R v Gregory [2000] VSCA 212

5. At the time of the shootings, Tamara, the daughter of the appellant and his wife and then aged 13, was in her room at the house and attended to her mother following the shooting. Not surprisingly, she has been much affected by the events which occurred.

8. Upon the hearing of the plea, the appellant admitted convictions arising out of one previous event which occurred in October 1990. Although he received a suspended sentence of 3 months' imprisonment for those offences, their circumstances had relevance to the sentences to be imposed on this occasion. They involved the use of a firearm in the presence of his former wife after she had rejected his entreaties to resume her matrimonial relationship with him.

11. After hearing a plea in mitigation of penalty his Honour sentenced the appellant to be imprisoned for 24 years on the count of murder, and 8 years on the count of intentionally causing serious injury to his wife. The judge directed that 3 years of the sentence imposed on the latter count be served cumulatively upon the sentence for murder. The total effective sentence was therefore one of 27 years; and his Honour ordered that the appellant serve a term of 22 years before being eligible for parole.

14. Pursuant to leave granted, the appellant appeals against the sentences imposed upon a number of grounds. Before turning to those grounds, it is desirable to refer briefly to the material which was before the judge.

17. The appellant had been living in Australia for a little more than 30 years when these shootings occurred. He came to Australia from the United Kingdom when he was 20 years of age. He brought with him his first wife to whom he had been recently married. He had limited education and devoted his life in this country to working on various properties in rural Australia as a station hand. As he told the police, he has seen "nearly two-thirds of outback Australia from the back of a horse". He has two daughters and a son from his first marriage, each of whom is now independent. There was no dispute that he has been a hard worker, but it is clear that the itinerant life-style, combined with aspects of his personality, has brought pressure on his family life. His first wife separated from him in or about 1980, an event which he apparently found difficult to accept and which culminated in the events leading to the previous convictions in 1990. Nevertheless, in 1982, he commenced to live with Cheryl Anne Powell whom he ultimately married in or about 1990 after his first wife had divorced him. At the time when he started to live with Cheryl Anne, she had one daughter, the deceased Yvonne, who was then four years of age. There was, it would seem, a dispute over the custody of Yvonne but, from 1986, the appellant and Cheryl Anne lived as man and wife with Yvonne and Tamara, who was born in 1985. For the most part, they lived on a property at Willowvale in western Victoria where the appellant was working. In 1996, he and his wife purchased their own small farm property at Linton, where these offences occurred. It appears that their life has been difficult, at least since 1994 when Cheryl Anne was involved in a motor vehicle accident, as a result of which she suffered serious injury which deprived her of her earning capacity. Shortly after purchasing their property, the appellant lost his job and was in receipt of unemployment benefits. For some time before these shootings, the appellant's wife had been taking anti-depressant medication prescribed by her doctor - Dr. Wood - some of which, on Dr. Wood's authority, she had been providing to the appellant for about a week prior to the shootings. In mid 1998, Yvonne was encouraged by the Commonwealth Employment Service to move to Ballarat to take advantage of opportunities to further her education and employment prospects. This she did, taking up residence in a unit in Sebastapol and seemingly enjoying the freedom which it afforded her. Her enjoyment, however, was matched by the intensity of the appellant's disapproval of what he regarded as her licentious life-style characterized - as he told the police - by "whoring around", and "opening the door and her legs to every bloody kid who came around".

20. Precisely what triggered the double shooting on the night of 20 August 1998 is not clear. One of the victims is dead and the other - because of her injuries - unable to recall events with accuracy. The 13 year old daughter was in bed, and the appellant professes to have an unclear recollection, although his explanation to police was that he was "sick of the lies" being told to him by Yvonne and his wife as to what the former was doing in and with her life. However some of the events which occurred were the subject of findings by the judge which have not been challenged. The appellant's wife, at his request, had collected Yvonne from her unit in Ballarat and brought her back to Linton for dinner. Friction arose in the kitchen - over dinner - about Yvonne's style of life and her desire to remain living in Ballarat against the wishes of the appellant. It would seem that the appellant perceived that Yvonne was not disclosing to him the "full truth" about her movements, and that his wife was "covering" for her. He then undressed and went to bed, no doubt brooding. Some time later, he got out of bed, dressed, took some ammunition from a drawer and loaded 9 cartridges into the magazine of the rifle. Armed with the gun, he went back into the kitchen and shot Yvonne between the eyes from virtually "point blank range"; then turned the gun on his wife, having first worked the cocking mechanism, and shot her, too, in the head. Notwithstanding that Yvonne was dying face down on the floor, he again cocked the rifle and discharged another round towards her - that round apparently striking the refrigerator. These events had brought the 13 year old daughter into the room. Terrified, as she obviously was by what she saw, it appears that she was the one who sought to stem the flow of bleeding from her mother's head, and who took charge of making contact with and arrangements for the Police and emergency services to come to the house.

23. There can be little doubt that the appellant shot his wife and step-daughter in a fit of anger which apparently arose because of what he perceived to be their deception of him about a matter which he regarded as significant. There was, however, a divergence of view before his Honour as to the appellant's underlying motives. On behalf of the appellant it was claimed that his conduct stemmed from a deep-seated love of and concern for his step-daughter, whom he regarded as vulnerable in the ways of the world and whom he did not want to fall victim to early pregnancy as his older daughters had. It was said that, although he was rigid in his views, his judgment had become clouded and his thinking distorted by the depressed state in which he was opined to be by a consultant psychiatrist (Dr. Walton) and a clinical psychologist (Mr. Cummins), each of whom saw the appellant whilst in custody. On the other hand the Crown contended that the appellant's conduct derived from an inability on his part to accept anything less than total obedience to the rules which he laid down, and a well honed dislike of Yvonne for repeated acts of disobeying those rules. The Crown contended that he was obsessive in his demands for loyalty from his family; and that his murderous rage was the product of Yvonne insisting upon living her life independently, contrary to his wishes; and his wife supporting her instead of him.

26. Whatever view one takes of the appellant's underlying motives for shooting his wife and step-daughter, they cannot conceal the callous and brutal nature of his conduct. His Honour was far from satisfied, on the material before him, that the conduct was generated by a genuine, but over-zealous, concern for the welfare of Yvonne. Appellant's counsel submitted that such deep-seated concern and remorse was captured in a poem which the appellant had written in prison - in which he described Yvonne as "my lovely little mate" and expressed himself as being "so sorry"; and concluded in these words: "I love you, you are still my little mate, so watch over Mum and Tamara for me". His Honour was not prepared to accept these expressions of sentiment either as representing the real feelings which the appellant bore for Yvonne, or as indications of true remorse. In his Honour's view they stood in stark contrast to statements which the appellant had made to others about Yvonne, both before and after he shot her. His Honour had before him the statement of Michael Rowe, a shearer, who had worked with the appellant for some years until 1997. Rowe said that the appellant had often spoken disparagingly of Yvonne and had told him that "one day he would put a bullet into [her] head". He also said that in June 1998, the appellant had told him that he was "getting sick of that bitch" and "would put a bullet in her head one day". His Honour also had before him the evidence of Mrs. Allen with whom Yvonne rode horses in Ballarat for Mr. John Allen, her husband and a horse trainer. She said she had spoken to the appellant some three weeks before the shootings, when he had told her about his desire for Yvonne to return home so that she could be made to "abide by the rules". Mrs. Allen told the appellant that Yvonne was afraid of him and did not want to return and that, in any event, she was nearly 21 and there was "nothing that he (the appellant) could do about it". She said that, in response, the appellant said: "There's plenty I can do about it. I'll shoot her and then shoot myself".

29. Following the shootings, the appellant rang Mr. Neville Powell, Cheryl Anne's father and Yvonne's grand-father. He also rang his eldest daughter - Mrs. Joanne Reynolds. He told Mr. Powell:

"I've fixed them, they're not going to tell me any lies".

"You'd better get ... down here and get Tamara because I've just killed Cheryl; and Yvonne is half dead; I've just shot the pair of them."

"That slut deserved it. They've both been lying to me. Yvonne's been to Lorne and Bendigo and Cheryl's been covering up for her. I can't take it any more; I'm sick of the lying."

When Mrs. Reynolds asked if they were still alive, he replied:

"I don't know about that bitch (meaning Yvonne); she deserved it, she deserved everything she got."

"I've put 2 shots into her like you would a pig."

Mrs. Russell - the applicant's other daughter by his first marriage - stated that she had "lost count of the number of times" that the appellant had threatened Cheryl or one of the children with guns. Whilst being taken by Police to Ballarat police station, he said to Senior Sergeant Glenane:

"The daughter, I want her dead. I hope my wife is O.K. ... I don't care about the other one, she's a bitch - always lying."

45. In the light of this material, his Honour rejected the submission made to him that Yvonne had been killed out of a genuine but misplaced solicitude for her welfare. Rather, his Honour accepted the contention made by the Crown that the appellant had harboured a long-standing animosity towards her, which, on this night, developed into uncontrolled anger because she had dared to cross him. In that state he made good the threat which he had frequently made.

48. Although there were 7 grounds of appeal in the notices lodged with the Court, Mr. Cash did not advance any argument in respect of grounds 3 and 7. Ground 3 had challenged the judge's assessment of the appellant's remorse. The remaining grounds can all be subsumed under ground 1; namely that the sentences imposed were manifestly excessive and were crushing because, if fully served, would mean that the appellant would be approximately 80 years of age when released; and that, even if released at the end of the non-parole period, would be 75 years. In its essence, the submission was that the sentence of 24 years on count 1 was excessive and, in the light of current sentencing practices in this State, was out of all proportion to the gravity of the offence. Although Mr. Cash conceded that the sentence of eight years on the second count, and the cumulation of three years of it upon the penalty of 24 years for the murder, could not, of itself, be said to be manifestly excessive, he contended that the total effective sentence which it produced was crushing. The remaining grounds argued were really subsidiary to and component parts of ground 1. Thus it was said that the learned judge must have failed to give sufficient weight to the appellant's pleas of guilty and to the expert opinion evidence that, at the time when he committed the offences, the appellant was suffering from a depressive disorder of a significant kind; and that the level of sentence imposed reflects the fact that his Honour, despite his disclaimer to the contrary, must have been influenced by irrelevant and hearsay assertions in the material before him suggesting that the appellant had engaged in inappropriate sexual behaviour with the deceased.

51. Whilst I accept that the sentences which His Honour imposed will impact heavily upon the appellant, having regard to his age, I do not accept that they are manifestly excessive or that, for any other reason, his Honour's discretion has miscarried. On his Honour's view of them, these crimes were brutal and callous and executed in a fit of temper which had supervened for no better reason than a perception on the appellant's part that his step-daughter was not prepared to "toe the line" which he had drawn for her; and that his wife was not prepared to fully convey to him what she knew about her daughter's movements. In my opinion, his Honour was entitled to take the view which he did about the callousness of the crimes committed and the fact that there was very little to redeem them. It might be true to say that the appellant was angry, but it was the type of blind and unreasoning anger which is unjustified and self-centred and admits of no feeling or concern for its victims. He had had time to reflect, but having done so, got up, got dressed, loaded the rifle and went down to the kitchen and shot two defenceless women. It is only by chance, not design, that both did not die.

54. Such an unjustified and brutal killing of a young woman who was on the threshold of her mature life, and who was related to, and meant to be under the protection of her killer, is a very serious example of the crime of murder. His Honour was, as it seems to me, entitled to take the view that the appellant had no remorse for killing Yvonne, even though, on reflection, he might have regretted shooting his wife.

57. It was submitted on the appellant's behalf that, when one looks at the totality of his Honour's sentencing remarks, it can be seen that he had erroneously characterized the gravity of the appellant's crimes by failing to pay due regard to the opinion evidence suggesting that the appellant was in a seriously depressed state at the time of committing the offences; and by paying too much heed to material, said to be irrelevant and inconclusive, which was calculated to implicate the appellant in prior acts of sexual impropriety with the deceased.

60. For my own part, I do not think there is anything in this submission. During the course of the plea, the appellant's counsel had put before his Honour the reports of Dr. Walton and Mr. Cummins, each of whom had expressed the opinion that the appellant, whilst not psychotic, was in a state of acute depression at the time when he shot Yvonne and his wife. Neither gave evidence before his Honour. Their opinions appear to have been largely founded upon what they were told by the appellant whilst he was in custody awaiting trial. Counsel sought to use these opinions as a basis for his submission that, whilst this case was "down a notch" from cases such as Anderson[1] and Tsiaras[2], his Honour should nevertheless have been prepared to moderate the effect of general deterrence in imposing sentence. In the course of argument his Honour indicated that men who commit serious crimes against members of their families, whilst angry and depressed, are commonly encountered and need to be generally deterred. Counsel did not disagree, but persisted in his contention that the expert evidence should lead the Court to the view that the appellant's state of mind at the relevant time was such as to justify a suitably moderated sentence. During his sentencing remarks, his Honour said that he had "taken account" of the reports of Dr. Walton and Mr. Cummins, but regarded their "utility" as limited because of the factual material which he had reviewed but which apparently was not known to the experts. He referred in particular to the expressed view of Mr. Cummins that the appellant was "someone who habitually avoids both verbal and physical conflict" as indicating that he, Mr. Cummins, was not fully conversant with the history of the appellant as it was disclosed in the material to which his Honour had referred. This was a view which, as it seems to me, his Honour was entitled to take. He was not saying that he was rejecting the expert opinions as having no weight; rather he was saying that he regarded their relevance as limited because they were based upon limited information. Whether depression exists - and to what extent - in a particular person at a particular time; and whether it diminishes that person's capacity to make rational judgments at that time, are undoubtedly matters upon which experts, properly informed, might give assistance to a sentencing judge. But, in the long run, it is for the judge to determine whether the opinion is of assistance, and what weight is to be given to it in the sentencing process. Where, as here, the judge had before him a significant amount of material bearing upon the conduct and attitude of the appellant over a period of time both before and after the shootings (none of which appeared to have been known to or taken account of by the experts in forming their opinions), it is scarcely surprising that his Honour found those opinions to be of limited assistance to him in the performance of his task[3]. Nor, indeed, is it surprising that his Honour should discount the value of those opinions in concluding that the aspect of general deterrence had a prominent role to play in fixing the appropriate sentence for these offences. In this respect, I note that Dr. Walton, in concluding that he had little to say "specifically in relation to disposition", nevertheless stated that the appellant "does seem to have a propensity to resort to the use of firearms when in states of intense inter-personal conflict, although on both occasions he seems to have been reasonably seriously depressed". When the doctor was speaking of "both occasions", he was referring to the events of 1990, which were the subject of the previous convictions and the events of 1998 with which we are concerned. In respect of each event, the doctor expressed the view that the appellant was "suicidally depressed", a view which was formed, it would seem, upon the reactions of the appellant after each event. Indeed, in respect of each, there appears to have been little psychological assessment or treatment, either before or after it occurred. Nevertheless the doctor concluded that "the principles surrounding escaping general deterrent aspects of sentencing because of serious mental disorder, in my opinion, can be substantially applied in this case". His Honour was obviously not prepared to act on this observation. In my opinion, he was entitled to reject it, not only because it lacked the necessary evidential foundation, but because it went beyond any legitimate assistance which Dr. Walton could give. The role of an expert witness is to impartially assist the court in the performance of its function - not to tell it how that function should be performed. Whether and to what extent, aspects of general deterrence should influence the formation of the appropriate sentence were, as I have said, matters for the judge to determine upon the whole of the material before him.

63. Nor, in my view, is it correct to say that his Honour's sentencing disposition was influenced by reliance upon irrelevant and inconclusive material suggesting that the appellant had a sexual interest in the deceased. In the course of his sentencing remarks, the judge referred to a statement made by Mr. Rowe in which he deposed to conversations which he had had with the appellant during 1996 and 1997 at the property where they were both working. Mr. Rowe said that the appellant had told him about an occasion when police had come to his home with a complaint made by Yvonne that the appellant was feeling her breasts. The appellant said that he had denied it but that, after they had left, he went into the lounge room, had taken Yvonne in a "headlock", put his hand up her jumper onto her breasts and had told her that if she told the police that he had "felt her", he would "feel her"; and that if she told the police that he had "fucked her", he "would fuck her". In the same passage of his sentencing remarks, the learned judge referred to the statement of Rowe that the appellant was "over-powering with Yvonne" and that "right up until the time" he ceased to work at the property, he had threatened to shoot her. His Honour also referred to statements which had been made by Yvonne's father and step-mother, by Mr. Allen and by former boy-friends, in which each had referred to her fear of the appellant, to the concern she had for her mother, and to the "prurient interest" (his Honour's words) which she believed that the appellant had in her.

66. The judge referred to these statements, not for the purpose of punishing the appellant for his previous conduct towards Yvonne. He expressly disclaimed any such intention. Rather, as I read his remarks, he referred to the material in order to put into its proper context the claim made on the appellant's behalf that he and Yvonne were "mates", and that he had killed her out of a misplaced, but genuine, concern for her welfare. I agree with counsel that the material could not be used as a basis for concluding that the appellant was sexually molesting Yvonne, or that he had a sexual interest in her. Indeed the prosecutor so conceded during the course of the plea. However his Honour was entitled to use the material, as he clearly did, for the purpose of evaluating whether the relationship between Yvonne and the appellant was one founded on love and affection, which was his claim, or whether it was based on control and fear, as the Crown contended.

69. In the absence of specific error, I am not persuaded that the sentences imposed were so wholly disproportionate to the gravity of the crimes that the Court should interfere with them on the basis that they are "manifestly excessive" or "crushing". In the course of his resourceful submissions, Mr. Cash referred the Court to other sentences imposed for murder in this State, and contended that the sentences imposed upon the appellant were "out of kilter" with the standards which have been set. For my own part, I must say that I have not been much assisted by the statistics provided. Statistics, of course will rarely be a useful guide in determining whether a particular sentence is manifestly excessive. Particularly is this so in crimes of murder where the nature of the crime, and the degree of culpability accompanying it, can vary so much. In the 14 years since Supreme Court Judges were invested with a discretion to impose terms of imprisonment short of imprisonment for life, judges have imposed sentences varying from "life imprisonment" down to 15 years (and even, in exceptional cases, less) depending upon the view which they have taken of the gravity of the offence and the culpability of the offender. Those sentences have been influenced by the infinite variety of factors which the sentencer is required to take into account; such as motive, the antecedents of the offender, whether the killing has been cold-blooded and premeditated or committed in a state of high emotion, the number of victims, the mental state of the offender, remorse, co-operation, and so on. So infinite is the variety of factors which must be considered in a crime of this nature that statistics, in my view, become of little relevance. In the long run, the penalty must be fixed according to the judge's view, legitimately open to him on the material before him, of the gravity of the particular crime and the moral culpability of the offender. I venture to repeat the remarks I made in R. v. Goodall[4] that:

"Sentences, as this Court pointed out in Coulston ([1997] 2 V.R. 446 at 461) are not precedents which must be applied unless they can be distinguished. This is a statement particularly apt to the crime of murder in which the Court is bound to pay proper regard to the sanctity of human life and in respect of which the maximum penalty remains one of life imprisonment."

In recent years, both trial judges and this Court have imposed sentences of life imprisonment or terms of 20 years or more for bad crimes of murder where the motives have been base or senseless, and whether or not the crime has been committed in a state of high emotion[5]. In Goodall (supra), this Court, whilst reducing the total sentence, confirmed a sentence of 19 years for murder where the trial judge had found genuine and deep remorse, positive good and non-violent character and severe depressive illness.

74. For the reasons I have already given, it was open to the judge to regard these crimes as uncommonly bad crimes committed against two defenceless women, and also to regard the appellant's moral culpability for them as high. Accordingly, I am not persuaded that the sentence of 24 years for the murder of Yvonne was outside the range of penalties properly open to the judge; nor am I persuaded that, by accumulating three years of the moderate sentence of eight years for the injury inflicted upon his wife, the overall sentence became "crushing". Indeed, in imposing sentence on count 2, his Honour was, by dint of the provisions of Part 2A of the Sentencing Act 1991, required to treat the appellant as a "serious violent offender" and prima facie to direct that the sentence imposed be served cumulatively upon the sentence imposed on the murder count. Thus, by "directing otherwise", I assume that his Honour had in mind the age of the appellant and the total impact of the sentences, which he was imposing. Nevertheless, Mr. Cash submitted that the level of the sentences in fact imposed, particularly the sentence of 24 years for the murder of Yvonne, was so high as to demonstrate that insufficient weight had been given to the guilty pleas. Even though his Honour had said that he had taken such pleas into account, it was put that only "lip service" could have been paid to them. Mr. Cash referred us to the decision in Donnelly[6], in the course of which Charles, J.A. (at 648-9) referred to the significance which a plea of guilty has in a murder case, through alleviation of stress which would otherwise attend the witnesses on trial. However the Court also noted that the assessment of an appropriate discount for a plea of guilty will depend on a variety of factors, including the strength of the case against the appellant and the stage of the proceedings at which it is entered. The decision in Donnelly, should now be read in the light of what was said in Goodall, supra, by Batt, J.A. at [19], [20] and [21]. In the long run, the question whether the sentence which his Honour imposed upon count 1 is manifestly excessive cannot admit of much argument. The plea, as was conceded, came "late in the day" and against what seems to me to have been overwhelming evidence pointing to the appellant's guilt. I am, in these circumstances, not persuaded that his Honour failed to give any or sufficient weight to the appellant's plea of guilty, nor am I persuaded that, on that account, the sentence imposed is manifestly excessive.

77. Furthermore, even if the sentences can be regarded as "crushing", in the sense of destroying prospects of useful life after release[7], I am not persuaded that, in the circumstances of this case, they are manifestly excessive. The appellant's counsel

acknowledged during the hearing of the plea that his client "expected a significant gaol sentence" which would leave "no real prospect that he is going to have many pieces to pick up after he is released. His life is very much at an end." That submission seems to me to reflect the reality of the situation where a 53 year old man commits crimes as serious as these. Those who commit such crimes at an advanced age cannot expect to escape the consequences of what they have done simply because of their age. Age, in many cases, will be a relevant sentencing consideration, whether it be youthful or advanced. But age, alone, cannot be permitted to justify the imposition of an unacceptably inappropriate sentence[8]. As Crockett, J. said in R. v. Crowley & Garner[9]:

"It does not follow that every sentence which justifiably deserves the epithet [i.e. `crushing'] must on that account, and on that account alone, be held to be manifestly excessive. There will, in my view, be cases in which the offender has by his criminal act or acts forfeited his right to any such hope or expectation."

