R v Quarry [2005] VSCA 65

"Dr D. L. Ranson conducted an autopsy on the body of Sharni on 8 August 2002. He found extensive bruising of the child, including pattern bruising that indicated very forceful squeezing of the child's right hand, fracture of the radius of the right forearm and fracture of the left clavicle. However the cause of death was extensive head injury. There was widespread subcutaneous haemorrhage of the head and five fractures of the skull. The scalp showed subcutaneous haemorrhage over the top, back and sides of the head. The haemorrhage formed a diffuse haematoma that measured up to 2cm in maximal thickness at the top and back of the head in the vicinity of the external bruises. The skull and cranial vault showed widespread bony injury with a right mid parietal fracture extending from the right temporal region posteriorly through to the occipital suture on the right side. A further fracture line extended from the occipital suture on the left side through to the floor of the posterior cranial fossa on the right side. An additional fracture line extended superiorly for a distance of some 3cm from the mid part of the right occipital suture in to the posterior aspect of the right parietal bone. A further substantial fracture line extended vertically through the left parietal bone for a distance of some 7cm in the coronal plane. The large fracture in the right parietal bone was widely separated and torn portions of dura and brain tissue protruded through the bony defect which was widened to between 1 and 1.5cm. The dura, the thick outer membrane around the brain, appeared defective in the vicinity of the skull fractures. There was evidence of patchy extradural and sub-dural haemorrhage in the vicinity of the fracture line"

"Dr Ranson gave evidence before me that the impacts of the child's head to the front door or the wall were the most likely cause of the fractures of the child's skull and that the dropping of the child one metre to the floor would not cause the extensive pattern of skull fracture he found on autopsy. In cross examination he agreed that the head injuries could have been caused by as few as two or three applications of force. The combined impacts caused death. It was not possible to give a precise time of death. Dr Ranson said that at the time you dropped the child to the floor she 'was already suffering from a very significant head injury which in all probability was a fatal injury which was proceeding inevitably to death'."

12 In the course of his evidence, Dr Ranson said it was difficult for him to assess the effect of medical intervention at an earlier stage. He said that from the injuries he saw the chance of successful medical intervention at an earlier stage would have been extremely poor. Dr Ranson also said in his evidence that even though a child had a relatively thin skull and perhaps more mobile bones, it still takes considerable force to fracture a bone. He said that when the bones are more mobile it probably takes even more force to cause a significant fracturing. Dr Ranson said the distribution of the fracturing in this case indicated that considerable force had been used.

13 In a record of interview the appellant made full admissions. He said that he thought that when the police were knocking on the door of the flat he might have pushed the infant into the door two or three times. He admitted that he was angry and had smashed the furniture. He also told the police that he threw the infant on the floor because she was crying and to stop her crying. He said, further, that he pushed the infant into the door because he was angry with Tate for leaving him and at the police being called. He told the police in his record of interview that he was drunk and had consumed too many pills, that he and Tate had a fight, and that when the police arrived it all escalated from that point. He described the infant, Sharni, as a "beautiful baby" and as "the best thing that ever happened to me." In the record of interview, when asked why he did not hand the baby over to the police, the appellant said he did not know why, that he was scared the police would take the baby away, that Tate would go and he would be left with nothing. The appellant said he could not understand why he acted as he did. At the end of the record of interview the appellant expressed remorse for what he had done.

14 Victim impact statements were provided to the sentencing judge by Tate and the grandmother of the baby. They described the impact of the trauma upon them and their grief at the loss of Sharni.

15 The appellant is now aged 35 and was 32 at the time of the offences. The background and personal circumstances of the appellant were set out in detail before the sentencing judge by a psychiatrist, Dr A. Forrester, in his report and, also, in earlier reports and letters by Dr I. Martin, a psychiatrist, who had treated the appellant intermittently over 20 years from 1982 to 2002.

16 The appellant was born in 1970 in Tasmania and had a difficult upbringing. He was beaten from a young age, and often so, by his father. He missed school, often to hide the bruising from his father's beatings. He manifested behavioural problems by the age of twelve such that his mother took him to a psychiatrist and, thus, his first encounter with Dr Martin. The appellant's behaviour at that time included assaulting his mother and siblings and damaging property. He was provided with medical attention but from a young age was placed in care because of his behavioural problems. The appellant spent a number of years in boys' homes. His history of youthful violence seemed to include the smashing of furniture and throwing knives when his wishes were not complied with. Dr Martin had recorded that the appellant once stabbed his mother in the thigh with a pocket knife and threatened her with a rifle. The appellant commenced drinking when he was fifteen and from seventeen onwards developed a serious problem with alcohol. From nineteen onwards he abused drugs, including prescription drugs. He had relationships with two different women and two children from the first partner.

17 A report of Dr Martin dated 9 September 2002 was before the sentencing judge. Dr Martin, covering the period from 1982 to 2002, described the appellant. The report of Dr Martin set out in extensive detail the psychological history of the appellant. Dr Martin first saw the appellant in 1982 when he was twelve and then referred him to a child psychiatrist, Dr Siegel. Dr Martin did not see the appellant again until 1999, some seventeen years later. In 1999 Dr Martin described the appellant as "...an explosive sociopath. He has an extremely short fuse, particularly when drunk, but very often when sober. He then becomes physically violent, smashes things and generally destroys property...." At that time Dr Martin prescribed medication and ongoing visits. The appellant was seen by Dr Martin again in 2000 when the psychiatrist wrote: "[the appellant's] violent behaviour, however, has occurred exclusively in the setting of alcoholic intoxication. In spite of his knowledge that this happens, and that he is virtually harmless when sober, he seems to have been totally unable to abstain from alcohol, no matter what."

18 On 9 September 2002 Dr. Martin wrote of the appellant:

"[the appellant] has a personality disorder rather than a psychotic illness (i.e. he had no hallucinations or delusions). The personality disorder is 'Anti-social' formerly known as a Sociopathy. He is of modest intellect, quite possibly in the borderline intellectual handicap range...[the appellant] is often unable to resist alcohol although he knows that this affects him adversely and that he should not drink alcohol."[1]

Dr Martin did not give evidence on the plea. His reports were tendered before the sentencing judge without objection.

19 The sentencing judge described the appellant as having "a mixed personality disorder with alcohol dependence." So much was properly based on the reports of Drs. Martin and Forrester. His Honour went on to observe of the appellant "You suffer no psychiatric illness or intellectual disability. You are of moderate intelligence." Although the observation by the sentencing judge purported to summarise the psychiatric opinions before the Court, it may be questionable that the appellant was, in fact, "of moderate intelligence." The psychiatric evidence was in fact that the appellant was of modest intellect and possibly in the borderline intellectual handicap range. The point was not raised in the grounds of appeal. Ultimately, it is a matter of whether the judge fell into error in the sentence by mis-stating the psychiatric or intellectual condition of the appellant and thereby failing to take a matter into account or attribute due weight in determining sentence. I do not regard any error to have been revealed for the reason that the sentencing judge described, albeit in an abbreviated way, the general level of intellect of the appellant. There is in my view a discrepancy and looseness in the descriptive words used by the sentencing judge and for that matter, an incomplete and imprecise restatement of the psychiatric evidence; but it is an error of language not a demonstrable error in the exercise of the sentencing discretion. However, even if there was a misstatement and consequential error, for the reasons that follow I do not consider that it would affect the outcome of the appeal.

20 The appellant had a long criminal history consisting of 84 convictions on 24 occasions. Many of the convictions were driving related but demonstrated a problem with alcohol. He had twelve convictions of violence. The prior convictions of the appellant commenced in 1987 and continued until April 2000 when a custodial sentence was partially suspended for two years for assault and related offences by the Supreme Court of Tasmania. Special conditions were attached to the suspended sentence including that the appellant undergo assessment and treatment for drug or alcohol dependency and submit to medical, psychological or psychiatric assessment or treatment as directed. There were subsequent convictions for destruction of property and theft and other matters in May and June 2000, when a further sentence was suspended for three years on the condition that the appellant commit no further offences for a period of three years.

21 Thus, at the time of the events surrounding the death of the baby, Sharni, the appellant remained subject to suspended sentences on conditions of not re-offending for their duration.

22 The appellant's history reached the point that in May 2000 (in all likelihood in response to the conditions imposed by the Supreme Court of Tasmania) he attended a drug and alcoholic clinic. He remained there until October 2000 and left without completing the programme at the centre. He returned to the centre in May 2001 and it was there that he met Tate. The appellant and Tate left the centre together in September 2001 and moved to Victoria, eventually settling in the flat at Moorabbin. .

23 The appellant was sentenced to five years' imprisonment for intentionally causing injury to Tate (count 1), to one year's imprisonment for recklessly causing injury to Zoumberis (count 3); and to life imprisonment with a non-parole period set at 24 years with respect to the murder of the infant, Sharni Montaana Quarry.

24 I turn then to the existing ground of appeal and proposed ground of appeal, first of all, the ground of manifest excess including that the sentencing judge failed to give adequate weight to the plea of guilty. The appellant had a history of difficulty with alcohol and drugs that provided the context for violent episodes culminating in the present offences. He was a thirty-two year old man at the time of the offences with a long history of convictions, including offences of violence. The appellant also had a difficult psychological history and prognosis. His prospects for rehabilitation were not high but he had shown immediate remorse for the tragedy he caused. Against that setting and factors were the circumstances of the offences themselves. The injuries caused to Tate and Zembouris were violent and stemmed from the angry lashing out by the appellant. Far, far worse, the killing of the infant, Sharni, was cruel and extremely violent. On the appellant's own admission, he thrust the tiny child he was holding in his arms into the door or the wall in his reaction to the calling of the police. On his own admission he bashed the child into the wall or door, not once, but two, three, possibly five times. The forensic evidence was that after those repeated bashings of the small infant's head into the wall or the door the injuries she suffered would have been fatal. Even so, when called out to by the police the appellant spoke in violent and threatening terms. Later, he cruelly dropped the child onto the floor.

25 The appellant admitted his guilt at the first opportunity. It was important that he saved the family of the infant, particularly, the mother Sonia Tate, the appalling prospect of a trial. There were also the benefits of the plea of guilty in saving not only grief of those involved with the infant but, also, doubtless, the police and ambulance officers who attended the scene. There was also considerable saving of cost and time to the State. These benefits can never be understated and are factors taken into account by a sentencing judge in attributing appropriate weight to a plea of guilty. A life sentence in cases of murder is, obviously, imposed to reflect the gravity and seriousness of the killing. As has been said, it is a dreadful sentence reserved for dreadful cases. [2] The authorities[3] do not disclose a particular type or pattern of circumstances that invoke the imposition of the sentence. There appears to be a constant criterion, that is, that the particular case falls into the worst category of that type of killing. The present case falls into that category it being a dreadful killing. It was open in the exercise of the sentencing discretion in this case to impose a life sentence. Gross and abhorrent as the crime was the judge took account of the plea of guilty and that was clearly reflected in the fixing of the non-parole period. If a plea of guilty had not been entered, doubtless the non-parole period would have been higher. This court has clearly enunciated the principle that a plea of guilty to murder will not necessarily avoid the imposition of a life sentence: R. v. DJH.[4] There is also the further factor in assessing the fixing of the non-parole period that this was a case in which the appellant killed a helpless infant, his own child. There has been longstanding recognition that the courts will take strict account of crimes that harm the helpless. This was a horrific, violent crime where the appellant used a tiny, helpless infant, his own daughter, to vent his anger and frustration. Despite the appellant knowing the way he could behave when affected by alcohol and drugs he took both and in large quantities. He was violent towards Tate and even then did not stop. The alcohol and the risk of violence were known to him. He was also subject to a suspended sentence against a long history of prior convictions including convictions for violence. Despite all these circumstances he was relentless in his anger and the violence that was vented on his tiny baby daughter. The motivation for the rage of the appellant, namely, the departure of Tate and the calling of the police, in my view is important in assessing the moral culpability of the appellant. In all the circumstances I do not regard the sentence in this case as manifestly excessive.

26 I have referred to the psychiatric evidence concerning the appellant. If a factual error was made by the sentencing judge I do not consider that such error is of consequence. The appellant did not suffer from any psychiatric illness or condition such as to affect his knowledge of his actions at the time of the offences including his

knowledge of the consequences of the consumption of alcohol and drugs. I do not regard the intellectual level of the appellant to be a matter that should be attributed any more weight than that which his Honour clearly allocated.

27 The remaining matter is the second ground, namely, as to whether his Honour was in error in relying upon his proposition that the intentional killing of a child without significant mitigating factor will ordinarily attract a life sentence. The sentencing judge had before him a substantial amount of material relating to the psychological history of the appellant, his personal circumstances and the material relating to the events themselves. In considering the reasons of the sentencing judge I am unable to identify any sentencing error. Rather, the harming of a child will always be weighed up by a sentencing court as was done in this case. In this case, it was a matter of assessing the circumstances and the matters relied on in mitigation. In my view the second ground of appeal is not made out.

28 I agree that this appeal against sentence should be dismissed for the reasons given by the Chief Justice, which I have had the benefit of reading. However, because of the nature of the case and the severity of the sentence and because Eames, J.A., whose powerful judgment I have also had the benefit of reading, has come to a different conclusion, I desire to state in my own words the reasons for my conclusion.

29 I take first ground 1, that the sentence was manifestly excessive. The attack under this ground was confined to the sentence on the count of murder, life imprisonment. It was submitted that in imposing a head term of life imprisonment the sentencing judge undervalued the mitigatory factors on which the appellant could rely, including, but not confined to, his plea of guilty, his confession and the fact that the offence was not premeditated or planned. To those factors were later added the appellant's addiction and disorder and the rapidly escalating and explosive situation (which, it was admitted, the appellant had himself created).

Counsel said that there was no doubt that the circumstances of this case (including the vulnerability of the deceased, the relationship of trust between her and the appellant and the appellant's motivations for offending) meant that the appellant would have to receive a very high head term, much higher than normally imposed for a single murder. Nevertheless, it was submitted, he had not displayed the kind of moral culpability or evil which allowed it to be concluded that he ought never to be released again into the community. It should be said immediately that the last few words of that submission misstate the effect of the sentence. It was not a sentence of life imprisonment without benefit of parole. It may be correct that the appellant has under the sentence no right to be released into the community, but the fixing of a non-parole period gave him a power to obtain release.

30 It was further submitted, in a secondary or ancillary submission, that, although there was no doubt that the situation in which the appellant found himself on the night of the murder was entirely of his own making, the child, it seemed, was unharmed until shortly before the police appeared at the appellant's door; that it was at that stage that the appellant was likely to have inflicted the injuries which ultimately caused death; and that thereafter no-one outside saw or heard any signs of life from the child other than some cries. That view of the facts, not (I think) unreasonable, was used as a springboard for the submission that his Honour was in error of speaking of the appellant's "deliberate, persistent, calculated conduct over time of gross and deadly abuse of your daughter that night in your flat". Issue was taken with the word "persistent" on the footing that the murderous conduct ended not long after the police arrived.

31 In my opinion this latter submission should not be accepted. It would be a strong thing for one word to bring down a sentence, though I accept that that is not impossible. Be that as it may, even if the child died shortly after the infliction of the injuries by battering, his Honour was entitled to have regard to the subsequent conduct[5] and to take the whole of the conduct during the two-and-a-half hour siege together and describe it as persistent.

32 I return to the principal submission under this ground. The Crimes Act 1958 by s.3 provides that a person convicted of murder "is liable to -

(a) level 1 imprisonment (life); or

(b) imprisonment for such other term as is fixed by the court -

as the court determines." It is for the sentencing judge to determine (subject to appeal) which of those alternatives is appropriate to the circumstances of the particular case.[6] That is a discretionary determination and, under the ground of manifest excessiveness, can only be interfered with if it is "unreasonable or plainly unjust".[7] In Lowndes v. The Queen[8] all members of the High Court joined in re-emphasising the vital importance of the discretion which the law commits to sentencing judges.

33 Not long after sentencing judges were empowered to pass finite sentences for murder, in R. v. Dumas[9], "a most authoritative decision"[10], the Court of Criminal Appeal stated[11]:

"The crime of murder is a crime of the utmost gravity. In our opinion, it does not admit of categorizing each offence into degrees of gravity. While the new legislation will permit courts to sentence persons convicted of murder to terms of years and even to fix relatively low minimum terms in appropriate cases having regard to various facts which may be taken into account in mitigation of the penalty, nevertheless, the sentence of life imprisonment will still be appropriate for a wide variety of deliberate criminal killings. The power to fix a minimum term may, and no doubt will, be exercised as a means of converting an indeterminate sentence into a finite one in cases where the proper authorities consider that, after the minimum term has expired, it is appropriate for the offender to be released on parole. It will be a mistake if the question of the head sentence to be imposed is approached upon the basis of considering whether there could, in a practical sense, be murders of worse gravity than the one before the Court."

The court went on to point out that the sentence of life imprisonment could not be viewed on its own, but must be viewed in the light of the fact that by virtue of the fixing of a non-parole period there was power to release the prisoner after he had served the minimum term. In R. v. DJH[12] Brooking, J.A. said that it seemed to him that on occasions sentencing judges had not given sufficient weight to the observation in Dumas that the sentence of life imprisonment will still be appropriate for a wide variety of deliberate killings. Whilst it may be that some of his Honour's remarks about sentences of life imprisonment were obiter, it is to be noted that Charles, J.A. stated that he agreed with all that Brooking, J.A. had said.

34 In this case the appellant pleaded guilty. However, although, as the Director said, by pleading guilty a murderer is more likely to avoid life imprisonment, there is certainly no principle or practice that a murderer will not be sentenced to life imprisonment if he or she pleaded guilty. Indeed in R. v. DJH[13] Brooking, J.A., with, as I have indicated, the concurrence of Charles, J.A., stated, "It is not to be thought that a plea of guilty will necessarily and in all circumstances save a murderer from life imprisonment. Of the correctness of that proposition I have not doubt whatever." That his Honour was speaking of life imprisonment with the possibility of parole is made clear by his next sentence. The correctness of his Honour's statement is demonstrated by the following Victorian decisions where a murderer who pleaded guilty was sentenced to life imprisonment with a non-parole period, of which the first six are decisions of this Court or its predecessor: R. v. Stone[14]; R. v. Jolly[15]; R. v. Denyer[16]; R. v. Beckett[17]; R. v. Horrocks[18]; R. v. Norrie[19]; R. v. Crosbie[20]; R. v. Lane[21]; R. v. Spina[22]; R. v. Knight[23] and R. v. Byrne[24]. The cases of Stone and Jolly are of particular significance because they were Crown appeals in which a sentence of life imprisonment with a non-parole period was substituted for the original sentence.[25]

35 This was an abhorrent crime. The murder in this case was of a defenceless, ten-week old child. The law in all its departments is most solicitous and protective of those of very tender years, even if in a case such as this protection can only be achieved by way of deterrence for the future. But the murder was more: it was of the appellant's own daughter, in disregard of all parental obligations. It was carried out by means of repeated acts of callous brutality by a man inflamed by alcohol and prescription drugs and enraged against his de facto wife, the mother of the victim, in order to punish her (the mother). The baby or her corpse was used as a bargaining pawn. It was committed during the currency of a suspended sentence of imprisonment imposed by a Tasmanian court by a man whose numerous prior convictions included convictions for assaults and breaches of the peace and the like. The appellant was well aware that the almost ineluctable consequence of his taking alcohol (or drugs) was that he would "explode" in a paroxysm of rage and be violent to either person or property or both. His Honour was correct in not regarding the appellant's addiction as palliating the offence at all.[26]

36 I turn to other mitigating factors put forward. I cannot see how the escalating and explosive situation which the appellant had himself created can be mitigatory. It is of course part of the explanation. His confession and his plea of guilty must be

evaluated in the light of the almost overwhelming case against him. It is true that the plea of guilty had the utilitarian benefits to which Eames, J.A. has referred, but I think that that aspect of the plea played a part in his Honour's decision to fix a non-parole period. That is, the plea did benefit the appellant. It is true, too, that the offence was not planned and was not carried out in cold blood. That is, two aggravating factors were absent. But in their place were the aggravating factors of the manner in which and the time over which the offence (including post-mortem conduct) was carried out. His Honour's undoubted mistake as to the appellant's intellect or intelligence (which I discuss below), although it might necessitate re-phrasing of one or two of his Honour's expressions, is not, in my view, material in the overall scheme of things. That is, the true view of Dr. Martin's diagnosis does not lead to any different assessment of the appellant's criminality.

37 Even taking together such of the factors relied on as are mitigatory, I am not persuaded that his Honour's discretionary determination that imprisonment for life was the sentence which justice according to law prescribed, in his estimate, for this offence of murder committed by this offender[27] was unreasonable or plainly unjust or, to put the matter in another way, that the sentence of life imprisonment, albeit "a dreadful one"[28], was inappropriate or disproportionate, to use the words of the Full Court in R. v. Dumas[29], to the offence of murder in the circumstances of this case and this offender. This is particularly so when the sentence of life imprisonment is viewed, as it should be[30], in light of the fixing of a non-parole period and the consequences of that.

38 Eames, J.A. demonstrates that his Honour was in error in describing the appellant as being "of moderate intelligence" and possibly, as it seems to me, depending on one's definition of the expressions, in stating that the appellant suffered from no intellectual disability and no intellectual impairment. I would add

a reference to Dr. Martin's letter of 7 November 2001 in which he described the appellant as being of "low intelligence". The error was not the subject of a ground or part of the appellant's original argument before us,[31] but in a case as serious as this the court would not decline to consider such a point if it thought it of substance. Strictly, the ground of manifest excessiveness cannot be used for advancing a discrete intention of mistake of fact[32], but I do not understand Eames, J.A. to treat the mistake of fact as an independent ground of appeal. Rather, his Honour proceeds on the footing that the case was, and is, to be considered with a correct understanding of the appellant's intellect or intelligence. In that approach I concur. I differ in considering that the factual correction makes no material difference. The appellant had a personality disorder and was of low intelligence, but he did not suffer from a psychiatric illness and his being of low intelligence did not materially reduce his culpability or criminal responsibility. Eames, J.A., as I understand, gives it some, though not great, weight. I would give it virtually none.

39 As to ground 2, to my mind, the short answer to ground 2 is that the proposition quoted by his Honour from his earlier decision is probably correct, at least if a "child" is taken as meaning a child of tender years. For it is to be noted that the proposition requires the exclusion of any significantly mitigating factor and states what would "ordinarily" be the punishment. In any event, I do not accept that by adopting the proposition in this case his Honour fettered his own discretion.

40 I gratefully adopt the analysis of the facts and background to this appeal set out in the judgment of the learned Chief Justice. Although I find myself in the minority as to the outcome of this appeal, I am in complete agreement with the Chief Justice in her characterisation of the seriousness of the circumstances in which this

dreadful murder took place. The factors which cause me to take a different view to the other members of the Court as to the outcome of the appeal relate to the weight which ought to have been given to the plea of guilty and the finding which his Honour made as to the intellectual and psychological status of the appellant.

41 By s.5(2)(e) the Sentencing Act 1991 the sentencing judge was obliged to have regard to the fact that the appellant pleaded guilty, and to the timing of that plea. In R. v. Hall[33] Crockett and Southwell, JJ. addressing s.4(1) of the Penalties and Sentences Act 1985, which was in the same terms and was replaced by s.5(2)(e) of the later Act, observed that the provision was intended to act as an inducement to an offender to enter a plea of guilty in return for a lesser penalty than might otherwise have been passed. Their Honours continued:

"A court may (although such a case would be rare) elect to give no weight to such a plea. For instance a plea which is no evidence of remorse, is entered at the 'eleventh hour' and is made in a case of overwhelming strength may attract no reduction in sentence. But it will not fail to do so because it is cancelled or outweighed by other considerations of an aggravating nature. A plea of guilty is a mitigating factor. It cannot cease to be so because there are aggravating features. A court's attitude towards the fact of a plea of guilty is expected to act as an encouragement to enter such a plea. The issue with which the court is to be concerned is what weight should be given to it in the circumstances. It is not a question as to whether the weight it has is to be cancelled out by other factors.'

42 There are, in my view, considerable utilitarian considerations favouring the reduction of a sentence upon a plea of guilty, save in very rare cases. In R. v. RND[34] in a judgment in which Ormiston and Vincent, JJ.A. agreed, I said, after discussing the High Court's decision in R. v. Cameron[35]:

"In Cameron the High Court was concerned with the legislative regime for sentencing which was quite different from that applicable in this State. In particular, in this State section 5(2)(e) of the Sentencing Act 1991 obliged the sentencing judge to have regard to whether or not the applicant had pleaded guilty. Thus, even where an accused person pleaded guilty solely out of self-interest, in order to obtain a lesser sentence, and without any concern as to whether in so doing he was facilitating the course of justice, the sentencing judge was obliged to treat his plea of guilty as a mitigating factor, although the weight to be given to it may be limited." [36]

43 Perhaps the least important of those utilitarian considerations in this case was the saving to the State of the cost of a trial. Much more important, in my opinion, was the fact that by his plea the appellant spared not only the family of the deceased child but also the jurors who would have served on the trial, and the wider community, from the trauma of what would have been a very distressing trial. Given the circumstances of Sharni's death a contested trial would have necessitated very close attention being focused upon the precise nature of the injuries suffered by the child and the circumstances and timing of death. It is, of course, true that those questions were examined in some detail both at the committal and on the plea, and in both hearings the pathologist, Dr Ransom, gave evidence about the precise nature of the injuries suffered by the child. At a trial, however, the evidence on these questions, both photographic and oral, would have been much more substantial and would have been of an even more distressing character than was the case on the other occasions, and the plea of guilty, whatever its motivation, avoided that.

44 That is not to say that the full horror of the crime should be hidden from public view, but it is to recognise that there is a public interest in reducing the depth and breadth of the exposure of the public to its horrific detail. There will be occasions where any mitigatory effect of the fact that a plea of guilty was entered must give way to the necessity that the crime be marked by the imposition of the maximum sentence, of life imprisonment. In my view, as bad as this case was, when all of the relevant circumstances were taken into account it did not call for a life sentence.

45 The learned sentencing judge accepted that the appellant had admitted his culpability from the outset and, apparently, accepted the submission of counsel for the appellant that he was remorseful. In addition, the crime was not premeditated. His Honour discounted the plea of guilty, however, by saying that the evidence was "so overwhelming and the crime so egregious" that the plea of guilty could not result in a sentence of less than the maximum.

46 The judge in this case had considerable experience in sentencing offenders convicted of murder. I do not lightly disagree with his assessment that this was a case which required the maximum head sentence allowed by law, since it is a conclusion derived not only from that extensive experience but also with the benefit of his Honour's opportunity to make a detailed review of the depositions and to hear submissions and evidence on the plea. Nonetheless, I have concluded that this was not a case that fell into what remains a very limited class of cases calling for a sentence of life imprisonment. I endorse the opinion of Coldrey, A.J.A. stated in R. v. Taing & Ly[37], and R. v. Ly & Others[38], with which Vincent, J.A. and Smith, A.J.A agreed, that, save in very limited cases, there is a significant pragmatic consideration in encouraging pleas of guilty. To that end, an offender who pleads guilty, after taking legal advice, should be able to discern that he or she thereby gained some amelioration of sentence.

47 A further factor which combines with the significance of the plea of guilty so as to draw me to conclude that a sentence less than the maximum should have been imposed relates to the findings made by his Honour as to the mental and intellectual status of the appellant. His Honour twice referred to this topic in his reasons, but he expressed his findings in slightly different terms. In par.[23] after referring to what he said were the various reports and letters of psychiatrist Dr I. Martin, covering his consultations with the appellant over the period from 1982 to 2002, his Honour said: "You suffer no psychiatric illness or intellectual disability. You are of moderate intelligence" (my emphasis). At par.[29] and after quoting what he said was the "principle" which emerged from his Honour's own judgment in DPP v. Williamson[39] - that the intentional killing of a child "without psychiatric illness or other significant mitigating factor" will ordinarily result in a sentence of life imprisonment - his Honour said, "That principle applies in your case, Mr Quarry. You suffer from no psychiatric illness or intellectual impairment."

48 His Honour discussed the history of the appellant's consultations with psychiatrists. He noted that the appellant's behavioural problems were first addressed at the age of twelve, when his mother took him to the Launceston psychiatrist, Dr Martin, with respect to behaviour which included assaulting his mother and siblings and damaging property. Thereafter, he regularly exhibited violence, especially when drunk, and by 2000 had eighty-four convictions sustained on twenty-four occasions. However, whilst the appellant had twelve convictions for violence, they were, as his Honour acknowledged, instances of "limited violence to the person".

49 In the history taken by psychiatrist, Dr A. Forrester, he recorded that from about grade 5 the appellant had commenced truanting on a regular basis, initially because he was being regularly physically abused by his father at home (approximately twice a week) and he did not want his school mates to see bruises on him. He was placed in a boys' home at a very early age because of his behavioural problems and was then transferred to a special school for "behaviourally disturbed adolescents". At age sixteen he was sent to another boys' home after he pushed his mother off a chair.

50 I do not underestimate the fact that this history suggests that the appellant is a danger to society. The sentence was bound to reflect that fact. Indeed, in a report by Dr Martin dated 30 June 1999 the appellant was described as "an explosive sociopath".

51 His Honour noted that Dr Martin had diagnosed the appellant as having a personality disorder, rather than a psychotic illness. That personality disorder was antisocial personality disorder, formerly known as sociopathy. His Honour also had a report by Dr Forrester who, in turn, had regard to the reports of Dr Martin in addition to examining the appellant himself. He diagnosed the appellant as having a mixed personality disorder with alcohol dependence.

52 As I have noted[40], the judge concluded that the appellant held no "intellectual disability" and that he was "of moderate intelligence". The words "moderate intelligence" do not appear in the reports of either psychiatrist. His Honour appears to have been basing his conclusion on the report of Dr Martin of 9 September 2002, from which he quoted, but it seems to me, with respect, that his Honour may have misread what Dr Martin actually wrote. The full passage in which Dr Martin gave his diagnosis reads as follows (with my emphasis):

"Mr Quarry has a personality disorder rather than a psychotic illness (i.e. he has no hallucinations and delusions). The personality disorder is 'Anti-social' formally known as Sociopathy. He is of modest intellect, quite possibly in the borderline intellectual handicap range."

53 In my view his Honour was in error in describing the appellant as being of "moderate intelligence". That was not the opinion expressed by Dr Martin but, instead, that he was "of modest intellect", a very different proposition, especially when coupled with the further qualification "quite possibly in the borderline intellectual handicap range". The report of Dr Forrester dated 30 January 2004 also does not support a conclusion that the appellant was of moderate intelligence. Indeed Dr Martin's opinion that he was "of modest intellect" was quoted by Dr Forrester. Dr Forrester's own diagnosis was that the appellant as an adolescent had a conduct disorder which progressed to "dissocial personality disorder" in adult life. He concluded:

"As Mr Quarry has progressed into adulthood, it has become clear that he now presents with a severe disturbance in his behavioural tendencies that has persisted, and has previously been associated with major personal and social disruption. In Mr Quarry's case, his behaviour pattern appears to be enduring, and has not been limited to episodes of mental illness.

Mr Quarry fulfils the required criteria for a diagnosis of mixed personality disorder, which is a recognised condition appearing in the ICD-10 classification of mental and behavioural disorders (World Health Organisation 1992) as Item F61.0. In my view, it is clear that he presents with prominent paranoid and dissocial traits.

In addition, Mr Quarry has a clear history of relapsing and remitting alcohol dependence syndrome, as described in the body of this report."

54 Dr Forrester recommended that whilst Mr Quarry was not currently in need of psychiatric treatment in a hospital setting he should continue to receive antidepressant medication and engage with appropriate psychology services within the prison system in order to deal with issues of anger and violence.

55 In my view, having regard to that history and the diagnoses made by the psychiatrists, it was inappropriate to treat the appellant as a person suffering no intellectual impairment and as a person of moderate intelligence. As appalling as his crimes were, and deserving of condign punishment, his psychological history had to be given full weight and if he was to be sentenced to the maximum term of imprisonment available to the law then he had to be sentenced as the person he was, and not as someone having greater intellectual capacity than in fact was the case.

56 The significance, for sentencing, of the mental disorders from which the appellant suffered may not have been great. Indeed, as I have said, his disorders reflected that he was a person from whom society needed to be protected. The disorders did not constitute a serious psychiatric condition of the kind discussed in R. v. Tsiaras[41], and thus could not have reduced the need for general and specific deterrence. There was no suggestion that the appellant did not understand the nature and quality of his actions when he committed the offences. Mental disorders falling short of serious psychiatric illness of the kind discussed in Tsiaras might well be capable of moderating the need for general or specific deterrence but the onus was on the appellant to demonstrate that to be the case[42] and the manner in which those disorders related to the offending conduct must have been carefully explained if they were to be treated as reducing the moral culpability of the offender: see R. v. Vodopic[43] .

57 It could not be said in this case that the appellant's mental disorders had been shown to reduce his moral culpability, but in my view they did serve to explain his conduct. Whilst it may be correct, as the judge held, that the applicant acted "with full clarity of mind", it was, in my opinion, a significant overstatement of his mental state to describe him as being a person of moderate intelligence and without intellectual impairment. The difference between being so described, as opposed to being a person of "modest intellect, quite possibly in the borderline intellectual handicap range", may be subtle, but is important, in my view, in deciding whether this appellant falls into the category of cases for which nothing less than a maximum sentence was appropriate. The correct description of his mental and intellectual capacity also bears in his favour on the question of his rehabilitation prospects, in my opinion.

58 The appellant had, at least, continued treatment from Dr Martin over many years. For some time he had been prescribed, apparently successfully, the drug dexamphetamine, in an attempt to control his temper outbursts. He had taken other medications, which were not very effective. He had seen Dr Martin on twenty occasions between 5 July 1999 and 4 April 2000, at which time he was gaoled for other offences. He was then seen again on 31 October 2001 and returned on eight occasions until 24 April 2002, in mostly monthly intervals, for further prescriptions of dexamphetamine. That drug, Dr Martin believed, helped to control his rages, stopped him craving alcohol and appeared to stop him assaulting people when intoxicated. His willingness to undertake such treatment, in my view, is a factor which pointed towards there being some prospects of rehabilitation which were not reflected at all in the head sentence, nor sufficiently in the non-parole period. In his sentencing remarks, his Honour merely said of the appellant that after he had first been taken to Dr Martin, "Since that time much medical attention has been given to you". That statement, with respect, undervalued the appellant's insight into his need for treatment, and also his willingness to be treated.

59 The factors I have identified, when taken together, lead me to conclude that the head sentence was manifestly excessive and a term of years should have been imposed. Given that I am in the minority nothing is served by my nominating the head sentence I would have imposed on this count. Likewise, I will not nominate the non-parole period I would have fixed, save to say that it would have been below that which the judge imposed.

[1] The emphasis is that of the doctor in his written report.

[2] R v DJH [1998] VSCA 108 [13] per Brooking, J.A.

[3] e.g. R. v. Denyer [1995] VicRp 12; (1994) 74 A Crim. R. 47; R. v. Beckett [1998] VSCA 148; R. v. Knight [1989] VicRp 62; [1989] V.R. 705.

[4] R. v. DJH [1998] VSCA 108 [12].

[5] Director of Public Prosecutions v. England [1999] VSCA 95; [1999] 2 V.R. 258.

[6] R. v. Stone [1988] VicRp 19; [1988] V.R. 141 at 147.

[7] House v. The King [1936] HCA 40; (1936) 55 C.L.R. 499 at 505.

[8] [1999] HCA 29; (1999) 195 C.L.R. 665 at 671-2 [15].

[9] [1988] VicRp 8; [1988] V.R. 65.

[10] R. v. DJH [1998] VSCA 108 [13].

[11] At 71-72.

[12] At [13].

[13] At [12].

[14] [1988] VicRp 19; [1988] V.R. 141. Stone pleaded guilty, but his co-accused did not.

[15] [1994] VicRp 33; [1994] 1 V.R. 446.

[16] [1995] VicRp 12; (1994) 74 A.Crim.R. 47. The offender murdered three persons. He was sentenced to life imprisonment without benefit of parole, but on appeal a non-parole period was fixed.

[17] [1998] VSCA 148. Besides pleading guilty Beckett undertook to give very important, and perhaps decisive, evidence against his co-offender.

[18] [2001] VSCA 230.

[19] [2002] VSCA 232. The appellant in the course of a rampage had committed an earlier murder in New South Wales.

[20] [2003] VSC 69. The offender murdered two persons.

[21] [2003] VSC 180. The offender had a prior conviction for murder.

[22] [2003] VSC 296. Life sentence for each of two murders. Non-parole period fixed.

[23] [1989] VicRp 62; [1989] V.R. 705 (seven concurrent life sentences).

[24] Unreported, Coldrey, J., 7 August 1991.

[25] In Jolly the matter is complicated by the need to make a Hospital Security Order.

[26] R. v. Groom [1999] 2 V.R. 159.

[27] Compare R. v. Morgan and Morgan (1980) 7 A.Crim.R. 146 at 154.

[28] R. v. DJH at [12].

[29] At 72.

[30] R. v. Dumas at 72.

[31] Indeed, on the plea, after his Honour had been made aware of Dr. Martin's expression "of modest intellect" (T41), defence counsel stated that his client was "not intellectually impaired", but rather uneducated (T42). His Honour's mistake can therefore be understood.

[32] Practice Statement [1997] 2 V.R. 56, para.8.

[33] (1994) 76 A.Crim.R. 454 at 470.

[34] [2002] VSCA 192.

[35] (2002) C.L.R. 339.

[36] RND, at [18].

[37] [2004] VSCA 46, at [20].

[38] [2004] VSCA 45, at [22].

[39] [2000] VSC 115.

[40] Paragraph [47].

[41] [1996] VicRp 26; [1996] 1 V.R. 398.

[42] R. v. Skura [2004] VSCA 53, at [8], per Eames, J.A., cited in R. v. Chambers [2005] VSCA 34 at [28] per Charles, J.A., with whom Winneke, P. and Buchanan, J.A. agreed.

[43] [2003] VSCA 172, at [28]., per Eames, J.A., with whom Winneke, P. and Phillips, J.A agreed; see too R. v. Charles, at [27].