R v. Maygar; ex parte A-G (Qld); R v WT; ex parte A-G
[2007] QCA 310
Court of Appeal (Qld)|2007-09-28|Before: Williams and Keane JJA and Mullins J, Separate reasons for judgment of, each member of the Court, Williams and Keane JJA concurring as to the orders, made, Mullins J dissenting, in part
Williams and Keane JJA and Mullins J, Separate reasons for judgment of, each member of the Court, Williams and Keane JJA concurring as to the orders, made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASESENTENCE – OFFENCES AGAINSTTHE PERSON – where respondent sentencedto life imprisonment with non-parole period of 20 years for two counts of murder–where murders in worst category of offence – whether sentencemanifestly inadequate – whether learned sentencing judgeerred by treatingdisparity with non-parole period of juvenile co-offender as relevantconsiderationCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRYAFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER –APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINSTTHE PERSON –where respondent sentenced to 10 years detention for one count of murder withorder for release after five years
– where respondent acted under
compulsion – whether offence "particularly heinous" within the meaning of
s 176(3) of
the Juvenile Justice Act 1992 (Qld) – whether sentence
manifestly inadequate
Criminal Code 1899 (Qld), s 305(2)
Juvenile Justice Act 1992
(Qld), s 176(3)
R v Amituanai [1995]
QCA 80
(1995) 78 A Crim R 588, cited
R v Crossley [1999]
QCA 223
(1999) 106 A Crim R 80, applied
R v D [1999]
QCA 231
[2000] 2 Qd R 659, cited
R v Smithers, unreported,
Mackenzie J, Supreme Court of Queensland, SC 559 of 2006, 15 December 2006,
considered
R v Tuki CA No 326 of 2004, 17 December 2004, applied
Veen v The
Queen (No 2) [1988] HCA 14
(1988) 164 CLR 465, cited
Judgment (139 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the appellant
[2]
[1] WILLIAMS JA: The horrendous circumstances establishing the offences in question are fully set out in the reasons for judgment of Keane JA and need not be repeated. It is difficult to even begin to envisage why such series of horrible crimes were committed. The unlawful killing of Wilson was senseless. The circumstances of the brutal murder of Lyons would be unbelievable were it not for the unchallenged eye witness accounts of what happened. That was followed by the execution of Thompson, probably only because he was a witness to what had occurred earlier. Those killings seem to have excited Woodman and Maygar to the extent that they satisfied their sexual urges on the only female then present. Those sexual offences alone would have justified the imposition of a very lengthy term of imprisonment.
[3]
[2] In the circumstances of this case, the dominant, if not sole, consideration when determining the appropriate sentence must be that of punishment. The material before the Court does not provide a basis on which a finding could be made that Maygar demonstrated any real remorse for his conduct on the occasion in question. It is one of the few cases where it must be said that there is little, if anything, in the material providing a basis on which a court could make an allowance for mitigating factors. Any mitigation for youth is more than outweighed by the number and nature of the crimes involved. A plea of guilty after the trial had commenced, and in the face of an overwhelming prosecution case, carries little, if any, weight in the circumstances of this case.
[4]
[3] I agree with Keane JA that the sentencing judge erred in having regard to the sentencing regime applicable to Woodman in determining the appropriate sentence to impose on Maygar. In any event it would be wrong to approach the determination of the sentence to be imposed on Maygar by assuming Woodman would be paroled after serving 15 years of the sentence of detention for life imposed on him. Woodman becomes eligible by operation of the applicable statute for parole at that point of time but, given the nature of the crimes he has committed, there is no certainty he will then be released.
[5]
[4] I agree with all that has been said by Keane JA in his reasons with respect to the appeal by the Attorney-General with respect to Maygar. The non-parole period in his case should be fixed after he has served 30 years.
[6]
[5] In my view WT falls into an entirely different category to Woodman and Maygar. Keane JA has outlined his personal circumstances and I will not repeat them. In the course of his oral submissions in this Court counsel for the Attorney-General said that WT was "press-ganged into the killing". On the evidence that was an accurate statement.
[7]
[6] WT was seriously assaulted by Maygar and Woodman, his life was threatened, and he witnessed the brutal attack by Woodman and Maygar on Lyons. He had also observed the threats and assaults directed at Ms Nugent and her baby.
[8]
[7] Whilst one cannot condone what he did with respect to Lyons and Thompson it is his conduct, against the background of him being assaulted and threatened as outlined above, which must be taken into account in determining the appropriate penalty to be imposed on him; he is not to be punished for the crimes of Woodman and Thompson. Clearly what Woodman and Thompson did constituted a "particularly heinous" crime but that does mean that what WT did is also deserving of that description.
[9]
[8] It is greatly to the credit of WT that he showed compassion for Nugent's baby. Maygar had previously held a knife to the baby's throat when demanding Nugent's mobile phone, and given Maygar's overall conduct there was a real possibility the baby would have been further attacked if there was any real resistance to the activities of Woodman and Maygar. In the circumstances removing the baby to another room and away from the immediate danger was a brave act on the part of WT. He must be given credit for it.
[10]
[9] There is also no doubt that he was acting under extreme compulsion, and fear of death, when he did that which constitutes the offences to which he pleaded guilty. Were it not for the fact that Maygar's girlfriend arrived on the scene and was able to placate him there could well have been more killing.
[11]
[10] As already noted in order to succeed in the appeal against the sentence imposed on WT the Attorney-General must establish that his crime was "particularly heinous". In the circumstances I cannot conclude that the conduct of WT came within that description. As already noted, it is beside the point that the offences committed by Woodman and Maygar were deserving of that description.
[12]
[11] I agree with all that Keane JA has said with respect to the appeal and with respect to the sentence imposed on WT.
[13]
[12] I agree with the orders proposed by Keane JA.
[14]
[13] KEANE JA: In March 2007, the respondents and their co-offender, John Brian Woodman, were sentenced for offences which were committed in May 2005. The respondent, Maygar, who was 18 years old at the time of the offences, was sentenced to life imprisonment on each count of two counts of murder with an order that the respondent not be released until he had served a minimum of 20 years imprisonment unless released sooner under exceptional circumstances parole pursuant to the Corrective Services Act 2006 (Qld). It may be noted that the order as to the minimum period of actual custody to be served by Maygar reflected the requirements of s 305(2) of the Criminal Code 1899 (Qld).
[15]
[14] The other respondent, to whom I shall refer as WT, was 16 years and seven months old at the time of the offences. He was sentenced under the provisions of the Juvenile Justice Act 1992 (Qld) to 10 years detention with an order for release after serving five years for the offence of murder. He was also sentenced to a concurrent period of one year's detention for the offence of interfering with a corpse. The learned sentencing judge declared 660 days as time already served by WT.
[16]
[15] The third co-offender, Woodman, who is not a party to these appeals, was also dealt with under the Juvenile Justice Act. He was sentenced to detention for life. Woodman was 16 years and two months old at the time the offences were committed.
[17]
[16] Pursuant to s 669A of the Criminal Code, the Attorney-General appeals against the sentences imposed on Maygar and WT, contending, in the case of Maygar, that it should be ordered that the period of mandatory imprisonment be varied to 30 years. In the case of WT, it is contended that the period of detention should be increased to 12 years with an order that WT be released after serving 50 per cent of that period, and that an order should be made allowing identifying information about WT to be published.
[18]
[17] In each case, the Attorney-General contends that the sentence which was imposed was manifestly inadequate. In the case of Maygar, the Attorney-General also argues that the sentencing discretion miscarried because the learned sentencing judge took into account the sentence imposed on Woodman. I will discuss the arguments which have been developed in relation to these contentions after summarising the circumstances of the offences and the learned sentencing judge's decision.
[19]
[18] Maygar pleaded guilty on the second day of his trial to a number of offences. Relevantly for present purposes, these offences included the two counts of murder of present concern, one count of manslaughter and four counts of rape. The respondent WT pleaded guilty to the charges referred to above.
[20]
[19] The offences occurred on the evening of 30 May 2005 at a flat in Toowoomba occupied by one of the victims, Michael Thompson. WT had been living in the flat for about two weeks. Maygar had arrived in Toowoomba in the fortnight before the murders. It appears that both Maygar and WT were staying there at Mr Thompson's invitation.
[21]
[20] During the afternoon of 30 May, a number of people were drinking rum and tequila at the unit. There is some understandable variation in the accounts of what transpired during that evening, but the following account reflects the material facts on which Maygar and WT were sentenced. At about 9.00 pm, Mark Noffke arrived at the unit and parked his delivery van outside the garage which could not be accessed from inside the unit. Tyson Wilson challenged Noffke to a fight. Maygar told Noffke that he was not to fight Wilson because Wilson was their new business partner: it appears that Wilson was to arrange for Maygar and Woodman to obtain firearms. No fight ensued. Noffke and Maygar went for a drive, and, when they returned, WT, Mr Thompson and David Lyons were in the living area of the unit.
[22]
Ms Cassandra Nugent and her 22 month old baby boy were in a bedroom.
[23]
[21] Later, Noffke heard noises in the garage and went to investigate. There he saw Maygar and Woodman attacking Wilson by repeatedly stomping on his head and hitting him with a sock containing a billiard ball and a length of chain with a padlock on the end.
[24]
[22] Noffke tried to leave but Maygar and Woodman pulled him out of the vehicle and pushed him towards the garage. Maygar said: "Look, this cunt is dead." Maygar then picked up the sock weapon and struck Wilson in the head with it. Maygar told Noffke to go into the unit. Noffke obeyed, and Maygar and Woodman followed.
[25]
[23] Inside the unit, Maygar and Woodman told everyone to sit down and be quiet. They were each armed with a metal pole, one approximately 80 cm in length and the other approximately 123 cm in length. They said that they had killed a person in the garage and that they had to dispose of the body. Maygar demanded that everyone hand over their mobile phones. Maygar went into the bedroom, held a knife to the baby and demanded Ms Nugent's mobile phone. Woodman then smashed the mobile phones with his metal bar.
[26]
[24] Maygar and Woodman told the others present that they were "hostages", and that they were "all already dead". He said: "The first person who can tell me a good place to dump the body is the only person in here who will live." Noffke suggested dumping the body outside of town. David Lyons, who was 17 years of age, then asked if he could lick the blood off one of the metal bars. It seems that this may have been an attempt to placate Maygar and Woodman. He licked Maygar's metal bar once or twice before he was told to sit down. Lyons insisted on licking it again, and Woodman or Maygar hit him over the head with it. Lyons fell to the couch with blood running from his head. Ms Nugent gave Lyons a towel, and then she returned to the bedroom.
[27]
[25] Maygar followed Ms Nugent into the bedroom. An argument ensued between them, and Lyons stood up in an attempt to calm Ms Nugent down. Maygar hit him over the head with the metal bar several times, and Lyons fell back onto the couch with blood gushing from his head and face.
[28]
[26] Maygar then asked Mr Thompson and WT if they were alright. Woodman said to W: "Do you think you are smart, cunt? Do you think you have done it all? What about this?" Woodman took Maygar's metal bar and hit WT over the head with it. Maygar took the bar back and hit WT with it too. Woodman menaced WT with a long knife and pushed the knife at WT's chest. It connected but caused no injury.
[29]
[27] Maygar took the knife and stabbed it into the door breaking the blade. Maygar then struck Lyons in the head with the larger of the metal bars. Woodman joined in. The larger of the bars was bent out of shape. They said to Lyons: "Just die" as Lyons was making gurgling noises. One of them said: "Who's going to die next?".
[30]
[28] Maygar then said to WT: "... you're dead." WT replied: "No man, I am your bro. I will prove myself." Maygar said: "Get up and smash into David", and gave WT the larger of the metal bars. WT then hit Lyons more than four times. Woodman yelled: "Stop hitting him", and WT then picked up the broken knife and cut at Lyon's throat. The possibility that Lyons was dead before WT's attacks could not be excluded beyond reasonable doubt. It was on this basis that WT pleaded guilty to the charge of interfering with a corpse.
[31]
[29] Maygar and Woodman told the others that the song on the stereo was the last they would hear. Maygar went into the bedroom and asked Ms Nugent how she felt now that her boyfriend was dead. Maygar and Woodman then discussed having sex with Ms Nugent. WT asked if he could remove the baby boy from the bedroom to ensure the baby's safety and he was allowed to do so. Maygar then raped Ms Nugent digitally. She was then taken to the laundry where she was told to fellate Woodman. Maygar tried to sodomise her before raping her vaginally. He then made Ms Nugent fellate him. He then allowed her to go into the kitchen to get a drink of water. He again attempted to sodomise her, but raped her vaginally.
[32]
[30] Ms Nugent then heard either Maygar or Woodman say to the others: "We need to get rid of all the dead weight", and they discussed the need to kill everyone.
[33]
Mr Thompson said that if they were to kill him, he wanted to have his Achilles' tendon cut and be put in the shower to be allowed to bleed to death. Woodman and Mr Thompson shook hands on that, and Maygar tried to cut Mr Thompson's Achilles' tendon with the knife, but was unsuccessful.
[34]
[31] Mr Thompson then asked for "the quickest way", and Maygar tried to break
[35]
Mr Thompson's neck by twisting it violently. Woodman also made two attempts. When these attempts failed, Mr Thompson asked for the next quickest way. Woodman pulled his head back and struck him twice to the throat with his hand. Mr Thompson pleaded with Maygar and Woodman not to use the poles, but Woodman then held Mr Thompson's head back while Maygar hit him in the throat with one of the metal bars. Woodman then struck him three times on the head with the bar. Mr Thompson fell convulsing to the floor. Woodman rolled him onto his back, and Maygar and Woodman struck his head with the metal poles.
[36]
[32] Woodman called WT from the bedroom and told him to stand on the other end of the bar that had been placed across Mr Thompson's throat. WT complied because, it is common ground, he did not want to be hit again. WT then went back into the bedroom.
[37]
[33] There was then a knock at the door. There were three young women at the door. One was Maygar's girlfriend. The young women were pulled inside. Maygar told his girlfriend that she was "next". A hammer fell from Ms Nugent's handbag. Woodman told WT to hit Mr Thompson with it. WT struck Mr Thompson's head and face a number of times with the hammer, saying words to the effect of: "fuck you, you fucked up my life. This is for getting me into drugs." WT used the hook end of the hammer to attempt to gouge Mr Thompson's right eye out of its socket. WT then went and stood with Ms Nugent. He then obtained the broken knife and he stabbed or cut at Mr Thompson's throat.
[38]
[34] Woodman placed a blanket over Mr Thompson's head and twice stomped on his head with his bare feet. Woodman and Maygar again attacked Mr Thompson with the metal bars. One of them forced a bar into his mouth and out the side of his face, breaking his jaw. They also stood on the bar as it was placed over Mr Thompson's throat.
[39]
[35] Maygar and Woodman then decided to take two of the young women and told Noffke he was to drive them in the van. They drove away. Those left behind called the police. The van was seen travelling towards Brisbane, and was pursued by police. Maygar threatened Noffke with the hammer to make sure that he did not stop the van. Maygar also punched Noffke and put a chain around his neck. Maygar also emptied a bottle of oil onto the road in an attempt to impede the pursuit by the police. Woodman threw some furniture onto the road. Police stopped the van at Goodna. Maygar refused to be interviewed.
[40]
[36] WT took those who remained to a nearby house. He arranged for an urgent call to the child's father. WT was then taken by ambulance to hospital where he was found to have a laceration to the top of his head and associated bruising, a laceration to his left ear and associated bruising and tenderness behind the left ear, a contusion in the area of the left scapula and a contusion and superficial abrasion in the region of the left elbow.
[41]
[37] WT was interviewed by police. He said that he was nervous and scared when he was hit on the head with the metal bars by Woodman and Maygar. WT admitted standing on one end of a bar over Mr Thompson's throat for about two minutes while Woodman stood on the other end. He said that he did it because he did not want to get hit again. WT said that Woodman handed him the hammer and told him to hit
[42]
Mr Thompson in the head, and that he had hit Mr Thompson in the head three times "really hard". WT said: "Then I hit Michael in the head but I didn't want to cause I didn't want to die." Later he said: "Fuck, I don't mean to, I don't mean it. They fuckin' tell me to do it." He was asked: "What did you think was going to happen to you if you did not do it?" He replied: "They would have killed myself."
[43]
[38] WT also told police that he could have escaped out the bedroom window whilst in the bedroom with the baby, but that he did not do so because he did not want
[44]
Ms Nugent or anyone else to get hurt. WT did not mention his interference with Lyons' corpse.
[45]
[39] It is to be noted that none of the survivors of this harrowing experience said that they felt threatened by WT.
[46]
[40] WT pleaded guilty to the murder of Mr Thompson on the express basis that he was either actually compelled as a matter of fact, or that he honestly and reasonably believed that he was compelled to act as he did.
[47]
[41] At the time Maygar was sentenced for the offences of present concern, he was sentenced for other offences committed by him between the ages of 15 and 18 years. In relation to the events of 30 May 2005, Maygar was also sentenced to 15 years imprisonment for the manslaughter of Wilson and 10 years imprisonment for each of four counts of rape. Apart from these crimes, he was sentenced to concurrent sentences for one count of arson, one count of burglary, one count of armed robbery in company, one count of assault occasioning actual bodily harm in company, a number of lesser offences of dishonesty and violence and one count of possession of a dangerous drug.
[48]
[42] The learned sentencing judge referred to the extraordinarily horrific nature of Maygar's crimes. His Honour also noted the absence of evidence of remorse apart from the pleas of guilty on the second day of the trial in the face of a strong Crown case.
[49]
[43] Maygar was said to have a history of schizophrenia, but his counsel disclaimed any reliance upon that history as having any bearing on Maygar's culpability. No psychiatric or psychological evidence in mitigation of Maygar's offending was tendered on his behalf. It was not surprising then that his Honour said that Maygar was a continuing danger to society and that there was a real risk of re-offending if he was at large.
[50]
[44] The learned sentencing judge noted the Crown's submission that a non-parole period of 25 to 30 years should be fixed pursuant to s 305(2) of the Criminal Code as part of the mandatory life sentences for each of the murders.
[51]
[45] His Honour regarded Maygar's youth and his pleas of guilty as the main mitigating factors. These factors, and the prospect of rehabilitation associated with Maygar's youth, led his Honour not to impose a non-parole period of the length sought by the Crown.
[52]
[46] His Honour also referred to the circumstance that Woodman, who had been sentenced as a child, would be eligible for parole after 15 years, as a matter of:
[53]
"some real significance in the comparability of your offences and the potential anomaly of a very significant difference in the sentences, even though ... that anomaly is created by the particular provisions of the legislation which controls what I can and must do ...".
[54]
[47] The respondent WT had a minor criminal history. In November 2004, he had been reprimanded for receiving, obstructing police and contravening a direction.
[55]
[48] WT is, according to a pre-sentence report, a person of very limited intelligence. He is illiterate. He has a need for acceptance by others which is unusually strong.
[56]
[49] The learned sentencing judge accepted that WT's involvement in the offences was substantially less than that of Maygar and Woodman. His Honour specifically accepted that WT was compelled to do what he did by his fear of Maygar and Woodman. This finding was not challenged by the Attorney-General.
[57]
[50] The learned sentencing judge was required by s 176(3) of the Juvenile Justice Act to consider whether the "offence [is] a particularly heinous offence having regard to all the circumstances". In this regard, his Honour considered that, while WT's use of the hammer to strike and gouge at Mr Thompson might be considered to be particularly heinous if considered in isolation, that had to be viewed in the context of the explicit threat to kill WT and the fact that he was ordered to use the hammer.
[58]
[51] Viewing WT's offence in this way, his Honour concluded that he did not consider WT's offence to be particularly heinous. Accordingly, under s 176(3) of the Juvenile Justice Act, the maximum term of detention which might be imposed was not life but 10 years.
[59]
[52] The learned sentencing judge then went on to identify, as relevant circumstances of mitigation, the compulsion exerted upon WT by Maygar and Woodman, the respondent's youth, his low intelligence (he cannot read or write), the concern he displayed for Ms Nugent's baby, and his cooperation with police. His Honour considered that WT had demonstrated remorse so far as his limited intellectual capacity allowed him to do so. These circumstances of mitigation were to be reflected in the order for release after WT had served 50 per cent of the maximum period of detention.
[60]
[53] Further, for the purposes of s 234 of the Juvenile Justice Act, the learned sentencing judge held that the offence was not particularly heinous, and so an order permitting the public identification of WT could not be made. His Honour also expressed the view that, even if WT's offence was properly considered to be "particularly heinous", public identification of WT was not necessary to protect the community because WT had acted under compulsion.
[61]
[54] On behalf of the Attorney-General in relation to Maygar, it is argued that the learned sentencing judge erred in treating the disparity between the minimum non-parole period which would apply to Maygar and Woodman as a relevant consideration. It is argued that the learned sentencing judge erred in attempting "to 'even up' the two different sentencing regimes".[1]
[62]
[55] On Maygar's behalf, it is argued that the learned sentencing judge did not treat considerations of parity with Woodman's sentence as material to the sentence to be imposed on Maygar. But while it is true that the other considerations referred to by his Honour were expressly relied upon, it seems clear that the mandatory period of imprisonment to be served by Woodman was regarded as a material consideration to his Honour's exercise of the sentencing discretion in relation to Maygar. His Honour referred to the "potential anomaly of a very significant difference in the sentences" as a matter of "some real significance". It must, I think, be accepted that the learned sentencing judge did take into account, as a matter of "real significance" to Maygar's sentence, the consideration of parity as between Maygar's sentence and that of Woodman.
[63]
[56] It was then argued on Maygar's behalf that the "anomaly" to which his Honour referred might properly be taken into account in fixing Maygar's sentence. It is said that he might have a justifiable sense of grievance that his period of mandatory custody should exceed that of his co-offender by many years. In my respectful opinion, this argument must be rejected.
[64]
[57] There could be no justifiable sense of grievance on Maygar's part if he were obliged to serve a longer period in custody than Woodman. That he must serve a longer period of imprisonment is simply the consequence of the application of different sentencing regimes to him and to Woodman: Maygar falls to be sentenced under the law relating to adults and Woodman falls to be dealt with under the laws relating to children. In the sentencing of child offenders, the considerations of leniency and child protection which inform the regime established by the Juvenile Justice Act must be observed by a sentencing judge. It may be thought that the drawing of a line in this regard between Maygar and Woodman by reason of the small difference in their ages is arbitrary; but a line has to be drawn somewhere for these purposes. More importantly, the drawing of this line is not a matter of judicial discretion: the line has been drawn by the legislature whose function it is to determine when a person should be dealt with as an adult by the criminal justice system. Maygar can have no legitimate grievance about that.
[65]
[58] As Mackenzie J, with whom Jerrard JA agreed, said in R v Tuki:[2]
[66]
"... there is no general principle that the mere fact that co-offenders are dealt with differently because one is dealt with as an adult and one as a child, requires this court to reduce the sentence from what is otherwise an appropriate level for the adult offender by resort to the principle of parity. The fact that the sentences are imposed under different schemes of sentencing necessarily implies that there will be differential treatment."
[67]
[59] The view expressed in R v Tuki is in conformity with the decision of this Court in
[68]
R v Crossley[3] and with the approach of the Full Court of the Supreme Court of South Australia in The Queen v Harris (No 2)[4] and The Queen v Homer.[5] McPherson JA said, in R v Crossley,[6] a "difference in parole eligibility dates between the two offenders was the direct consequence of the operation of the statutory provisions ... it was no part of the sentencing judge's function to nullify by other means."
[69]
[60] In the upshot, I am respectfully of the opinion that the learned sentencing judge erred in regarding the disparity in the non-parole period fixed for Woodman by the Juvenile Justice Act as an "anomaly" and a factor of significance in the fixing of the non-parole period for Maygar.
[70]
[61] In any event, for reasons which I will explain directly, I consider that the sentence imposed on Maygar was manifestly inadequate. Accordingly, it falls to this Court to exercise the sentencing discretion afresh.
[71]
[62] Maygar's offences would be unimaginable if they had not actually occurred. There is no explanation for the savagery which marked these offences. The killing of Wilson appears to have been utterly senseless. The killing of Lyons was either a senseless act of savagery or the deliberate murder of a witness to the earlier crime. The killing of Mr Thompson was the execution of a witness in the most gruesome way. The rape of Ms Nugent occurred in circumstances of extraordinary brutality. Because of what she had seen and heard, she must have been in fear of her life as well as the safety of her baby.
[72]
[63] The first consideration in a case such as this is the need to impose a sentence which protects the community.[7] In this regard, a non-parole period of 20 years would usually provide adequate protection for the public. At the expiration of the
[73]
non-parole period of a life sentence, Maygar will only be released if the authorities consider that it is then safe to release him on parole. As was said in the High Court in Bugmy v The Queen,[8] "a minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation". On this approach, it is better for judges not to try to guess about these matters too far into the future. If, at the end of 20 years actual imprisonment, Maygar is thought still to represent an unacceptable risk to the community, he will not be released. To impose a sentence of actual imprisonment in excess of 20 years is, therefore, not warranted as a rational response to the need to ensure the protection of the community.
[74]
[64] There are, however, other considerations which apply in this case, in addition to the claims of community protection. In this case, the need for condign punishment is as strong as it could ever be bearing in mind considerations of denunciation of Maygar's conduct and the vindication of the victims of his conduct.[9] The horrific nature of these offences, and the unspeakable suffering endured by the victims and their families, makes this aspect of the sentencing function of special importance in this case.
[75]
[65] Happily, cases in which it is necessary to consider whether the minimum term of actual imprisonment fixed by s 305(2) of the Criminal Code should be increased to impose adequate punishment on the offender are rare. R v Smithers[10] affords an example. In that case, Mackenzie J sentenced a 26 year old man to a minimum period of 25 years imprisonment for the murders of a man and a woman. Each of the victims was stabbed many times, and the male victim's body was mutilated. The offender had no prior convictions. In my respectful opinion, Maygar's crimes call for an even greater level of punishment. The circumstances of this case are such that the murders committed by Maygar are in the category of the worst imaginable examples of murder.
[76]
[66] Maygar was, of course, only 18 years old. There is a difference between an 18 year old and a 26 year old in terms of maturity and personal responsibility; youth is usually a factor of great importance in fixing an appropriate sentence so as to reflect prospects of rehabilitation. But, in this case, these considerations are overwhelmed by the number and nature of the crimes. Maygar's youth cannot begin to explain or mitigate the wanton savagery of these killings. It cannot be suggested, and it is not suggested, that these killings were the result of youthful folly or immature judgment; indeed, the most striking feature of the account of the killings is the
[77]
cold-blooded determination with which they were committed. It is a remarkable feature of this case that no attempt was made on behalf of Maygar to render his conduct intelligible in human terms by evidence from a psychologist or psychiatrist. Having regard to the wanton savagery involved in Maygar's crimes, something more than reference to Maygar's youth would be necessary to suggest that he has any real prospect of rehabilitation. There is nothing more.
[78]
[67] Maygar pressed WT into engaging in the killing of Mr Thompson. To compel W, a person of less than normal intelligence, to become implicated in the murder of
[79]
Mr Thompson by threatening to kill him was an act of wanton cruelty; WT's young life has been blighted by his forced participation in these evil acts and, as a result, he must spend the rest of his youth and much of his young manhood in detention. Further, the murder of Mr Thompson was clearly the execution of a witness to the earlier crimes. The brutal murder of Mr Thompson for such a reason calls for a sentence which represents punishment appropriate to an example of the worst kind of murder. The circumstances of the murder of Mr Thompson alone would have justified a non-parole period substantially in excess of the minimum mandatory period of imprisonment imposed by s 305(2) of the Criminal Code, even taking into account Maygar's youth. I pause here to note that Maygar's plea of guilty can count for little. It has little utilitarian value, coming as it did on the second day of the trial when a strong Crown case had been marshalled to prove his guilt. Adequate punishment must reflect that he has committed three other horrific crimes including the especially vicious murder of Lyons.
[80]
[68] On behalf of the Attorney-General, it was submitted that, in the case of Maygar, the non-parole period for each of the two murders should be increased to 30 years on the basis that this level of punishment was appropriate for offences in the worst category of murders. In my respectful opinion, a period of mandatory imprisonment of 20 years was manifestly inadequate for these offences of murder which are in the worst category of that offence. A period substantially in excess of the minimum fixed by s 305(2) of the Criminal Code should be imposed as punishment. Further, a non-parole period greater than that imposed in R v Smithers is necessary to punish offending of this order of criminality. I accept the submissions advanced on behalf of the Attorney-General that a period of 30 years non-parole is appropriate punishment for offences of murder which are in the worst category of that offence, and that the murders of Wilson and Mr Thompson are in that category.
[81]
[69] I would allow the appeal of the Attorney-General and order that the non-parole period for each of the two murders be increased to 30 years.
[82]
[70] On behalf of the Attorney-General, it is contended that the learned sentencing judge imposed a sentence which was manifestly inadequate because his Honour gave insufficient weight to a number of factors in reaching the conclusion that WT's offence was not "a particularly heinous offence having regard to all the circumstances", and accorded too much weight to the factor that WT acted under compulsion. In particular, the Attorney-General refers to:
[83]
(a) the use by WT of the knife on Mr Thompson's neck. He had not been told to do that. It is said that, in addition to WT's fear for his life, he "wanted to be liked and accepted by his co-offender ... Woodman";
[84]
(b) the fact that WT attacked a defenceless man who had hitherto extended courtesy and consideration to him; and
[85]
(c) his conduct in front of the other "hostages" served to accentuate "the horror and the terror they had already experienced".
[86]
[71] None of these circumstances is inconsistent with the learned sentencing judge's view, based on facts which were common ground between the Crown and W, that WT acted in fear of his life as a result of the threats of Maygar and Woodman and their physical attack upon him. As I have already noted, there is no challenge to the learned sentencing judge's finding in this regard. Further, WT's conduct in acting to protect Ms Nugent's baby was nothing less than admirable in the circumstances.
[87]
[72] Section 176 of the Juvenile Justice Act provides as follows:
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(1) If a child is found guilty of a serious offence before a court presided over by a judge (the court), the court, may -
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(a) order the child to be placed on probation for a period not longer than 3 years; or
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(b) make a detention order against the child under subsection (2) or (3).
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(2) For a serious offence other than a life offence, the court may order the child to be detained for a period not more than
[92]
(3) For a serious offence that is a life offence, the court may order that the child be detained for -
[93]
(b) a period up to and including the maximum of life, if -
[94]
(i) the offence involves the commission of violence against a person; and
[95]
(ii) the court considers the offence to be a particularly heinous offence having regard to all the circumstances.
[96]
(4) A court may make an order for a child's detention under subsection (2) or (3) with or without a conditional release order under section 220.
[97]
(5) A court may make an order for a child's detention under subsection (3), with or without an order under division 10, subdivision 5.
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(6) This section does not limit a court's power to make an order under section 175."
[99]
[73] It is apparent that the general provisions of s 176 of the Juvenile Justice Act apply to the offence of murder. Accordingly, s 176(3) necessarily contemplates that cases of murder will not be "particularly heinous" simply because the offence involved is murder. That WT was guilty of murder cannot of itself mean that his offence is to be considered "particularly heinous".
[100]
[74] The harrowing account of the events of 30 May 2005 set out above does not inspire a sense of outrage in respect of WT's conduct. It was not heinous, in the sense that it was odious or reprehensible.[11] Rather, it was understandable in human terms (even if it was not excusable under the law). Only those capable of a degree of indifference to their own physical safety which would shame the Spartans would have no sympathy with a person in WT's position. In this regard, it is important to note that the other hostages who suffered throughout this ordeal did not regard WT as a threat to their safety.
[101]
[75] It is, I think, possible to conceive of a rational system of criminal law under which a person acting under such compulsion as WT did might not be regarded as criminally responsible at all for his actions.[12] That, of course, is not the case under our system of criminal law; and I make this observation only to highlight the difficulty which confronts the argument that WT's offence should be considered to be a particularly heinous example of the offence of murder.
[102]
[76] It might be said that the "offence" referred to in s 176(3)(b)(ii) of the Juvenile Justice Act is the offence, or offences, for which WT was found guilty, and that these offences included the murder of Mr Thompson for which he was criminally responsible with Maygar and Woodman, and that this murder was "particularly heinous". On this view, one would not look at WT's actual role in the death of
[103]
Mr Thompson, but to all the circumstances of Mr Thompson's murder. This argument was not pressed by Mr Copley of counsel who appeared for the appellant. In my respectful opinion, such an argument should not be accepted.
[104]
[77] In this regard, it is, I think, important to appreciate that the Juvenile Justice Act, and s 176 in particular, is not concerned with the concept of criminal responsibility for an offence which renders an offender "liable to punishment" as that concept is employed in s 2 of the Criminal Code. Section 176(3) of the Juvenile Justice Act is concerned with the extent of punishment to be imposed upon a child convicted of an offence. It is necessary to focus upon the nature of the offence of which the child has been found guilty for the purpose of determining whether the period of detention of the child should be increased from a maximum of 10 years to life. The provision expressly brings into focus all the circumstances of the offence, not merely those which serve to render the child responsible for the murder and liable to punishment. Attention must be paid to all the circumstances of the murder of which the child has been found guilty in order to determine whether the period of the child's detention should be increased from a maximum of 10 years to life.
[105]
[78] The question is whether all the circumstances of the murder show that the child's offence was particularly heinous, not whether the child is criminally responsible with others for an offence which is particularly heinous. In this case, those circumstances included the fact that he was acting under compulsion, that he had good reason to fear for his life and to seek to mollify Maygar and Woodman, and the fact that his conduct was not perceived as threatening by the other hostages.
[106]
[79] In my respectful opinion, the learned sentencing judge was correct in his conclusion that WT's offence should not be considered as a particularly heinous one.
[107]
[80] Accordingly, I would dismiss the appeal in relation to WT.
[108]
[81] Appeal No CA 65 of 2007 (in relation to Maygar) should be allowed and the
[109]
non-parole period increased to 30 years in respect of each of the sentences of murder.
[110]
[82] Appeal No CA 92 of 2007 (in relation to WT) should be dismissed.
[111]
[83] MULLINS J: I agree that the appeal of the Attorney-General in respect of the juvenile WT should be dismissed for the reasons given by Williams and Keane JJA.
[112]
[84] In relation to Maygar, I also agree with Williams and Keane JJA that, in fixing the non-parole period, the learned sentencing judge erred in placing weight on the date on which the co-offender Woodman (who was sentenced as a juvenile) would become eligible for parole.
[113]
[85] What I do not agree with, however, is the conclusion reached by Williams and Keane JJA that Maygar should not be eligible for parole before a minimum of
[114]
30 years' imprisonment has been served. I would allow the appeal of the Attorney-General in respect of Maygar to the extent of ordering that Maygar must not be released from imprisonment until he has served a minimum of 25 years of imprisonment.
[115]
[86] Where an offender is sentenced to life imprisonment for more than one conviction of murder, the Court under s 305(2) of the Criminal Code must order that a specified number of years of imprisonment be served by the offender, before the offender may apply for parole. The minimum number of years that can be specified is 20 years. The making of such an order is part of the sentencing process.
[116]
[87] The Court is required to have regard primarily to the factors set out in s 9(4) of the Penalties and Sentences Act 1992 in sentencing Maygar because of the violence and physical harm that was inflicted on the victims.
[117]
[88] As the sentencing judge observed, the horror of the offences committed by Maygar cannot be overstated. I rely on the description of the offences set out in the reasons of Keane JA. The horrific nature of the offences that must be punished and denounced and the consequent need to protect the community from further offending are the focus of sentencing Maygar.
[118]
[89] The Court is still obliged to consider other relevant factors set out in s 9(4) of the Penalties and Sentences Act 1992 including the antecedents, age and character of Maygar, even though such factors have only a little significance.
[119]
[90] Maygar was 18 years 10 months old when he committed the offences. His recorded prior criminal history was not significant, but he was on bail for other serious offences committed between August 2002 and March 2005 including break and entering premises, stealing, arson of motor vehicle and armed robbery. He was given concurrent sentences for the other offences when he was sentenced for the two murders, the manslaughter and the four rapes committed on 30 May 2005.
[120]
[91] There was no psychiatric or psychological report in respect of Maygar that was put before the sentencing judge, but Maygar's psychiatric history and medical treatment as gleaned from hospital and prison records was placed before the sentencing judge. He had been diagnosed as schizophrenic and had a problem with alcohol and illicit substance abuse. About a month prior to committing these offences he had been treated as a result of poor compliance with his medication regime. At the time of the sentencing hearing, he was being medicated with 5 milligrams of Risperidone per day.
[121]
[92] Maygar did not rely on his medical condition as in any way diminishing his responsibility for his offending. It was put before the sentencing judge as part of Maygar's background.
[122]
[93] Maygar had shown little sign of remorse for his offending. His guilty pleas were late pleas.
[123]
[94] Before the sentencing judge the prosecutor relied on the sentence imposed in R v Smithers (unreported, Supreme Court, Mackenzie J, SC No 559 of 2006,
[124]
15 December 2006) and submitted that the appropriate point at which Maygar should become eligible for parole would fall within the range of 25 to 30 years. In Smithers the level of violence was described as "extreme". The female victim was murdered while the male victim was away from the property. The male victim was murdered on his return. Mackenzie J took into account "the sequential nature of the killings". The offender who was 26 years old was ordered to serve a minimum of 25 years before eligibility for parole.
[125]
[95] On this appeal, the Attorney-General also relied on Smithers. The submission was made that the range within which the sentence should have been imposed was imprisonment for life with an order that Maygar not be released until he had served between 25 to 30 years of imprisonment, but the Court was urged to fix the eligibility period at not earlier than 30 years' imprisonment.
[126]
[96] Smithers is one instance of the exercise by a sentencing judge of the discretion conferred under s 305(2) of the Criminal Code, taking into account all the factors relevant to sentencing the offender in that matter.
[127]
[97] The denunciation of the horrific murders committed by Maygar requires the period of imprisonment that must be served by Maygar before being eligible for parole to be increased from the minimum of 20 years. The life sentences imposed on Maygar mean that he will never be discharged from serving those sentences, even if he were ultimately granted parole: s 214 Corrective Services Act 2006. When Maygar's youth and medical condition are also taken into account, it is appropriate to postpone the earliest date before which he can apply for parole until he has served a minimum of 25 years of imprisonment.
[12] It was once arguable that this was the position under the common law: _R v Dudley and Stephen_s (1884) 14 QBD 273 at 277 - 278, 281 - 287. See also R v Howe[1986] UKHL 4; [1987] AC 417. Section 31 of the Criminal Code creates the defence of compulsion but provides that it is not available to an accused person charged with murder.