PLEVAC v REGINA

The application 29 The applicant advances one ground of appeal, being that the sentence imposed was manifestly excessive. That ground is particularised as follows:

(a) The sentence was too severe having regard to the pattern of sentencing at the time it was committed. (b) In his assessment of this offence's objective criminality, his Honour erred in his use and reference to analogous cases. (c) In the particular circumstances of this case, his Honour erred in placing significance, or too great a significance, on the applicant's maintenance of his innocence. 30 The applicant accepts that it is proper for a court when determining a sentence to have regard to the sentencing practice as it was at the date of the commission of the offence (R v MJR (2002) 54 NSWLR 368). In identifying the pattern of sentencing it will be appropriate to have regard to available statistics, any surveys and sentences which were imposed. 31 However, notwithstanding the relevance utility of these matters the court is ultimately required to impose the sentence which, having regard to the circumstances of the individual case and the purpose of sentencing, is appropriate. 32 In the present case, the sentencing judge had before him a survey of sentences that had been imposed where a spouse had killed another. From this material it is submitted that no range for the offence of a spouse killing a spouse by fire could be identified. This is undoubtedly the case for, thankfully, this type of killing has not been common. 33 Notwithstanding the fact that a range could not be identified there are two cases Everett and Rosevear, that provide assistance in identifying the appropriate penalty in the applicant's case. His Honour had regard to them and, as I have earlier related, the sentencing judge imposed a more severe sentence than was imposed in either of those cases. 34 The applicant complains that in taking this course his Honour was in error. In particular, it is submitted that his Honour erred in finding that the applicant's offence was objectively worse than either of the offences in Everett and Rosevear. Complaint is also made that his Honour placed too much emphasis on the objective facts diminishing the significance of the applicant's progress and rehabilitation demonstrated during his fifteen yeas in prison. 35 I am not persuaded that his Honour has erred when imposing sentence. I am satisfied that it was open to his Honour to find that the applicant had intended to kill the deceased and had planned her murder in a way which would inflict the maximum pain and distress before she died. His was a truly terrible crime committed in the presence of their five year old daughter. It deserved punishment at the top of the appropriate range of sentencing. 36 I accept that the contemporary reports in relation to the behaviour of the applicant indicate that he has met the requirements of the prison system. However, it is apparent that he has not come to a realistic appreciation of his actions and accordingly his complete rehabilitation may be uncertain. 37 Complaint is made by the applicant that the sentence imposed by his Honour was inappropriately influenced by his Honour placing too great a significance on the applicant's maintenance of his innocence. His Honour found that because he has not admitted his guilt "he has not received any psychological counselling which might have assisted his rehabilitation." It is submitted that his Honour has used the fact that the applicant has not admitted his guilt to increase the sentence rather than confining its significance to denying the applicant any discount because of an admission. It is further submitted that before this fact it could be taken into account to increase any sentence it would have to be shown that the failure to acknowledge guilt increases the objective seriousness of the offence or was evidence of a dangerous propensity requiring protection of the community. Reference is made by counsel to Veen v The Queen (No 2) (1988) 164 CLR 465. It is submitted that in the absence of evidence that the protection of the community or any other purpose of sentencing was served by increasing the sentence because of the failure of the applicant to acknowledge guilt, his refusal to do so, was not a significant factor in the sentencing exercise and his Honour erred in so regarding it. 38 I accept that the applicant has complied with the requirements of the prison authorities during his already lengthy term of imprisonment. However, in my opinion, his Honour had appropriate regard to the applicant's continued failure to acknowledge his guilt. If the applicant had taken a different course I may have considered some reduction in the sentence which his Honour imposed. However, this is not the case and in my opinion no less severe sentence than that imposed by the sentencing judge is warranted in law. Although I would grant leave to appeal, I would dismiss the appeal. 39 SIMPSON J: I agree with the order proposed by the presiding judge. I would simply add this: that on the hearing of the application fresh evidence was tendered. The Crown did not take issue that this evidence was in a conventional sense fresh evidence available to be taken into account on the application. 40 The Court accordingly received affidavit evidence concerning a medical condition that the applicant now suffers. He has developed an onset of severe vision impairment which on the medical evidence is potentially sight threatening. While that condition engenders a certain amount of sympathy for the applicant, and it may well be that it will add to his difficulties during his period of incarceration, it is not in my opinion such as to call for any variation in the sentence imposed or intervention by this Court. 41 Accordingly, I agree that the application should be dismissed. 42 HOEBEN J: I agree with the orders proposed by the presiding judge. 43 McCLELLAN CJ at CL: The orders of the Court will be as I have indicated. **********