4 As a result of the 1992 and 1993 sentences for murder and sentences for other offences whilst in custody, at the time the applicant came forward and confessed to this crime he was serving a total effective term of 34 years' imprisonment and, putting aside prison management deductions, he would not become eligible for parole until 24th February 2020. He would then be aged 65. After hearing a plea for leniency, at which the applicant appeared in person[2], he was sentenced for this offence on 28th March 2003 to be imprisoned for the term of his natural life. A new single non-parole period of 27 years' was fixed. His Honour explained to the applicant that the sentence, including that non-parole period, would operate from the day on which it was imposed. He would therefore be 75 when he became eligible for parole.
5 The applicant seeks leave to appeal against sentence on the grounds, first, that in all the circumstances the sentence is manifestly excessive and, secondly, that the judge failed to honour an alleged agreement between the Director of Public Prosecutions and the applicant not to have a life sentence imposed.
6 On 13th February 2004 a single judge of appeal refused leave to appeal pursuant to s.582 of the Crimes Act 1958. The applicant gave notice that he elected to have his application heard by the Court of Appeal. Medical and security considerations delayed the hearing of that application, which came on before us on 23rd February 2005. The applicant did not appear before the single judge but relied on a written submission. He did appear in person before us and the Director of Public Prosecutions appeared with Mrs Quin for the Crown. We had a much better opportunity to investigate the applicant's complaints and consider his submissions. We were also provided with the summary prepared by the police following the applicant's statement, which I shall call "the police summary", and a summary of all the sentences imposed for murder in Victoria from 1986 to the present.
7 Before turning to the applicant's submissions, I shall say a little more about the circumstances of the offence and of his confession. On 20th September 1982 Mrs Hanmer, aged 51, was working alone in a hardware and giftware store that she and her husband owned and operated at 77 Warren Road, Mordialloc. The store also operated a State Savings Bank sub-agency and a dry cleaning depot. At approximately 12.50 p.m. a person who lived behind the shop next to No. 77 heard a noise that she described as a loud bang and the voice of a woman calling for help. She entered the hardware and giftware store and discovered Mrs Hanmer grievously injured and lying on the floor. The ambulance and police were called.
8 In the meantime the victim had telephoned her husband at their home in Mt Eliza. He had not gone to work that day because he was recovering from a hernia operation. He said that his wife was gasping on the telephone and finding it difficult to speak but managed to say, "Dick, I've been robbed and I'm dying." The ambulance and police officers found Mrs Hanmer bleeding from an apparent gunshot wound to her upper body, but she was still conscious and capable of some conversation. She described her attacker as being a man aged around 25, five feet seven inches tall and with ginger hair. She described the firearm he was carrying and said that he left through the front door. Mrs Hanmer was treated at the scene and then conveyed by ambulance to the Alfred Hospital, where she died at 3.20 p.m. She had been shot once in the right chest between the second and third ribs. The pathologist who conducted the post mortem examination concluded that she had been shot from the front.
9 Notwithstanding an extensive police investigation, the murder remained unsolved until the applicant confessed. On 18th August 2000, at his request, Detective Senior Constable Gerard Hockey attended Port Phillip Prison to speak with him. The applicant had confidence in Mr Hockey from an occasion when, in 1998, he had investigated an assault on the applicant in the Acacia Unit of Barwon Prison. The applicant told Mr Hockey that he wished to confess to the murder of a woman at a hardware store in Mordialloc in 1982. On 31st August 2000 he was conveyed to the offices of the Homicide Squad, where he participated in the interview to which I have already referred and, at the conclusion of the interview, made a full statement.
10 The applicant told the interviewing police that he entered the store at around lunch time, carrying a .22 rifle hidden behind a sports bag. He approached the deceased and asked her to cut a key for him. Whilst she was occupied with that task, the applicant closed and locked the front door and turned a sign around to read "Back in five minutes". He confronted the deceased with the rifle, stated that it was an armed robbery and demanded money. He obtained in excess of $3,000 from the safe and cash register. He then told the deceased to lie on the ground as he was going to tie her up. While she was lying on the ground, the applicant discharged a single bullet into her back. A homemade silencer on the firearm failed and "when the gun went off it sounded like a cannon". The applicant said that he remembered that blood was seeping through the deceased's clothing and knew that she was critically injured and would not survive. All he wanted was to get away. He did not waste time reloading and firing another shot.
11 In his interview the applicant told police that he had been offered $30,000 to murder the deceased. He said a former prison inmate had given him the name of the person who wanted her killed. The applicant claimed that that person was the husband of the deceased. Apart from that, police investigations confirmed the applicant's account. Moreover, a forensic scientist analysed the clothing worn by Mrs Hanmer and confirmed that, contrary to the opinion of the pathologist who conducted the autopsy in 1982, she had been shot from behind as the applicant said. The part of his account that the police rejected was the identity of the person who allegedly engaged the applicant and, it would appear from the portions of transcript set out below, other aspects of the contract killing. In his victim impact statement, tendered on the plea, Mr Hanmer said that the allegation against him filled him with disgust and anger. The rejection of that part of the applicant's statement is to be borne in mind as background to the stance adopted by the Crown on the plea.[3]
12 There are two other aspects of the applicant's statement to which it is necessary to refer. In the first paragraph he said that he was making it of his own free will and not under any threat or enticement from the police. In the second paragraph he said that he had been told by Mr Hockey that he had received a letter from the Director of Public Prosecutions to the effect that anything the applicant said in the interview could not be used against him in criminal proceedings. The applicant stated, in that paragraph, that he did not want that immunity. He wished to tell the truth and was prepared to accept responsibility for what he had done. The Director accepted that such a letter had been sent to Mr Hockey.
13 In his written and oral submissions the applicant emphasized the second ground of appeal. He said that he had had to disclose all the details, including the fact that it was a contract killing, thereby placing the crime in one of the worst categories of murder.[4] The letter of immunity had been offered to enable him to disclose the full facts without putting his offence in that category. He had waived the offer of immunity and pleaded guilty and appeared unrepresented before the learned sentencing judge in reliance on an understanding with the Crown that he would not receive a life sentence and that the Crown would ask for no more than five years to be added to his existing sentence.
14 He said that that understanding was confirmed in a telephone conversation the day before the plea and that it was evidenced by the following passage in the police summary: