R v Fox [2003] VSCA 138

Court of Appeal (Vic)|2003-09-12|Before: CHARLES and CHERNOV, JJ.A. and ASHLEY, A.J.A.

CRIMINAL LAW - Sentencing - Kidnapping - Intentionally causing serious injury - Whether sentencing discretion vitiated by factual error in sentencing remarks - Whether error material - Whether addiction to prescribed medication and personal circumstances reduced moral culpability - Whether undue weight given to principles of specific and general deterrence - Whether head sentence of 9 years manifestly excessive - Whether non-parole period of 7 years manifestly excessive - Considerations applicable to non-parole period.

The appellant's life, as Chernov, J.A. has explained, has been a very tragic one. His early life was marred by the failed relationship between his parents. He was neglected and put aside, and forced to live, as the sentencing judge put it, as a "street kid". It seems that for a considerable time he lived by sleeping on couches at various homes with people he knew. Then, at the age of 15, he received appalling injuries when he was engulfed in a ball of fire when a gas bottle ignited. He suffered burns to 95% of his body and was grossly disfigured. He must have suffered the most acute and prolonged physical pain and discomfort, and very severe psychological scarring. It has reflected on his subsequent life in many ways, and has, without question, made it very difficult for him to cope with life's demands and his response to perceptions of people's attitudes to his disfigurement. It was in these circumstances that the judge in sentencing reasons recorded that it was in 1997 that the appellant found that his stepfather had committed suicide by hanging himself when he discovered the body hanging from a tree in the back garden of a house. The judge continued "This is a matter that has certainly not assisted you in your earlier years."

The appellant's case under ground 8 was that this was a material error which vitiated the sentencing discretion, because the fact was that the stepfather hanged himself not in 1997 but late in the year 2000. Chernov, J.A. has taken the view that it is unlikely that the judge would have forgotten the correct position which he had been told during the plea some twelve days beforehand, as Ms Pullen for the Crown submitted in this Court. I have some difficulty with this view, for there was no obvious reason for the year 1997 to have been inserted into the judge's reasons. For myself I would regard this as an error, and of some significance, and it is unfortunate, with respect, that the judge permitted the wrong year to be included in his reasons for sentence.

The question then becomes whether the error was material. For not every error appearing in a judge's sentencing reasons will vitiate the exercise of a sentencing discretion. For example, a mistake by a sentencing judge as to the maximum penalty for an offence will usually be a mistake of significance, but it may not be material to the sentence imposed. If the Court of Appeal is satisfied that the judge was not "steering by the maximum" in imposing sentence - see R. v. Morton[1]; R. v. RJE[2]; R. v. Sivov[3]; R. v. Issa Hamid[4] - the mistake will not result in the sentence being for that reason set aside. Here I think materiality is to be assessed by asking whether it was reasonably open that the judge might have passed a different sentence had his Honour not made the error as to the date of the stepfather's death.

In the present case I am inclined to agree with Chernov, J.A. that the judge's reference to the fact that the stepfather's death had certainly not assisted the appellant in his "earlier years" conveyed no more than that this was yet another burden that fell on the appellant, in addition to his other tragic experiences at that time, the effects of which no doubt were still felt when these offences were committed. With some hesitation, but also for the reasons Chernov, J.A. gives at [19] to [27], I agree that this error was not material to the sentencing disposition.

Save as aforesaid I agree entirely with the reasons of Chernov, J.A. As the sentencing judge said, the appellant's actions amounted to "a very cruel attack on a substantially innocent and much younger and smaller boy who was unable to effectively defend himself." The victim has suffered permanent injuries, he has a limp that prevents him from running, and he has significant psychological scarring. The torturing of the victim (for this is what it amounted to) lasted some hours. Even if I had been persuaded that sentencing error was to be found in the judge's reasons,

I would not have been minded, notwithstanding the sympathy I also feel for the appellant, to impose a different head sentence or lower non-parole period. Indeed it seems to me that the sentence was, in all the circumstances, a merciful one.

On 12 September 2002 the appellant, Martin Geoffrey Fox who is now aged 24 years, and his co-offender, Douglas John Kirk ("Kirk"), who is now aged 19 years, pleaded guilty in the County Court at Melbourne to a presentment containing one count of kidnapping Wayne Francis Simmonds, who was then aged 15 years, and one count of intentionally causing serious injury to Simmonds on 17 September 2001. The appellant admitted 68 prior convictions from 16 court appearances recorded between 16 June 1993 and 7 February 2000 for a range of serious offences to which I will refer later. The maximum penalties for kidnapping and intentionally causing serious injury were, respectively, 25 years and 20 years. On 12 and 13 September 2002 the learned sentencing judge heard pleas in mitigation made on behalf of the appellant and Kirk, in the course of which he received into evidence, amongst other material, a victim impact statement of Simmonds and a report dated 12 September 2002 of psychologist Michael Crewdson which was prepared on behalf of the appellant. Mr. Crewdson also gave evidence, as did other witnesses, on the appellant's behalf. On 25 September 2002, his Honour sentenced the appellant, to three years' imprisonment on count 1 and eight years' imprisonment on count 2. His Honour ordered that one year of imprisonment imposed on count 1 be served cumulatively upon the sentence imposed in respect of count 2, thereby imposing on the appellant a total effective sentence of nine years' imprisonment. His Honour also ordered that the appellant serve a period of seven years' imprisonment before becoming eligible for parole. The corresponding sentences of imprisonment imposed on Kirk in respect of the two counts were two years and three years respectively, with a total effective sentence of four years and a non-parole period of two years.

8 On 7 October 2002 the appellant filed a notice of appeal for leave to appeal against sentence, the grounds of which were amended pursuant to leave granted by the Registrar on 16 April 2003. The grounds, as amended, are as follows:

2. The Learned Judge failed to give any weight to the plea of guilty;

3. The Learned Judge failed to give any weight to remorse.

4. The Learned Judge failed to give any weight to rehabilitation, particularly given the youth of Mr. Fox.

5. The learned sentencing judge erred in the exercise of his discretion in that he gave too much weight to:

(i) the sentencing principle/objective of general deterrence;

(ii) the sentencing principle/objective of specific deterrence;

(iii) the sentencing principles/objectives of retribution and punishment.

6. The learned sentencing judge erred in the exercise of his discretion in that he failed to give sufficient weight to the reduced moral culpability of the Appellant.

7. The learned sentencing judge erred in the exercise of his discretion in that he failed to impose a sentence which gave sufficient weight to:

8. The learned sentencing judge erred in the exercise of his discretion in that he made an erroneous finding of fact in finding that the Appellant's step-father committed suicide "in 1997".

9. The learned sentencing judge erred in the exercise of his discretion in fixing a non-parole period of 7 years.

10. The learned sentencing judge erred in the exercise of his discretion in fixing a non-parole period which was only 2 years less than the Total Effective Sentence of 9 years' imprisonment.

On 4 April 2003 a judge of this Court granted the appellant leave to appeal pursuant to s.582 of the Crimes Act 1958.

The circumstances of the offending were these. On or about 9 September 2000, Simmonds stole the appellant's mobile telephone. When the appellant discovered a day or so later that it was Simmonds who was responsible for the theft, he punched him and demanded the return of his telephone. As a consequence, it was returned to him. Some days later, on 17 September 2000, the appellant, accompanied by Kirk, went to the victim's residence and when Simmonds came to the front door, the appellant told him that he had a firearm and directed him to get into his car. As soon as the victim got into the back seat of the car, which was immediately driven off, Kirk punched Simmonds on the nose. Simmonds was then transported to the appellant's premises where the appellant told him: "Welcome to your worst nightmare" and "Don't make me use the firearm". The appellant then proceeded to assault the 15 year old victim, who weighed approximately 35 kilograms, over a considerable period in a most brutal and sadistic manner. He ferociously punched and kicked Simmonds in the head on a number of occasions, causing his nose and right eye to bleed and then threw him on a couch. The appellant then fired at Simmonds two or three arrows from a bow so that the blunt-ended arrows bounced off his legs, causing him considerable pain. The appellant then dragged the victim from the couch and continued to punch and kick him. Eventually Simmonds lost consciousness and, while he was in that state, the appellant stabbed him several times in the legs and buttocks and at some stage whipped him with a dog chain and lacerated and dislocated his little finger.

Simmonds' body was then put in the boot of the appellant's car and was driven by the offenders to the premises of two female acquaintances to whom he produced Simmonds' unconscious body and told them: "This is what happens to people who steal from me". When the women saw Simmonds' injuries they arranged for him to be taken to the Austin Hospital where he was treated for a broken nose and cheekbones, broken bones to the right eye socket that required surgical intervention, bruising to both eyes which prevented him from opening his eyes for four days, bruising to the lower back consistent with being whipped with a chain, a stab wound in the buttock area and multiple stab wounds to the lower legs, some of which required surgical intervention to repair. Simmonds also had surgery on three lacerations to the left finger which had caused the bone to be exposed. This involved a partial amputation of that finger.

Simmonds remained in hospital for some 11 days, in the course of which, as I have said, he received surgical treatment for his finger and the fractures to his face. He had to undergo further plastic surgery to his finger, the tip of which was, as I have noted, amputated. At the time of the hearing of the plea in mitigation Simmonds still had a limp as a result of his injuries. Since the assault, he has been unable to run properly or resume playing sport. He said that he had a problem with his vision which was sometimes blurred and he had difficulty sleeping because of the terror he experienced during the assault. He was frightened at night and experienced nightmares. His Honour was satisfied that, after the assault, Simmonds had "moods" which impaired his relationship with his mother who was concerned about his wellbeing and that the incident had interfered with his education. His Honour was also satisfied that it was very likely that, given the severity of the attack and the necessary mental scarring that had been inflicted upon Simmonds, those problems would last for a significant period into the future and, to some degree, he might never be able to get over the nightmare of the ordeal that he had endured.

