R v Boaza [1999] VSCA 126

Court of Appeal (Vic)|1999-08-05|Before: WINNEKE, P., PHILLIPS and CHERNOV, JJ.A.

The applicant is aged 31 years. He was presented in the Supreme Court at Melbourne on 1 February 1999 on one count of attempting to murder Brooke Amanda Murray on 3 November 1997 and pleaded guilty. After hearing a plea in mitigation, his Honour sentenced the applicant on 5 February 1999 to 14 years' imprisonment with a non-parole period of 11 years and declared 460 days served by him in pre-sentence detention as already served under that sentence. On 9 February 1999, the applicant applied for leave to appeal against the sentence on the grounds that:

(a) The sentence is manifestly excessive.

(b) The learned sentencing judge failed to give sufficient weight to the applicant's plea of guilty and other matters put in mitigation on his behalf.

The applicant is a Cook Islander who has resided in Australia since 1986. He was born in Rarotonga and is a member of a distinguished family. He was brought up in the Presbyterian faith and was educated to a level equivalent to fourth form education. After he completed school, he was appointed a Cook Island Youth Representative to Papua New Guinea and eventually came to Australia in 1986. He is a citizen of New Zealand although he has no such status in this country. During his stay in Australia, he principally worked in the security industry as a crowd controller at various clubs in and around Melbourne. In 1997, he met Ms Murray (who is now aged 27) at their mutual places of employment, being hotels and nightclubs. When she met the applicant she was employed at a number of nightclubs and hotels as a gaming attendant and bar-worker. As a general rule, she worked two jobs. Not very long after their first meeting, the applicant and Ms Murray formed a relationship. During the relevant period they continued to work at hotels and nightclubs and often they worked at the same venue. The relationship between them progressed normally until about August 1997 when a former girlfriend of the applicant returned from interstate to Melbourne. There followed for the next few weeks a number of disputes, principally between the applicant and his former girlfriend, some of which involved violence. On one such occasion the applicant threatened to kill his former girlfriend. During that period the relationship between the applicant and Ms Murray deteriorated, there being suggestions that the applicant was conducting a relationship with each of the two women without either of them being aware that he was seeing the other.

Not long thereafter, Ms Murray attempted to break off her association with the applicant. When she sought to do this, he became emotional, cried and was verbally aggressive towards her. For a while, in order to placate him she agreed to stay with him notwithstanding her reservations. During this period, the applicant demonstrated violence in her vicinity with the obvious purpose of frightening her and influencing her to remain with him. For example, on one occasion he forcibly dragged her out of her car, took away her car keys, refusing for some time to return them, and threatened to damage her motor car whilst he was armed with a fence paling. On another occasion he smashed furniture and windows in his residence and generally intimidated and frightened Ms Murray. During this period she developed a fear of him but thought "she could handle it". She realised, however, that the applicant was emotionally disturbed and that it would not be easy to break away from him without significant unpleasantry and that he would continue to harass and threaten her. Eventually, she told him that their relationship was at an end. She even changed jobs in order to avoid working at the same venue as the applicant and also avoided going to places where he might be present.

Despite Ms Murray's refusal to have anything to do with him, the applicant continued to ring her, visit her at her place of employment and in the process, cause unpleasantness and, on occasions, frighten her. A particularly alarming incident occurred, as his Honour described, on 25 October 1997 at the Tunnel Nightclub in Melbourne when, despite efforts to keep him out, the applicant managed to get into the nightclub and detain Ms Murray in the cellar. There, he behaved towards her in a bizarre and threatening way until he was talked out of it by the security staff at the nightclub.

On 3 November 1997, while she was working at a club during her afternoon shift, Ms Murray received a telephone call from the applicant. She told him not to ring her and hung up on him. Apparently he was not dissuaded by Ms Murray's attitude and turned up at her workplace with a bunch of roses and told her that he loved her. Approximately one hour later the applicant rang her again and sought to speak with her. She told him to stop harassing her otherwise she would obtain a restraining order. As a result, the applicant became angry and threatened to come to the club. Ms Murray terminated the call but the applicant rang back and said, "You want to play like that with me, if you want to play we're going to play".

His Honour found that it was then or on that day that the applicant formed his murderous intent and, that night, lay in wait for her.

After completing her shift at the club, Ms Murray went home. She remained there until approximately 11 p.m. when she left her home intending to drive to the city to commence work at a nightclub. As she drove out into her street, the applicant drove up behind her and began tailgating her. She tried to lose him in traffic but was unsuccessful. The applicant continued to tailgate her and later overtook her vehicle and pulled up in front of it, causing her to swerve sharply and to come to a stop. He then ran to Ms Murray's vehicle and dragged her forcibly from it while she was kicking and struggling to get away from him. She screamed to passers-by to call the police but the applicant dragged her first towards his vehicle and then threw her down a nearby embankment with such force that she was hurt when she landed on the ground. He followed her, told her that he was going to kill her and reached into his trousers and produced a knife. He then proceeded to punch her and to stab her with his knife until he was restrained by some passers-by. At one stage, the applicant managed to break free from those who were restraining him and resumed stabbing his victim. Eventually, he was again restrained. By the time he was stopped, the applicant had stabbed Ms Murray twice in the heart, once in the lung and liver. She also received a number of lacerations to her chest, arms, back and the back of her legs.

Eventually, the police and ambulance arrived. At one stage Ms Murray stopped breathing due to massive blood loss and when she arrived at the Austin Hospital, she did not register a pulse. She underwent a number of emergency operations, had a number of blood transfusions and in the course of the next two days was confined to the intensive care ward at the hospital. The doctors were not certain during that period whether she was going to live. She remained in hospital for 16 days before returning home, although she continued to attend the hospital as an out-patient and still receives treatment from, inter alia, plastic surgeons and psychologists. It is likely that this situation will last for quite some time. It is obvious that she experienced and continues to experience significant mental and physical pain as a result of the attack.

During his interview with police, the applicant lied about the relevant events. He claimed that Ms Murray had tried to kill herself because he sought to break off their relationship, that the knife belonged to her and that he was merely trying to save her from killing herself. He denied carrying the knife and that she had called for help. He claimed he first grabbed hold of her because she ran into the traffic in order to kill herself. A little later, he said, she produced a knife which he sought to take away from her.

Dr Lester Walton, a psychiatrist, gave evidence on behalf of the applicant. He had examined him on only one occasion, on 22 May 1998, when he was in custody. The applicant told him that as a result of engaging in a sexual activity with Ms Murray he believed that he swallowed some of her blood after which he was being haunted. He claimed that he could hear the voice of a child inside him and he reached the conclusion that his partner had undergone an incomplete abortion, and that the unborn child had inhabited his body. He claimed that on occasions when he spoke to Ms Murray over the telephone or when he was near her, the voice of the child would make statements such as "I want my mummy". The applicant claimed that this situation made it difficult for him to terminate his relationship with Ms Murray. On the day in question, according to the applicant, he had decided to terminate their association but he could not bring himself to do so because the child wanted to stay close to the mother. Dr Walton's report concluded that the applicant would require a further psychiatric review "before his definitive presentation". His Honour found that the applicant's claim to Dr Walton that he was haunted before he attacked Ms Murray was false. His Honour reached the same conclusion about the applicant's contention that he heard voices of an unborn child coming from within him.

In considering what sentence to impose, his Honour took into account inter alia, matters favourable to the applicant and made it clear that he was entitled to a sentencing discount for his plea of guilty. But his Honour also noted that any such discount was to be limited by the following factors:

(a) the reason the applicant pleaded guilty was that the case against him was overwhelming;

(b) the applicant had not pleaded guilty because he had remorse;

(c) the plea was made only shortly before the commencement of the trial.

Mr Tehan's basic contention was that the sentence of 14 years' imprisonment was the longest ever imposed in relation to this offence and, in the circumstances, was excessively long. By way of supporting or subsidiary arguments, he made the following submissions.

He submitted first that all but one of the sentences imposed or upheld by this Court in approximately nine relatively recent cases which dealt with attempted murder were significantly below 14 years' imprisonment. Such cases, he claimed, provide a useful benchmark against which the length of the sentence under attack may be judged. By way of example, he pointed to R. v. Yaldiz [1998] 2 V.R.376; D.P.P. v. Cengiz [1998] 3 V.R.720; R. v. Kasulaitis [1998] 4 V.R.224 and D.P.P. v. Adajian [1999] VSCA 105, in which the respective sentences were 8, 10, 8 and 13 years' imprisonment (in the context of a maximum term of imprisonment of 20 years).

It was accepted by Mr Tehan that those cases show a trend of rising sentences for attempted murder, but he submitted that the sentence under challenge did not follow the gradual progression of sentences imposed in those cases. He claimed that the sentence of 14 years' imprisonment in this case amounted to a leap in sentencing which went beyond the relevant range. In that context he relied also on Poyner v. The Queen 60 A.L.J.R. 616.

In particular, Mr Tehan claimed that Yaldiz was the most relevant case for present purposes. He pointed, inter alia, to the similarity in the seriousness of the offence in each case and to the brutal manner in which it was carried out. In my view, however, Yaldiz is of no direct relevance to this case. It concerned an appeal brought by the DPP and there was evidence in that case of mental illness on the part of the respondent (which is not the case here).

In my view, the authorities on which Mr Tehan so relied do not establish for the purposes of this case any relevant benchmark of accepted sentences applicable to cases of attempted murder. First, the number of cases chosen by Mr Tehan is statistically too small to establish a meaningful benchmark of penalties for that offence. Perhaps more importantly, a consideration of other sentences is of limited assistance upon the question of whether a particular sentence ought to be regarded as manifestly excessive. Each case depends on its own circumstances. See, for example, Kasulaitis at 231, per Batt, J.A. Furthermore, the maximum penalty for the offence has changed materially over the period in question. On 20 April 1992, the maximum penalty increased from 15 years to 20 years' imprisonment. It was raised again to 25 years' imprisonment on 1 September 1997.

Nevertheless, in my opinion, it is relevant to bear in mind that this Court in Adajian fixed a head sentence of 13 years in relation to the crime of attempted murder. The Court specifically noted that the sentence was fixed having regard to the principle of double jeopardy. In my view, that case cannot be distinguished so as to make it irrelevant for present purposes as the applicant would have it.

In Adajian the victim was shot twice and beaten ruthlessly by the applicant in the course of his killing of the victim's husband and son. As a result, the victim was left totally and permanently disabled. This Court upheld the appeal of the DPP and increased the sentence from 10 years to 13 years' imprisonment. As I have noted earlier, in fixing this sentence, the Court had regard to the principles of double jeopardy. In that case, the respondent pleaded guilty at an early stage of the proceeding and there was some evidence before the Court as to his remorse.

The applicant sought to distinguish Adajian on the ground that there the attempted murder was accompanied by the crimes of murder and armed robbery and on the basis that the victim was left totally and permanently disabled. It is true that there are material differences between the two cases, but the crimes of murder and armed robbery in Adajian were necessarily dealt with separately and the difference between the impact of the crime on the respective victims was one of degree. In both cases the attacks were brutal and cowardly and permanently changed for the worse the lives of the victims and those close to them. Although each case must be considered on its own facts, and, as Callaway, J.A. in Adajian said, at para.28: "Sentences are not precedents which must be applied unless they can be distinguished", that case is not wholly irrelevant to the consideration of whether the present sentence is beyond range.

Mr Tehan next argued that, given the length of the sentence, his Honour must have failed to give sufficient weight to a number of mitigating factors, namely:

(a) the applicant's relatively young age at the time of the offence;

(b) the evidence of good character, in particular as it related to the applicant's work history;

(c) the evidence of the applicant's general non-violent demeanour;

(d) the applicant's plea of guilty and the resultant saving of time, expense and trauma;

(e) the fact that the applicant would spend a very lengthy period of time in gaol away from his family.

But Mr Tehan could not point to any part of his Honour's sentencing remarks that show that he failed to give due weight to these matters. His submission was essentially based on the argument that, had his Honour given those factors due weight, the sentence would have been shorter and, therefore, it would not have been excessive. The matter so put by Mr Tehan is really explanatory of a conclusion already reached that the sentence is manifestly excessive. In my view, it does not by itself, go to establish that the sentence was manifestly excessive. Put another way, such an argument relies for its success on the unestablished assumption that the sentence is excessive. In a sense it is a circular argument and, in my view, does not advance the principal contention put on behalf of the applicant.

Mr Tehan also submitted that his Honour placed too much weight on the fact that the plea of guilty was made only late in the proceeding and that it was made because of the applicant's realisation that the Crown case was overwhelming. Consequently, it was said, his Honour did not give sufficient weight or significance to the applicant's guilty plea. Again, it is difficult to see where his Honour erred in the exercise of his discretion in this regard. He correctly recognised that a sentencing discount should be given because of the applicant's plea of guilty. In my view, he did not err in taking into account the above matters when he considered the extent of the sentencing discount that he would apply.

Mr Tehan further argued that his Honour did not mention in his sentencing remarks, and therefore did not take into account, that the applicant had made two attempts to commit suicide which, according to the applicant, showed that he was overborne by the events. As I understood Mr Tehan, he contended that these attempts were manifestations of the applicant's remorse. But, as Phillips, J.A. observed in the course of the hearing, the applicant's attempts to commit suicide may have been prompted not by his remorse but by his realisation that he might be imprisoned for a considerable amount of time because of the offence that he had committed. Furthermore, as Mr Coghlan pointed out, it is improbable that the suicide attempts were expressions of remorse. At the committal proceeding, which followed the suicide attempts, the applicant maintained through his counsel during the cross-examination, that the victim's wounds were self-inflicted. Such an attitude was, Mr Coghlan submitted, inconsistent with genuine remorse. In my view there is much force in that argument.

In any event, the fact that the applicant attempted suicide was before his Honour. The matter is referred to on p.2 of Dr Walton's report. I have no doubt that his Honour had it present to his mind at the relevant time, given that it is clear from his sentencing remarks that he had carefully studied Dr Walton's report and given his Honour's great experience in this area of the law and its practice. It is trite that just because a judge does not mention something in his reasons for judgment, he has not considered it: Re Gear dec'd [1964] Qd.R.528 at 531.

Mr Tehan also sought to argue that his Honour may not have sufficiently taken into account the hardship that would befall the applicant in serving a term of imprisonment given that his family lived outside Australia. But, in my view, it is clear that his Honour recognised such matters when he discussed the applicant's cultural background. In any event, the applicant had been living in Australia for at least 13 years and had taken advantage of what the society had to offer him. He has failed, however, to live by its laws and now must be punished accordingly. Moreover, as the applicant's counsel informed his Honour in the course of the plea, the applicant had married in 1998 while he was in custody and now has the support of his wife.

I now turn to deal with Mr Tehan's basic submission that the sentence is, in all the circumstances, too long and thus, manifestly excessive. As Batt, J.A. said in R. v. Cardona [1998] 2 V.R.126, at 135:

"It is trite that the question whether a sentence is manifestly excessive does not admit of much elaboration."

In my view, given the relevant circumstances in this case, although the sentence was relatively high, it was not manifestly excessive. These circumstances include the following.

The offence in this case was in the upper region of the scale of seriousness for the crime of attempted murder. The attack on Ms Murray was brutal, cowardly and relevantly unprovoked by the victim. The applicant was prepared to kill her because of his obviously emotional reaction to her severance of their relationship. For some time prior to the night in question, the applicant exhibited a possessive and emotional attitude towards Ms Murray and when he finally realised that she was lost to him, he decided to kill her. He has shown no remorse and has repeatedly lied to the police and to Dr Walton and persisted with those lies until shortly before the trial.

In my view, the circumstances in which this crime was committed call for a sentence which reflects the principles of denunciation and general and specific deterrence. These matters are reflected in the sentence under attack. It is also to be borne in mind the seriousness with which the community views this type of offence as that is reflected in the maximum penalty prescribed for it by Parliament, namely, 25 years' imprisonment.

Further, but for the intervention of others, the applicant would surely have killed his victim. She may have died in any event but for the intervention of the doctors and Ms Murray's own strength. It is those circumstances that prevented the case from being one of murder.

It is also clear that his Honour took into account all mitigating factors in favour of the applicant and Mr Tehan rightly conceded that there was no specific error in the sentencing process.

It is clear enough that the sentence imposed by his Honour is high. But it is not much more than one-half of the maximum prescribed by Parliament and is relevantly not very different from that which was imposed by this Court in Adajian. Further, as Mr Coghlan pointed out, it is not very different from the sentence imposed in Kasulaitis: the sentence in that case was 10 years' imprisonment, which was one-half of the maximum sentence then prescribed by the legislation.

Consequently, in my view, the head sentence is within the range of sentences that was available to his Honour and is not excessive, and no discretionary error has been demonstrated in that regard.

Mr Tehan further submitted that the non-parole period his Honour fixed was unduly long. Without actually submitting that the non-parole period is out of kilter with the proportion of minimum terms usually fixed, Mr Tehan argued, as I understood him, that the disparity of only three years between the head sentence and the non-parole period is unduly small when regard is had to mitigating factors. It is trite that the fixing of the non-parole period is a matter of discretion for the sentencing judge and depends on all the circumstances of the case. It is also clear that it is for the applicant to show that the non-parole period is outside the range of those properly available to the sentencing judge. There is no rule that this period must be two-thirds or any other particular proportion of the head sentence (see R. v. Demarco [1999] VSCA 69, at [15]; R. v. Bolton & Barker [1998] 1 V.R.699, per Callaway, J.A.

As the President pointed out in R. v. Revell (unreported, Court of Appeal, 19 February 1996, at 7) a significant, although not the only, basis for fixing a non-parole period is to be found in the prospects of the accused to benefit by the fixing of a period of parole; in other words, for his rehabilitation under supervision. The period set, in accordance with the legislative implication, is to be a period which would enable this purpose to be achieved. In my view, there was no material before his Honour which showed that the applicant's prospect of rehabilitation was such that a shorter non-parole period was warranted.

In the end, the applicant has not established, in my opinion, that his Honour's discretion in fixing the non-parole period has miscarried.

I am of the view, therefore, that this application should be dismissed.

After careful consideration I have come to a similar view to that expressed by Chernov, J.A., and generally for the reasons that his Honour has advanced. I gratefully adopt the statement of facts which his Honour has given. Those facts relevant to the sentence imposed in this case have also been emphatically and, I think, accurately encapsulated in the sentencing remarks of the learned sentencing judge.

In short, the crime committed by the applicant was properly described as a brutal, cowardly and sustained assault upon a defenceless woman, carried out with a murderous intent which would have been fulfilled if courageous bystanders had not intervened. The intended murder which the applicant attempted to achieve was essayed for no better reason, so it would appear to me, than injured pride as a consequence of being jilted. His conduct was not the product of a spontaneous and provoked emotional outburst, but rather was planned and premeditated. Although caught red-handed with the knife in his hand, he dissembled to the police about his actions and thereafter continued to deceive others, including his consulting psychiatrist, until what can truly be described as "the eleventh hour". As his Honour pointed out, the conduct demonstrates no true remorse for his actions.

I did not understand applicant's counsel on this application to seriously contest the description of the applicant's conduct which I have given. Even accepting it, Mr Tehan submits that the sentence which his Honour imposed, both as to head and minimum terms, is manifestly excessive and bespeaks error in the exercise of the sentencing discretion. Although he concedes that no specific error can be found, he submits that the sentence is so much out of kilter with current sentencing standards for this type of offence that the learned judge must have failed to give adequate weight to mitigating factors such as the applicant's plea of guilty, his youth and his previous generally good character and background.

It cannot be suggested, I think, otherwise than that this sentence is a heavy one. Mr Coghlan on behalf of the respondent so concedes, but contends that it was within the range of penalties which the learned judge was entitled to impose in the proper exercise of his discretion having regard to the gravity of the applicant's conduct.

In the absence of specific error it is, of course, not an easy task for an applicant to demonstrate to an appellate court that the sentencing discretion has miscarried on the ground that the sentence imposed is a manifestly excessive one. It is trite to say that before an appellate court can interfere it would need to be persuaded that the sentence imposed by this very experienced judge was wholly outside the range of sentencing options available to him.

Mr Tehan seeks to support a contention to that effect by reference to other sentences imposed by the courts in past years for this crime. In particular, he relied on the sentence imposed in the case of Yaldiz [1998] 2 V.R.376, in which this Court, on a Crown appeal, lifted a penalty for attempted murder from the six years imposed by the trial judge to eight years. Mr Tehan contended, and, I think, with some force, that, where the Court of Appeal had imposed a penalty of eight years for a crime which was in some respects similar to the one committed by this applicant, it was unjust for the sentencing judge in this case to impose a sentence which was nearly double that imposed on Yaldiz.

For reasons which have been stated so often that they need not be re-stated, it is really of little utility for the applicant to seek to attack a sentence imposed in one case by reference to penalties imposed by courts in differing circumstances in other cases. None the less, consistency or parity in sentencing remains something which courts should strive to achieve because, as Mason, J. pointed out in the case of Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606 at 611, it is "a matter of abiding importance to the administration of justice and to the community". Furthermore, as Gaudron, J. has recently stated in her dissenting judgment in Siganto (1999) 73 A.L.J.R. 162 at 170, the principle, although most commonly falling for consideration in the case of co-offenders, is not necessarily restricted to cases of that kind. As her Honour put it:

"The contention that a sentence is manifestly excessive ... is a contention of disparity or inconsistency measured over the range of sentences imposed on those convicted of a similar offence, and to say that a particular sentence is 'within the range' is simply to say that there is no disparity or inconsistency of that kind."

It is to this principle that Mr Tehan has appealed, but the question remains whether the argument holds good in this case. It goes without saying that the crime of attempted murder is, and is regarded by the community as, a most serious crime. This fact is reflected in the actions of the Parliament in this State, which has increased the maximum penalty for the crime from 15 years in 1986 to 25 years by the time when the applicant committed the crime for which he has been punished. This in itself tends, I think, to reduce the significance of the exercise of going back in time through the relatively few recorded sentences for attempted murder in this State in an endeavour to find a "benchmark" or "upper limit" for such a crime. Indeed, the researches of counsel before us could only unearth some eight or nine recorded cases where sentences for attempted murder had been imposed. As one would expect, the circumstances in which those penalties had been imposed were very different. Indeed, the penalty imposed by this Court in Yaldiz was imposed at a time when the maximum penalty was five years less than it is now, and was imposed following a successful Crown appeal, where the Court's powers were exercised to reflect its view of the manifest inadequacy of the sentence imposed in that case but, of course, in re-sentencing the respondent was limited by the principles of "double jeopardy." In any event, and despite its similarities to this case, the circumstances in Yaldiz, in material respects, were substantially different from those which confronted the trial judge here.

