R v D [1999] QCA 231

(b) a period up to and including the maximum of life, if -

(i) the offence involves the commission of violence against a person; and

(ii) the court considers the offence to be a particularly heinous offence

3 The sentencing judge considered that it was a particularly heinous offence and that life imprisonment was the appropriate penalty in the circumstances.

4 The victim was a 22 year old Japanese tourist holidaying in Cairns. She did not speak English. On 20 September 1997 she left her unit to post some letters and buy some groceries. She did not return. On 4 October 1997 her badly decomposed body was found under pandanus fronds in a swamp area near the Trinity High School in suburban Cairns. There was damage to her skull and loss of teeth consistent with her face having been struck with severe force against a hard surface such as a solid wall. According to the medical evidence the cause of death was aspiration of blood.

5 The Crown case rested largely on circumstantial evidence. It was that D had so severely and brutally bashed her that he had broken bones in her face and made her unconscious, with the result that she had drowned in her own blood.

6 D told the police he remembered a Japanese girl walking along Grafton Street, Cairns in his direction on 20 September 1997 at about 12.30 p.m. At the time he had been sitting outside Elphinstone's building where he worked. It was a disused office and warehouse which contained a vault. He said he had gone inside when she was still about 20 metres away. He could not remember anything of relevance from then until the next day: when moving boxes around in the vault, he had found her naked body on a box. He had fetched a wheelie bin from the adjoining property and put her body in the bin, covering it with some rubbish. He had wheeled the bin out of the vault and left it near the roller door of the premises.

7 Some days after the girl's disappearance police officers attended Elphinstone's building in response to a complaint about a bad smell. He told them there were vegetables in the wheelie bin and put his arm in to demonstrate this. Subsequently he wheeled the bin through suburban streets to the place where the body was eventually found. He tipped up the bin, slid the body out and covered it with pandanus leaves. In the meantime he had taken the victim's clothing and other property back to his place of residence.

8 To fall within the description of "a particularly heinous offence" the offence must be one that was particularly odious or reprehensible. The circumstances which are relevant to this issue are the circumstances of the killing itself and not the offender's subsequent conduct in dealing with the body.[2]

9 Death was inflicted by vicious and violent means. The victim, a stranger who could speak no English, had been innocently walking along the street. There was no evidence whether she was taken into the warehouse or the vault or whether she went there willingly. No motive for the killing was established. Even though the sentencing judge's finding that the attack was premeditated at the time it was pressed into action was not open on the evidence, it was nevertheless a callous and brutal attack. In our view he was correct in categorizing the offence as a particularly heinous one in all the circumstances.

10 The sentencing judge then had a discretion to impose a penalty up to the maximum of life imprisonment. He was obliged to have regard to the sentencing principles in s 109 of the Juvenile Justice Act. It was open to him to impose the maximum penalty only if the offence was within the worst category of offences of murder, although not necessarily the worst imaginable case.[3] In Twala[4] Badgery-Parker J (with whom the other members of the NSW Court of Criminal Appeal agreed) said:-

"However, in order to characterize any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)."

11 The same factors which led to the conclusion that this was a particularly heinous offence along with the absence of any objective mitigating factors lead us to the view that this offence was within the worst category of murders. Thus, it was open to the sentencing judge to impose the maximum penalty unless there were subjective features mitigating the penalty to be imposed.

12 D showed no remorse at all. His conduct after the death was macabre. He maintained his innocence even after the jury found him guilty and lodged an appeal against conviction. That appeal was not abandoned until shortly before the appeal on sentence came on for hearing.

13 It is not relevant to the determination of the appropriate sentence that had he been a few months older he would have been sentenced as an adult.[5] However, it is relevant that he was a boy of 16½ years of age who ought to have had a greater sense of right and wrong and a greater capacity for self restraint than a child younger in age. He was of high average intelligence. He had had somewhat of a troubled family and personal background. He was not suffering from any psychiatric disturbance, although there seemed to be two sides to his personality - to some he appeared gentle and caring, but his commission of this offence disclosed a darker side. The sentencing judge was entitled to have regard to the evidence of a psychiatrist that if D had committed this offence he was "presumably highly dangerous, unpredictable and someone who will on the one hand, deny doing it, while on the other hand drop hints that he has done it." The risk of danger to the community was properly taken into account in determining the weight to be given to subjective factors otherwise calling for leniency.[6]

14 In all the circumstances we consider that the sentencing judge did not err in imposing the maximum penalty. We would grant leave to appeal, and dismiss the appeal.

[2] This was the approach adopted by this Court in Gwilliams (CA No 414 of 1996, 31 October 1997) and Carroll (CA No 221 of 1995, 26 July 1995).

[3] See Ibbs [1987] HCA 46; (1987) 163 CLR 447 at 451-2; Veen [No. 2] [1988] HCA 14; (1988) 164 CLR 465 at 478 and Chivers [1993] 1 Qd R 432.

[4] (NSW CCA No. 60187 of 1993, 4 November 1994).

[5] R v Wilson ex parte Attorney-General of Queensland (CA No 85 of 1998, 18 September 1998).

[6] Veen [No. 1] [1979] HCA 7; (1979) 143 CLR 458; Veen [No. 2] [1988] HCA 14; (1998) 164 CLR 465. See also Juvenile Justice Act s 109(1)(a); R v Wilson ex parte Attorney General of Queensland (CA No 85 of 1998, 18 September 1998).