2 The appellant, Christopher Gerard McIntosh, who is now aged 37 years, pleaded guilty on 20 November 2003 in the Supreme Court at Melbourne to two counts of attempted murder (counts 1 and 2) and one count of armed robbery (count 3). The maximum penalty for each offence is 25 years' imprisonment. The appellant admitted six prior convictions from two court appearances on 30 November 1987 and 3 September 1999. Relevantly, on 3 September 1999, the appellant was sentenced to five years' imprisonment with a non-parole period for three years for manslaughter, to which he had pleaded guilty, and three counts of theft. He was on parole for those offences at the time he committed those which are the subject of this appeal. After hearing a plea in mitigation made on the appellant's behalf, the learned sentencing judge on 16 March 2004 sentenced him to 18 years' imprisonment on each of counts 1 and 2 and eight years' imprisonment on count 3. His Honour ordered that six years of the sentence imposed on count 2 be served cumulatively with the sentence imposed on count 1, thereby imposing a total effective sentence of 24 years' imprisonment. His Honour also ordered that the appellant serve a minimum of 20 years' imprisonment before becoming eligible for parole. On 26 March 2004, the appellant filed a notice of application for leave to appeal against sentence and on 10 September 2004 he was granted such leave by a single judge of this Court pursuant to s.582 of the Crimes Act 1958.
3 The offences were committed on 21 August 2002 at a store called "Eagle Leather" in Abbotsford, which specialises in the sale of latex and leather bondage and fetish clothing and accessories. The business also sells sexual aids and pornographic videotapes. The two victims of the attempted murder counts were employees of that business. The victim of count 1 was David Oakley, who was then aged 33 years. The victim of count 2 was William Browning, who was then aged 50 years. As I have said, at the time the offences were committed, the appellant was on parole in respect of a sentence for manslaughter and other offences that had been imposed on 3 September 1999. From his early teenage years the appellant had taken part in bondage and sadomasochistic practices. On 20 May 1998, he was engaging in consensual erotic sadomasochistic activity with another man, who was asphyxiated by a rope which the appellant had tightened around his neck. The appellant pleaded guilty to manslaughter of the deceased and was sentenced as I have indicated. The appellant was released on parole on 21 July 2001 and, notwithstanding his remorse for what occurred in 1998, continued his sadomasochistic practices and was a regular customer at Eagle Leather.
4 On the day in question, the appellant entered the store shortly after midday carrying a large bag in which he had secreted a knife with a large blade. Mr Browning recognised him as a regular customer of the store. Mr Oakley had not previously met him. The appellant spent approximately an hour or so in the store, browsing and, at one stage, watching a pornographic video. He left for a short period, but returned at approximately 2 p.m. and selected a few items in the shop. He then approached the counter, giving the appearance that he wished to purchase the items. At this point, there were no other customers in the store and both victims were standing at the counter. The appellant pulled the knife from his bag and held it out at face level, yelling at the two victims to step away from the counter. He handed Mr Browning a length of black rope, which he had taken from the store, and instructed him to tie Mr Oakley's hands behind his back. After he had done so, the appellant, using another piece of rope taken from the store, tied Mr Browning's hands together and directed both victims towards the back of the shop where they would be out of sight of people in the street. He instructed the two men to lie face down on the ground and tied their ankles with more rope from the shop. The appellant then locked the front door of the premises, disabled the store intercom and security cameras before stealing $982 from the till and a nearby cash tin. He also took numerous items from locked display cabinets that he opened using the shop keys. After placing in his bag the stolen items and money - the total value of which was in the order of $15,000 - the appellant demanded of Mr Oakley information as to where the keys were to the back door of the premises. Mr Oakley offered to show him where those keys were, whereupon he was taken to the shop storeroom and again instructed to lie face down on the floor. Whilst he lay in that position, the appellant struck him four times forcefully to the back of his head, using a hammer he had found in the room, causing him to lose consciousness. In Mr Browning's statement to the police he said he could hear the "sickly sound" of Mr Oakley being hit from where he lay tied up in the front room of the premises. The appellant then returned to where Mr Browning lay on the floor and struck him with the same hammer three or four times on the back of the head. Mr Browning also lost consciousness as a result of this attack.
