R v Schmidt [2013] ACTSC 295

Supreme Court of the ACT|2013-12-09|Before: Gallop J, Carruthers AJ, Gray J, Nield AJ, Penfold J

[2013] ACTSC 295 (9 December 2013)

CRIMINAL LAW - Judgment and Punishment - Sentencing - Murder - Theft - Damage property - No issue of principle

CRIMINAL LAW - Judgment and Punishment - Sentencing - Fact finding by sentencing count - Different agreed facts from those agreed for co-offender - Disputed facts

CRIMINAL LAW - Judgment and punishment - Sentencing - Desirability of pre-sentence reports

CRIMINAL LAW - Judgment and punishment - Sentencing - Parity between co-offender

Candetti Constructions Pty Ltd v Fonteyn (2010) 108 SASR 429

Iskandar v The Queen [2013] NSWCCA 235

KR v The Queen [2012] NSWCCA 32

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

McKenna v The Queen (1992) 7 WAR 455

R v Brilliantes [2013] NSWSC 1693

R v Campbell [2010] ACTCA 20

R v Conway (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 7 July 1998)

R v Cotterill [2012] NSWSC 89

R v Crowley [2004] NSWCCA 256

R v Eastman (Unreported, Supreme Court of the Australian Capital Territory, Carruthers AJ, 10 November 1995)

R v Hillier (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 16 March 2005)

R v Martin (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 16 October 2013)

R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 28 July 2011)

R v McDougall (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 21 July 2011)

R v Previtera (1997) 94 A Crim R 76

R v Redenbach (1991) 52 A Crim R 95

R v Shepherd (1988) 94 FLR 55

R v Yuen (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 31 May 2013)

Schwalm v The Queen [2012] ACTCA 43

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1. Taylor Schmidt be convicted of the murder of Liang Zhao on 4 August 2011.

2. Taylor Schmidt be sentenced to imprisonment for twenty years and six months, to commence on 7 August 2011.

1. The taking of a human life is a very serious matter. When done unlawfully, it is the most serious crime; when done senselessly, it is also a tragedy.

2. Now appearing before me for sentence on the charge of murder is Taylor Schmidt, who, on 29 August 2013, pleaded guilty to the murder of Liang Zhao on 4 August 2011. The Director of Public Prosecutions declined to proceed with the second count on the indictment, that Mr Schmidt committed an aggravated robbery on the same day.

3. Murder is a crime under s 12 of the Crimes Act 1900 (ACT), which provides that the maximum penalty for such an offence is imprisonment for life.

4. It can thus be seen that it is, and is to be treated by the courts, as the most serious offence. See R v Oliver (1982) 7 A Crim R 174 at 176.

5. Mr Schmidt was charged expressly by reference to s 45A of the Criminal Code 2002 (ACT), namely, that there was an agreement with Mr Schmidt's co-offender and that the offence of murder was committed in the course of carrying out that agreement, namely that death was caused in the course of robbing Mr Zhao when it was intended to cause him serious bodily harm.

6. Mr Schmidt was arrested on 7 August 2011. He was refused bail and has remained in custody since that date. He appeared in the Magistrates Court on 9 August 2011 and pleaded not guilty. It took some time for the prosecution to prepare its brief which, of course, must be served on an accused person.

7. On 2 February 2012, he was committed to this Court for trial. After the usual pre-trial procedures, the trial was listed to commence on 2 September 2013. As noted above (at [2]), on 29 August 2013, shortly before the trial was to commence, Mr Schmidt pleaded guilty.

8. Mr Schmidt asked me to take into account three further offences, one of theft and two of damaging property, which were set out on a List of Additional Offences. I will do so.

9. Theft is an offence against s 308 of the Criminal Code and attracts a maximum penalty of 1,000 penalty units (that is, a fine of $110,000), or imprisonment for ten years, or both. Damaging property is an offence under s 403(1) of the Criminal Code and renders Mr Schmidt liable for the same maximum penalty, that is, 1,000 penalty units (being a fine of $110,000) or imprisonment for 10 years, or both.

10. In the sentencing proceedings in this court, I was requested, under s 4(3) of the Evidence Act 2011 (ACT), by Mr Schmidt's counsel to make a direction under s 4(2) of that Act, that the proceedings be subject to that Act. I did so.

11. The sentencing required three appearances. The proceedings commenced on 4 September 2013 when an agreed statement of facts and Mr Schmidt's criminal history were tendered by the prosecution and, although the prosecution case had not concluded, a report of Dr Paul Bedford, who conducted a medical examination into Mr Zhao's death, was tendered by Mr Schmidt.

12. On 31 October 2013, I heard oral evidence. The first witness was Mr Michael Pearce, a probation and parole officer of ACT Corrective Services. He gave certain evidence about Mr Schmidt's behaviour whilst in custody. A trauma counsellor with Victim Support (ACT) then read out two Victim Impact Statements, from the mother and the wife of the deceased, Mr Zhao. Photographs of the weapons used and of the deceased were tendered.

13. The prosecution then filed, in Court, with leave, a List of Additional Offences under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT). It is, of course, not evidence, and so was not marked as an exhibit.

14. As required by s 57 of the Crimes (Sentencing) Act, I inquired of Mr Schmidt personally whether he wished me to take into account the offences disclosed on the List. I was satisfied with Mr Schmidt's answers and I will take them into account in the way referred to by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]- [50].

15. Through his counsel, Mr Schmidt tendered a number of certificates. A report from Mr Olav Nielssen was sought to be tendered, but the prosecution objected to it. The objection was based on what was said to be unfairness to the prosecution because it reported statements made to Dr Nielssen by Mr Schmidt which could not be tested by the prosecution unless Mr Schmidt was called to give that evidence.

16. The prosecution sought a direction under s 137 of the Evidence Act, limiting the use to which the statements of Mr Schmidt recorded in the report could be put, specifically not for their truth. The proceedings were then adjourned. The proceedings resumed on 25 November 2013 and, after further argument which I do not need to rehearse here, I held that I should admit the Report but give the direction sought. Mr Schmidt, however, then gave evidence and was cross-examined.

17. After submissions I adjourned to consider the sentence to be imposed.

18. Mr Schmidt was originally indicted jointly with co-offender, JJ. I note that JJ was, at the time, under eighteen years of age and, accordingly, his name is not to be published. Both pleaded guilty shortly before the trial. Both indicated to me that there may be a dispute as to the facts on which the sentences were to be based. Ultimately, it was not necessary in either case for there to be a hearing to determine any dispute as to facts.

19. JJ was, however, sentenced separately, though also by me. The agreed statement of facts, however, in that case was not the same as that which was tendered to me in the proceedings for sentencing Mr Schmidt. Indeed, there were some significant differences. There is no doubt that a sentencing judge is not bound by the statement of agreed facts. That is the result of agreement between the parties. So much was made clear by the High Court in GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 at 211; [31].

20. Nevertheless, it is the responsibility of a sentencing judge who proposes to determine a fact, other than in accordance with such an agreed statement, to bring that to the attention of the parties during the proceeding so that they can deal with it. So much is required by the obligation of procedural fairness. So much flows from what was said in R v Crowley [2004] NSWCCA 256 at [46].

21. That a co-offender may be sentenced on different facts is, even when the offence charged is the same, as in Candetti Constructions Pty Ltd v Fonteyn (2010) 108 SASR 429, is not uncommon though, fortunately, not frequent.

22. Unless the sentencing judge has given an intimation of the kind referred to earlier, the judge should sentence on the facts that are the evidence before him or her as agreed, even if different from those in the proceedings in relation to the co-offender. As Spigelman CJ, with whom Wood CJ at CL, and Howie J agreed, said in R v Reid [2004] NSWCCA 301; (2004) 148 A Crim R 425 at 431; [26]- [27]:

A sentencing judge is well able to distinguish the evidence, particularly in the form of an agreed statement of facts, in one sentencing proceeding, and put both those facts and his judgment contained in the remarks on sentence in the prior proceedings out of his or her mind, for the purpose of the subsequent proceedings. A reasonable, independent observer would understand that judicial training does enable that to occur and would not call in question in any manner the proposition that that sentencing judge would bring an impartial and unprejudiced mind to the second sentencing decision making process.

I make these observations in the light of the well-known principle that, by reason of issues of parity, it is highly desirable that co-offenders should be sentenced by the same sentencing judge. It often occurs, if there is a time gap between the two sentencing exercises, that it is necessary that the sentencing judge put out of his or her mind the findings of fact made in the first of those sentencing exercises.

23. Bearing these matters in mind, I make the following findings of fact in this matter. Mr Schmidt had met his co-offender, JJ, in mid-July when Mr Schmidt came to his home to purchase some cannabis that JJ had been selling to friends and acquaintances. Since that time, Mr Schmidt had purchased small amounts of cannabis and by 3 August 2011 owed JJ about $50.

24. On 3 August 2011, JJ was at his home drinking alcohol and smoking cannabis with friends who came over during the afternoon and into evening for a barbecue. Mr Schmidt, who had also been drinking alcohol and smoking cannabis all afternoon and into the evening, then went to JJ's place at about 9:00 pm to buy some more cannabis. He joined the gathering, drinking wine and beer and smoking cannabis.

25. By midnight, most of those present had gone to sleep. JJ and Mr Schmidt, however, stayed talking, drinking and smoking cannabis. At some time they agreed to go and "do an earner" to get some money. I take that to mean that they intended to rob someone, as was stated to Dr Olav Nielssen by Mr Schmidt.

26. They left in the early hours of 4 August 2011, taking with them a baseball bat and a machete, and also some gloves. They walked along Northbourne Avenue, Mr Schmidt carrying the baseball bat with which he proceeded to smash a bus shelter and the windscreen of a parked car. These acts of wanton vandalism constituted the two offences of damaging property on the list of additional offences.

27. Mr Schmidt also attacked the entry mechanism of a car park, pulling the pole from the ground and carrying it off.

28. The two offenders then visited the then partner of Mr Schmidt for a short while where they drank some more wine. In the meantime, Mr Zhao had arrived by bus at the Jolimont Centre in Civic from Melbourne. He lived in Gungahlin, and because there were no taxis available, he called his mother to collect him but told her that he would start walking up Northbourne Avenue, which he did.

29. Mr Schmidt and JJ then left Mr Schmidt's then partner's unit and continued down Northbourne Avenue. They had put on the gloves before setting out. When they reached near the flats at Henty Street, Braddon, they came upon Mr Zhao and confronted him, knocking him to the ground. They then dragged him several metres along the footpath where they took his mobile phone and a small amount of cash, about $21.

30. During the robbery, Mr Schmidt hit Mr Zhao with the baseball bat, which made him cry out. JJ then told him to "be quiet, shut up, don't tell the cops" and swung the machete above Mr Zhao to frighten him into silence. As JJ swung the machete, Mr Zhao raised his arm defensively but it was hit by the machete and he screamed in pain. JJ does not recall what then happened.

31. An issue then arose as to the part Mr Schmidt actually played in the attack, as his counsel submitted that he only delivered one blow, although the first blow, while the prosecution submitted that he struck more than one blow. I do not know how carefully the agreed statement of facts was drawn and, in particular, the process of negotiation or discussion that led to it being in its final form. It only positively states that Mr Schmidt struck one blow. It does not, however, state, as one would have expected, if this was an issue between prosecution and defence that needed to be resolved, that he only struck one blow. The ambiguity comes from a reference to the findings of the post-mortem examination which states that the injuries to the scalp, in particular comminuted fractures, "may have been caused by blows from a baseball bat".

32. In the absence of an express statement that the blow to which the statement makes reference was the only blow struck by Mr Schmidt, this permits the inference to be drawn that, thereafter, he struck Mr Zhao with the baseball bat, causing some of, or all of, the comminuted fractures of Mr Zhao's skull.

33. I do not know whether the lack of clarity was because neither party articulated clearly enough their respective positions on this issue, so it was not confronted directly, and so both were content to allow the ambiguity to satisfy the other without necessarily conceding the other's point of view. It was, in any event, regrettable and unsatisfactory.

34. There was, however, other evidence that was of assistance. Mr Schmidt gave oral evidence and was cross-examined. He asserted that he only struck one blow. It was put to him that he was lying, but he denied it. This was consistent with what he told Dr Nielssen also.

35. I have, of course, to be satisfied of any aggravating factor beyond reasonable doubt. So much is clear from R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281; [27]. I accept that Mr Schmidt lied to police in his interviews which were electronically recorded. That was, of course, at a time when he was pleading not guilty.

36. It was put to him that he was trying to minimise his involvement in this offence.

37. In fact, however, he took full responsibility in the statement that was addressed to Mr Zhao's family and which he read out in Court. He said in part:

For so long, I didn't want to accept what I had done. I didn't want to take any responsibility for Liang's death, but when I read Min Giufu's words about losing her son I couldn't bear the thought that I'd caused her pain. I know an apology is not going to bring Liang back or come close to making up for what I've done, but that and my plea of guilty is all I have.

38. I have also scrutinised the report of the post-mortem examination. The references to the blows on the head are quite hypothetical. The full reference is as follows:

No pattern marks consistent with baseball bat blows to the scalp are identified, however some of the resultant injuries, in particular comminuted fractures, may have been caused by blows from a baseball bat.

39. This is certainly consistent with more than one blow from a baseball bat but by no means definitive and quite hypothetical. There were also relevant injuries to Mr Zhao's right shoulder and his chest. Most of the other injuries were incisions, more likely to have come from the machete, though there were some other abrasions. The Report commented:

Injuries to the right shoulder and chest are present. These are relatively narrow and hence not likely to be from one proposed weapon, that being a baseball bat.

40. The Report also stated that the hand injuries appeared defensive, which seems to me to have been unlikely to have been received with the first blow. I cannot find beyond reasonable doubt that Mr Schmidt hit Mr Zhao with a baseball bat more than once but, it seems to me on the evidence that the blow was to his head and I so find beyond reasonable doubt.

41. The cause of death was found to be "extensive crush and incised injuries to the head", which injuries, or most of them, seem, on the basis of the report, to be more likely to have been inflicted by the machete other than that which I have found Mr Schmidt inflicted. Mr Schmidt then yelled "run", and both he and JJ fled the scene. Mr Zhao was seriously wounded, bleeding heavily, with a broken skull and exposed brain.

42. The two offenders returned to the residence of Mr Schmidt's then partner and changed their clothes and washed off the blood. As they left, they hid the machete and the baseball bat and returned to JJ's home, where they had a brief conversation with the people still there. Police later found Mr Zhao's body and he was pronounced dead later that day.

43. JJ tried to clean his clothes with bleach. Mr Schmidt went to Queanbeyan where he booked into a hotel under an assumed name, being that of a friend whose bank ATM card Mr Schmidt used to withdraw money at the hotel. Mr Schmidt was, as I have said above (at [6]), arrested on 7 August 2011 and interviewed by police during which he made what were described as "partial admissions" though he denied using force on Mr Zhao. He said the only time he touched him was when he grabbed his backpack. He denied hitting him with the baseball bat or threatening him with it.

44. The post-mortem examination showed that Mr Zhao suffered extensive injuries to his head and a large number of injuries to his neck, upper arms and some injuries to his chest and lower limbs. I have described the cause of death above.

45. I did not have a Pre-Sentence Report under Pt 4.2 of the Crimes (Sentencing) Act. The Court of Appeal pointed out, in Schwalm v The Queen [2012] ACTCA 43 at [9], that there is ordinarily a need for one when there is a likelihood of a sentence of imprisonment. It would be an extremely rare situation where a sentence of imprisonment was not imposed for the offence of murder. It is not absolutely necessary to have such a report when the relevant material can be given in another way. Here, I had the report of Dr Nielssen and evidence on oath from Mr Schmidt in which he confirmed that the information he had given Dr Nielssen was true.