83. For the reasons given, I would dismiss the appeal.

88. My only concern, at the conclusion of the hearing of the appeal, was that the learned sentencing judge may not have moderated general deterrence to take account of the appellant's psychiatric illness or may not have done so sufficiently. I readily acknowledge that general deterrence remained relevant. This was not a case like R. v. Anderson[10] or R. v. Tsiaras[11]. My misgivings were not allayed by the learned

President's conclusion that there was nothing in the point[12]. They were confirmed by the first part of the reasons for judgment prepared by Buchanan, J.A.

92. In all the circumstances, I do not think anything would be gained by a third discussion of the evidence or the sentencing remarks. In my opinion the learned judge was bound to conclude that the appellant, who had a psychiatric history, was severely disturbed at the time of the killing and that a sentence of 24 years' imprisonment on count 1 was outside the range if general deterrence was appropriately moderated. I differ with respect from his Honour, mindful of his great experience in this field, but I think I should give effect to my own strong impression of the facts.

95. That is sufficient to reopen the discretion. I do not attach the same importance to the appellant's age as Buchanan, J.A. and I do not join in that part of his judgment, but I agree that the sentence should be reduced and I concur in the disposition that his Honour proposes.

98. Before parting with this case, I should say that a full set of statistics was provided by the Crown at my request. Mr Cash had referred to the limited statistics available to him in the Supreme Court library. It was necessary to have a full set in order to do justice to his submissions but, on reflection, I agree with the President[13] that statistics need no longer be provided to us as of course, now that judges have had 14 years' experience of exercising a discretion in sentencing for murder.[14]

103. I have had the advantage of reading in draft the reasons for judgment prepared by the President. I have the misfortune to differ from him as to the disposition of this appeal.

106. As the sentencing judge pointed out, the circumstances surrounding the killing of the appellant's stepdaughter showed that dislike of the victim and a murderous rage engendered by the thwarting of his desire to control her life played a large part in the commission of the crime. Yet the manner in which the appellant committed the crimes and his reaction to them also revealed a man in the grip of emotions which he seemed powerless to control. The appellant may well have intended to end his own life when he rose from his bed and approached the victims armed with a rifle. He readily confessed to shooting his wife and stepdaughter when he spoke to police officers and others immediately following the commission of the crimes, made no attempt to escape and, when the police arrived, threatened harm only to himself.

109. The psychiatrist who thought that the appellant succumbed to a serious depressive illness when he shot his wife and stepdaughter was provided with a copy of the depositions. The psychologist who concluded that the crimes reflected a state of acute depression read a transcript of the appellant's record of interview and saw a video of the re-enactment of the crime. Accordingly, the diagnoses of depression were made with knowledge of the appellant's statements revealing his animosity to his stepdaughter. In my opinion it was appropriate to take the appellant's mental condition into account in evaluating the blameworthiness of the appellant's conduct. More importantly, the appellant's mental state bore upon the weight to be accorded to general deterrence. This was not a case such as R. v. Anderson[15] of psychiatric illness falling just short of legal insanity.[16] Nevertheless the symptoms and consequences of the disorder diagnosed by the psychiatrist and the psychologist relevantly distinguished the appellant's mental state and in my view required a degree of moderation of the element of general deterrence having regard to the extent of the illness.[17] The sentencing judge said of the objective of general deterrence only this:

"[I]t is necessary and appropriate that men are warned that recourse to violence is totally unacceptable in order to resolve problems men have with others."

113. The sentencing judge set out the appellant's age. He did not include it among the factors which he said he took into account in determining the sentence he imposed on the appellant, although that omission would not be significant if the sentence was appropriate. The appellant was 54 years of age at the time he was sentenced. If the appellant serves the full term of 27 years imposed upon him, he will emerge from prison aged 80 years. The proper approach is to assume that he will serve the full term. As Winneke, P. said in R. v. Revell[18]:

"The fixing of a non-parole period does not diminish the full import of the head sentence. This Court has frequently said that that head sentence is to be calculated on the basis that a prisoner will serve the full measure of punishment."[19]

117. While I do not think that the age of an offender is to be taken into account by a process of calculation, advanced age of an offender is relevant in that the consideration that each year of a custodial sentence for an aged person represents a substantial proportion of their remaining life expectancy[20] is properly a component in the instinctive synthesis leading to an appropriate sentence.

120. A limitation upon the effect which age can have is that it is not permissible to impose a sentence that is manifestly inadequate in order to give an aged offender a prospect of a useful life after release from prison.[21] In the present case the appellant was not so old that only an inappropriately short sentence would leave the appellant with the prospect of a life after prison. There was room to lighten what might otherwise be seen as a sentence equivalent to one for life without elevating the appellant's age to a factor producing an inadequate sentence.

123. The sentencing judge was clearly entitled to have regard to the statements made by the appellant disclosing his animosity to his stepdaughter, his callous indifference to her fate, and the catalyst for his crimes seemingly being anger at being crossed. In those ways at least it was a bad case of murder. Nevertheless, I am of the opinion that the sentence imposed upon the appellant does not adequately reflect his disturbed mental state, his age and plea of guilty.

126. I would allow the appeal and re-sentence the appellant to a term of 20 years' imprisonment on the count of murder. I would confirm the sentence imposed on the count of intentionally causing serious injury and the measure of cumulation ordered by the sentencing judge[22], making a total effective sentence of 23 years' imprisonment. I would fix a term of 18 years before the appellant is to be eligible for parole.

[1] [1981] VicRp 17; [1981] V.R. 155

[2] [1996] VicRp 26; [1996] 1 V.R. 398

[3] cf. Director of Public Prosecutions v. Galea [2000] VSCA 87 at [18] and [19] per Brooking, J.A.

[4] [2000] VSCA 106

[5] R. v. Lowe [1997] 2 V.R. 465; D.P.P. v. England [1999] VSCA 95; [1999] 2 V.R. 258; R. v. Parsons [2000] VSCA 15; R. v. Juric, unreported, 22 October 1998

[6] [1998] 1 V.R. 654

[7] cf. R. v. Yates [1985] VicRp 3; [1985] V.R. 41 at 48

[8] R. v. Bazely (1993) 65 A.Crim.R. 154 at 158

[9] (1991) 55 A.Crim.R. 201 at 206, per Crockett J.

[10] [1981] VicRp 17; [1981] V.R. 155.

[11] [1996] VicRp 26; [1996] 1 V.R. 398. See R. v. Kelly [2000] VSCA 59 at [32].

[12] At [16]. That is not to say that I have not read and re-read the President's reasons for that view. I differ from him on the facts, not on the law. I specifically agree with the last two sentences of that paragraph.

[14] The Court or an individual judge may, of course, desire their provision in a particular case.

[15] [1981] VicRp 17; [1981] V.R. 155.

[16] See also R. v. Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398 at 400.

[17] Cf. R. v. Yaldiz [1998] 2 V.R. 376 at 383 per Winneke, A.C.J.

[18] Unreported, Court of Appeal, 19 February 1996, at p.11.

[19] See also R. v. Bolton and Barker [1998] 1 V.R. 692 at 696 per Callaway, J.A.

[20] R. v. Hunter (1984) 36 S.A.S.R. 101, at 103.

[21] R. v. Bazely (1993) 65 A.Crim.R. 154 at 158. See also R. v. Burnett (1993) 70 A.Crim.R. 469; R. v. Braham (1994) 73 A.Crim.R. 353, at 356 per Martin, C.J.

[22] Cumulation should be effected by directing that five years of the sentence imposed on count 2 be served concurrently with the sentence imposed on count 1: s.6E of the Sentencing Act 1991.