasy. Others at the party described them as being on edge, significantly drug‑affected, and 'scattered and all over the place'. The applicant was also seen showing other guests at the party a set of knuckledusters that he had in his possession.

5 In the early hours of Sunday 20 December 2015, the applicant and Hough left the party in the applicant's car. At about 5:00 am, they attended the home of the Morgan family, in Highett. When Mr Morgan answered the door, Hough indicated that he needed to speak with Mr Morgan's son. He said that he needed help. Mr Morgan noticed that both the applicant and Hough appeared to be significantly affected by drugs, and were 'talking in riddles'. He told them to leave, and they drove off. The pair returned, however, about an hour later. They were, again, told to leave.

6 Later that morning, the applicant and Hough attended at the home of the applicant's friend, Nathan Bordonaro, in Collingwood. Bordonaro lived at that address with his mother, Debra Brincat, and his two children. Bordonaro observed that the applicant's behaviour was abnormal. Bordonaro later smoked 'ice' with the applicant whilst he and Hough were at the Collingwood house.

7 Shortly after arriving at the premises, the applicant began to talk erratically about motorcycle gangs, his father and, for reasons which are not clear, of the notion that Hough might have had something to do with his father's supposed disappearance. In reality, the applicant's father was alive and well, and had never gone missing. Bordonaro's evidence was that, at that point, Hough neither admitted nor denied any involvement in any such disappearance, but teasingly hinted at the idea that he may have had knowledge of a kidnapping.

8 Bordonaro claimed that he had become concerned about his children witnessing the applicant's strange behaviour. He told the applicant and Hough to go into the laundry to 'sort it out'. Bordonaro claimed that once in that room, the applicant had 'lost it'. The applicant had continued to argue with Hough, accusing him of having been involved in his father's disappearance, or even death.

9 While in the laundry, the applicant struck Hough repeatedly to the head with his bare fists and, at one point, caused him to have a blood-nose. Bordonaro claimed that Hough changed his answers repeatedly, and that the applicant continued to hit him in order to obtain responses from him. Bordonaro further claimed that he had attempted to persuade the applicant to desist in his attacks against Hough, but the applicant would not listen.

10 Bordonaro then decided to take his children to a friend's house to get them away from what was happening. He said that at the time he left the house, Hough had still not made any admissions to having been involved in kidnapping, or otherwise harming, the applicant's father.

11 When Bordonaro returned, the applicant and Hough were in the lounge room. Hough was seated on the couch, and the applicant was standing, 'ranting and raving'. Bordonaro, again attempted to calm the applicant down, with no success. Hough continued to act evasively in response to the applicant's accusations. Bordonaro said that Hough had been behaving in a 'cheeky' manner towards the applicant, and that this was 'not helping his cause at all'.

12 Shortly afterwards, the applicant accompanied Hough back into the laundry. He again demanded that Hough tell him where his father was, and what Hough had done to him. Hough continued to be evasive, at times denying any knowledge of any such conduct towards the applicant's father, and at other times hinting that he may have had such knowledge. The applicant again struck Hough with his bare fists. He then slashed at him with a kitchen knife, causing a deep gash to his forearm. At this stage, Hough had facial swelling, and two black eyes. The applicant was heard by Ms Brincat saying

My Dad's missing. Go on, Cayleb, you tell them what's happened ... Tell how you've gone to the enemy ... Go on, tell them about my Dad. Is my Dad alive or what?[1]

13 Bordonaro and Ms Brincat attended to Hough's injury, cleaning and dressing the cut with a cloth, and later, with a tea towel. By this time, a friend of Bordonaro, Rhys Mewburn, had arrived at the house at Bordonaro's request. Mewburn came all the way to Collingwood from his home in Ballarat. Mewburn, Bordonaro, and Ms Brincat all told the applicant that Hough should be taken to a hospital. Mewburn and the others attempted to calm the applicant down, but to no avail.

14 By that stage, Hough had, falsely, admitted knowledge of, and involvement in, the disappearance of the applicant's father. Bizarrely, he had also admitted to having sexually assaulted the father. The sentencing judge was satisfied that Hough had made these statements only because of the physical assaults that he had sustained, and the threats that the applicant had made to him.[2]

15 After further repeated accusations, and having been bashed by the applicant, Hough 'admitted' to having raped and shot the applicant's father in the course of a dispute involving motorcycle gangs.

16 Mewburn's evidence was that the applicant said to Hough

You're gonna die today. You killed my dad. Where's me dad? Is the rest of me family alright? You're gunna die today. You're gunna die today. I'm gunna kill ya.[3]

17 Later, the applicant asked Mewburn who, it seems, had previously undertaken a forest operator's licence course, whether he knew of a remote location where Hough could be taken. Mewburn indicated that he was aware of a shallow mine shaft in the Lerderderg State Forest. According to Mewburn, the applicant then restrained Hough with grey duct tape. He bound Hough's hands together, and taped over his mouth. All this time, Mewburn and Ms Brincat were imploring the applicant to desist.

18 Again, according to Mewburn, the applicant then asked him to bring the applicant's car to the front of the house. The applicant said to Hough 'If you fuck around out the front I'm gunna stab you'. He then led Hough out of the house, and put him into the rear seat of the car.

19 Mewburn said that he had instructed the applicant to take 'the Ballarat Road'. He drove his own car behind the applicant's car, the two vehicles travelling in convoy. Mewburn claimed that Bordonaro had been in Mewburn's car with him (a claim that Bordonaro subsequently denied). When both vehicles passed the Bacchus Marsh turn-off, Mewburn overtook the applicant's car, and guided the applicant to the Lerderderg State Forest.

20 In the course of his evidence, Mewburn made no mention of the applicant's car having stopped during the journey to the Lerderderg State Forest. However, according to the applicant, in his account of what occurred to Dr Adam Deacon, a psychiatrist, Hough had, from the back seat, kicked the applicant to the back of the head while he was driving. According to the applicant, he stopped the car, got into the back seat, put on knuckledusters, and repeatedly struck Hough to the head.

21 In a subsequent police interview, in June 2016, the applicant said:

• He was kicking me. I just snapped ... It was the brass knuckles that killed him. He knew when I hit him. I'm not sure how many times I hit him, I just lost it. I was thinking about my dad getting ...
• He was in the back of my car ... We were fighting, just lost it.
• [We were] in a road somewhere in Melbourne travelling around.
• He was dead. He was cold, like, he was fucked.[4]

22 Returning to Mewburn's evidence on the plea, he said that when he arrived at Lerderderg State Forest, he saw the applicant drag the deceased out from the rear of the vehicle. At that stage, there was still duct tape around the deceased's hands, mouth, and head. The applicant placed the deceased's body on a tarpaulin of sorts, and asked Mewburn to help him drag it to the mine shaft. Fearing that he would meet the same fate as Hough, Mewburn did as he was told.

23 Mewburn said that he heard the applicant exclaim 'You shot me dad. You raped me dad. You're a dog.' The applicant then pushed the body into the mine shaft. He next climbed down into the shaft and removed the duct tape from the deceased's body. Mewburn said that he could hear the applicant continually ranting about what the deceased had done to his father. At that point, Mewburn returned to his car and drove away. The applicant later departed in his own vehicle.

24 After disposing of the deceased's body, the applicant returned to Melbourne. He got rid of the knuckledusters by throwing them down a drain. He then decided to leave the country. He drove to Sydney, and then flew to Argentina, where he remained for about a month. He initially intended never to return.

25 On 26 January 2016, the applicant arrived back in Australia, and was arrested at the airport. He was interviewed by the Homicide Squad, and gave a 'no comment' record of interview. He told police, however, that he had last seen the deceased in Doveton, near Dandenong.

26 On 10 March 2016, the deceased's body was discovered in the mineshaft by a member of the public. When police examined the scene, they located a large bundle of grey duct tape about 44 metres from the mineshaft. Another smaller length of tape was located a few metres away from the larger bundle. The deceased's DNA was identified on some lengths of the tape.

27 A post-mortem examination of the deceased's body revealed that he had suffered fractures to both the upper and lower jaws. The examination also revealed that the injuries had not healed. The pathologist concluded that these injuries had resulted from blunt force trauma, inflicted close to the time of death. However, by reason of the substantial decomposition of the deceased's body, a definitive cause of death could not be ascertained.

28 On 1 June 2016, the applicant was interviewed a second time by the Homicide Squad. During that interview, he admitted to having killed the deceased by bashing him to death.

29 The plea was conducted on a 'contested-facts' basis. The applicant, of course, by his plea, acknowledged his guilt of murder. Nonetheless, he contended that he had never formed an actual intent to kill the deceased. He also contended that he should be dealt with on the basis that the killing was unplanned and, in effect, occurred on the spur of the moment, in response to Hough's having kicked him while he was driving. The bashing of the deceased occurred as a result of the applicant's having 'lost it' (that is, that the applicant had suffered a sudden loss of self-control). On that scenario, it was only after the applicant had killed the deceased that he determined to put the deceased's body down the mineshaft.

30 Of course, that version of events stood in stark contrast with the way in which the prosecution put the case. According to the Crown, this was a premeditated and intentional killing, carried out in accordance with an intention formed while the applicant was still at the Collingwood house.

31 In that regard, the applicant strongly disputed certain aspects of the evidence given by Mewburn. Mewburn himself pleaded guilty one charge of assisting an offender (murder). At his plea hearing, Mewburn gave an undertaking to give evidence against the applicant at his trial for murder. This resulted in his receiving a significant discount on sentence.[5]

32 In the course of the plea, the applicant provided a written outline, setting out his version of the circumstances surrounding the commission of the offence. That outline also identified those facts that were disputed. There were three aspects of Mewburn's evidence that were challenged:

• Mewburn states that [the applicant] said to the deceased 'You are going to die today ...' ... This is denied.
• Mewburn states that [the applicant] asked him if he knew somewhere 'out bush' they could put the deceased. Mewburn mentioned a 'hole.' This conversation is denied. It is denied there was any plan to go to Lerderderg prior to the death of the deceased.
• Mewburn provides an account of [the applicant] taping up the deceased with a roll of duct tape (and un-taping him after burial) effectively binding and gagging him, prior to departing Collingwood. This is denied.

33 The applicant submitted that these three aspects of Mewburn's evidence, in particular, could not be accepted to the requisite criminal standard. This was, first, because Mewburn was an unreliable witness. It was submitted that Mewburn himself was a regular and frequent cannabis user, and also, generally, a person of bad repute and character. Further, these three aspects of Mewburn's evidence were said to be uncorroborated, implausible, and supposedly inconsistent with the evidence of Bordonaro and Ms Brincat.

34 In support of the applicant's contention that he should be sentenced on the footing that this was a spontaneous, rather than premeditated, murder, he relied upon a particular aspect of Mewburn's evidence. Mewburn said that when he had left the Collingwood house, in company with the applicant and Hough, his understanding was that 'we were just going out there to scare him.' On that evidence alone, it was submitted that it was reasonable to conclude that the applicant had simply 'lost his temper' immediately before attacking the deceased in the car. It could not be said that he had set out on the journey intending to kill (or even really seriously injure) the deceased.

35 After setting out the background, the sentencing judge turned to the disputed facts on the plea. He stated that

I found Mewburn to be an impressive witness whose credit was not harmed during cross-examination ... I consider his overall account as set out in his statement and detailed in his evidence to be a truthful and accurate one. I also note that I considered the account of Mewburn not in isolation but in context of all the other evidence in the case ...[6]

36 His Honour then turned to each of the three aspects of Mewburn's evidence that were specifically disputed. With regard to the taping up of Hough,[7] his Honour observed that Mewburn's evidence as to the description of the tape was consistent with the tape found near the mine shaft where Hough's body was discovered. He rejected the applicant's argument on the plea that a possible explanation for the presence of the tape was that it had been used to affix a tea towel to Hough's arm after the applicant had injured him with a knife. He said that he was satisfied to the requisite standard that the applicant had restrained Hough with tape, and that the tape was still in place at the time Hough was killed. His Honour found that this was a 'significant aggravating feature'.[8]

37 With regard to the applicant's threats to kill Hough at the Collingwood house,[9] the judge said that he was satisfied to the criminal standard, based upon the evidence of Mewburn, and the surrounding facts, that the applicant had uttered those threats.

38 With regard to whether the applicant had asked Mewburn to suggest a location to dispose of Hough's body,[10] the judge rejected the submission that when the applicant and Hough drove away from the Collingwood house, the applicant intended only to take Hough to a hospital. In that regard, counsel for the applicant on the plea had submitted that it was only after his client had killed the deceased, on the spur of the moment, that Mewburn had provided him with the location of the mineshaft in Lerderderg. His Honour characterised that scenario as 'unrealistic in the extreme.'[11]

39 The judge then turned to the question whether the murder should be characterised as intentional, or reckless, and to what extent, if at all, the killing was premeditated. His Honour said:

The findings that I have made on the disputed facts, along with the other surrounding circumstances, make it entirely clear that you must have had at least an intention to cause really serious injury at the time of the final attack. Indeed, I would go further than that.

In my view, my acceptance of the evidence of Rhys Mewburn generally, and in respect of the contested areas in particular, leads inexorably to the conclusion that, at the time of your departure from [the Collingwood house] with Cayleb Hough in the back seat of your vehicle, you harboured the intention to murder him and to dispose of his body at the location which had already been revealed to you at that time by Mewburn. I am satisfied beyond reasonable doubt that you had formed the intention to kill. I can see no other reasonable way in which to view your proven conduct and statements. It is one thing for it to be asserted that Mewburn may not have believed that murder was what was going to occur; that he may have considered what you said and did as being no more than a ruse to further frighten Hough or, at least, something that you did not actually intend to follow through with. It is quite another to consider that you yourself did not have the intention that your words and actions so clearly indicated.

In reaching this conclusion as to your state of mind at the time of your departure from [the Collingwood house], I carefully considered the submissions made this morning by [your counsel], in which he asserted that I should not be satisfied beyond reasonable doubt on this matter. Forceful though these submissions were, I do not accept them.

Within a relatively short time of your departure from [the Collingwood house], you acted on that intention that I am satisfied you had already formed to kill Hough. On your own admission, you stopped the car at some point, must have put on the knuckledusters that were in your possession, and inflicted multiple blows to the head of Hough while he was still bound and, in effect, helpless in the rear of your vehicle. The number of blows is unclear, but at least two of the blows were of sufficient force to cause separate facial fractures.

At the plea hearing, [the prosecutor] did not urge me to reach the view that you necessarily had an intention to kill at the time of your acts that caused the death of Hough. He put it in terms of there being evidence of at least an intention to cause really serious injury. ... In my view, the evidence is abundantly clear that, at the time of your final brutal attack upon Cayleb Hough, you intended to bring about his death. Your earlier formed intention continued unchanged, and now you acted on it. I am satisfied beyond reasonable doubt of that fact.

I should make it clear that even had I not decided the three contested facts adversely to you, I would still have been perfectly satisfied that your murder was one in which you had an intention to cause death or at least really serious injury, as opposed to foresight of the probability of death or really serious injury taking place. As the prosecutor put it on the plea, on your account in the interview, with no reference to the contested evidence of Mewburn, I could be satisfied at least of an intention to inflict really serious injury. You had, after all, repeatedly hit Hough to the head while wearing a pair of knuckledusters until he was dead. I agree with that analysis, and I make the additional point that the final fatal attack did not occur in isolation. It occurred following a protracted and violent assault by you upon your victim over a course of many hours, in which your extreme anger towards him was manifest. Even without my findings as to the disputed evidence of Mewburn, I would have been satisfied beyond reasonable doubt of an intention to inflict at least really serious injury.[12]

40 The judge then turned briefly to the applicant's personal circumstances. His Honour noted that the applicant was aged 29 at the time of sentence. He had suffered a dysfunctional upbringing, with his parents separating when he was aged 11. He had left school in Year 8, and at that point, was regularly using cannabis, and abusing alcohol. It was at this time that he had also started to get into trouble with the police. He began using methamphetamine when aged 20, and was regularly using that drug at the time of the offence.

41 At the time of sentence, the applicant had a young son, who was aged about two. The judge recognised that the inability to have regular contact with that child would result in a greater burden on the applicant than otherwise would have been the case.

42 The judge then turned to the timing of the applicant's plea of guilty, which was entered at a late stage, and only after a contested committal. While the judge acknowledged that counsel for the applicant initially sought to explore the possibility of a guilty plea to manslaughter, and also of a mental impairment defence, his Honour maintained that the plea 'did come very late in the piece'[13], resulting in continuing anguish on the part of the deceased's family.

43 The judge recognised, however, that the plea did have utilitarian benefit, and 'provides at least some evidence of remorse.'[14] Further, he accepted that the applicant did 'feel sadness, regret and remorse at what you have done, and I take that into account accordingly.'[15]

44 The judge briefly considered the reports of two psychiatrists, Dr Adam Deacon, and Dr Prashant Pandurangi. He noted that 'these reports were not of any great assistance' to the applicant,[16] and that his counsel had conceded on the plea that Verdins[17] principles were not applicable. However, it was noted that one shared area of agreement between the reports of Dr Deacon and Dr Pandurangi was that they had both concluded, unsurprisingly, that the applicant's mental state at the time of the formation of the bizarre beliefs about his father had resulted from his drug use.

45 The judge then turned to the victim impact statements. He commented that they 'represent[ed] a powerful body of evidence illustrating graphically the tragic and far‑reaching consequences'[18] of the offence, and that he would take them into account in sentencing.

46 After briefly noting the applicant's prior convictions (which he considered to be of no great consequence), and considering current sentencing practices for murder, the judge assessed the gravity of the offence, and the applicant's moral culpability. He said that 'all in all ... [the applicant's] crime of murder was a serious one'[19] and that his 'subsequent disposal of the body was a callous action which is a substantial aggravating feature of [the] offending.'[20] Further, his Honour agreed that the sentencing considerations of just punishment, denunciation, and specific and general deterrence, were of great importance in this case.

47 Finally, with regard to the applicant's prospects of rehabilitation, the judge commented that 'if [the applicant] can avoid any return to the use of illicit drugs in future, [his] prospects of rehabilitation may be reasonable, but it is very difficult to form a concluded view on this.'[21]

48 His Honour then proceeded to sentence the applicant as previously indicated.

49 The applicant's proposed ground 1 is set out above at [1]. In essence, the applicant submitted that the overall sentence was vitiated as a result of the specific errors that the judge had made in relation to the findings identified in particulars (a)-(c) of ground 1.

50 With regard to the finding that the applicant had formed an intention to kill while still at the house in Collingwood, and the finding that he had acted with that intention when he bashed Hough to death, the applicant submitted that these findings went beyond even what had been contended for by the prosecution at the plea hearing. He submitted that the position taken by the Crown on the plea was merely that his Honour could 'be comfortably satisfied beyond reasonable doubt of at least an intention to do really serious injury'. Accordingly, the finding of an intent to kill, while still at Collingwood, not only went well beyond what the Crown was alleging, but was also incapable of being supported on the evidence, to the requisite degree.

51 The applicant submitted that the judge's findings as to his having formed an intention to kill, and having killed the deceased with that intention, depended entirely upon an acceptance of Mewburn's evidence. Despite the judge having found Mewburn to be an impressive witness, the applicant argued that these findings were not reasonably open on the evidence, taken as a whole.

52 As previously indicated, the applicant relied, in part, in that regard, on Mewburn's evidence as to his belief, when he left the Collingwood house, that the purpose of the journey was merely to scare Hough. Further, the applicant noted the unchallenged evidence that he had been acting erratically and irrationally. He had been in a paranoid and highly emotional state. This was said to support the contention that there was a reasonable possibility that he had never, at any stage, formed an actual intention to kill Hough, and certainly not a premeditated intention to do so.

53 With regard to particular (c) to ground 1, namely the finding by his Honour that Hough had fabricated his assertion that he had been involved in raping and killing the applicant's father in response to the applicant's violence towards him, it was submitted that this was contrary to the prosecution's own submission on the plea. This was said to be evidenced by the following exchange between his Honour and the prosecutor:

HIS HONOUR: What about the proposition that I was at least exploring in some questions to [counsel for the applicant], that of there being some evidence that might suggest that whatever Cayleb Hough may have said, whatever admissions, false admissions he may have made, that it might have been as a result of physical force applied to him before that. Is there material that can disclose that one way or another?

[PROSECUTOR]: I wouldn't say that Your Honour could come to that conclusion. It seems to have been variable. Sometimes he's denying it, sometimes he's saying it, sometimes he's adding whether that was as a result of violence inflicted upon him or whether because he said those things, he had violence inflicted upon him, it couldn't be able to be determined on the state of the evidence. He certainly was saying these things and as Mr Mewburn said, sometimes he would then deny it and other times he'd add to it, yes.

But what - where it started, where it generated, it's some sort of - it would appear to be psychotic drug induced belief that - and there it is.[22]

54 It was further submitted that the evidence was unclear as to how it came about that Hough had said that he had been involved with the applicant's father's disappearance, and/or death. The applicant pointed to the evidence of Bordonaro, and Ms Brincat, both of whom said that at some stage during their time at the Collingwood house, Hough had been 'cheeky' towards the applicant. In effect, the applicant submitted that the evidence did not rule out the reasonable possibility that, independent of any violence committed by the applicant against Hough, he too, in his own drug-affected state of mind, had been prepared to espouse that false belief.

55 Turning to the applicant's proposed ground 2, the submission was simply that both the sentence of 24 years' imprisonment, and the non-parole period of 19 years, were manifestly excessive. In that regard, the applicant referred to his genuine, but drug-addled, belief that his father had been harmed or worse. He also pointed to his lack of prior convictions for violence, his guilty plea (belated but still of utilitarian value), his qualified remorse, and the utterly bizarre circumstances in which the offence was committed.

56 It should be noted that on 23 April 2020, the applicant swore an affidavit that was filed before this Court a week or so later. The applicant deposed that as a result of the response to the COVID-19 pandemic, he had not received personal contact visits (which previously had been a regular occurrence). Further, he was only allowed out of his cell between 8:00 am and 12:00 pm each day. This had disrupted the courses and study which he had been undertaking. He said that he had become very worried about the health of his family (in particular, his father, who has heart problems, and the mother of his children, who has asthma).

57 That affidavit was tendered during the course of oral argument. Counsel for the applicant made it clear that it was sought to be relied upon only in the event that the appeal against sentence succeeded, and it became necessary for the applicant to be resentenced by this Court. As we have indicated, that situation did not arise. Accordingly, nothing more need be said about the affidavit itself.

58 In the Crown's written response, it was submitted that none of the three findings complained of by the applicant in support of proposed ground 1 departed in any way from, or were inconsistent with, the manner in which the prosecution put its case on the plea.

59 In relation to the prosecution position regarding the applicant's intention to kill, the respondent noted that the prosecutor below had made it clear from the outset that the prosecution case was that the applicant had formed an intention to kill whilst still at the Collingwood house.

60 This view of the prosecution case, as it was presented on the plea, was said to be supported by the following passage from the transcript of proceedings before his Honour:

[PROSECUTOR]: There's evidence there of an intention to kill, a statement of an intention to kill, of pre-planning of killing, because he's talking about where to dispose of a body. A taping up of Mr Hough, the transportation of him and then the admissions that Mr Kelson makes of the manner of doing it, all by itself, the Crown says.

The very way in which he admits that he killed Mr Hough, that is to beat a man with knuckledusters numerous times, he couldn't keep count of it, until he killed him shows at the very least the clear inference that Your Honour can draw of an intention to do really serious injury, if not an intention to kill.

61 The respondent submitted that any reference by the prosecutor on the plea to an intent to 'cause really serious injury' was put 'at the very least', or as a 'bottom line' that might be found. It did not curtail the finding made by the judge that there was an intent to kill, which was reasonably open on the evidence.

62 With regard to Mewburn's evidence, the respondent submitted that the judge's finding as to his credibility was 'quintessentially within his Honour's remit.' As a result, it was submitted that it was well open to the judge to find that the applicant formed an intent to kill the deceased, both at the Collingwood house, and at the point of his having actually bashed him to death.

63 As regards the applicant's complaint in particular (c) of ground 1, the respondent submitted that the exchange set out above at [53] in no way precluded the judge from finding that Hough's false admission concerning the rape, disappearance and/or killing of the applicant's father had, in fact, arisen as a response to the applicant's repeated attacks upon him.

64 Turning to manifest excess, the respondent argued that the sentence was within range. In support of that submission, the respondent pointed to the age disparity between the applicant and Hough (creating what was described as a form of 'protective duty'), the late plea, the questionable degree of remorse, the sustained violence inflected upon the deceased throughout the period leading up to his death, the applicant's conduct in having bound and gagged the victim, the callous manner in which the deceased's body was concealed, and the applicant's initial denials of having been involved in the deceased's disappearance.

65 The respondent also directed attention to this Court's decision in Neil v The Queen.[23] It was submitted that, while not a precedent, it was a relevant comparator for sentencing purposes. In Neil, the applicant, who had been severely affected by methamphetamine, beat the victim to the point of being close to death. He then instructed a co-offender to 'get rid' of her. The co-offender then shot the victim in the head, disposed of her body in a mineshaft, and burnt it. There had been a late plea, and questionable remorse. This Court held that a sentence of 26 years' imprisonment, with a non-parole period of 22 years, was within range.

66 Finally, with regard to the applicant's affidavit regarding COVID-19, the respondent tendered an affidavit from the Acting Assistant Commissioner of the Sentence Management Division of Corrections Victoria, setting out the current position regarding the management of prisoners during the current pandemic. It was understood that this affidavit would only be relied upon in the event that the Court first concluded that the sentence imposed below should be set aside, and that it would bear upon any resentencing exercise undertaken by the Court.

67 The applicant's challenge to the judge's findings of fact faces several significant hurdles, none of which can be overcome.

68 First, the applicant's argument is largely premised upon the notion that an offender who intends to kill is, as a general rule, to be regarded as more morally culpable than an offender who intends to cause really serious injury.

69 That proposition is questionable. In one sense, it flies directly in the face of this Court's decision in Barrett v The Queen.[24] There, it was held that intentional murder (meaning an intention to kill or cause really serious injury) is not necessarily to be regarded as more objectively grave than reckless murder (meaning foresight of death or really serious injury).[25] Barrett also held that there is no significant distinction to be drawn in moral culpability between an offender who foresees the probability that their actions will result in death, and one who only foresees the probability that if he, or she, continues to assault the victim, the result will be really serious injury. In effect, Barrett establishes that characterisation of the particular type of murder is not, of itself, determinative of the objective gravity in the given case.

70 Barrett is consistent, in that regard, with Aiton v The Queen.[26] There, the applicant claimed that the sentencing judge had erred by equating 'for sentencing purposes, a reckless murder, with an intentional murder'.[27] He submitted that the judge should have sentenced him on the basis that the particular offence was one of reckless murder, rather than intentional murder. Aiton, in turn, referred to R v Crabbe,[28] where the High Court made it clear that no assessment can be made of the level of moral culpability attached to a person who commits a crime of murder by reference simply to the category of malice involved.

71 In Barrett, it was said that the moral culpability of two different offenders did not turn solely on the category of mens rea, which gave rise to their respective murder convictions. For example, it was noted that an offender who deliberately kills a victim with a single gunshot was not necessarily to be regarded as more morally culpable than a person who seriously assaults a victim, leaving them in an isolated place without medical help, and being reckless as to the probability that they may suffer lasting incapacity, or die.

72 An analogous approach to the issue of moral culpability for murder can be seen in the judgment of this Court in Director of Public Prosecutions v Perry,[29] where it was held that the offence of statutory murder, created by s 3A of the Crimes Act 1958 (sometimes described as constructive murder), should not be viewed as necessarily less serious than common law murder. Rather, for the purposes of conviction, an offender in relation to s 3A murder is treated as though he or she had murderous intent. Once again, everything will depend upon the particular facts of the case.

73 Accordingly, even if the applicant's conduct in relation to the murder of Hough should be viewed as involving an intention to cause really serious injury, as distinct from an intention to kill, it would not necessarily follow that his moral culpability should be regarded as significantly less than would be the case if he intended to kill.

74 Nor can it be said that every case of planned or premeditated murder is necessarily objectively more grave than one where the killing occurs on the spur of the moment. In many cases, that will be true, but not always.

75 In any event, the objective gravity of this particular offence, characterised by the judge as a 'serious' case of murder, was plainly great. It was a crime with few mitigating features, and many aggravating factors.

76 Another obstacle to the success of ground 1 lies in the challenge mounted to the judge's careful assessment of the weight to be given to Mewburn's evidence. Plainly, his Honour had the advantage of having seen and heard the witness give that evidence. Mewburn was cross-examined with considerable vigour and skill by able and experienced counsel, and his Honour concluded that his credibility was undiminished.

77 The judge's reasons for having accepted Mewburn's account seem to us to be both rational, and compelling. Indeed, we regard them as unimpeachable.

78 The applicant's submission as to how the deceased's body came to be deposited in the mine shaft makes no sense. It requires acceptance of the notion that the applicant originally planned to take Hough to hospital, but was diverted from that plan when kicked from behind whilst driving. It was only at that point, so it was submitted, that Mewburn came forward with the idea of disposing of the body by taking it to the Lerderderg State Forest, and putting it into a mineshaft.

79 The judge regarded that proposition as implausible, almost to the point of being fanciful. So do we. Had the applicant genuinely intended to take Hough to a hospital, there would have been any number available close by the Collingwood house. Moreover, there would have been no need for the large bundle of duct tape to be brought in the car, and then abandoned once the body was placed in the mineshaft. The fact that the victim's DNA was found on some of the tape provides solid support, if not corroboration, for Mewburn's version of events.

80 Accordingly, in our view, ground 1 is without substance.

81 Turning then to ground 2, the contention that the sentence was manifestly excessive is impossible to sustain. There were a number of aggravating factors present in this case that were properly recognised by the judge. While some might take the view that a sentence of this order was stern (having regard, in particular, to the fact that there was a plea of guilty, albeit belated), it cannot be said that this sentence was wholly outside the range.

82 As indicated, there is no need to say anything further regarding the impact of the COVID-19 pandemic upon the applicant. It is, perhaps, worth noting that this matter has been the subject of consideration by this Court on several occasions.[30] No doubt, it will arise again in future cases.

83 Accordingly, the order of the Court must be that leave to appeal against sentence is refused.

[1] DPP v Kelson [2018] VSC 442, [12] ('Reasons').

[5] Mewburn was sentenced to a term of 2 years and 6 months' imprisonment, with a non-parole period of 1 year and 3 months.

[7] Set out above at dot point three, [32].

[9] Set out above at dot point one, [32].

[10] Set out above at dot point two, [32].

[17] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[20] Ibid [64]. See also, DPP v England [1999] 2 VR 258; [1999] VSCA 95, 266 [27], 268 [37] (Brooking JA, Batt JA agreeing at 268 [41], Chernov JA agreeing at 269 [42]); DPP v Ristevski [2019] VSCA 287, [7]-[8] (Ferguson CJ and Whelan JA), [73]-[74] (Priest JA, Ferguson CJ and Whelan JA agreeing at [1]); and DPP v White [2020] VSCA 37, [48].

[23] [2019] VSCA 64 ('Neil').

[24] (2010) 27 VR 522; [2010] VSCA 133 ('Barrett').

[25] Ibid 528-9 [24]-[31] (Maxwell P and Neave JA, Nettle JA agreeing at 535 [61]).

[26] (1993) 68 A Crim R 578 ('Aiton').

[28] (1985) 156 CLR 464; [1985] HCA 22.

[29] (2016) 50 VR 686; [2016] VSCA 152.

[30] See generally, Brown v The Queen [2020] VSCA 60, [48]; Sazimanoska v The Queen [2020] VSCA 66; and Wyka v The Queen [2020] VSCA 104, [160]-[163] (Croucher AJA, Niall JA agreeing at [1]).