When the appellant was interviewed by the police on 18 September 2000 in relation to this matter, he denied his involvement in the attack. Kirk, on the other hand, made full and frank admissions to the police. He said that, during his attack on Simmonds, the appellant started "going off his head" and at some stage, he, Kirk, went outside the house because he was scared of what the appellant might do to the victim.

The appellant's personal life has been nothing short of tragic and it is difficult to imagine that it would not excite instant sympathy towards him. When he was still quite young, his parents had separated. Although his mother remarried, that relationship was marred by alcohol related problems and, in the result, he had progressively less and less contact with his mother and was effectively abandoned by her. The appellant was effectively "homeless" for a great deal of his childhood and adolescence due to his mother's not wanting him to live with her. Thus, not long after his mother remarried, the appellant boarded for a short time at a private school and when funds became unavailable to enable his education to continue there, he moved out and thereafter, from about the age of 12, he essentially lived in hostels and with various people whom he knew, on an ad hoc basis. The appellant left school at the earliest opportunity and commenced work in unskilled jobs. In 1994, when he was approximately 15 years of age, the appellant suffered shocking injuries as a result of a gas explosion that had occurred at his work place - he experienced burns to approximately 95 per cent of his body resulting in his experiencing intense physical pain and resultant facial disfigurement and psychological scarring. He spent three months in the burns unit at the Alfred Hospital and was then transferred to the Caulfield Rehabilitation Centre where he remained for a considerable time. During this period he became angry with the way he was treated at the hospital and absconded on a number of occasions, but was brought back each time. He had to undergo extensive and painful plastic surgery, including the fitting of artificial ears to his head, but his face nevertheless remained very badly scarred and disfigured. When he finally appeared in public, he was self-conscious about his appearance and was aggressive to those who he thought were staring at his disfigurement. As his Honour said, in order to bolster his self-esteem, he commenced taking medication but, as I will explain later, became addicted to it. As a result of the injuries that he suffered in that work accident the appellant was awarded compensation of $700,000.

Despite the fact that the appellant was, understandably, severely distressed during his treatment and thereafter, he rejected advice that he should have counselling and psychological help. In order to cope with his disfigurement and, in particular, the perception that he was constantly being stared at in public, the appellant took excessive amounts of benzodiazopin to which he became addicted. The evidence before his Honour suggested that, when taken in appropriate amounts, this drug acts merely as a tranquilliser but, if regularly taken in excess, it numbs the senses and may cause a lack of awareness in the subject as to the consequences of a release of pent up anger. After the accident the appellant formed a close relationship with his stepfather who, his Honour considered, became one of the few stabilising influences on his life. But the stepfather himself was not without personal problems which, it would seem, largely stemmed from alcohol abuse. According to the appellant's counsel, approximately one year before the offending conduct, the appellant went to his stepfather's house and became distressed when he could not find him. He apparently thought that his stepfather had rejected him. Eventually, however, he discovered his stepfather had committed suicide - he found his body hanging from a tree in the back garden of the house. It seems that this event had a detrimental effect on the appellant. He later used the compensation money to which I have referred to purchase his stepfather's house where he cut down all trees other than the one from which the stepfather hanged himself.

I now turn to deal with the grounds of appeal in the order in which they were argued.

Ground 8 was argued first. Under cover of that ground it was contended by Mr. Holdenson for the appellant that his Honour's sentencing discretion was vitiated by reason of his erroneous finding of fact that the appellant's stepfather committed suicide in 1997 and not, as was the fact, in the latter part of 2000 or, as counsel would have it, in early 2001. It was part of the appellant's case that the suicide of the stepfather "contributed and impacted upon his offending" and thus, it was said, the erroneous finding constituted a material error vitiating the sentencing discretion. In my view, however, this submission should be rejected. As I explain later, I doubt that his Honour erred in the way contended for by counsel and in any event, even if his Honour did so err, for reasons which will become apparent, I consider that any such error was not material to the sentencing disposition and, therefore, does not vitiate the sentencing discretion.

It is true that, in his Honour's sentencing remarks, it is said that it was in 1997 that the appellant discovered that his stepfather had committed suicide (and that it was "a matter that certainly had not assisted [him] in [his] earlier years"). It is also plain that the date so attributed to that event is wrong. This error occurred either because of a mistaken belief on his Honour's part as to when the stepfather committed suicide or because of an unintended displacement of the correct date by the judge or the transcriber. Given the following circumstances, however, I doubt that his Honour mistakenly believed that it was in 1997 that the appellant discovered the deceased body of his stepfather. First, during the hearing of the plea in mitigation his Honour was told by the appellant's counsel and by Mr. Crewdson respectively that this event occurred 12 months and "some months" prior to the offending. There is nothing in the transcript of the hearing that indicates that the judge misunderstood what he was told in that regard. Secondly, it can be assumed that his Honour read the transcript of Mr. Crewdson's evidence (as he said he would do[5]) so that he would have been reminded, after the hearing of the plea in mitigation, that the stepfather committed suicide at a point in time which was a number of years after 1997. Next, for the purposes of this case, no relevant event occurred in 1997 that might have caused his Honour to confuse the time when the stepfather committed suicide. Given those circumstances, I think it unlikely that his Honour would have forgotten what he was told as to when that event occurred, nor is there any apparent basis for thinking that his Honour became confused on that issue. Thus, as I have said, I think it is more likely that the reference in the sentencing remarks to "1997" is the result of an unintentional displacement of the correct date by the sentencing judge or the consequence of an error in transcription. I should add that, in my view, the reference in this part of his Honour's sentencing remarks to "earlier years" was probably intended by him to convey no more than that the stepfather's death was yet another burden that fell on the appellant, in addition to his tragic experiences of his earlier years.