5 The appellant left the store shortly before 3 p.m., nearly an hour after he commenced his attack on the two men. Before leaving, however, he telephoned a taxi company, using the store's telephone, and arranged for a taxi to collect him from a storage facility around the corner. He attempted to destroy any evidence of his crimes by spraying "Zippo" lighter fluid around the store and setting it alight. In the event, the fire caused only minor damage. Upon arriving at the storage facility, the appellant requested the rental of storage space. He started to fill out the rental agreement form, but the taxi he had called arrived and so he did not complete the form but left in the taxi, telling the driver to take him to another storage facility in South Melbourne. There he stowed some of the stolen goods in a hired locker before going to Spencer Street Station, where he hired another locker to store more of the stolen goods as well as changing his clothes in a public toilet. Later that afternoon, the appellant bought a new pair of shoes, leaving the old pair at the shop, and the following day, had his hair cut and his beard shaved so as to disguise his identity. Despite these attempts, the appellant was recognised by another person who had been in Eagle Leather on the day the offences were committed. Accordingly, on the evening of 22 August 2002, the police went to the appellant's home and arrested him.
6 It seems that Mr Browning regained consciousness soon after the appellant left the premises and managed to undo the rope binding him. He stumbled on to the street and caught the attention of a passer-by, who called an ambulance. The victims suffered life-threatening injuries as a result of the appellant's attack. Both men were rushed to hospital by ambulance. Mr Oakley was in a coma for several days and placed on life support. He suffered a fractured skull and severe brain injury and spent over two weeks in hospital before he was discharged. He was subsequently hospitalised for a further 10 days, following complications arising from head surgery he underwent on 16 September 2002. The ongoing effects of the injuries he sustained include weakness of his right arm and leg, loss of vision on the right side and significant psychological damage. He is unable to drive a motor vehicle and, at the date of sentencing, was unable to return to work. Mr Browning was in a coma for 20 hours as a result of the injuries he sustained and was so seriously beaten to the head that ambulance officers believed he had been shot by a gun. Upon arriving at the Royal Melbourne Hospital he underwent emergency surgery for a depressed skull fracture. He had a right occipital fracture and an underlying contusion and oedema and it was necessary that he undergo an extensive craniectomy. He was hospitalised for a week at Royal Melbourne Hospital before being transferred to a rehabilitation centre but was later re-admitted to hospital for further medical procedures. The ongoing effects of the injuries suffered by Mr Browning include speech difficulties and partial loss of vision in one eye. He has also suffered some loss of cognitive ability and a change to his personality. As his Honour noted in his sentencing remarks, "fortunately his medical prognosis although guarded is relatively good". Nevertheless, as the learned sentencing judge recognised, he may never be able to work again.
7 Following his arrest, the appellant was interviewed by police and substantially admitted his conduct. He said that he had intended to kill both men in order to avoid leaving witnesses who could identify him and believed that when he left the premises each of his victims was dead or dying. He denied, however, that he planned to rob the store and said that he did not threaten the victims with a knife. The appellant claimed, rather, that he had been taunted by one of the victims in relation to his conviction in September 1999 for manslaughter and that he had committed the offences in question in reaction to his taunting. He said to police that he had become uncontrollably angry and had attacked Mr Oakley. He contended that he had then attacked Mr Browning to ensure that there were no witnesses to his crime and robbed the store in order to make it appear as if it was an armed robbery that had "gone wrong". The learned sentencing judge, however, rejected the appellant's story, as advanced in his police interview, that he had not entered Eagle Leather with a knife intending to rob it and this finding has not been challenged on appeal. His Honour also rejected the appellant's claim that one of the victims had taunted him and concluded that the appellant's lies to the police revealed a "manipulative dishonesty" and a "gross callousness and lack of remorse" on his part. None of these findings was challenged before us.
8 Although in his Notice the appellant listed four grounds on which he proposed to rely in support of his application for leave to appeal against sentence, at the hearing of the matter before us his counsel, Mr Croucher, relied on only two of them, namely, ground 4, which claimed that his Honour did not give sufficient weight to the appellant's plea of the guilty, and ground 1, under cover of which it was asserted that the sentence imposed on each of counts 1 and 2 is manifestly excessive, as is the order for cumulation, thereby making the total effective sentence also manifestly excessive or in breach of the principle of totality. For reasons which become apparent, it is convenient to consider ground 1 first.
9 Mr Croucher's primary submission was, as I have foreshadowed, that the individual sentences imposed on counts 1 and 2 are unduly excessive, as is the period of cumulation, with the result that the total effective sentence imposed offends the principle of totality. Counsel argued that the sentences on counts 1 and 2 are, by a considerable margin, the highest imposed in this State for attempted murder and, in that context, he referred to a helpful table which he provided to the Court, that lists sentences for attempted murder imposed by this Court (dating back to 1999) and demonstrates that, previously, the longest individual sentence imposed for this offence on a plea of guilty was 14 years' imprisonment in R v. Boaza[1]. So far as I can tell, Mr Croucher is correct in that aspect of his submission and I am content to proceed on that basis. Nevertheless, for reasons I will give later, I consider that this complaint does not carry much weight. Counsel accepted the horrendous nature of the crimes but argued that there are a number of mitigating factors that operate to compel a shorter sentence. Thus, Mr Croucher pointed to the fact that the attempted murders were not premeditated, as was accepted by the Crown, but occurred essentially at or near the end of the armed robbery phase of the offending conduct. Next, it was said that the appellant confessed upon his arrest to the essential elements of the crimes in question and pleaded guilty at the earliest opportunity. Moreover, it was claimed, as his Honour found, the appellant's health problems make the serving of a long term of imprisonment particularly onerous for him. Furthermore, it was said, the appellant had no prior convictions for offences of this nature, the argument being that his prior conviction for manslaughter involved exceptional circumstances and was of little relevance. Moreover, Mr Croucher contended that his Honour failed to take into account the possible consequences of the operation of s.16(3B) of the Sentencing Act 1991 should the appellant's parole be cancelled. Counsel pointed out that, since the date of sentence, the appellant's parole had in fact been cancelled so that s.16(3B) of the Sentencing Act operates so as to require him to serve any sentence imposed on the counts now under consideration cumulatively with the two remaining years that he is required to serve under his previous sentence upon the cancellation of his parole, subject, of course, to the Board's discretion to release him on parole for any of the balance of that sentence.
10 The mitigating factors relied on by Mr Croucher, however, must be put in context. First, the fact that lesser sentences have been imposed in other cases for attempted murder plainly cannot be determinative of what should be the appropriate sentence in this case and, in fairness to Mr Croucher, he did not seek to put his case in this way. It has been often said by this Court that past sentences and sentencing statistics are, at best, only a guide because "no two cases are the same and ... the circumstances of particular offences and particular offenders are infinitely various, especially where multiple offences ... are concerned"[2]. And, as Callaway, J.A. said in R v. Adajian[3]: "Sentences are not precedents which must be applied unless they can be distinguished, and the paramount duty of the court is to do justice in individual cases". Moreover, the time is long gone since there has been any serious suggestion that there is a specific practical ceiling on the period of imprisonment that may be ordered for this crime.[4] As the learned President said in R v. Boaza[5]: "There are no 'benchmarks' setting binding limits for the crime of attempted murder ..." This is unsurprising given that, as I have said, each case must be decided on its own facts and given the serious nature of the offence, in respect of which the maximum custodial sentence has been raised from 20 to 25 years.
11 Secondly, the crimes in this case were of a particularly serious nature. They were not crimes of passion or even the result of anger, but were motivate by the appellant's wish to eliminate potential witnesses to his armed robbery (which, of itself, constituted a significant offending given the value of the money and merchandise that was stolen and the fact that it was carefully planned some time before the day in question). Moreover the attempts to kill the victims involved inflicting on them what must have been sheer terror over a considerable period, particularly in the case of Mr Browning who, as I have said, heard the thuds of the appellant's hammer as it struck his tied up fellow worker.
12 Next, the crimes resulted in Mr Browning and Mr Oakley being deprived, for the very long term, if not permanently, of the physical and psychological health and wellbeing that they enjoyed before they were viciously attacked by the appellant. It must not be forgotten that their lives have been virtually ruined as a result of this attack and this must have affected those closest to them.
13 Furthermore, although the appellant confessed when he was arrested and pleaded guilty at an early stage, these matters should not be taken too far given that his admissions were made in the context where he sought to shift at least part of the blame for his conduct on to the innocent Mr Oakley and given that the Crown case was particularly strong since both men survived the attack and Mr Browning at least could have given evidence again him. There is much force in Mr McArdle's submission that there is no reason to think that, in those circumstances, the Crown case on attempted murder was dependent on the appellant's admissions.
14 Moreover, contrary to Mr Croucher's submissions, the prior conviction of the appellant for manslaughter is of relevance for sentencing purposes given that it involved the taking, albeit unintentionally, of a life by him and yet, whilst he was on parole in respect of that crime, he sought to kill two innocent people. As Mr McArdle submitted, the appellant's offending in light of his previous conviction shows that he has learned nothing of, or had disregard for, the law's recognition of the sanctity of human life. It is also relevant when evaluating the worth of the mitigating factors put forward by Mr Croucher that, as his Honour found, the appellant had shown no remorse for his offending conduct. Although, as Mr Croucher pointed out, this factor does not go to aggravation, it does put the appellant's plea of guilty in context and deprives him of a sentencing discount that might otherwise have been available to him.
15 Finally, it must also be borne in mind that attempted murder is a very serious offence. As Winneke, P. said in Boaza[6]: