R v A B

Court of Appeal (Vic)|2008-03-12|Before: WARREN CJ, MAXWELL P and REDLICH JA

CRIMINAL LAW - Sentencing - Manslaughter - Provocation - Manifest excess - Perceived threats of death to accused and his family - Manslaughter of the gravest kind - Sentence of 15 years' imprisonment with a non-parole period of 13 years - Effective sentence 19 years' and one month imprisonment with a non-parole period of 13 years - Maximum penalty - Relevance of increase in maximum from 15 to 20 years - Sentencing Act 1991 s 14(1), s 16(3C) - Re-sentenced - Non-parole period of 11 years' imprisonment imposed.

2 There were initially five grounds of appeal, as follows:

(a) both the head sentence and the non-parole period were manifestly excessive;

(b) the total effective sentence was manifestly excessive and offended the principle of totality;

(d) undue weight was attached to the increase of the maximum penalty for the crime of manslaughter in 1997; and

(e) insufficient weight was given to various mitigating factors.**

Leave was sought to add further grounds which, in substance, alleged that findings of fact had been made by the trial judge which were not open to him and which resulted in AB being sentenced for more serious conduct than the offence of which he had been found guilty.[1]

The circumstances of the offending[2]

**3 On 9 September 2003, AB killed Housam Zayat using an unlicensed pistol grip pump action 12 gauge shotgun. The offence occurred after the release of Zayat from prison on bail on 2 September 2003.

4 AB had met Zayat in prison and kept in contact after his release. They had known each other for ten years leading up to Zayat's death. Zayat was described as a 'standover man and drug dealer'. He had a history of violence of which AB was aware, including a conviction for attempted murder. Zayat was involved in drug trafficking, the proceeds of which were often invested in legitimate business ventures. AB was also involved in legitimate business activities as a property developer and had spoken to Zayat about investing money in several projects. A business relationship developed between AB and Zayat.

5 Early in 2003, AB decided to redevelop a city nightclub in Melbourne, the Khokolat Club. At the time, the club was closed with its liquor licence suspended. AB invested $60,000 in the project, while Zayat contributed $42,000. Zayat's contribution was said to be a loan but Zayat claimed half ownership of the club. AB and Zayat argued about the conduct of Zayat's acquaintances at the club who sought to deal in drugs on the premises. According to AB, 'Sam [Zayat] started bringing all his mates over, doing his ecstasy deals, speed deals.'

6 In June 2003, Zayat was arrested and placed in custody. At the time of his arrest, Zayat was in possession of drugs, a semi-automatic pistol and a large amount of ammunition. While Zayat was in custody, the redevelopment of the nightclub ran into problems and AB could not afford to continue the operation. AB said he then handed the nightclub over to one Wayne Williams, who became the apparent owner and licensee. Williams was a client of AB's solicitor, Alex Lewenberg. The trial judge did not accept AB's assertion that he thereupon relinquished all interest in the club. Williams' evidence at trial was that he intended to give AB a share of the profits upon the sale of the club. There was evidence that AB worked on at the club after Williams took it over. There was also evidence that AB's father-in-law had entered into a written contract in August 2003 to buy the nightclub for $450,000 from Williams, with a deposit of $45,000 and the balance due on 15 September 2003. The father-in-law gave evidence on the plea that he had paid the deposit. For reasons that are unclear, that money ended up with AB. The contract between Williams and AB's father-in-law was said to have been rescinded after AB killed Zayat.

7 During August 2003, AB was active in assisting to secure Zayat's release on bail. His assistance included: persuading Zayat's brother to attend a bail hearing in support of the application; paying $20,000 to Lewenberg to cover the costs of the bail application; paying $6,000 to Zayat's mother to be used as part of the security for bail;[3] and allowing for the use of one of his own bank accounts to 'wash' $50,000 cash into a $50,000 bank cheque. At one point, AB considered offering his family home as security for Zayat's bail.

8 The bail hearing was on 1 and 2 September 2003. During an adjournment in the bail proceeding, AB spoke to Zayat, who said that he knew AB was being 'stood over' with respect to the club. AB replied that this was not the case and that the pair would discuss it when Zayat was released on bail.

9 Zayat was released on bail on 3 September 2003. In the car trip home with AB, Zayat 'flew into a rage'. He said that he had heard that AB had been paid $300,000 for the club, and he wanted half of the money. AB flatly denied having received any money. Zayat said he had been told of the $300,000 payment by AB's solicitor, Lewenberg. At a subsequent meeting with Zayat and AB, Lewenberg told Zayat that $300,000 had been spent on the club by Williams, but that AB had 'not received a dime'. Zayat refused to believe him. In his reasons for sentence, the trial judge noted that the evidence of this occasion did not reveal whether AB and Lewenberg told Zayat of Williams' intention to pay AB half of the profit from the sale of the club.

10 What followed this meeting was described by the trial judge as follows:[4]**

... I note that you told police that your agreement with [Zayat] was that you would pay him $200,000 in 12 months time (apparently out of the proceeds of one of your proposed developments in Williamstown). Putting to one side a claim made by Williams that he spent $300,000 on the development (which Mr Lewenberg doubted, and I do not accept), it is possible that $200,000 in 12 months time was seen as about equal to a half share of the contract sale price of $450,000, less the total of $100,000 which you and [Zayat] had put in, plus the sort of "interest" for a delay of 12 months that [Zayat] may well have demanded.

The evidence also shows that you agreed to pay [Zayat] a sum of $10,000 immediately - probably as a down payment on the $200,000. According to Mr Lewenberg, that $10,000 was part of the $45,000 deposit supposedly paid by your father-in-law under the contract of sale with Williams. Interestingly, however, Mr Lewenberg's trust account records show that the $45,000 was paid in by Katsuolis [the manager of the club] and held in a trust account in the name of Williams, of which Williams denied all knowledge, and that the $10,000 was paid out of the trust account to [Zayat] in accordance with your request.

**11 On 5 September 2003, Zayat phoned AB about the delay in receiving the promised $10,000 deposit from Mr Lewenberg. He also asked for $5,000 or $6,000 which he said he needed for his father. AB agreed to arrange the payment of the $10,000 through Lewenberg but refused Zayat's claims for any more money. The trial judge noted that, at this stage of AB's dealings with Zayat, he did not appear to have a fear of Zayat.

12 On 6 September 2003, AB was visited by Zayat at his home. Zayat asked where his semi-automatic pistol was. AB had arranged for the gun to be held in safekeeping for the period of Zayat's custody. Pressed by Zayat, AB agreed to go with Zayat and retrieve the gun. The trial judge noted that AB claimed to have experienced serious concerns as a result of these developments.

13 At Zayat's request, they went back to AB's home. Zayat loaded the pistol. When AB told Zayat that he felt Zayat did not trust him, Zayat said: 'I believe there's been a conspiracy here.' Zayat said that he would 'not lose' and that he intended to 'take it out on everyone'. Zayat then fired 14 or 15 rounds from the pistol into the dirt along the back fence. AB remonstrated with Zayat, repeated that he had not taken money behind his back and said, '[t]here is no conspiracy. The only conspiracy there is is your paranoia.'

14 AB's wife also gave evidence about this occasion Zayat told her that he had killed Anne Williams whilst he was under the influence of drugs and that he had recently undergone an operation to rid him of his addiction to heroin. When Zayat claimed he was cold as a result of the operation, she lent him one of AB's jackets. Zayat turned to one of their sons and said, '[i]f you think your father's got no hair now, wait till I've finished with him.' She understood this remark to be a joke. The next day, AB saw Zayat using the jacket as a dog blanket.

I didn't know whether he was tryin' to piss me off or tryin' to stand over my life or tryin' to take charge of my life or my possessions or I don't know what his ... angle was. I really haven't got a clue. Or whether he just wanted to shoot me because I pissed him off or whatever. I don't know. I don't know.

I buried the shells for this occasion if it ever came up, because let me tell you somethin', I knew something was brewin' then.

16 AB sensed that there was going to be 'a bloodbath', so he purchased a new 12-gauge unlicensed shotgun and ammunition. He then loaded it to its maximum capacity. He kept it loaded for two days, because he was 'expecting something terrible' from Zayat. The trial judge commented as follows:[5]

Just why or when you began to fear [Zayat] to that extent is not clear. As I read your record of interview, some of your statements to the police suggest that it was because of the pistol firing incident. But other statements in your record of interview imply that you did not frighten so easily. For example, when [Zayat] accused you of participation in a conspiracy you say that you replied to him emphatically:

Let me tell you somethin', you fuck wit. There is no conspiracy. The only conspiracy there is is your paranoia. And you are a fucking idiot because you should know better.

17 AB purchased a particular type of ammunition, SG ammunition. The trial judge commented:[6]

When asked by police why you chose SG ammunition, you answered in effect that you knew nothing about ammunition. But the evidence implies that you did know. Mr Glaser, the firearm examiner, said that SG ammunition is the heaviest shot commercially available. The specimen which was received into evidence as Exhibit DPP 12 bears that out. SG ammunition is marketed as suitable for medium game, such as deer, wild boar and kangaroo, and it is used for law enforcement and military purposes. In the latter application it has been found useful in trench and jungle warfare where it is believed to offer optimal incapacitation effect and on human beings it is lethal. In the circumstances, I infer that you chose SG ammunition advisedly, for maximum killing effect.

**18 On 8 September 2003, AB met Zayat and his girlfriend at Ted's Roadhouse in Tarneit. Zayat said he was angry with Lewenberg and Williams for their role in the sale of the nightclub. The trial judge noted the difference in testimony on these facts. Zayat repeated that he saw himself as a half owner of the club 'until I get paid.' According to AB, Zayat said 'Lewenberg and [Williams] are dead.' The trial judge, in light of evidence given by Lewenberg, did not accept this assertion.

19 The following day (the day of the shooting), Zayat rang AB and demanded $20,000. The trial judge inferred that this was part of the $200,000 previously agreed upon but said that this demand was, in light of the terms of the previous agreement, premature. AB promised to find the $20,000, but said he knew he would not be able to. The judge noted AB's statement to police that he spent a good part of the day 'running around trying to raise the money.' His Honour found, however, that AB did no such thing, although he did have 'substantial credit facilities' available to him which he chose not to exploit. Instead, the judge found, AB spent the day doing several other things, including reconnoitring the site at which he later killed Zayat.

20 The trial judge dealt with AB's account of the events of the evening as follows:[7]**

... [Y]ou told police that you called [Zayat] from Ted's Roadhouse at about 9.00 pm and told him where you were. You stated that he or at least his girlfriend Sharon said that they were keen that you go down to the city to meet them. Significantly, you insisted that they should come to you at Ted's Roadhouse and they agreed to do so. You say that [Zayat] then took what seemed to be an unduly long period of time to arrive, and that you started "getting annoyed"; indeed so much so that you telephoned [Zayat] again and told him in effect to hurry up or otherwise you would go home. Tellingly, you did not inform [Zayat] at that stage that you had no money for him or that you needed more time to find it. Despite your assertions in your record of interview about having no money for [Zayat] and therefore trying to put him off, it is apparent in fact that you did not wish to avoid him.

You say that by the time [Zayat] arrived at Ted's Roadhouse you had gone for a drive to fill in time and that, upon returning to Ted's, you found him standing alone with his dog near to the back service entrance. There is some evidence that he then told you peremptorily that you should go to another place to meet. But whether or not that was the case, you then drove off in your car, with [Zayat] following in his, along Hopkins Road towards Boundary Road, Tarneit. Boundary Road, Tarneit is an unlit unsealed semi-rural road bounded on either side by barbed wire fenced open paddocks. When you got to it, you turned into it and drove some 50 or 60 metres along it to a deserted spot at which you stopped, with [Zayat] stopped in his car behind.