In the most recent case of Adajian [1999] VSCA 105, this Court increased the sentence imposed for attempted murder from 10 years to 13 years at a time when the maximum penalty still stood at 20 years. Again the circumstances were very different, but the Court was at pains to point out that the submission there made, namely that past sentences for attempted murder disclosed a range which fixed an "upper limit" of 10 years for the offence, could not be sustained. The Chief Justice said, at p.2 of his reasons:

"Any implication that sentences for attempted murder are somehow 'capped' at about 10 years' imprisonment must be rejected."

Callaway, J.A., at p.12,. referred to the submission which had been made by counsel in that case, in which counsel had cited Yaldiz, and had then referred to comments which had been made by Batt, J.A. in the case of Kasulaitis [1998] 4 V.R.224, where his Honour had said:

"I do not wish to part from the present case without expressing the firm view that a sentence of 10 years' imprisonment should not be treated as the practical ceiling for sentences of attempted murder, even when committed by persons with no prior convictions, for offences of serious violence ... and even when the applicable maximum penalty is 20 years' imprisonment."

Callaway, J.A. continued, at pp.12-13 of his Honour's reasons, as follows:

"Sentences are not precedents which must be applied unless they can be distinguished, and the paramount duty of the Court is to do justice in individual cases. Yaldiz was suffering from a psychiatric illness which the Court held should moderate the objective of general deterrence."

Although it is true to say, as Mr Tehan did, that the circumstances of Adajian were very different from this case, the validity of the principles to which the Court referred remains undisturbed. There are no "benchmarks" setting binding limits for the crime of attempted murder, let alone one which is less than 50 per cent of the current maximum penalty, as the submissions of the applicant in this case tend to suggest.

I must say that I find myself in agreement with the trial judge that the circumstances of this crime make it a very serious example of the offence of attempted murder, and yet the penalty imposed is just a little higher than 50 per cent of the current maximum penalty available. Although various reasons have been advanced by counsel seeking to induce this Court to conclude that his Honour's discretion has miscarried, I am not persuaded, at the end of the day, that it has.

I agree with his Honour that this was truly a case where the court's sentence must mark the community's condemnation of the applicant's conduct and must be such as to deter others like-minded from resorting to such conduct as a means of resolving emotional disputes. The type of conduct engaged in by the applicant, reflecting as it does a lack of self-discipline and self-centred lack of respect for the freedom of choice of his victim, was rightly viewed by his Honour, I think, as a serious example of this crime. The crime will continue, quite obviously, to have both physical and psychological consequences for this victim.

Of course, in imposing sentence, a sentencing judge is bound to have regard, as this judge did, to the previous good character of the offender. However, this type of offence is frequently committed by persons of good character who have allowed their emotions to dominate the consideration which is owed to their victims. In circumstances where the actions are, as here, carefully planned, the offender can scarcely complain if the court regards general deterrence and denunciation of the crime as the primary purpose of punishment imposed.

Although on one view it can be said that the sentence imposed is "a high one", I am not persuaded that in the circumstances it is manifestly excessive. Nor, in my view, is there any basis for so regarding the minimum period imposed. I can see nothing in the minimum sentence fixed by his Honour which offends those principles.

I therefore agree with Chernov, J.A. that the application should be refused.

I, too, agree that the application should be dismissed. I do so for the reasons advanced by the other members of the Court. I would add only this in deference to Mr Tehan's argument.

In my opinion, the cases to which we were referred as establishing some so-called benchmark or upper limit for the crime of attempted murder did not establish any such thing, and that for a number of reasons: first, they were so few; secondly, some were sentences imposed on Crown appeals which attract special considerations; and, thirdly, since they were decided the Parliament has yet again increased the maximum for this offence. In the circumstances, I think that the most relevant touchstone for the learned sentencing judge was the maximum now fixed by the Act; and, when measured against that, the sentence is not shown to be outside the range of sentences properly available.

The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.

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