R v Norris [2007] VSCA 241

Court of Appeal (Vic)|2007-11-01|Before: NETTLE, ASHLEY and DODDS-STREETON JJA

CRIMINAL LAW - Sentence - Manslaughter, aggravated burglary and theft - Whether sentencing judge failed to consider offender's intellectual disability in assessing moral culpability - Whether impermissibly small difference between total effective sentence and non-parole period - Whether excessive cumulation of individual sentences - Whether total effective sentence breached totality principle - Whether sentence manifestly excessive - Whether excessive disparity between sentences passed on applicant and co-offenders - No error demonstrated - Application refused.

2 Wayne Frederick Norris (conveniently, 'the applicant' or Norris Senior') seeks leave to appeal against sentence passed upon him, by a judge sitting in the Trial Division, on 7 September 2006. On that day, he having earlier pleaded guilty, he was sentenced as follows:

• Count 1, manslaughter[1] - 9 years' imprisonment.

• Count 2, aggravated burglary[2] - 5 years' imprisonment.

• Count 3, theft[3] - 2 years' imprisonment.

The learned judge directed that two years of the sentence on count 2 be served cumulatively on the sentence on count 1. The total effective sentence was thus 11 years' imprisonment. His Honour imposed a non-parole period of nine years. He also disqualified the applicant from obtaining a driver's licence for a period of eight years; and he made a declaration of pre-sentence detention of 569 days.

3 The learned judge sentenced two co-offenders at the same time.

4 Wayne Leslie Norris (conveniently, 'Norris Junior') was sentenced to seven years and six months' imprisonment on count 1, four years' imprisonment on count 2, and 18 months' imprisonment on count 3. The judge directed that 18 months of the sentence on count 2 be cumulated on the sentence on count 1, this yielding a total effective sentence of nine years' imprisonment. His Honour fixed a non-parole period of six years and six months.**

5 Joabie Bodere was sentenced to six years' imprisonment on count 1, two years and six months' imprisonment on count 2, and nine months' imprisonment on count 3. The judge directed that nine months of the sentence on count 2 be cumulated on the sentence on count 1. The total effective sentence was six years and nine months' imprisonment. The judge fixed a non-parole period of four years and three months.

**6 Each of the applicant and Norris Junior lodged an application for leave to appeal against sentence. Today we granted leave to Norris Junior to abandon his application.

7 The applicant's Full Statement of Grounds reads as follows:**

Ground 1: The learned judge erred in failing to have any regard to the reduction in the applicant's moral culpability for the instant offending and his prior offending on account of his extremely low level of intellectual functioning.

(a) in failing to fix a greater disparity between the total effective sentence and the non-parole period;

(b) in reasoning that the applicant's "only fair" prospects of rehabilitation dictated the non-parole period fixed;

(c) in failing to reason that a shorter non-parole period and a potentially longer parole period would redound to the benefit of both the applicant and the community by improving the applicant's chances of rehabilitation in custody and reintegration into society upon release.

Ground 3: The learned judge erred in ordering any cumulation of the sentence on the count of aggravated burglary on the sentence on the count of manslaughter.

Ground 4: The individual sentences, the extent of the order for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive and in breach of totality.

Ground 5: The individual sentences, the extent of the order for cumulation, the resulting total effective sentence and the non-parole period offend the principles relating to parity among co-offenders.

8 The crimes involved the co-offenders entering the Warragul home of a man named Lee Bridge, killing him, and decamping in his car, which they stole. In lengthy and careful reasons the learned sentencing judge chronicled a series of events which preceded and culminated in the offences in respect of which he passed sentence. I should set out some of what his Honour said:

Lee Bridge was 36 years of age at the time of his death. He had resided in Warragul since 1990, in a modest home he had purchased with money awarded to him as damages for injuries suffered in a motor vehicle accident, which occurred when he was a child. As a result of the accident he suffered brain damage and paralysis to one side of his body, and he later suffered severe epilepsy. He received daily support from welfare agencies, and he had a circle of friends, one of whom was Stephen Skarlatis. It was through Skarlatis that Lee Bridge had come into unwelcome contact with [Norris Senior], and his son [Norris Junior], respectively the second and first named accused on the presentment.

On . . . 12 September 2003 Mr Bridge [was] the victim of a robbery which occurred in his presence at his home in Trumby Street, Warragul. His mobile telephone [was] stolen, together with a small amount of cash. In the course of the intrusion at his home Mr Bridge rang Skarlatis, who apparently dealt in drugs, and requested that he come to the house with $50 worth of marijuana. Whilst Lee Bridge was on the phone to him Skarlatis recognised the voice in the background of [Norris Senior]. Mr Bridge later reported the robbery to police and said that the older of the two offenders who were involved had held a screwdriver to his throat to induce him to call Skarlatis. . . . Counsel for . . . Norris Senior conceded that it was his client who had threatened Lee Bridge on that occasion and had stolen property from him. I am satisfied beyond reasonable doubt that [Norris Junior] was the other person then present.

On the following day Mr Bridge withdrew the complaint that he had made.

On 7 April 2004 Mr Bridge attended the Headway office in Gippsland, and reported that the same home invaders had returned three times since the incident on 12 September 2003, and had again threatened or robbed him, on one occasion stealing his guitar. In November 2005 that guitar was pawned in Collingwood by [Norris Senior]. In a record of interview conducted after Lee Bridge's death [Norris Senior] claimed that he had been given the guitar by Lee Bridge. It is unlikely that Mr Bridge would have done so voluntarily, since his guitar was very important to him. In any event, [Norris Senior] claimed that he took the guitar because Mr Bridge told him it was owned by Skarlatis, not himself.

I recount these events only by way of background to the events on the day of the death of Lee Bridge. You are not being sentenced with respect to the earlier robberies or the intimidation of Lee Bridge, but the fact that Lee Bridge had reported those robberies and made claims that he had been robbed and threatened by persons who, I am satisfied must have been [Norris Senior], on all occasions, and [Norris Junior], on some occasions, is relevant to the events on the day of his death. The statements made to many other people by Lee Bridge constitute direct evidence of his fear of [Norris Senior], in particular, and, to a lesser extent, his fear of [Norris Junior].

Following the incident when his mobile phone was stolen, and as a result of his fear of a further attack, Lee Bridge had installed a security door to the front of his premises. He locked all windows in his house and set his alarm clock for 6 p.m. every evening, so as to remind himself to lock both the back door and his front security door.

On . . . 9 February 2005, the three of you were drinking in Warragul. At about 6.00 p.m. you together left the Railway Hotel, one of you carrying a cask of wine, and you travelled by taxi to a house at Burton Street, Warragul. The taxi driver said that you, [Norris Senior], were drunk, but not as drunk as he had seen you on other occasions. You had insufficient funds, between you, to pay the cab fare. After drinking for a short time at the Burton Street house you walked in the direction of Lee Bridge's house, which was only a short distance away. One or more of you were seeking a source of marijuana. The three of you were observed at about 7.00 pm. running into the rear of the home of the deceased man at 10 Trumpy Street. Once there you gained entry by jemmying open the locked rear door.

One side effect of his medication was that Lee Bridge was often sleepy and when you broke in to his house he was asleep in his bedroom, wherein he was savagely assaulted.

The precise role played by each of you in the assault on Lee Bridge is uncertain. The records of interview you that each conducted with police provide admissible evidence only against yourselves; they do not provide admissible evidence against your co-accused. In each case the interviews were less than fully frank, and sought to shift blame to others, while diminishing the role taken by the interviewee. There is a good deal of objective evidence, however, as to the nature of the assault that took place.

When the scene was examined by police Mr Bridge lay face down on the bed and a dislodged wardrobe door was on top of his body. It is possible that the door simply fell on Mr Bridge in the course of the assault on him. Plastic telephone cable had been wrapped around his body, restraining his arms and also strung loosely around his neck. Pathologist, Professor David Ranson, said that although that cord was not directly causing breathing difficulties it may have played a part in impeding Mr Bridge's movement if he had tried to avoid swallowing his blood. Certainly, the cable, once applied, would have impeded any attempt - however futile - by Mr Bridge to defend himself.

Dr Ranson performed an autopsy which disclosed long standing brain injury, which would be associated with epilepsy. Mr Bridge died as a result of head and neck injuries. Dr Ranson found recent injuries to the face and neck, which resulted in fractures to the upper jaw and cheek bones, fractures of the lower jaw and of the hyoid bone (which is above the voice box). Those injuries produced extensive bleeding around the eyes, the face and the upper airway. There were significant blood clots to the gastro intestinal system. Dr. Ranson identified some 17 separate areas of abrasion or bruising to the head and neck, although that does not indicate that there had been that number of separate blows. He found bruising and abrasions to the chest, to both arms, and to the right foot. Dr Ranson reported that the absence of significant lacerations to the front of the face, together with the pattern of facial fractures, suggested that the force to the front of the face may have been delivered by an item with a soft configuration, either a fist or a weapon with a soft surface. The facial injuries were not caused by an item with a sharp edge.

Dr. Ranson said that some of the injuries to the trunk of the body, in particular an injury found to the chest, did have sharp edges which were consistent with being caused by a piece of wood found at the scene, but the injuries to that part of the body were not the cause of death.

Dr Ranson could not give an accurate count as to the number of facial traumas which had been inflicted, but said there were multiple injuries. He said the degree of force used to cause the facial injuries was consistent with that sometimes found in motor vehicle accidents, representing very significant force. He said that the injury to the hyoid bone could have been fractured by a punch or by a squeezing injury. He concluded that the period of time taken for the infliction of those injuries could have been anywhere from a few minutes to more than 25 minutes. He believed that there was a delay between the cessation of the beating and death. That could have been a matter of some tens of minutes or a little longer. Mr Bridge was swallowing blood, for a while, before he died.

Lee Bridge was 188 centimetres tall and weighed only 75 kilograms. He was paralysed to one side and was epileptic. His hands shook with tremors, and he limped. He was the victim of a most violent assault, which probably commenced soon after you broke into his home. He was in bed, probably asleep or barely awake, and was semi-naked. He would have been taken completely by surprise. The attack on him, to which I am satisfied that all three of you contributed, was a cowardly one.

I can not make the finding beyond reasonable doubt - which is the standard of proof that would be required in order for me to do so - that any one of you knew that Mr Bridge had the physical disabilities which I have described as having resulted from his motor vehicle accident. There were no admissions made by any one of you in that respect, and a witness who knew Lee Bridge well, Ms Perikkentis, said in her statement that, "You wouldn't know Lee had a disability just to look at him or talk to him. It was only once you got to know him that you got to know his problems". It must, however, have been abundantly obvious to all of you that Mr Bridge was providing little resistance to the attack, even if it took place before he was bound by the cable, a possibility I can not exclude. Quite apart from his obviously slight physical stature, he had been asleep in his bed immediately before he was attacked, and, as I have said, was almost naked. He was alone when attacked by three drunken men.

After assaulting Lee Bridge and leaving him dying (although I do not find that you knew that to be the case) you all left the scene in his vehicle, which you had stolen. The vehicle had been very important to him. You travelled to Drouin, where you picked up another person. [Norris Junior] drove. You then attempted to sell DVDs which had been stolen from the premises. You were still attempting to purchase marijuana, at various locations. You drove to Collingwood where you dumped the vehicle and were still in the Collingwood/Fitzroy area when each of you was arrested.

A piece of timber beading which was found on the floor next to the deceased had a finger print of [Norris Senior]. The wardrobe door had a finger print of [Norris Junior]. There was a foot print of [Norris Senior] at the scene.[4]

**9 His Honour noted that he had difficulty in determining the precise role of each of the offenders in the death of Mr Bridge. It had to be borne in mind that accounts given in records of interview could not be used to implicate the co-offenders. That said, his Honour analysed the differing accounts given by the three men. Concerning several accounts given by the applicant, he said that he was quite satisfied that a good deal of it was 'entirely false'. At one point in an account, the applicant said that he had gone to the house to 'score' marijuana from Mr Bridge, with whom he was friendly, and with whom he had drunk alcohol and used marijuana in the past. He denied earlier robbing Mr Bridge, who, I interpolate, was neither a drug user nor a supplier.

10 At another point, the applicant said that he had entered the house because he saw a vehicle which he believed to belong to Skarlatis outside; and that he wished to give Skarlatis a payback for bashing Norris Junior.

11 Further according to the applicant, he had been asleep on a couch when the fatal attack had been committed - probably, he said, he didn't know - by his co-accused.

12 The learned judge expressed this conclusion as to the role played by the applicant:**

Your pleas of guilty acknowledge that many of your statements to police were lies. The evidence of your fingerprint on the timber beading in the bedroom places you in that bedroom and holding the item which Dr Ranson said was consistent with being the cause of injuries to the chest of Mr Bridge. In any event, whether you personally struck Mr Bridge is of little moment; by your plea you admit responsibility for his death and I have no doubt that you were a primary instigator of the aggravated burglary and by your own admission you entered the property intending to engage in violence, although you said the intended victim was Mr Skarlatis.

13 Having noted the concern expressed in victim impact statements that the accused men had been convicted - that is, following their guilty pleas which the Crown accepted - of manslaughter, not murder, the learned judge first essayed a possible explanation for the Crown's acceptance of such pleas. He referred to evidentiary difficulties which the Crown might have faced. Then he said this:

You will be sentenced not for murder, but for manslaughter, and the fact that you did not intend to kill or to cause really serious injury to Lee Bridge must be accepted, as I do. Nonetheless, the absence of murderous intention makes your offending no more explicable, and this remains a serious instance of the offence of manslaughter.

14 In my respectful opinion, that characterisation was entirely apt.

**15 On the plea, counsel for the applicant highlighted what he described as two matters particularly bearing upon sentencing his client: his aboriginality, and what was said to be his 'significant intellectual disability'. The latter was the subject of evidence by a clinical neuropsychologist, James Drury. It was that witness's opinion that the applicant was a man of very low general intelligence, and a man whose reasoning and judgment skills, though to an extent present, were significantly impaired. In part, the witness opined, the disabilities were a consequence of long-term alcohol abuse, this having caused damage to the frontal lobes of the brain.

16 The learned sentencing judge was very evidently alive to the significance of this evidence - which did not go unchallenged. He himself asked a number of pertinent questions.

17 In his sentencing remarks, his Honour referred to the evidence of Mr Drury, and the challenge which had been made to it. He then said:**

... I accept his evidence of your extremely low cognitive ability and that it was caused by your long history of alcohol and drug abuse. The precise aetiology of that condition does not seem to me to matter. The question to be asked is to what extent that mitigates your offending. [Your counsel] submitted that it did so to a significant degree, and cited my own judgment in R v Bux, a case where an offender recorded similar poor results upon testing.

The fact that an offender has a very low IQ does not mean that factors of general and specific deterrence lose all relevance. In Bux, I concluded that although those factors did have to be sensibly moderated they nonetheless were relevant to sentencing, and I reach a similar conclusion here. The protection of the community remains a matter of importance in this case.[5]

18 Counsel for the applicant submitted that whilst his Honour had thus addressed the relevance of the evidence in the context of general and specific deterrence, he had not done so in the context of assessment of moral culpability. He had erred by not doing so. Counsel cited R v Williams,[6] in which this Court accepted that intellectual disablement was to be equated with mental illness, this enlivening, in the particular case, some of the considerations mentioned in R v Tsiaras.[7] Counsel referred also to R v Verdins[8] - decided subsequently to sentence in this case. He submitted that references in Verdins to 'impairment of mental function' and to 'impaired mental functioning' sensibly encompassed intellectual disablement; and that, in the present case, the applicant's disablement had the effect, in the language of Verdins, of -

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

**19 Counsel further submitted, the evidence being that the applicant was, in important aspects of his mental functioning, no more than a child, that by analogy his moral culpability was to be equated with that of a child aged less than 10 years. Under the Children and Young Persons Act 1989 such a child is not subject to criminal liability.

20 Counsel for the Crown submitted that, having turned his mind to the effect the applicant's low intelligence and related factors had on the application of relevant sentencing principles in the case, it was unnecessary for his Honour to single out as a specific consideration the effect that the applicant's condition had on his moral culpability.

21 He further submitted that the learned judge had made a number of findings which had the consequence that the applicant's moral culpability was high even allowing for his intellectual disability. Counsel mentioned, inter alia -

• The applicant's presence on prior occasions when Mr Bridge had been subjected to uninvited visits, thefts and intimidation.

• The false account given by the applicant to the police, in which he sought to shift blame on to his co-accused, and at the same time make false accusations against Mr Bridge.

• His Honour's conclusion that the applicant was a 'primary instigator' of the aggravated burglary, and had played a 'major role' in the offences.

22 In my opinion, ground 1 should be rejected for the following reasons.

23 First, the learned sentencing judge carefully examined the circumstances of the offences, the applicant's role therein so far as it could be determined, the applicant's personal circumstances and the evidence of Mr Drury. He highlighted Mr Drury's opinion that frontal lobe damage affected the applicant's ability to dissociate knowing from doing - that is, it limited his ability to regulate and control his behaviour.

24 Then, as I have already noted, his Honour said this: 'The question to be asked is to what extent that mitigates your offending.' Although he thereafter focused upon the issues of general and specific deterrence - which, by reference to Bux, had been the focus of counsel's submissions - it could not sensibly be concluded that he had overlooked the possible impact of the applicant's disability upon his moral culpability. Particularly that is so in light of the fact that in his reasons for judgment in Bux - which were cited to him - his Honour had referred to the oft-repeated passage in Tsiaras in which it was said that a relevant disability may, inter alia, reduce moral culpability. It is the more improbable still that he overlooked the matter when counsel highlighted his Honour's reference to Tsiaras in Bux. It is the more improbable again when, as happened, the prosecutor identified Mr Drury's evidence as going, inter alia, to the issue of the moral culpability. In all, applicant's counsel sought to make a point - depending on a literal reading of the judge's sentencing remarks - which was not there to be made.

25 Second, I agree with the submission of counsel for the Crown that, although elliptically, the learned judge in fact dealt in his remarks with the issue of moral culpability. To the extent that his Honour was able to, and did, identify the applicant's role in the offending, it did not bespeak reduced moral culpability.

26 Third, I consider that in any event it would have been no more than guesswork for his Honour to have concluded that the applicant's participation in the events which occurred was affected by his reduced ability to dissociate knowing from doing. Counsel for the applicant seemed to submit that, his Honour having accepted evidence pertaining to the applicant's intellectual disability, but being unable to say just what part the applicant played in the offending, he should nonetheless have concluded, whatever part it had been, that at least in part it had been a consequence of his impairment. I think that was a very difficult argument to maintain.**

**27 Counsel for the applicant submitted in writing that the disparity between the head sentence and the non-parole period was too little. The ratio was so high as to invite scrutiny.[9] Scrutiny showed that the explanation was the conclusion of the learned sentencing judge that the applicant had only fair prospects of rehabilitation. It was true that good prospects of rehabilitation would give reason to impose a lower than usual non-parole period. But the converse is not true. A longer parole period would have been of benefit to the applicant and the community - as by encouraging the applicant's rehabilitation while in prison and by providing for a lengthy period of supervision while on parole.

28 Orally, counsel for the applicant accepted that prospects of rehabilitation bear upon the setting of a non-parole period. He argued, however, that the learned judge had erred in concluding that the applicant's prospects of rehabilitation were only fair, at best. His Honour, in explanation of that conclusion, had said, inter alia, that he considered the applicant to have had a major role in the instant offences. Counsel submitted that his Honour had only identified a major role for the applicant in respect of the aggravated burglary, and that he had therefore reached his conclusion as to his client's rehabilitation prospects upon a false premise.

29 Counsel for the Crown submitted that the learned judge had been entitled to form the view that the applicant's prospects of rehabilitation were 'only fair, at best'. The applicant's criminal history was appalling. Protection of the community was a significant sentencing consideration. A non-parole period of about 80 per cent of the head sentence was justified in the circumstances of the case.[10] He met the oral submission for the applicant that his Honour had erred in ascribing a major role to the applicant in the commission of the instant offences by submitting that all his Honour had meant was that he rejected the applicant's account that he had been a passive bystander - indeed, asleep, on his account - at the time when the fatal assault occurred.

30 I consider that it is beyond doubt that his Honour was entitled to conclude that the applicant's prospects of rehabilitation were only fair, at best. The following matters, directly or by implication referred to by his Honour, well justify that conclusion.

31 The applicant presented as a man of middle years who had a minimal education, a negligible work history, a fractured family relationship, a history of long-term alcohol and marijuana abuse (the former being productive of brain damage), and an extensive criminal history[11] including multiple offences against the person, burglaries, and offences of dishonesty. Although his convictions after 1984 had not led to periods of actual imprisonment, offending had continued unabated.[12] Moreover, the instant offences were extremely serious.

32 Further, the argument orally advanced that the judge had not identified a major role for the applicant in respect of the killing, so that his reference to the applicant having played a major role in the commission of these offences was unsound, was in my opinion unpersuasive. I agree with the submission advanced for the Crown that, in the impugned passage, his Honour was saying only that the applicant's role was major in the sense that he was not a passive bystander as he had claimed. It seems to me very unlikely that his Honour meant - this standing in stark contradiction to his earlier findings - that the applicant had a more significant role than the other men in the commission of the offences other than the aggravated burglary, in respect of which his Honour had made a specific finding adverse to the applicant.

33 Next, it is not in doubt that the non-parole period which his Honour fixed reflected his conclusion about the applicant's prospects of rehabilitation. He said:**

Regrettably, I consider that your prospects of rehabilitation are only fair, at best, and that fact will be reflected in the non-parole I will fix in your case.

**34 Counsel for the applicant cited no authority for the proposition that a relatively high non-parole period might not be set having regard to an offender's poor prospects of rehabilitation. I do not understand it to be consistent with authority.[13] Section 11(1) of the Sentencing Act 1991 (Vic) provides, in effect, that a Court may refuse to fix a non-parole period by reason of the nature of the instant offences or 'the past history of the offender'. An offender's past history would likely bear upon prospect of rehabilitation. If past history is a reason for denying a parole period altogether, it seems difficult to argue that it should not be a reason for fixing a short possible parole period.

35 Addressing the question of the relationship between head sentence and non-parole period in R v Detenamo,[14] Redlich JA referred to what he had said in R v Tran and Tran[15]:**

The non-parole period imposed demarcated the minimum period that the appellant serve in custody and the longest possible term of his parole supervision. The Sentencing Act 1991 requires that the non-parole period be at least six months less than the terms of the head sentence. Beyond that legislative direction there is no requirement at law which calls for a set ratio between the head sentence and the non-parole period. The Australian Law Reform Commission recently reported that "case law recognises that the non-parole period is generally set at 60 to 66.6% of the head sentence with the non-parole period increasing to 75% in the worst category of case". This accords with the observations of Callaway JA in R v Bolton & Barker that "[I]n the majority [of cases] the proportion is between two-thirds and three-quarters but both shorter and longer periods are found."

The minimum term is recognised to be of benefit to the offender providing the offender with a basis for a hope of earlier release and in turn an incentive for rehabilitation. When a minimum term is fixed, the prisoner's punishment is mitigated in favour of his rehabilitation through conditional freedom, when appropriate, but only after the prisoner has served the minimum term that justice requires having regard to the circumstances of the case. As the benefit of the minimum term is for the purpose of the offender's rehabilitation, the sentencing judge's assessment of the offender's prospects of rehabilitation will have a significant bearing on the minimum term to be fixed. In fixing that term the interests of the community, which the imprisonment of offenders is designed to serve, must be taken into account. (Footnote omitted)

A non-parole period which exceeds three-quarters of the length of the head sentence is not necessarily indicative of error as there is no fixed standard for the non-parole period. However, where a non-parole period is imposed which is unusual by comparison with other cases and having regard to the facts of the instant case and the course of the plea, reasons should generally be given, and an absence of reference to the sort of factors mentioned by Callaway JA in R v VZ invites appellate scrutiny and may reflect error. (Footnotes omitted)

As a matter of principle, it is correct to say that there is a punitive aspect to the non-parole period. But the factors that weigh heavily in fixing a head sentence will generally be differently weighted in the context of a non-parole period. As a matter of principle, the determination of a non-parole period requires discrete consideration of the factors which bear upon whether the confinement of an offender should be mitigated in favour of his or her rehabilitation. Maxwell P has recently emphasised that the rehabilitation of offenders is very much a matter in which the public has a strong interest. (Footnotes omitted)

**36 In the present case, the learned sentencing judge did fix a non-parole period exceeding three-quarters of the head sentence; and he said why he had done so. He identified poor prospects for the applicant's rehabilitation as the driving consideration. That was a most pertinent consideration. In my opinion, it well-entitled his Honour to set the non-parole period which he did.

37 I have reached that conclusion notwithstanding a submission for the applicant, orally advanced, that a lower non-parole period should have been set because there were other mitigating features - relevant to fixing both the head sentence and the non-parole period - to which his Honour did not refer in setting the non-parole period. It is not to be thought that his Honour overlooked those other considerations, to which he specifically referred in the course of his sentencing remarks, in settling upon both the total effective sentence and the non-parole period which he did.**

38 The learned judge said this in his sentencing remarks:

I will order some degree of cumulation of the sentence on count 2. Whilst the offences arose out of a single incident, the discrete nature and the seriousness of the aggravated burglary merits acknowledgment in that way, and also in the fixing of the head sentences. Your respective prior convictions, or lack of same, are of particular relevance in these respects.

**39 That was said, of course, in respect of each of the accused. In his actual sentencing disposition, the proportion of the sentence on count 2 which his Honour made cumulative on the sentence on count 1 varied from one man to the other. It was lowest in the case of Bodere, and highest in the case of the applicant. The latter was particularly implicated by his Honour in the commission of the aggravated burglary and he had the greatest number of relevant prior convictions.

40 In written submissions, counsel for the applicant submitted that the offences arose out of a single incident, dominated by the offence of manslaughter. Further, the sentence imposed in respect of that offence was at least firm. In consequence, cumulation infringed the totality principle. Again, because the killing had occurred in the victim's home, the sentence for the manslaughter must have reflected that fact. Thus there had been an element of double punishment. Finally, the applicant's prior convictions for burglary did not justify greater cumulation of sentence in his case than in the case of the co-accused. Those submissions accorded with the language of ground 3.

41 In oral submissions, counsel for the applicant conceded that some cumulation could properly have been ordered. The error, it was claimed, was in the extent of cumulation, which had the effect of infringing the totality principle.

42 Counsel for the Crown submitted that an order for some cumulation was appropriate.[16] The applicant had gone to the victim's home with an aggressive purpose. Each of counts 1 and 2 involved a separate and discrete offence. The one was complete before the other began. It was relevant to the degree of cumulation that the applicant's prior criminal history included some 25 counts of burglary.[17] Counsel added that, the propriety of some cumulation being now conceded, the question became whether the extent of cumulation was manifestly excessive - and it was not.

43 In my opinion, as was ultimately conceded for the applicant, there was no objection in principle to the learned judge part cumulating the sentences as he did. The elements of counts 1 and 2 were separate and distinct. The criminality in each instance was distinct, notwithstanding that the entry the subject of count 2 led in time to the killing the subject of count 1.

44 In Lacey,[18] Vincent JA discussed the issues of cumulation and double punishment. The accused were presented on counts of aggravated burglary, intentionally causing injury, and affray. The sentencing judge cumulated part of the sentence on the count of intentionally causing injury on the sentence on the count of aggravated burglary. The applicant complained that the individual sentence on all three counts had not been moderated; and so that he had been doubly punished.

...reliance was placed upon a passage in the joint judgment in the High Court in Pearce v R where their Honours pointed out the need for a sentencing judge in such a situation to impose appropriate sentences for the separate offences but, when doing so, to be astute to avoid the imposition of double punishment and to bear in mind that each sentence handed down constitutes the imposition of a separate punishment whether or not it is to be served concurrently with some other sentence.

It is, of course, well recognised that although it is sometimes extremely difficult to separate the bases of punishment in situations where a number of offences are committed within the ambit of a single incident or enterprise, the sentencing judge must endeavour to do so and address the issue of possible overlapping by moderating the individual sentences and the making of orders for concurrency. (Footnote omitted.)

He resolved the applicant's contentions by holding -

... the making of affray in this case was, of itself, a serious offence involving separate elements and other victims and required the imposition of separate and significant punishment. Similarly, the invasion of the victim's home when armed and in the company of other armed persons for the purpose of assaulting the occupant was not only a separate offence, but one which merited punishment whether or not any assault occurred or fight [took] place.

As a matter of principle, in my view it would not be correct to involve the conduct involved in the affray as subsumed within the counts relating to what transpired in the house, nor to regard those matters as overlapping to the extent that counsel has urged before us. Of course, there had to be recognition by the sentencing judge of the need to tread carefully and to avoid the imposition of double punishment upon the appellant ... .

**46 In the present case, the applicant's complaint as advanced orally was that there should have been less cumulation. In so far as it was submitted that the effect of cumulation was to infringe the totality principle, the submission implied a want of moderation of the individual sentences. Counsel for the applicant particularly focused upon the sentence imposed on the count of aggravated burglary. He submitted, in effect, that it had been just another aggravated burglary, not such as to merit the high sentence which - statistics suggested - had been imposed.

47 I reject the submission that the sentence which his Honour imposed on the aggravated burglary was inappropriate. In determining what sentence should be imposed upon the applicant in respect of that count, it was, in my opinion, significant that this was an aggravated burglary the intent of which was to assault. Moreover, it was not an intention formed against a background of uncertainty whether anyone was present in the victim's home. The only uncertainty was as to which person. In the event, I agree with the submission of counsel for the Crown that this was a quite serious instance of the offence which, in the applicant's case, was committed by a man who had repeatedly committed the offence of burglary.

48 That takes me to the issues of double punishment and totality.

49 As to the former, even if it was the case that his Honour treated the circumstances that the killing occurred in the victim's own home, and was done by trespassers, as bearing upon what sentence should be imposed for the killing, it does not follow that he was proscribed from cumulating some part of the sentence imposed for the aggravated burglary. The key was not to doubly punish the applicant for the same criminal conduct. To the observations of Vincent JA in Lacey may be added the pertinent reasoning of Redlich JA in R v King.[19] In the present case, any double punishment would have been reflected, almost certainly, in breach of the totality principle. But I cannot accept the proposition that any such breach was demonstrated. An extent of cumulation being entirely justified, a total effective sentence had to be set which reflected the entirety of the applicant's criminality. In that connection, the applicant's prior relevant offending was a pertinent consideration. In my opinion, the total effective sentence which his Honour imposed, in all the circumstances, was by no means surprising.

50 I should add this: no authority was cited for the proposition that his Honour erred by treating the applicant's prior convictions for burglary as justifying a greater degree of cumulation in his case than was imposed in the cases of the co-accused. I know of none which support it.**

**51 Counsel for the applicant submitted that the individual sentences, the extent of cumulation, the resulting total effective sentence and the non-parole period were each manifestly excessive, and in breach of totality. He relied upon the pleas of guilty, the applicant's remorse, his very low IQ and related deficits, the setting of what was claimed to be a very high non-parole period, and the fact of cumulation. He submitted also that the sentence for the manslaughter, discretely considered, was very high. I have already addressed some of those matters, and will not repeat what I have said in those connections.

52 Counsel for the Crown submitted that the killing had rightly been described by the judge as a serious instance of the offence of manslaughter. The applicant's role, as the judge found, had been a major one, not just that of a bystander. His past criminal history was very bad. His instant offending had breached a suspended sentence of imprisonment. Allowing for the pleas of guilty, the applicant's aboriginality, his deprived upbringing, his genuine remorse and his intellectual deficit, the sentence for manslaughter was appropriate.[20] The offence being grave, mitigating aspects must play a lesser role.[21]

53 Again, counsel submitted, assuming that the applicant had been affected at the time of his offending by the use of alcohol, it did not stand in his favour.[22]

54 Counsel further submitted, as I have already noted, that the aggravated burglary was a serious example of a serious offence. A sentence of four years' imprisonment where the maximum penalty is imprisonment for 25 years could not be said to be inappropriate, particularly given the applicant's past history of relevant offending.

55 Finally, concerning the theft of the motor vehicle, counsel contended that the penalty could not be said to be unjustified, particularly as the applicant had an extensive prior history of offences involving dishonesty. The judge, benevolently, had made no order for cumulation in respect of this offence.

56 In my opinion there is no substance to this ground. The sentencing considerations mentioned by counsel for the Crown were correctly described, and in point. Looked at overall, making due allowance for all the mitigating considerations, the offences - particularly those comprehended by counts 1 and 2 - remained serious instances of serious offences which called for substantial periods of imprisonment, bearing in mind, particularly, the need for community protection and the applicant's (poor) prospects of rehabilitation. In respect of the last-mentioned, I should add, I consider that the learned judge reached a conclusion as favourable to the applicant as could have been reached.

57 Nor, as I have already said, do I consider that the effect of cumulation was to infringe totality. To my mind, there was nothing to the proposition that the learned judge failed to moderate the individual sentences passed so as to avoid double punishment; and by failing so to moderate the individual sentences produced a head sentence which infringed the totality principle. All things considered, a total effective sentence of 11 years for serious offences committed by a recidivist offender should occasion no surprise.**

**58 I have already set out the sentences imposed upon the applicant and his co-offenders. In written argument, counsel for the applicant accepted that the learned judge had been entitled to draw some distinction between the offenders, but not to arrive at the result which he did. He particularly drew a distinction between the sentences imposed upon the applicant and Bodere. In oral submissions, counsel argued that the differences in sentences imposed were not explicable by personal considerations, but could be explained by his Honour having wrongly concluded that the applicant had played a major role in the offences.

59 Counsel for the Crown submitted that the disparity in the sentences imposed upon the applicant and Bodere was readily and validly explicable. The disparity was 'not manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice had not been done'.[23] Counsel referred to points of distinction between the applicant and Bodere - touching both the offending and the offenders.

60 In my opinion there were great differences in the circumstances of the**

offending and the offenders which well justified the disparity in their sentences. As to the former, the judge positively found that Bodere had played a lesser role in the commission of the offending; and that he had returned to the scene and uncovered the victim's face, for fear that he might suffocate. Compare the role of the applicant as found by his Honour, specifically with respect to the aggravated burglary. Further, for reasons which I have already explained, I do not accept the submission advanced by applicant's counsel as to the meaning of his Honour's reference to the applicant having played a major role in the commission of the offences.

**61 Then, as to the offenders, I need not repeat what I have already said with respect to the applicant. By contrast - as was not in issue, or as the learned judge found - Bodere handed himself in to investigators after a time, made genuine statements of regret and remorse, and revealed considerable insight into his offending. Further, he was a man with only one relevant prior conviction, and that was many years earlier. The instant offending was not in character. Bodere had good rehabilitation prospects.

62 Although applicant's counsel did not press in written argument a submission that there was excessive disparity between the sentences imposed upon his client and Norris Junior, an oral submission was made to that effect. In my opinion, no point could be made in that connection. Although Norris Junior had a bad criminal record for one so young, he was still youthful, his role in the aggravated burglary was a little less than that of the applicant, and his Honour concluded that he had somewhat better prospect of rehabilitation than the applicant.**

63 In my opinion, the application for leave to appeal against sentence should be refused.

64 I agree and wish to add only three observations.

65 First, it appears to me that much of the applicant's submissions on grounds 1, 4 and 5 assumed that a sentence of nine years for the offence of manslaughter to which the applicant pleaded guilty was a stern sentence for an offence of that nature and gravity. Counsel sought to support that conclusion by reference to sentencing statistics as to the average, median and maximum sentences for manslaughter imposed in the last few years. In my view, the argument was unpersuasive. On any analysis, this offence of manslaughter was a serious case of unlawful and dangerous act manslaughter. Consequently, were it not for a range of mitigatory considerations which applied, it would in my view have warranted a sentence of significantly more than nine years. In view, however, of the early plea of guilty, remorse, and perhaps limited intellectual capacity of which there was some evidence, I consider that a sentence of nine years was well within the range.

66 Secondly, as to the setting of a non-parole period, not a little has been written over the last decade about the setting of non-parole periods, upon which counsel relied. If I may say so, however, much of what has been written assumes that there is a normal or usual ratio between head sentences and non-parole periods, and that any significant departure from the norm or what is usual necessitates express justification or elaboration. In my view, such conceptions are at risk of being pressed too far. Axiomatically, each case turns on its own facts and a myriad of sentencing considerations which are unique to the case. Sentencing statistics and notions of what is a usual or ordinary ratio between head sentence and non-parole period are at best of limited utility. No doubt a glaring disparity is likely to invite appellate scrutiny, but I should not have thought that a non-parole period of nine years in a head sentence of eleven fell within that category.

67 Finally I wish to voice my specific concurrence in my brother Ashley's observations as to the seriousness of the offence of aggravated burglary which was**

**68 I too, therefore, would refuse the application for leave.

69 I agree with their Honours Ashley JA and the presiding judge.

70 The order of the Court is that the application for leave to appeal against sentence is refused.**

[1] Common law offence, maximum penalty 20 years' imprisonment.

[2] Crimes Act 1958, s 77, maximum penalty 25 years' imprisonment.

[3] Crimes Act 1958, s 74, maximum penalty 10 years' imprisonment.

[4] [2006] VSC 75, [3], [5], [6], [7], [9], [10], [13]-[23].

[8] [2007] VSCA 102, [5], [13], [26].

[9] Counsel cited R v VZ [1998] VSCA 32; (1998) 7 VR 693.

[10] Counsel cited R v Detenamo [2007] VSCA 160, [26]-[27] (Redlich JA).

[11] Ninety-two previous convictions from 32 court appearances.

[12] There being court appearances in 1986, 1988, 1993, 1995, 1998, 2000, 2001, 2002 (2), 2003 and 2004 (2).

[13] The leading authority is Power v R [1974] HCA 26; (1974) 131 CLR 623, 628 (Barwick CJ, Menzies, Stephen and Mason JJ). Power, and later authorities, were discussed by Gallop J in R v Hillsley [1992] FCA 39; (1992) 105 ALR 560, 571 - 572. Nothing there said, or said subsequently in this Court - see, for instance, by Winneke P in Mulvale ( 20 February 1996, cited in Fox and Frieberg's Sentencing, 2nd ed, para 9.905) - assists the applicant's submission.

[15] [2006] VSCA 222, [27]-[28].

[16] He cited R v Lacey [2006] VSCA 4, [26] (Vincent JA).

[17] Citing R v King [2007] VSCA 38, [7]-[10] (Redlich JA).

[19] [2007] VSCA 38, [3]-[8], [10].

[20] Counsel cited R v Winter [2006] VSCA 144, [56] - [57], R v Bangard [2005] VSCA 313; (2005) 159 A Crim R 145, R v Detenamo [2007] VSCA 160, [13] (Redlich JA); and he referred to the Sentencing Advisory Council's Sentencing Trends for Manslaughter, 2001-2006.

[21] Counsel cited R v Kerbatieh [2005] VSCA 194; (2005) 155 A Crim R 367, [119] (Chernov and Nettle JJA).

[22] Counsel cited R v Stevenson [2000] VSCA 161, [27], (Winneke P), and R v Hay [2007] VSCA 147, [33] (Maxwell P).

[23] Citing R v Taudevin [1996] VICSC 7; (1996) 2 VR 402, 404 (Callaway JA).

Young Persons Act 1989

At a glance

Court

Decision date

Before

Source

Judgment (142 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)