What happened then is described in one of the two different versions of events which you gave in your record of interview, as follows:

... I went straight to the [Zayat's] car and Sam introduced me to a bloke called Ali, right. I was sittin' in the back seat. Anyway, Sam got out the car and he goes, 'Let's talk'. Anyway, got out and walked towards [my] car because he wanted a light. He had a cigarette and he wanted a light. Got him a light and started talkin'. The - the meeting was meant to be money. That's what the meeting was about. He wanted money ... I said, 'Listen' - I said, 'I've got nothin'. 'What the fuck are you doin' 'he said, and he started getting' a little bit stroppy with me. I started walkin' away from him, right, to the other side of the car_. The passenger side_. I go, 'Sam' - I go, 'There's no money'. I go, 'There's nothin' yet.' I said, 'We agreed 12 months.' Anyway, he started yelling, 'What the fuck are you doin'?' The next thing I've seen Sam slidin' his hand slowly towards his hip. I've ran [sic] straight around to the side - to the driver's side of the car, I've grabbed the shotgun out of there, I've ran [sic] around and I've pointed it at Sam, right. The safety was on, right. He's looked at me, I've clipped the safety off, the next thing I - I just went ballistic. I absolutely just went ballistic. If there was 1,000 bullets in that gun, 1,000 bullets would've went [sic] out of that gun. Let me - look, I'm being straight out with you. I just absolutely - just - it was just bang, bang, bang, but they were just goin' everywhere. It was so dark at night that it just - how can I put it? I basically hopped into a rage. I don't know. Just even I remember it was just clicking. Just clicking and there was no bangs [sic]. I saw Sam move in the paddock, looked at him, turned around to the [deceased's] car, I looked at the other bloke, I smashed a window on the car, right, and he tried to start the car and he tried to ran me over [sic]. I went around to the driver's side of the window, alright. I smashed that. I told him, 'Look, you fuckin' arsehole, fuck off and don't worry about it. Just go.' That was it, he's jumped straight out of the driver's side seat into the passenger side, through the passenger side door, he jumped the fence, I jumped the fence, [and] chased him. I actually tried to talk to him. He was running, alright. I actually put the gun down and I said, 'Mate' - I said, 'The gun's down, right.' I tried to talk to him and he just kept running and then I saw a white car pick him upon on Boundary Road.[8]

In the other version, which you gave later in the record of interview, you said, among other things:

"... I started walkin' around the side of the car. I saw him fuckin' like moving towards the side of his hip, right. Then I've just ran [sic] to the passenger side. The shot gun was there, I grabbed it, I've ran [sic] around the back of the car, I've pointed the gun at him, right. He's looked at me, right. I've pressed the trigger, the trigger wouldn't go, right. I've the safety [sic] and then I just shot a shot and then I just kept shootin'. I ran, then he ran, right, and he screamed something at me, right, and then I just pointed it and then I shot. It was pitch black. I just emptied the gun. I emptied the gun, that was it ... "[9]

The white car that picked up the other man was driven by passers-by who took the man at his request to the nearest police station. Their evidence was that he appeared terrified by what had occurred. You drove off immediately in order to escape detection and, after returning briefly to collect a cap which you had left at the scene, you departed again before police arrived. You went to the home of a friend where you showered, in order no doubt to remove gun shot residue from your body, and you changed into fresh clothes and destroyed the clothes you had been wearing, in order no doubt to prevent forensic examination and the possibility of witness identification. You also arranged for the destruction of the shotgun and the three remaining cartridges as a further precaution against detection, and then you returned to your own home to bed sometime after midnight. You consulted your solicitor early the next morning and thereafter gave yourself the benefit of several days' contemplation before facing the police. I infer that you spent much of it preparing and rehearsing the very elaborate version of events which appears in your record of interview.

There is some evidence that you made arrangements to surrender yourself to police on Monday 15 September 2003. I do not accept it. Your solicitor said that he telephoned someone in the Homicide Squad to arrange for you to surrender. But when asked to whom he spoke, he said that he could not remember the name. As it was, the police arrested you at your home on the morning of Friday 12 September 2003 and charged you with murder.

**21 In his reasons for sentence, the judge found that the jury must have rejected the defence of self-defence but was unable to exclude the possibility that AB was provoked to kill. On these facts, the trial judge viewed AB's crime of manslaughter as 'of the gravest kind'. His Honour noted that, by AB's own admission, he had purchased the 12 gauge shotgun, and eight rounds of the most lethal ammunition generally available for use in such a weapon, 'with the avowed intention of using it on the deceased when the occasion arose'. His Honour also said: '[o]n your own admission, the offence was premeditated and committed with the unequivocal intention of taking the deceased's life. Provocation though there may have been, your massacre of the deceased was an outrage.'[10]

22 The judge set out in considerable detail the personal circumstances of AB. AB had prior criminal convictions, generally of a non-violent nature, dating back to 1987. They included counts for possession, cultivation and trafficking of cannabis and related offences, a count of trafficking heroin and various other charges. On 31 March 2004, AB pleaded guilty in the County Court to one count of theft, two counts of conspiracy to traffick in a drug of dependence and one count of possession of a drug of dependence, all of which were alleged to have occurred in 1999. Upon providing a sworn undertaking to give evidence for the Crown against a co-accused, AB was sentenced to a wholly suspended term of imprisonment of three years. The undertaking was breached and, on appeal by the Director, AB was re-sentenced by this Court on 9 June 2004 to four years' imprisonment, with a non-parole period of two years and six months. AB was on bail for these offences at the time he committed the offence the subject of this appeal. Subsequently, AB was sentenced to a further one month's imprisonment for refusing to answer questions.

23 AB is the child of migrant parents. At the time of the offence, he was 34. (He is now 38). From 10 years of age, he was placed in various foster care arrangements. He left school at 14 and around that time was introduced to the drug scene. In the years that followed, on various occasions he was arrested for drug offences and, at times, convicted and imprisoned. While imprisoned on one occasion, he undertook TAFE training which led to employment upon release. A succession of head injuries and a long history of drug use may have caused or contributed to AB's below-average intellectual capacity. AB is married with two sons and a step-son from his wife's previous marriage.**

Ground 6: Whether findings as to premeditation were inconsistent with jury verdict of manslaughter

24 It is convenient to deal first with the proposed additional ground of appeal:

(6) That the learned trial judge erred in characterising the offence as "manslaughter of the gravest kind" and failed to give sufficient weight to the provocative conduct of Zayat and in finding that the offence was premeditated.

(6A) The trial judge erred by sentencing AB for an offence disclosing greater criminality than that for which AB was found guilty;

(6B) It was not open to the judge to find as he did that;

(a) AB chose to purchase SG ammunition advisedly for maximum killing effect;

(b) AB had reconnoitred the site at which he later killed Zayat;

(c) on AB's own admissions, he purchased the weapon and ammunition used to shoot Zayat, with the avowed intention of using it on Zayat when the occasion arose;

(d) it was clear beyond reasonable doubt, that AB stood at the barbed wire fence, as Zayat lay shot face down on the ground and badly injured, and fired down on to him, mercilessly in order to finish him off; and

(e) on AB's own admission, the offence was premeditated and committed with the unequivocal intention of taking Zayat's life.

25 The various parts of this ground refer to facts found and conclusions reached by the trial judge. In substance it is contended under this ground that the findings were inconsistent with the jury verdict of manslaughter. The relevant passages of the reasons for sentence are as follows:[11]

The evidence shows that the deceased was unarmed when you killed him and as you said to police: "... I did not see Sam with a weapon". Not surprisingly, therefore, the jury rejected your defence of self-defence. The other defence left to the jury was provocation. Accordingly, since you stand convicted of manslaughter rather than murder, it must be assumed that the jury were unable to exclude the possibility that you were provoked to kill. On that basis, however, your crime was manslaughter of the gravest kind. On your own admission, you purchased a 12 gauge shotgun and eight rounds of the most lethal ammunition generally available for use in such a weapon, and you did so with the avowed intention of using it on the deceased when the occasion arose. Then, when the occasion did arise, you put five rounds of that ammunition into the deceased from distances ranging from three metres down to no more than one metre as he fled screaming in terror before you. Upon your own admission, you ran in pursuit of the deceased and you shot at him repeatedly as he fled before you screaming. And, from the evidence, it is clear beyond reasonable doubt that you shot him as he scrambled in terror across the barbed wire fence at the side of the road and that you then stood at the fence, as he lay shot and badly injured in the field beyond, and you fired down on to him mercilessly in order to finish him off.

It is not hard to imagine the damage which five rounds of 12 gauge SG ammunition can inflict on a human body. The photographs in this case leave no doubt about it. The shots you fired at the deceased ripped through his flesh causing irreparable damage to his internal organs and very shortly afterwards his death. What was almost certainly the first shot passed through his left arm and into the side of his chest. The second and third shots resulted in extensive damage to his back and shoulder. You fired the fourth shot while he struggled to cross the barbed wire fence and it passed through the sole of his left shoe, as it presented outstretched to the muzzle of your weapon, and from there through his thigh and to his back. Finally, you fired [a] fifth shot as the deceased lay critically wounded, face down on the ground just beyond the fence, and it passed through his back and into his vital organs ripping them to pieces. Thus as Dr Burke, the pathologist, explained:

"... The cause of death [was] shotgun injuries to the back and chest. The shotgun injury to the back, Injury No. 16 ... resulted in laceration of spleen and ruptured liver. The injury was associated with hemoperitoneum, which is blood in the tummy. The shotgun injury to the lateral or outer aspect of the left upper arm, Injury No. 9, extended across the arm to exit the medial or inner aspect of the left arm elbow, Injury No. 10, and re-enter the left chest, Injury No. 5. This injury ... resulted in laceration of left lung lower lobe with associated hemothorax, or blood within the chest."

Authority dictates that the assessment of the gravity of your crime must take account of the provocation to which you may have been subject.[12] I note therefore that it is possible that the provocation included implied threats against you and your family and unwarranted insults and allegations of theft and double dealing. In my judgment, however, none of that takes your offence outside the category of the gravest of homicides short of murder. You had any amount of opportunity to go to the police and thereby to secure yourself and your family against the threats which you say you feared. Instead, you chose to purchase and arm yourself with the most lethal of close-range small arms in order to destroy the body and life of your victim. On your own admission, your offence was premeditated and committed with the unequivocal intention of taking the deceased's life. Provocation though there may have been, your massacre of the deceased was an outrage.[13]

It is said that the crime of manslaughter does not permit of an established sentencing tariff.[14] That is so because the nature of the crime is capable of varying from one that is merely nominal to "the very confines of murder".[15] But manslaughter the result of provocation is an alternative to murder, which is generally to be regarded as more serious than other forms of manslaughter, and your crime does indeed reach to the very confines of murder. [16]

**26 It is not in issue that the jury by its verdict must have found that AB acted under provocation. Nor was any argument advanced that the findings were not open on the evidence. In the circumstances this is unsurprising. The submission was that the manslaughter verdict, resting as it did upon a finding of provocation, meant that these findings could play no part in the exercise of the sentencing discretion. It was said that findings of this kind could only have been relevant if AB was being sentenced for murder. It was argued that the judge erred in characterising the killing as 'manslaughter of the gravest kind'; failed to give sufficient weight to the provocative effect of Zayat's action; and erred in finding that the killing was premeditated.

27 We start with the principles upon which provocation rests. The murderous intention must arise from a sudden passion involving loss of self-control.[17] A party acting under provocation may be considered as having acted under a temporary suspension of reason, rather than from any deliberate malicious motive.[18] The oft-cited charge of Coleridge J in R v Kirkham[19] emphasises that, where there is a premeditated killing, there can be no provocation which has legal significance since the offender is guilty of 'malice prepense'. Dixon CJ stated in Parker v The Queen:[20]**

There has been an ever recurring tendency to treat "provocation" as merely something inconsistent with and therefore negativing malice aforethought ... In the constant use in definitions or descriptions of "provocation" of the word "sudden" the same desire appears to exclude cases of premeditation.

28 It is the intention resulting from a loss of control, as a consequence of the victim's provocative conduct, which is essential to the law of provocation.[21] The concept of suddenness negatives any question of premeditation.[22] It is the absence of premeditation which leaves open the defence of provocation.[23] 'Self-induced provocation,' in which a victim is goaded into a provocative action so that the provocation may be then used as an excuse to kill will not reduce the crime of murder to manslaughter.[24] The exposition of this principle may be found in Barry J's statement in R v Newman:[25]

It is not permitted that a man should seek out his enemy and await some provocation in order to use that as a pretext for slaying him. The provocation must be of a grave kind and it must actually influence the conduct of the person charged.

**29 So, in cases where an accused incited the provocation and acts with premeditation or actual foresight, it cannot be said that the accused has acted as a result of a loss of self control. Hence an accused will not be entitled to rely upon the defence of provocation where, at the time of the allegedly provocative action, the accused had a pre-existing mental state for murder.[26]

30 The impugned findings are not, in our view, inconsistent with any of these fundamental propositions. The trial judge expressly recognised that, in assessing the gravity of AB's crime, he was bound to take into account the provocation to which AB was subject. His Honour reached the conclusion that AB had contemplated that circumstances might arise in which it would be necessary for him to kill Zayat. In our view, that conclusion was irresistible. It was supported by compelling evidence, as was each of the other impugned findings.

31 The jury verdict was, in the circumstances, a merciful one. It had the consequence that the trial judge was required to proceed on the basis that AB had formed the murderous intent as a result of a loss of control consequent upon Zayat's provocation. Nothing in his Honour's findings suggests that he did otherwise. Consistent with the jury's verdict, the judge sentenced AB on the basis that the killing of Zayat had been premeditated but that AB did not have a murderous intent immediately prior to the provocation which resulted in AB killing Zayat. His Honour was correct to view the killing as premeditated in the sense that AB had equipped himself to kill Zayat and intended to do so if it became necessary.

32 It was clearly relevant to the assessment of the gravity of the offence that AB had, in the days and hours preceding the killing, prepared himself for the eventuality that he might have to kill Zayat. What AB said at interview makes clear why he armed himself in advance:**

I knew I was gonna be killed. I knew. I knew it was going to happen. Whether - if it wasn't today, it would've been tomorrow. If it wasn't tomorrow, the day after. I know Sam.

Look I knew there was somethin' on the cards and let me tell you somethin', before they harmed one of my kids or myself, I would've wiped their whole blood line out.

He also made clear why he picked up the gun and shot Zayat:

I knew once that started he had to be dead. There - there was no other way. He had to be dead. Otherwise I promise you right now Lewenberg, Wayne [Williams] my son[s], my wife ... would have all been dead within 24 hours after it.

As soon as [I saw his hand sliding over to his hip] - like I said, I know Sam, right. I ran to the car and that was it. I never gave anything the chance. ... I knew this night was the fatal night because I knew there was no money for Sam and I knew Sam gets desperate very quickly ...

**33 It is also evident that the trial judge - correctly, in our opinion - viewed the provocation as being of a low order. On AB's own account, the provocation which led to the shooting consisted of a single movement by Zayat. AB said that what prompted him to get his gun and start shooting was the movement of Zayat in 'slidin' his hand slowly towards his hip'. It will be recalled that the jury rejected the defence argument that this movement justified AB's shooting Zayat in self-defence.

34 The judge noted that it was 'possible that the provocation included implied threats against [AB] and [his] family and unwarranted insults and allegations of theft and double dealing'. But AB did not suggest that anything of that kind was said in the moments before the shooting. AB went to the meeting knowing that Zayat would be demanding money from him and that he would not be able to pay. Such implied threats, insults and allegations as Zayat might have made had been made days earlier. As the judge correctly stated:**

You had any amount of opportunity to go to the police and thereby to secure yourself and your family against the threats which you say you feared. Instead you chose to purchase and arm yourself with the most lethal of close-range small arms in order to destroy the body and life of your victim.[27]

**35 His Honour said that the provocation to which AB may have been subject did not take his offence outside the category of 'the gravest of homicides short of murder'. We respectfully agree. The nature of the offending necessarily attracted firm application of the principles of deterrence, both specific and general. It also warranted the strongest denunciation. That this was so arose from the particular ingredients of the offending: AB's contemplation that it might be necessary to kill Zayat if the occasion arose; the acquisition of a lethal weapon; the prior arranging of the meeting with Zayat; the luring of Zayat to the site of the killing; the minimal provocation; the extent of the shooting, including the pursuit of Zayat after the infliction of the first series of shots; the conduct of AB in seeking to conceal his role in the shooting; and the absence of any genuine remorse. These were ample grounds upon which the trial judge could view this offence as 'a manslaughter of the gravest kind' reaching to 'the very confines of murder'.

36 We would grant leave to add the new ground, but would dismiss it for the reasons we have given.**

Ground 4: Whether the trial judge attached undue weight to the increase in the maximum penalty

**37 Ground 4 alleged that the judge erred by attaching undue weight to Parliament's increase of the maximum penalty for the offence of manslaughter. It was submitted that, by giving the emphasis that he did to the maximum penalty, his Honour improperly diluted the importance of current sentences and thus did not give the weight required by s 5(2)(b) of the Sentencing Act 1991 to 'current sentencing practices.' That submission cannot be sustained, for the following reasons.

38 The trial judge made the following observations about the maximum sentence for manslaughter, which had been increased from 15 to 20 years in 1997.**

The last of the sentencing considerations to which I am bound to have regard is current sentencing practice, and it is a factor about which views are likely to differ. Before the maximum sentence for manslaughter was increased in 1997 from 15 years to 20 years' imprisonment, sentences of imprisonment imposed in cases of manslaughter by reason of provocation tended not to exceed ten years and were frequently less, although there were cases in which they ranged as high as 13 years.[28] Following the increase in the maximum to years to 20 years' imprisonment, it was to be expected that there would be a corresponding increase in the sentences actually imposed. Yet sentencing statistics suggest that actual sentences have by and large remained the same.[29]

For my own part, the increase in the maximum does imply that there should be some increase in the sentence actually to be imposed and I propose to follow that course in your case. Despite the general utility of current sentencing trends, I am not prepared to follow them down to a level below the sentence which a maximum of 20 years implies it is necessary to impose.[30] Since the maximum sentence is now 20 years' imprisonment, and since in the case of manslaughter by provocation that maximum takes into account the ameliorating effect of provocation, I consider that the gravest offences of manslaughter are liable to attract sentences of 17 years or more.[31]

39 In introducing the increased maximum penalty for manslaughter, the then Attorney-General spoke of

increased maximum penalties which the government expects will lead to higher sentences being passed on individual offenders'...

[The increase] reflects the high value that the community places upon life and personal safety'... [and]

the new maximum penalties were set having regard to the worst class of examples of such offences. The government expects that in appropriate cases the court will actually impose the maximum penalty available.[32]

40 The maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed.[33] It serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of the offence in question.[34] Recently, in R v Sibic,[35] this court referred to the following passage from the decision of the High Court in Markarian v R,[36] where the majority said:

[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.[37]

**41 The joint judgment in Markarian recognises that a change in the maximum penalty may also indicate that Parliament regarded the previous penalty regime as inadequate. In the present case, the Minister's speech made quite clear that the increased maximum was intended to result in the imposition of 'higher sentences'. The trial judge was entitled - indeed, bound - to have regard to the fact that Parliament had increased the maximum sentence for manslaughter from 15 to 20 years, particularly given his view - which we share - that this killing was to be characterised as 'manslaughter of the gravest kind'.

42 Though sentencing statistics have 'inherent limitations'[38] and are of limited assistance,[39] it is generally accepted now that they provide useful guidance as to general trends in sentencing. Such information must 'inevitably play its part in provoking the instinctive reaction of any court',[40] whether in imposing, or reviewing, a sentence.[41] Such information provides an extremely useful aid in achieving uniformity of sentence for a particular category of crime.[42]

43 The sentencing statistics provided in this case show clearly, as his Honour appreciated, that the sentence he imposed was beyond the range of sentences reflected in current practice. It is necessary therefore to scrutinise the sentence.[43] Disparity in sentencing can only be justified if there are acceptable and convincing grounds for it.

44 As Gleeson CJ observed in Gallagher v R,[44] an appropriate sentence generally involves an analysis of interrelated considerations. Some of those considerations are enumerated in s 5 of the Act. It is necessary to consider the scope and purpose of this provision.[45] In this context the expression 'shall have regard to' means to give consideration to the matters specified,[46] which include 'any other relevant circumstance.'[47] The provision should be read as subject to the necessary qualification that the relevance of a particular matter to the court's determination will affect the weight, if any, that it will be given.[48] Some of the listed matters may have no relevance in a particular case.

45 No single matter specified in s 5 is 'fundamental' to the fixing of the sentence.[49] The imperative that the sentencing court 'have regard to' the enumerated matters requires the judge to consider each of the matters and determine whether any or any particular weight should be given to them.[50] The judge is required only to have regard to the factors so far as they are known to him or her.[51] The provision does not require that the matter in question have an actual influence on the ultimate result.[52] Each matter may inform the 'instinctive synthesis'[53] but none is determinative; the emphasis each receives will vary from case to case.

46 In some cases - and the present is an example - a tension may arise between 'sentencing practices' and other matters specified in s 5(2). Another example is where different charges could appropriately have been laid for the same offending conduct and, though the offender is charged with an offence carrying the higher maximum sentence, the statutory maximum of the lesser punitive regime has guided the sentencing court.[54]

47 As appears from the passages set out above, the trial judge paid close attention to current sentencing practices, including 'the utility of current sentencing trends'. His Honour concluded that the sentences imposed for the worst category of this offence had not increased since the maximum penalty had been increased.[55] This conclusion was not challenged on the appeal. In other words, the guidance provided by the increased maximum conflicted with the guidance provided by existing sentence practice.

48 How was that conflict to be resolved? Because courts have hitherto not responded to the legislative command to increase sentences in manslaughter cases, his Honour was not fettered by the previous pattern of sentencing[56] but was obliged to give effect to Parliament's decision to increase the maximum penalty.[57] As the maximum sentence is reserved for the worst sort of cases - and this was one - the increased maximum called for the imposition of a sentence higher than the general trend of those sentences relied upon by AB.

49 To have imposed a sentence for a manslaughter of this gravity which did not reflect the increase in the maximum penalty would have been to commit a sentencing error of a fundamental kind. By increasing the maximum penalty for manslaughter, the legislature conveyed in explicit, unequivocal language its expectation that the worst instances of manslaughter would attract a sentence approaching the maximum of 20 years.

50 The sentencing function is committed to judges and magistrates, but the parameters within which the discretion is to be exercised are fixed by Parliament. When the maximum penalty for an offence is increased - in this case, it was a 33% increase - the parameters are thereby changed. Thereafter the guidance to be derived from the pre-amendment sentencing practice is significantly reduced as a result.

51 Whenever Parliament increases the maximum sentence for any criminal offence, that increase has potential significance for all sentences to which the new maximum applies. As the present case illustrates, the increase will have very substantial implications for any sentence for an offence that is placed within the worst category of that offence.[58] Even where the offence to which the increase applies is nowhere near the worst category, the increase remains of relevance since, in the usual case, the increase shows that Parliament regarded the previous penalties as inadequate. Even where the new maximum may only be of general assistance,[59] it becomes the 'yardstick' which must be balanced with all other relevant factors.[60]

Grounds 1, 2, 3, and 5 - Whether sentence was manifestly excessive, in breach of the principle of totality, gave undue weight to deterrence and denunciation and insufficient weight to mitigatory factors.

53 These grounds may for convenience be dealt with together. Grounds 1, 2 and 3 were in these terms:

(a) the individual sentence imposed on the count of manslaughter;

The effective sentence imposed on AB, having regard to the term of imprisonment he was serving when sentenced, offended the principle of totality. In particular, the judge's failure to order a measure of concurrency, notwithstanding the implications of s 16 (3C) of the Sentencing Act 1991, resulted in manifest excess with respect to both the total effective sentence and the non-parole period.

The judge was in error by attaching in the circumstances of AB too much weight to the considerations of deterrence and denunciation.

54 In support of ground 3, the Court's attention was directed to the following passage of the sentencing remarks:[61]

... Nothing which I have seen of you in the course of the trial, and nothing which has been submitted on plea, suggests that you feel any sense of contrition. You made an apology to [Zayat's] family when interviewed by police and again moments after the verdict was announced. But the timing of those utterances was telling. It is one thing to be sorry for the situation in which you find yourself, and for that reason to utter the sorts of platitudes that you may think will ameliorate your position. It is quite another to be truly sorry for what you have done. In any event, as your counsel put it on your behalf on the plea, you remain of the view that the circumstances warranted you in shooting [Zayat] - you are not sorry because you remain of the view that you had no alternative - and there is no reason to think that your attitude is likely to change within the foreseeable future.