Having said that, however, I do not have to resolve this particular issue because, as I have mentioned, I consider that the alleged error was not material to the sentencing disposition. The question whether an error is material depends primarily on whether, had the judge known of the true situation, it is reasonable to suppose that a lower sentence would or might have been imposed. Thus, for example, in Kovacevic v. Mills[6] the magistrate had wrongly sentenced the appellant on the basis that his offending continued until he was detected whereas in actual fact, he had stopped claiming benefits (for which he was not entitled) some two months before his offending was detected. The South Australian Full Court said[7] that this was a material mistake because it was likely that it would have affected the magistrate's approach to sentencing and, accordingly, the sentence was set aside. Similarly, where a sentencing judge mistakes the maximum penalty applicable to the offence in question, the appellate court ordinarily does not treat the error as material unless the impugned sentence was relevantly governed, or "steered", by the erroneous maximum penalty so that it is reasonably plain that a lower sentence would or might have been imposed had the judge been aware of the correct maximum penalty.[8] In this case I consider that, given the circumstances described below, if his Honour had realised that the stepfather had died in the latter part of 2000 as the appellant's then counsel told his Honour, it could not be reasonably said that it would or might have affected the sentences that were imposed.

An important plank in the appellant's case before his Honour was that his criminal or moral culpability for the offending was reduced because of the effect that his excessive consumption of benzodiazopin had on his fragile psychological make up which was the product of his unfortunate life experiences, namely, his dysfunctional upbringing, his terrible injuries and the effect on him of his stepfather's suicide. It was said that this made him a "walking time bomb" so that, if provoked, he could "explode" with manifest aggression, if not violence. Thus, although the effect of the stepfather's death was a factor that shaped the appellant's psychological profile, it is apparent from the submissions put on the appellant's behalf to the learned sentencing judge and from the evidence led in support of his case, particularly that of Mr. Crewdson, that it was the appellant's excessive drug taking that was said to "drive", or to be primarily responsible for, or explanatory of, his aggressive disposition and offending conduct. Indeed, as will be seen later, in his argument under cover of grounds 4 to 7, the appellant's counsel emphasised to us that it was the appellant's addiction to, and excessive consumption of, benzodiazopin that was causative of his offending conduct.

As I have said, Mr. Crewdson was the appellant's main witness on this issue. He sought to explain to his Honour, amongst other matters, the relationship between the appellant's excessive drug consumption on the one hand and his aggressive disposition and offending conduct on the other. Thus, he told his Honour that he estimated from what he had been told, essentially by the appellant, that he took approximately 300 milligrams of benzodiazopin daily and that, in his opinion, such an excessive intake of the drug effectively "disinhibited" him and placed him in a "disassociated state". The witness went on to explain that this would have resulted in a breakdown of "ordinary control" and "allowed the flood gates to open". Mr. Crewdson said that, in his view, the telephone incident was "the straw that broke the camel's back" - it triggered "the bomb".

I should mention that Mr. Crewdson's evidence as to whether the appellant's drug taking and psychological make-up were explanatory of his behaviour was not wholly unequivocal. Thus, he agreed with the sentencing judge that it was open to take the view that the appellant's conduct was no more than a "night out" to bully a person against whom the appellant had a grudge. And in cross-examination the witness agreed with counsel for Kirk that there was a fierce determination by the appellant to inflict very considerable injury to the victim, while he was unconscious and had no chance whatsoever of defending himself and that his conduct could be interpreted as being that of a person who was determined to prove to others his retribution on someone who had given him offence. But equally, said the witness, it could be said that the victim was regarded as an object of all the anger, hurt, humiliation and loss that the appellant had experienced and that he was going to look like that as well. The witness qualified this by saying, "But I mean, that's obviously surmise".

Throughout the presentation of the appellant's case, his Honour made it clear to his counsel that he was troubled about some aspects of it. Relevantly for present purposes, the judge pointed out, rightly, I think, that there was no specific evidence before him as to precisely what tablets the appellant was taking at the relevant time and in what quantities. Notwithstanding these observations from the Bench counsel took this matter no further, probably because he was not able to do so.

It was in that context that his Honour summarised to counsel what he considered to be the gist of Mr. Crewdson's evidence, namely, that the appellant had an unstable history, suffered a terrible injury at work, over indulged in Valium to blot out disappointments with his disfiguration which led him to be in a state of anger and that on the day in question his consciousness was clouded. It is relevant to note that, although no mention was made by his Honour in that summary of the effect on the appellant of the stepfather's death, his counsel did not seek to disagree with, or correct, the judge's understanding of the essence of Mr. Crewdson's evidence. In his sentencing remarks, his Honour effectively accepted the thrust of the appellant's case. The judge said that the appellant became addicted to the "prescribed medicine" and that he consumed it in order to alleviate the distress that arose from his disfigurement. The drug, said his Honour, had "disinhibited" him and "to some degree [explained his] actions on the night."

Thus, it seems to me that it would have been apparent to the judge that, on the appellant's case, the impact on him of his stepfather's death was not a critical factor that was explanatory of his offending. Indeed, it is difficult to see how it could have had that status given that, on the evidence, it was unclear how, or to what extent, the appellant was affected by that event at the time of the offending. In the circumstances, therefore, I consider that it could not be reasonably said that, had the judge known the correct date of the stepfather's suicide, it would or could have affected his sentencing disposition.

Consequently, assuming that his Honour erred as is contended for by the appellant, for reasons that I have given, I consider that the mistake was not material to the sentencing disposition and therefore, it does not vitiate his Honour's sentencing discretion. It follows that in my view, ground 8 must fail.

These grounds essentially assert that, in the exercise of his discretion, the learned sentencing judge failed to give sufficient weight to matters such as

- the appellant's prospects and process of rehabilitation, particularly given his youth

and gave too much weight to the principles of special and general deterrence, retribution and punishment.

The grounds are, in my view, but particulars of the manifest excess ground (which is ground 1). Be that as it may, a great deal of argument under these heads was directed towards the claim that the appellant's level of moral culpability in respect of the offences was reduced because his addiction to benzodiazopin, which relevantly affected his conduct, was not self-induced but arose out of his attempt to use the drug to deal with his distress which arose from his disfigurement. Thus, it was said, his Honour should have given only limited weight to the sentencing principles of punishment and retribution. It is convenient to mention at this point that, although his Honour did not, in terms, refer to those sentencing principles, as Mr. Holdenson correctly pointed out, that the judge took them into account in the sentencing disposition is necessarily implicit in his sentencing remarks.

In support of his contention counsel cited Talbot v. R.[9] and R. v. McKee & Brooks[10]. There, the crimes were committed, in the case of Talbot, to enable the offender to satisfy his craving for pethidine and in the other case, to finance the purchase of drugs to which the offenders were addicted. Although Mr. Holdenson accepted that the facts in those cases were distinguishable from the present, he argued that the principle recognised by Buchanan and Vincent, JJ.A. in McKee[11] applied to the present case. It was said that their Honours effectively accepted that, where the drug addiction was causative of the crime, the sentencing judge may have regard to the circumstances which led to the addiction for the purpose of assessing the offender's moral culpability in respect of the offences and thus, determining the extent to which retribution and punishment are applicable sentencing principles. Counsel argued that the appellant's addiction to benzodiazopin was causative of the offending and, therefore, the fact that this addiction was not, in any relevant sense, voluntarily induced, lessened his moral culpability in respect of the offending.

I doubt, however, that the appellant's addiction to benzodiazopin could be said to have been causative of his offending as counsel has submitted. His addiction seems to have been very important in explaining his criminal conduct, but it does not follow that there was a relevant link between the addiction and the crime.[12] Be that as it may, it is plain, as I have said, that his Honour did have regard, for sentencing purposes, to the appellant's addiction to benzodiazopin - a drug which had been prescribed for him in order that he might be better able to cope with his disfigurement. Thus, his Honour took into account, for sentencing purposes, not only that the appellant was addicted to benzodiazopin, but also the circumstances which led to his addiction. And there is nothing in the sentencing remarks which indicates that he gave these circumstances insufficient weight when assessing the appellant's moral culpability or when determining the operation of the principles of retribution and punishment.

Counsel's contention that his Honour gave undue weight to special and general deterrence was based in part on the claim that they were the only, or the only key, sentencing principles that his Honour took into account in determining the sentencing disposition. It was pointed out that his Honour emphasised in his sentencing remarks the relevance of special and general deterrence, but made no mention of other sentencing principles such as protection of the community.

It is plain that, given the nature of the appellant's criminal conduct, specific and general deterrence were important sentencing principles as was recognised by the appellant's counsel at the hearing of the plea in mitigation. The appellant's personal circumstances, including his excessive consumption of the drug had to be, and were, properly taken into account by the sentencing judge as mitigating factors, albeit not to the extent where specific and general deterrence became materially less significant. It is also clear enough that, in determining the sentences, his Honour had regard to the need to protect the community. Counsel contended that since his Honour did not mention this important sentencing consideration he probably did not have regard to it, notwithstanding that the principle was discussed during the hearing of the plea in mitigation. Counsel argued that the hearing took place some 12 days before the sentence was imposed, implying that the matter passed from his Honour's mind by the time he came to sentence the appellant. I must reject this contention. First, the judge was not bound to refer to every sentencing principle which he took into account for the purpose of determining the sentencing disposition.[13] Secondly, it seems to me that it is almost inconceivable that this experienced judge would have forgotten to take this principle into account when structuring the sentence. Not only is it obvious that, in the context of this case, it is of considerable importance, but it was discussed during the hearing. Furthermore, in cross-examination, Mr. Crewdson did not quarrel with the proposition that the offending raised the issue of protection of the community. Moreover, his Honour reminded counsel that this witness said that the appellant was a danger to the community and invited submissions on that issue. Given those circumstances, it borders on the inconceivable, as I have said that his Honour would have overlooked this sentencing principle.

Thus, in my view, given the circumstances to which I have referred, there is no basis for the claim that his Honour gave excessive weight to special and general deterrence.

As to the appellant's prospects of rehabilitation, it seems to me that, given Mr. Crewdson's evidence that his prospects in that regard were not sound and that he was a danger to the community, the judge was well justified in concluding that the appellant's prospects of rehabilitation were poor.

There is also no substance in the claim that his Honour did not have present to his mind that the appellant was a relatively young person. In the course of the hearing of the plea in mitigation, the appellant's youth was extensively canvassed by the appellant's counsel and his Honour said specifically in the course of argument that considerations of youth were still applicable to the appellant.

For these reasons, I consider that the above grounds must also fail.

It was next argued under cover of grounds 2 and 3 that the judge failed to give any weight to the appellant's plea of guilty and to his remorse. Again, I think those arguments are nothing but particulars of the manifest excess ground. In any event, I think that they cannot be accepted. His Honour noted the appellant's plea of guilty at the outset of his sentencing remarks and the matter was canvassed before the judge by the appellant's counsel. It is plain, therefore, that his Honour took this important mitigating factor into account in determining the sentencing disposition. I add for completeness that there is nothing in his Honour's sentencing remarks to indicate that his Honour did not give sufficient weight to this mitigating factor.

It was also claimed that there was evidence led on the plea that the appellant was both regretful and remorseful in respect of his offending. But that must be put in context. The transcript to which reference was made in support of this claim contains only hearsay evidence from Mr. Crewdson to the effect that the appellant regarded the offence as an "awful offence", although he had no "real memory of what he did". His Honour would have been entitled to take the view that there was little by way of evidence before him that the appellant had displayed true remorse for his offending and, not surprisingly, this point was not pressed by his counsel during the hearing of the plea in mitigation. In the circumstances, it seems to me, it cannot be said that his Honour's discretion miscarried because he failed to give any weight to the appellant's remorse.

Under cover of grounds 1, 9 and 10 it is claimed that the sentence is manifestly excessive, as is the non-parole period. I deal first with the claim that the sentence is manifestly excessive. This raises the question whether the sentence is outside the range of sentences properly available to the sentencing judge, or put another way, whether it is wholly disproportionate to the crimes committed. It is not a question what sentence this Court would have imposed had it been in the shoes of the sentencing judge. His Honour's task was to fix a sentence which properly reflected the gravity of the offence and the offending, taking into account matters personal to the respondent, including mitigating factors, as well as the applicable sentencing principles. In my opinion that his Honour did this is clear from his sentencing remarks. The offences here were of a most serious kind, that being reflected in the maximum penalties prescribed for them by Parliament. As to the offending that was, as the prosecutor had submitted to the sentencing judge, at the upper, rather than the middle or lower, end of the scale. That the conduct was of a very serious nature, was not disputed. Furthermore, the appellant's serious prior criminality[14] was relevant to the sentencing disposition and in particular to questions of remorse and prospects of rehabilitation.[15] Similarly, that the evidence from the appellant's own witness indicated that his prospects of rehabilitation were not sound and that there was a risk that he might re-offend, were matters of considerable importance in determining the appropriate sentence. In that context, the principles of general and specific deterrence, denunciation, retribution and the protection of the community were relevant sentencing dispositions.

In my view, when these aggravating factors are balanced against the mitigating circumstances to which I have referred, it cannot be said that any of the two individual sentences or the total effective sentence is disproportionate to the criminality of the offending.

It was said for the appellant that, in any event, the non-parole period is manifestly excessive. The period is comparatively long, it was argued, yet the judge did not give reasons for the adoption of such an unusual course and, in the circumstances, it was said, his Honour's sentencing discretion in that regard miscarried. In this respect counsel referred to R. v. Krasnov & Shlakht[16] (total effective sentence 16 years, non-parole period of 14 years) and to the more recent decision in R. v. Danaher[17] (total effective sentence eight years, non-parole period six and a half years) where the question of whether the non-parole period was "unusual" was discussed. In the former case, the court considered that the non-parole period was "unusual", although it recognised that, of itself, this did not warrant appellate intervention. But the sentencing judge in that case gave no specific reason for fixing such a non-parole period and this Court did not discern a good reason for doing so. In the circumstances, it reduced the head sentence to 14 years' imprisonment and the non-parole period to 11 years. In Danaher this Court considered that the non-parole period of six and a half years should be reduced to five years on account of fresh evidence.

The non-parole period is a minimum term fixed by a sentencing judge that a prisoner must serve having regard to all the circumstances, including the requirements of justice and, for that reason, cannot be automatically fixed by a mechanistic or formulaic approach.[18] It is true that a non-parole period which is properly regarded as unusual in the particular circumstances of the case may invite scrutiny by the appellate court, as Callaway, J.A. pointed out in Harkness, particularly where the sentencing judge does not provide reasons for such a disposition, although it seems clear enough that mere failure to give reasons for fixing such a period does not inevitably "betoken error".[19] Whether a non-parole period is to be regarded as "unusual" must depend on the circumstances of the case. In my view, the long non-parole period in this case is not "unusual" given the following matters. First, for the reasons I have given, it was appropriate for his Honour to have fixed the head sentence and the non-parole period, in part having regard to the need to protect the community. Secondly, as I have also explained, the appellant's prospects of rehabilitation were poor and in that context, I refer again to his serious criminal history. In those circumstances, the non-parole period cannot be properly regarded as being so unusual as to invite, on that basis alone, appellate scrutiny.

In support of the appellant's case counsel also pointed to the fact that the co-offender's non-parole period was only 50 per cent of the head sentence and, although the point was not sought to be put in the context of a parity argument, it was submitted that it demonstrated in relation to the appellant that the gap of approximately 20 per cent between the head sentence and the non-parole period was unduly short. But I consider that the sentences imposed on Kirk do not demonstrate the error for which counsel contends. The circumstances applicable to the co-offender for sentencing purposes, including the non-parole period, were patently different from those that were relevant to the appellant's sentencing disposition.

On the question of rehabilitation, which is clearly relevant to the non-parole period, Mr. Holdenson pointed to Mr. Crewdson's evidence that the appellant needed therapy and that, if it were made available to him, there was a chance that he would be rehabilitated. Such evidence is, in one sense, unsurprising. Hopefully, proper treatment, when required, always or nearly always brings with it a chance of rehabilitation. Nevertheless given Mr. Crewdson's other evidence as to the appellant's poor prospects of rehabilitation, his criminal history and the importance of the sentencing principle which calls for the protection of the community, it is difficult to quarrel with his Honour's decision that it was more appropriate that the appellant receive proper treatment whilst under supervision in custody. In this respect, I am mindful of the observation of King, C.J. in Yardley v. Betts[20] that to say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. The learned Chief Justice also emphasised in that case that the protection of the community is also contributed to by the successful rehabilitation of the offender and that this is of particular importance in the case of first offenders and others who have not developed settled criminal habits. In my opinion, these views do not demonstrate relevant error on the part of the sentencing judge here.

As to the claim that the non-parole period is manifestly excessive, for the reasons given, I think that this claim must be rejected. Importantly, I consider that in fixing the minimum term the sentencing judge has not been unduly influenced by the considerations which bore on the fixing of the head sentence as distinct from the non-parole period.[21]

Consequently, I think that grounds 1, 9 and 10 should fail.

I should say that, even if I considered that the mistake contended by the appellant's counsel under ground 8 had or might have influenced the sentences actually passed, I would not be of the opinion that different sentences or different non-parole periods should be imposed.

For the above reasons, I consider that the appeal should be dismissed.

Whilst I agree with Charles and Chernov JJA that this appeal should be dismissed, I do so on a somewhat different footing to their Honours. In my opinion the learned sentencing judge made the erroneous finding of fact which is complained of by Ground 8 of the grounds of appeal. In that conclusion I agree with Charles JA. I further consider, and in this I respectfully disagree with the conclusion reached by Chernov JA, agreed in by Charles JA, that the error was material. In my view it is at least reasonable to suppose that a lower sentence might have been imposed had the judge appreciated the true situation.

"I am told that whilst your mother has in effect had little to do with you over the years and may well have been callous in her attitude towards you when you were burnt, you have had close contact with your stepfather. He was one of the stabilising influences in your life. However, in 1997, you went to the address in Queen Street which was formerly his address and found that he had killed himself by hanging himself from a tree in the back garden. That is a matter that certainly has not assisted you in your earlier years."

It seems to me pretty clear that his Honour's reference to the year 1997 was no mistake. For immediately following his recounting the episode he said: "That is a matter that certainly has not assisted you in your earlier years". The "that" is sensibly a reference to the incident in which the appellant found his stepfather hanging from a tree; an event which deprived the appellant of the stabilising influence to which his Honour referred. Now, "earlier years" had a rational meaning if the incident had occurred four years or more before the commission of the instant offences in September 2001, and five years or more before sentencing. But it makes no sense for the judge to have spoken of an effect in "earlier years" if he had appreciated that the stepfather had suicided within 12 months prior to the commission of those offences.

