R v D J H [1998] VSCA 108

17. On the plea it was conceded by the applicant's counsel that part of the motivation for the murder was the victim's complaints of sexual assaults. The judge found that the primary motivation was the victim's sexual allegations against the applicant. In my opinion the evidence made the conclusion inescapable that the complainant was murdered because she had made these very serious allegations against the applicant. The applicant's statement to his sister that he was "not going to do 20 years because of her [his stepdaughter]" tells us something about what he thought the consequences of conviction might be. He said to his de facto wife that he knew he was going inside.

20. On 22 March 1998, the day before he was to be arraigned on the charge of murder, the applicant was found unconscious in his cell, having the night before attempted suicide by injecting himself with heroin. When the plea was heard the following month, evidence was put before the judge on his behalf from a psychiatrist, Dr Walton, and a psychologist, Mr Healey. The judge found that at the time of the killing the applicant was suffering from severe depression. He had been treated by a general practitioner for depression from at least the time when the complainant left home. The judge found that the applicant had become much more depressed after he had been served with the hand-up brief in November 1996 and that his condition had worsened in April and May 1997 as the committal approached. It is clear that to a very considerable extent the applicant's condition by the time of the killing was attributable to the complainant's allegations and the resulting prosecution.

23. The applicant had one prior conviction, for dishonesty, which the judge rightly disregarded. He had a disadvantaged background, which his Honour summarised in his reasons for sentence but which I feel bound to say does not seem to me to be a matter to which great weight should be given in the circumstances of the present case. Neither the grounds of appeal nor Mr Tehan, who appeared for the applicant in this Court, placed any specific reliance on that matter.

26. There is nothing in the material to suggest any true remorse, and so the judge said.

29. Mr Tehan argued that the sentence was manifestly excessive having regard to the depression from which the applicant was suffering at the time of the offence and from which he was still suffering at the time of sentence, the fact that some part, at all events, of the sentence would be served in protective custody, the early plea of guilty, the lack of relevant prior convictions and the age of the applicant, an age which, Mr Tehan said, meant that the applicant would spend most, if not all, of his remaining life in custody. The reasons for sentence show that the judge took all these things into account. It is said that the judge gave undue weight to general deterrence. There being nothing in the reasons for sentence to support this view, the submission must depend on the impression which the Court forms of the sentence in the light of relevant matters. The same may be said of the things to which the judge is said to have given not too much but too little weight: since the judge mentioned them all and plainly took them into account, the real question becomes whether the sentence strikes the Court as manifestly excessive.

32. I shall say a little about two or three of the matters specifically relied on. As regards the applicant's condition of depression at the time of the killing, it must be borne in mind that this was in large part due to the allegations and charges that had been made and laid against him. He had been brought to the state of mind that he "was not going to do 20 years because of her". It is unrealistic not to accept that the pending proceedings against him were the main external factor affecting his emotions. And the judge so found. As regards the applicant's present state, that must to a very considerable extent be the product of his own crime - by which I mean of course the killing - and the events which led up to that crime. As regards the plea of guilty, while the strength of the Crown case does not deprive the plea of relevance, it is none the less a material consideration. And, although the community has been spared the cost of a trial, and witnesses have been spared the pain often associated with the need to give evidence, the plea of guilty to this charge of murder cannot be compared in its consequences with the sparing of pain by such a plea in a case of incest. One comes back to the fact that the applicant's method of solving the problem of that criminal litigation was to shoot the one essential witness against him. (Of course I do not overlook that he then proceeded to shoot himself.) Still, the applicant is entitled to appropriate credit for his plea; but I myself would regard it as a matter of small weight.

35. This was a dreadful crime. I am far from persuaded that the sentence passed was manifestly excessive. The head sentence was of 24 years. On the hearing of the plea the Crown suggested that consideration should be given to life imprisonment, coupled with the fixing of a minimum term. I can perhaps best express the strength of my view that the sentence actually passed was not manifestly excessive by saying that, had I been the sentencing judge, I would have passed a sentence of life imprisonment. It is not to be thought that a plea of guilty will necessarily and in all circumstances save a murderer from life imprisonment. Of the correctness of that proposition I have no doubt whatever. I will add that I also have no doubt that a plea of guilty will not necessarily and in all circumstances save a murderer from a sentence of life imprisonment without possibility of parole.

38. The sentence of life imprisonment, even if a non-parole period is fixed, is a dreadful one and one which will be passed only after the most anxious consideration. I have long been of the view, however, that life sentences for murder in this State have become more rare than they should be, having regard to the number of dreadful murders which come before the court. Very early in the days of the power conferred upon sentencing judges to pass finite sentences for murder the new legislation was considered in a most authoritative decision, that of the Court of Criminal Appeal in R. v. Dumas [1988] VicRp 8; [1988] V.R. 65. I describe the decision as most authoritative because the draft judgment was, some time before its delivery, circulated to all members of the Court to give them an opportunity of making observations upon it. The same course was adopted with the draft judgment in R. v. Stone [1988] VicRp 19; [1988] V.R. 141, which was delivered on the same day. This is the only occasion of which I am aware in the history of the Court where such a course has been taken. In Dumas, at 71, the Court said this:

"The crime of murder is a crime of the utmost gravity. In our opinion, it does not admit of categorizing each offence into degrees of gravity. While the new legislation will permit courts to sentence persons convicted of murder to terms of years and even to fix relatively low minimum terms in appropriate cases having regard to various facts which may be taken into account in mitigation of the penalty, nevertheless, the sentence of life imprisonment will still be appropriate for a wide variety of deliberate criminal killings."

42. It seems to me, if I may say so, that on occasions sentencing judges have not given sufficient weight to the observation that the sentence of life imprisonment will still be appropriate for a wide variety of deliberate criminal killings. Of course the Court of Criminal Appeal went on immediately to observe that the exercise of the power to fix a minimum term was a means whereby an indeterminate sentence might be converted into a finite one. The power to fix a non-parole period has more recently been considered by this Court in R. v. Coulston [1997] 2 V.R. 446 and R. v. Lowe [1997] 2 V.R. 465.

45. So far as the present case is concerned, reference to the Australian Life Tables 1990-92 prepared by the Office of the Australian Government Actuary (which reference counsel appearing before us accepted was permissible) shows, as a mere matter of statistics, the expectation of life of a 52-year-old male to be 25.71 years.

48. The Court will in general be more reluctant to pass a sentence of life imprisonment on a young offender, for the obvious reason that, the younger the offender, the more severe that sentence will, speaking generally, be. I venture to repeat what was said by this Court in Lowe at 486:

"The younger the offender, the more severe a sentence of life imprisonment will in general be, for the obvious reason that in the ordinary course of events the length of the term of imprisonment to be served depends upon the age of the offender. Accordingly it must be and always has been recognised that in the determination of whether a sentence of life imprisonment is appropriate the offender's age is a relevant and indeed important consideration. It has similarly been recognised that in the determination of whether it is inappropriate to fix a non-parole period for a person sentenced to life imprisonment the offender's age is relevant and important ... ."

52. The Court went on to observe in Lowe, at 490, that the age of the offender was relevant not only to the determination of whether he or she should be denied the possibility of parole but also to the determination of the length of the non-parole period where one was being set.

55. Mr Tehan argued that there was insufficient disparity between the head sentence and the non-parole period in the present case. He relied on what he suggested was the "usual" proportion borne by the non-parole period to the head sentence, and he placed much emphasis on the plea of guilty. He rightly pointed out that the applicant's attempt at suicide immediately after the killing showed that this was not to be equated with the killing of a witness by one who hoped to escape conviction for the killing. Notwithstanding Mr Tehan's submission, I am, having regard to all the circumstances of this case, not persuaded by his argument.

62. I agree that this application should be dismissed, and for the reasons given by the presiding judge. I express no opinion on what sentence I would have passed had I been the sentencing judge. It is sufficient that I am quite clear that the sentence imposed was not manifestly excessive and, despite the arguments of counsel, that the exercise of the sentencing discretion did not miscarry. In particular, I agree that there is no basis for disturbing the fixing of the non-parole period.

66. I agree with all that Brooking, J.A. has said. I would add only that, in my view, not only was the sentence imposed not excessive, it was a merciful one. Had I been the sentencing judge, I, like Brooking, J.A., would also have imposed a sentence of life imprisonment. This murder was long premeditated and carefully planned, in response to the victim's very serious allegations against the applicant and to avoid having to face those allegations and due process of law. As the Director of Public Prosecutions has submitted, the applicant's crime strikes at the very heart of the criminal justice system.

73. The order of the Court is that the application is dismissed.