Plainly, there is a need to impose a sentence on you which may persuade you to the contrary the view.

55 Under ground 5, AB submitted that the trial judge was in error by attaching insufficient weight to AB's:

(a) co-operation and subsequent offer to plead guilty in October 2005;

(b) having to serve his term of imprisonment in secure protected custody indefinitely;

**56 AB co-operated with investigating police by participating in a record of interview. Although he made significant admissions, there was - as the trial judge found - much in the interview that was 'patently or probably false', as a consequence of three days of preparation of an elaborate version of the events. His Honour found that AB had lied about: his continuing financial interest in the Khokolat Club; his knowledge of SG ammunition; the nature and extent of the threats made to him about Lewenberg and Williams on 8 September; his efforts to raise the $20,000 that Zayat was requesting; and his suggestions that he had made efforts to avoid meeting Zayat on the day of the shooting. His Honour found that the offer to plead guilty was made at a late stage and was without remorse. AB's personal history, set out in some detail, was not in any direct sense related to the offending. It is doubtful whether these factors would have warranted any extensive discount in the sentence.

57 Each of these factors was referred to and accepted as mitigating factors by the learned trial judge in his sentencing remarks. The trial judge referred to AB's difficult upbringing and personal hardship; that he had cooperated with the police and made admissions; that prior to the trial he had offered to plead guilty to the offence of manslaughter; and that imprisonment would be more onerous for AB than otherwise because he suffered from a bowel disorder and would have to serve the term in protective custody. His Honour recognised that these matters entitled AB to a discount in the sentence.

58 It was submitted that when regard is had to the actual sentence imposed on AB, insufficient weight must have been given to these factors and that the trial judge failed to impose a sentence in accordance with the explicit intention expressed in his reasons that these factors warranted some mitigation of penalty. Consequently, it was contended, the failure to give weight to the mitigating factors resulted in the imposition of sentences which were manifestly excessive and infringed the principle of totality.

59 It was the express intent of the learned trial judge to discount the sentence to allow for those mitigating factors. We consider that the sentence of 15 years imposed for manslaughter was within the range of sentences open to the trial judge when those factors were taken into account. The offence was, as the trial judge found, of the very gravest order, and it called for a severe penalty.

60 The trial judge was mindful of the principle of totality but stated that no degree of concurrency of part of the sentence being served was required to avoid a crushing sentence. We detect no error in such an approach. In our view the total effective sentence appropriately reflected AB's total criminality.

**61 It was also his Honour's intention to discount the minimum sentence and fix a relatively low non-parole period. As noted earlier, the total effective sentence was 19 years. Because the manslaughter offence had been committed while AB was on bail on drug offences, s 16(3C) of the Sentencing Act 1991 was applicable. The effect of that provision, as the learned trial judge noted, was that the sentence imposed for the manslaughter would be served cumulatively on the uncompleted sentence which AB was then serving for those offences, subject to any contrary direction by the court. His Honour did not make a contrary order.

62 His Honour then turned to the non-parole period. As his Honour noted, s 14(1) of the Sentencing Act was applicable because the sentence being imposed for the manslaughter was being imposed before the end of the non-parole period fixed with respect to the drug offences. The chronology was as follows.

63 As noted earlier, AB had been sentenced in the County Court, following convictions for the drug offences, on 7 April 2004. The sentence imposed at that time by the County Court was increased by the Court of Appeal, following an appeal by the Director of Public Prosecutions. The new sentence imposed by the Court of Appeal, which took effect on the date of the original sentencing,[62] was a sentence of four years with a non-parole period of two years and six months.

64 On the date when AB came to be sentenced for the manslaughter, 10 March 2006, he had served just over one year and 11 months of the 30 month non-parole period imposed for the drug offences. Under s 14(1), therefore, the judge having sentenced AB for manslaughter was obliged to fix a new single non-parole period in respect of both sentences. That new non-parole period was to be fixed to commence on the day on which it was imposed, in accordance with R v Rich.[63] The single non-parole period must be fixed**

by reference to the total effective head sentence [and] the totality of the offending, including factors in aggravation or mitigation and factors personal to the offender which are irrelevant to the minimum sentence which should be imposed.

65 Importantly for present purposes, the single non-parole period, being fixed from the date of the later sentence, must take into account how much of the original non-parole period has already been served.[64] In the present case, his Honour said this:[65]

Pursuant to s 14 of the Act, however, I have determined to set a new non-parole period of only thirteen (13) years to run from this date in respect of all sentences. While nothing has been submitted on your behalf that necessarily warrants a total non-parole period as short as that, I am mindful of your difficult upbringing, the hardship of the life which you have led to date, and the hardship which you will face in prison, and I am hopeful that the prospect of parole may provide an incentive for your rehabilitation.

**66 By reference to either the total effective sentence (19 years and one month) or the sentence that remained to be served (17 years and two months), the non-parole period was higher than usual.[66] That will not necessarily indicate error where some sufficient reason is apparent for the course adopted. Here it is evident from the sentencing remarks that it was not his Honour's intent to fix an unusually high minimum term.

67 It appears that the learned sentencing judge, in fixing the new non-parole period, did not allow for the part of the non-parole period (of the sentence being served) that had already been served. That being so, the effect of his Honour's fixing of a single non-parole period of 13 years was that, by the time that period expired, AB would have served what amounted to a non-parole period of 15 years. Fifteen years represents almost 80% of the effective head sentence of 19 years, which would be very much at the high end of the range. Yet it is plain from the remarks we have set out that his Honour had in mind to set a non-parole period at the lower end of the range. The non-parole period fixed did not accord with his Honour's expressed intention. In any event we consider that a lower new non-parole period should have been fixed, essentially for the reasons given by his Honour. The sentencing discretion is therefore reopened.

68 For reasons already given, we would reimpose the same sentence for manslaughter and we would, like his Honour, make no contrary direction for the purposes of s 16(3C). In accordance with s 14, we would fix a new single non-parole period of 11 years. That will run from the date of the manslaughter sentence, 10 March 2006. Taking account of the (almost) two years served to that time, AB will for practical purposes serve a non-parole period of 13 years with respect to the total effective sentence of 19 years and one month.

[2] The narrative which follows is based on the reasons for sentence and on AB's record of interview.

[3] AB regarded this as part repayment of the loan of $40,000 from Zayat for the club.

[8] The emphasis was added by the trial judge.

[9] The emphasis was added by the trial judge.

[12] DPP v Kallipolitis, unreported, VSCA 8/5/98, [8]; R v Ramage [2004] VSC 508, [38].

[13] R v Mordecai (1985) 18 A Crim R 149, 154 (Wallace J).

[14] R v Moore [2002] VSCA 33, [16] (O'Bryan AJA).

[15] Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47, 68 (Windeyer J); R v Osip [2000] VSCA 237; (2000) 2 VR 595, [46] (Batt JA).

[16] Cf Veen v The Queen No 1 [1979] HCA 7; (1979) 143 CLR 458, 490 (Windeyer J).

[17] Attorney General for Ceylon v Kumarasinghege Don John Perera [1953] AC 200; Lee Chun-Chuen v The Queen [1963] AC 220; Parker v The Queen [1963] HCA 14; [1962-3] 111 CLR 610.

[18] East's Pleas of the Crown (1803), vol 1, 238.

[21] Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58, [26] (Brennan, Deane, Dawson and Gaudron JJ).

[23] R v Szabo [2000] NSWCCA 226, [55] (Heydon JA).

[24] R v Yasso [2004] VSCA 127; (2004) 10 VR 466, [38] (Charles JA).

[26] R v Yasso [2004] VSCA 127; (2004) 10 VR 466, [40] (Charles JA).

[28] See, for example, R v Williscroft & Ors [1975] VicRp 27; [1975] VR 292, 299; R v Marsland (Unreported, CCA, 26/7/1976).

[29] See R v Bangard [2005] VSCA 313; (2005) 13 VR 146 [11] (Buchanan JA) and [28] (Eames JA).

[30] See and compare R v Giordano [1998] 1 VR 544, 549 (Winneke P).

[33] Hansford v His Honour Judge Neesham [1995] VICSC 58; [1995] 2 VR 233, 236; R v Sibic [2006] VSCA 296; (2006) 168 A Crim R 305, [14]-[17] (Redlich JA).

[34] R v Sibic [2006] VSCA 296; (2006) 168 A Crim R 305, [14]-[17] (Redlich JA); Ibbs v R [1987] HCA 46; (1987) 163 CLR 447; R v Dumas [1998] VR 65, 71-2.

[38] R v Bangard [2005] VSCA 313; (2005) 13 VR 146, 153 [39] (Nettle JA).

[39] R v Musson [1997] 1 VR 656, 660; DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85, 105-6 [83] (Chernov JA).

[40] R v Giordano [1998] 1 VR 544, 549 (Winneke P).

[41] R v Bangard [2005] VSCA 313; (2005) 13 VR 146, [11] (Buchanan JA), [23] (Eames JA).

[42] R v Zakaria (1984) 12 A Crim R 386, 388 (Crockett J).

[43] Bugmy v R [1990] HCA 18; (1990) 169 CLR 525, 538 (Dawson, Toohey and Gaudron JJ).

[45] Australian Capital Television Pty Ltd v Minister for Transport & Communications (1989) 86 ALR 119, 145 (Gummow J); Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 ('Singh'), 163-165 [54]-[59] (Sackville J) .

[46] Singh 163-165 [54]-[59] (Sackville J).

[48] See Harris v Bennet [No 3] [2004] VSC 171; (2004) 8 VR 425, 433 [30] (Redlich J) which considered the same phrase in s 91(4) of the Administration and Probate Act 1958.

[49] Contrast, for example, R v Hunt; ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322, 329 (Mason J, with whom Gibbs J agreed). See also R v Toohey; ex parte Meneling Station [1982] HCA 69; (1982) 158 CLR 327, 333 and 337 and Lordhi v R [2007] NSWCCA 360, [30] (Spigelman CJ).

[50] Rathborne v Abel (1964) 38 ALJR 293, 295 (Barwick CJ); Australian Capital Television Pty Ltd v Minister for Transport & Communications (1989) 86 ALR 119; In the Marriage of Wilson and Figtree Gardens Caravan Park Pty Ltd [No 2] (1994) 123 FLR 159.

[51] R v El Hajje [2003] VSCA 48, [17] (Batt JA).

[52] Rathborne v Abel (1964) 38 ALJR 293, 301 (Kitto J).

[54] Liang and Li (1995) 82 A Crim R 39; DPP v Hussein [2003] VSCA 187; (2003) 8 VR 92; R v McEachran [2006] VSCA 290, [49]-[56] (Redlich JA).

[55] This was a view that his Honour had previously expressed in R v Bangard [2005] VSCA 313; (2005) 13 VR 146, 153 [39].

[56] DPP v Arney [2007] VSCA 126 [13]-[14] (Nettle JA); R v Kalanj (1997) 98 A Crim R 505, 510-1; R v Boaza [1999] VSCA 126, [17]-[18]; Sheppard (1995) 77 A Crim R 139, 140-1 (Fitzgerald P), 146 (Dowsett J).

[57] R v Musson [1997] 1 VR 656, 660.

[59] See DPP v Aydin & Kirsch [2005] VSCA 86, [10]-[12] (Callaway JA) as to the variable factors that bear upon the significance of an increased maximum.

[60] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[61] Reasons [56] (footnotes removed).

[63] (2002) 4 VR 155, 166 [106].

[64] R v Bortoli [2006] VSCA 62, [49] Redlich JA.

[65] Reasons [60] (footnotes omitted).

[66] R v Bernath [1997] 1 VR 271, 278; R v VZ [1998] VSCA 32; (1998) 7 VR 693; R v Detenamo [2007] VSCA 160.

At a glance

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Judgment (184 paragraphs)

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Legislation Cited (2)

Cases Cited (22)