Upon the question whether the error was material - in the sense that it is reasonable to believe that the sentencing judge would or might have passed a lesser sentence had the error not been made - it is necessary to focus upon the judge's reasoning. The gist of the passage in his Honour's remarks which I have set out was, I think, this: The stepfather had been a stabilising influence in the appellant's disordered life. Then the appellant had found the stepfather's body after the latter had committed suicide by hanging himself. That discovery, viewed in the context that the stepfather's death had deprived the appellant of a stabilising influence in his life, had "not assisted" the appellant in "earlier years". The detrimental impact of those events, however, was spent when the appellant committed the instant offences - witness the use of the past tense in describing their impact; and note also his Honour's later remark that "your instability in life and the subsequent injuries that you suffered in 1994 would have adversely affected your personally."

Given his understanding of the chronology, the judge was able to put to one side the fact and circumstances of the stepfather's death and the deprivation of the stepfather's stabilising influence as matters possibly bearing upon the appellant's bizarre and cruel conduct in the commission of those offences. But if he had appreciated the true situation, I consider that there is at least a reasonable possibility that his Honour would have considered the death, its circumstances, and the appellant's loss of his stepfather's stabilising influence, to provide some explanation going in reduction of the appellant's culpability for the instant offences. For the offences would have been committed within a period during which, according to his Honour's finding, the death and its consequences were having an adverse impact upon the appellant. It may be noted in this connection that upon the judge's understanding of the chronology many of the offences of which the appellant was convicted after 1997, some involving violence, must have been committed after the stepfather's death; that is, as the judge understood it, at least in part during a period when the effects of the incident were operative on the appellant.

The reasonable possibility that the judge would have passed a different and lesser sentence exists, in my view, despite the fact that the plea focused upon the alleged effect of the drug which the appellant was said to have been taking to excess at the time of his offending, an effect potentiated by his multiple psychological scars. Had the judge appreciated the true chronology, a psychological scar of recent prominence was the stepfather's suicide and its implications for the appellant.

It is one thing to conclude that there was a material error in the exercise of the sentencing discretion. It is another question whether a different sentence should have passed. I would answer that question "no". That is so with respect to the individual sentences, cumulation, and the non-parole period. In my opinion there was no error in the sentencing process other than in respect of Ground 8. There was, I consider, powerful reason for the judge to impose the sentence that he did. In substance, Chernov JA explains why that is so in his Reasons at [26]-[44]. I respectfully agree with that analysis. This was a case in which many matters were pertinent in the sentencing process. From my perspective, which is not identical with that of the sentencing judge, the matter concerning which I consider his Honour fell into error does not so weigh in the balance as to dictate a different sentence.

[5] See R. v. Watts [1998] 4 V.R. 244 at 247 per Charles, J.A.

[7] At 407 per Doyle, C.J., Mullighan, Bleby and Martin, JJ. and at 422 per Williams, J.

[8] See, for example, R. v. Chau, unreported, 31 July 1991, Court of Criminal Appeal, Crockett, McGarvie and Phillips, JJ.; R. v. Maher, unreported, 18 March 1998, Court of Appeal, Winneke, P., Tadgell and Callaway, JJ.A. and R. v. RJE [1999] VSCA 79 at [12] per Brooking, J.A.

[10] [2003] VCA 16 at [12], [13], [21] and [23].

[11] At [13] and at [21] respectively.

[12] See R. v. Bernath [1997] 1 V.R. 271 at 276 per Callaway, J.A. with whom Winneke, P. and Brooking, J.A. agreed.

[13] See R. v. Roy [2001] VSCA 61; (2001) 119 A.Crim.R. 147 at 149 per Tadgell, J.A.; R. v. Brooks [2000] VSCA 188 and R. v. Gillick [2001] VSCA 201.

[14] The appellant's offending after 1994 which involved violence demonstrates an escalating level of such conduct: 16 May 1997 - unlawful assault and assault by kicking; 11 June 1997 - assaulting a police officer in the lawful execution of duty; 17 September 1997 - assault with a weapon; 18 March 1999 - reckless conduct endangering life, causing wilful damage and possessing a firearm without a licence; 7 June 2000 - making a threat to inflict serious injury.

[15] R. v. O'Brien & Gloster [1997] 2 V.R. 714 at 718-721 per Charles, J.A., R. v. O'Connor [1999] VSCA 55 and D.P.P. v. Wareham [2002] VSCA 110; (2002) 5 V.R. 439.

[18] See, for example, R. v. MWH [2001] VSCA 196 at [22] per Callaway, J.A. and the cases there referred to and R. v. Harkness [2001] VSCA 87 at [24] per Callaway, J.A.

[19] R. v. VZ [1998] VSCA 32 at [12], [13]. See also R. v. Watts [1998] 4 V.R. 244 at 246-247 per Charles, J.A. with whom Phillips, C.J. and Batt, J.A. agreed.

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