46. Mr Schmidt is twenty-two years old. He was twenty when he committed the offence. He has five siblings, four being half siblings, two from each of his father's and mother's subsequent relationships. His parents have separated, as have his mother and his step-father. Mr Schmidt described his upbringing as "all right" although he said that he "got into trouble a fair bit". This misbehaviour prevented him from participating in team sports and he suffered unusual punishments. It appears that his step-father was, at least, a very threatening, perhaps violent, man.

47. Mr Schmidt had no difficulty with school work and is literate and numerate, but fought and argued a lot, thereby losing friends at school. He worked in a number of jobs after school, including as a cashier, floor person in a hardware store, a landscape labourer, and a removalist. He lived in Tasmania for a while and managed to secure a good job with a landscaper, but he had absconded while on bail from a previous offence, which led him to Tasmania. That prevented him from obtaining an apprenticeship with that firm.

48. Mr Schmidt has been drinking alcohol for some time, though I had no information about when he started drinking. He obviously drank a lot at times, as he experienced periods of amnesia and disturbed behaviour. He did stop drinking heavily from about May 2011 until the night before the offence when he drank quite a bit.

49. He began smoking cannabis when he was twelve years of age and, by fourteen, was smoking it regularly. He said he smoked it "the way people smoke cigarettes".

50. He tried acid, ecstasy and ice, especially taking the latter two illicit drugs at the weekend. He has used heroin.

51. He was admitted to the Ted Noffs Foundation for residential rehabilitation but only stayed for two days. He has spoken to drug counsellors, but has had no real drug counselling or treatment.

52. Mr Schmidt's physical health is good; he stays active and trains "quite a fair bit". He had a childhood episode of septic arthritis but recovered. He smokes about ten cigarettes a day.

53. Mr Schmidt's mother has been treated for depression and his sister suffers from panic attacks.

54. Mr Schmidt himself had no learning problems at school despite his behaviour patterns, but was suspended a number of times and asked to leave from one school. He was referred to a behavioural school.

55. He has seen a number of counsellors and was variously diagnosed with attention deficit hyperactivity disorder, "oppositional defiant disorder" and conduct disorder, which resulted in him being prescribed medication on occasions. When he was sixteen and "drunk and saying stupid things", he was admitted to a psychiatric facility overnight.

56. He told Dr Nielssen that he had had symptoms of depression from adolescence and that these worsened when he smoked cannabis. He reported chronic insomnia, lack of energy and motivation, anxiety and impairment of mental function. He had attempted suicide.

57. He has been prescribed anti-psychotic medication and anti-depressant medication. He said he had no symptoms of psychosis.

58. Dr Nielssen diagnosed Mr Schmidt with conduct disorder, substance use disorder and depressive illness in remission. Mr Schmidt is currently receiving anti-depressant medication. It appears that the conduct disorder had its aetiology in his childhood with the separation of his parents and the disturbing emotional and psychiatric mistreatment by his stepfather. It was exacerbated by his anti-social peer group.

59. Dr Nielssen recommended that Mr Schmidt should withdraw from the medication only under the supervision of a psychiatrist. He also recommended drug counselling. Mr Schmidt has completed, while in custody, the First Steps Drug, Alcohol and Other Drugs Relapse Prevention Program. Dr Nielssen recommended that the main component of his rehabilitation would be vocational training together with individual counselling to help him improve his empathy with others and pro-social decision making. He said that probably the conduct disorder will abate over time. It would appear that employment would be beneficial for that, as would addressing his substance abuse. He also said that completion of high school and tertiary education would be a positive factor in his rehabilitation.

60. Mr Schmidt has also completed Certificates III and IV in Fitness and the "Seasons for Growth Adult Program".

61. Mr Schmidt has a criminal record. He has seven offences on his criminal record and has served a period of full-time imprisonment. His offences include theft, aggravated burglary, using an offensive weapon, failing to appear in accordance with a bail undertaking, discharging a firearm and common assault. He was on conditional liberty at the time of the offence, having had a sentence of imprisonment suspended in March 2011 for two years with a good behaviour order for two years.

62. Dr Nielssen recorded that Mr Schmidt had told him that "his conduct had been good while he was in custody". Mr Pearce, however, gave evidence of a number of matters on his prison record. Unfortunately, Mr Pearce really only relied on the reports that had been provided and was not able to describe the precise circumstances of the situation when some of the issues occurred, making it difficult for me to assess their severity and relevance.

63. For example, on occasion Mr Schmidt was disciplined for fighting but he said, and it was recorded, that he was simply responding to being attacked. Self-defence would have been an answer were it a criminal charge. There were other circumstances about the administration of the Alexander Maconochie Centre that were said to be relevant, about which Mr Pearce had no knowledge, such as the movement of detainees in the centre.

64. Dr Nielssen said, in his oral evidence, that he was not surprised that the report of Mr Pearce was different from the apparent report of Mr Schmidt made to him. He said he was not surprised

[f]or a couple of reasons. I mean, you know, his answers might have been glib and, you know, with a tendency to sort of put a good gloss on things. There might have been a misunderstanding because he might have thought I was referring to his recent performance rather than his performance overall. And likewise, he may not have seen himself to be blamed for some of those fights, you know, if he was - if someone else had have sort of started them. Look, I'm not sure.

65. Mr Schmidt, in his evidence, was asked about what he told Dr Nielssen. The evidence was as follows.

And can you tell the court what you were trying to communicate to him about your behaviour in the AMC?--- Yes, just - he asked about, you know, just general behaviour and I - I didn't - you know, I thought he was - I told him that recently I hadn't been involved in anything. And I admit that while I was in the AMC there was, you know, fights but I acted to defend myself. I - when they happened I felt that I had to defend myself, And I was immature towards staff sometimes.

HIS HONOUR: I'm sorry, can you just say that again?--- I was immature towards the staff sometimes but, you know, I realised that I wasn't doing anyone any favours. And recently I got a job - I got put forward to be the yard delegate and I'm responsible for resolving issues amongst the inmates and issues they have staff, and hopefully I can use that to stop other people that come in making the same mistakes that I did.

66. He accepted that the reports relied on by Mr Pearce were correct.

67. Mr Pearce's evidence referred to sixteen incidents, twelve of which occurred between eighteen October 2011, two months after he was first placed in custody, and May 2012. Of the remaining four, two occurred in late 2012, one in January 2013 and one in June 2013. That latter one was when he refused to provide a sample of urine for drug and alcohol analysis; the second time he had done so. The other incidents included fighting, writing graffiti on a wall and a number of occasions of abuse, which Mr Schmidt, rightly, described as immature behaviour, or perhaps anti-authoritarian behaviour. Since then, however, no records of misbehaviour were given in evidence and, as noted, he has been accepted as the yard delegate.

68. Insofar as it may be relevant, I do not accept that Mr Schmidt lied to Dr Nielssen. I accept that he has not been a model detainee, however, and that some of his behaviour has shown immaturity and more serious disciplinary infractions. I accept, however, that he appears to have more recently shown maturity and responsibility. I emphasise, too, that the only relevance of that material has been so that I can assess his character and determine on what evidence I can rely. In no way is Mr Schmidt to be punished by me for his behaviour in the AMC.

69. As noted earlier, Mr Schmidt also read out a statement addressed to the family and friends of Mr Zhao. He acknowledged the pain he had caused them and expressed that he was truly sorry. He recognised that words could not undo what he had done but he acknowledged the depth of their grief. He acknowledged reading the victim impact statements and acknowledged that Mr Zhao was a good man who took care of his mother and wife and that his death was tragic and unforgiveable. He hoped that his plea of guilty, by sparing them the trauma of a trial, would make things easier for them.

70. He accepted responsibility, he wished he could undo what he had done, accepting that many people have been hurt by his actions. I accept that Mr Schmidt is remorseful and has insight into his actions and the consequences for others. Further, I accept that Mr Schmidt lied to police, but I do not accept that he lied to Dr Nielssen, nor that he was lying in his evidence to me.

71. I had victim impact statements from Mr Zhao's mother and his partner. They were read out in open court by an officer of Victim Support (ACT). They were important windows into the devastating and highly traumatic effects that the death of Mr Zhao has had for them. They refer to the kind, caring, helpful, hard working and energetic person that he was. It is a tragedy that he has been taken from us. His partner, it was unsurprising to hear, collapsed on hearing of his death, having to prepare for his funeral instead of their life together. She had to stop her studies, and of course, all her dreams and hopes were shattered.

72. Mr Zhao's mother was equally affected. She wrote movingly of the future happiness to which they had looked forward and how these hopes and dreams were now dashed. She experienced an exacerbation of a pre-existing illness and experienced long periods of grief and sadness. These feelings are very understandable and the Court expresses its deep sympathy to her and Mr Zhao's family. It is impossible to summarise adequately the anguish and sense of loss the Mr Zhao's family have felt and are feeling, and will continue to feel for many years to come.

73. No sentence that this Court could impose will ever make good the loss that they have suffered. I acknowledge the grief and distress of the family of Mr Zhao, and I express also on behalf of the community its sympathy and compassion for them. It may be of some comfort to them that the report of the post-mortem examination stated that he would have died relatively quickly and so not suffered too greatly.

74. There were some matters in the Victim Impact Statements that were not in accordance with the legislation, however. In order to preserve the value and acceptability of such statements, I urge those charged with helping victims to prepare them to pay close attention to the legislation and comply with it.

75. I sentenced JJ, the co-offender, on 8 October 2013. The prosecution, as is its right, have sought to appeal against that decision, apparently on the ground, inter alia, that the sentence imposed was manifestly inadequate. I am, of course, unable to say whether the Court of Appeal will uphold that appeal or not; I cannot take that into account.

76. So far as parity is concerned, however, Gibbs CJ said in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609:

The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.

The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive.

There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been don[e]

79. There are a number of differences between the two co-offenders. There is some difference in age, though Mr Schmidt is still a young man, though not subject to the particular regime established under Ch 8A of the Crimes (Sentencing) Act for sentencing young offenders, to which JJ was subject. As Ipp J said in McKenna v The Queen (1992) 7 WAR 455 at 468:

At common law, youth is a significant mitigatory factor (although normally its weight decreases as the offender moves through the early 20s) and so is the need to attempt rehabilitation of youthful offenders. There is also, in my view, a significant difference between a youthful offender and an offender who is defined as a child by legislation.

This leads to a situation in which there will be a marked transition in the severity of sentencing for offences committed on and after the day on which an offender attains eighteen. In my view that is the case because the offender no longer enjoys the particular statutory protection for juveniles which is implicit in the [relevant legislation, here, Chapter 8A of the Crimes (Sentencing) Act]

80. Nevertheless, Mr Schmidt's youth, though he is over eighteen, still requires some consideration to be given to it. See R v Gordon (1994) 71 A Crim R 459 at 469. That means, however, as there stated, that general deterrence remains of primary importance.

81. There were other relevant differences. Mr Schmidt is somewhat older than JJ, as I have said. JJ has two minor offences on his criminal record. Mr Schmidt has some serious criminal offences on his record which reduce the leniency that can be accorded to him. In addition, Mr Schmidt asked me to take into account three additional offences. As pointed out in R v Campbell at [47]-[50], this will generally have the result of increasing the sentence because of greater weight being given to personal deterrence and the need to meet the community's entitlement to have retribution for serious offences for which no punishment is in fact imposed.

82. The exact participation of each in the offence is also different. In this case I found that Mr Schmidt inflicted one blow, though to the head and the first blow, while I found that JJ inflicted a number of blows that, more likely than not, though no one will be absolutely certain, actually killed Mr Zhao. JJ also gave some assistance to the authorities, which I took into account when sentencing him. Nevertheless, the prosecution submitted that both were equally culpable, relying on the following statement by Latham J with whom Whealy JA and Harrison J agreed, in KR v The Queen [2012] NSWCCA 32 at [19], that "participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed".

83. That may be accepted, as Mr Schmidt has pleaded guilty to murder and is guilty of that offence. This is probably no more than a repetition of the effect of s 45A of the Criminal Code. However, the full passage containing the part that was cited to me was as follows:

19. What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct.

20. Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process.

21. Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. "The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability" : R v O'Connor [1980] HCA 17 at [20] ; [1980] HCA 17; 146 CLR 64 at 72, per Barwick CJ.

22. Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry [1999] NSWCCA 111 at [254]; [1999] NSWCCA 111; 46 NSWLR 346 ; 106 A Crim R 149.

84. Thus, a relevant difference between Mr Schmidt and JJ is the degree of violence each inflicted on Mr Zhao.

85. I must also bear in mind that, in important and relevant respects, the statements of agreed facts in each matter were different relative to culpability. It seems to me that, while I must have regard to the sentence imposed on JJ, there are such differences that the issue of parity does not loom particularly large.

86. I note, too, that while the prosecution have commenced their appeal against my sentence imposed on JJ, in this case no submission was made as to what was the error it was claimed that I made in the sentence, and, in particular, in assessing the objective seriousness of the offences. No submissions were directed to how my assessment of the objective seriousness of the offence was in error.

87. The offence was a very serious one. Indeed, no more serious offence than murder is available in the criminal calendar. The courts recognise that a sentencing court must start from the point that it involves the felonious taking of a human life, as pointed out by Street CJ in R v Hill (1981) 3 A Crim R 397 at 402. The law recognises, without specific evidence, the value which the community places on human life. That is, that unlawful homicide is recognised by the law as the most serious crime, one of the most dreadful in the criminal law: R v Previtera (1997) 94 A Crim R 76 at 86.

88. The prosecution referred to R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252. The Court there noted that murder which is committed with the intention to cause grievous bodily harm will generally be less culpable than when accompanied by an intention to kill, though that is not always the case. There, it was held not so where the attack was premeditated and vicious with extreme violence on the victim in his own home. The attack on Mr Zhao was brutal, vicious and cowardly, it involved a very severe and, apparently, frenzied attack on him, though the majority of that came from JJ. Mr Schmidt, however, struck the first blow and, I found, to the head.

89. While the differences in the participation of the two showed some distinction is to be required, it is not, in my view, a marked one. The prosecution did not submit that this was a sentence of such culpability that a life sentence should be imposed. That seems to me to be correct, having regard to all the circumstances of the case, the culpability of Mr Schmidt and current sentencing practice.

90. The offence was committed in company, and this is an aggravating feature as noted by Lee J in R v Shepherd (1988) 94 FLR 55 at 64.

91. The use of weapons was said to be aggravating also. I am not certain that the use of weapons, as opposed to, for example, strangling a victim with the offender's bare hands, is more aggravating. The brutal and lethal use of weapons made the offence one of great seriousness of its type. Nevertheless, I note that in Iskandar v The Queen [2013] NSWCCA 235 at [70], the Court there held that the use of weapons was an aggravating feature and I will follow that view.

92. One of the factors I am required to take into account by s 33(1)(z) of the Crimes (Sentencing) Act is current sentencing practice. Both counsel for Mr Schmidt and for the prosecution referred me to recent cases of murder in this Territory. They were:

• R v Eastman (Unreported, Supreme Court of the Australian Capital Territory, Carruthers AJ, 10 November 1995);

• R v Conway (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 7 July 1998);

• R v Hillier (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 16 March 2005);

• R v McDougall (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 21 July 2011);

• R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 28 July 2011);

• R v Yuen (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 31 May 2013); and

• R v Martin (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 16 October 2013).

93. In the latter case, Neild AJ referred to the others and said (at [82]):

However, as the offender's lead counsel pointed out, each of those cases differed from each other of them, and each of them differs from the subject case. Frankly, I do not gain much assistance from those cases, other than from the case of Yuen, although that is not to say that the other cases are not useful as a guide.

94. I agree that none of the cases is identical, but each point to some relevant matters and provide a conspectus against which I may consider the appropriate sentence.

95. In any event, the prosecution referred me particularly to two cases from New South Wales on which it seemed to rely. They were both first instant sentences. In R v Cotterill [2012] NSWSC 89, the accused, acting alone, stabbed the victim to death in her own home, apparently while intending to commit a burglary and theft. He stabbed her twenty-seven times and also punched her and kicked her about the face and both sides of the head. There appeared to have been two separate knife attacks.

96. Mr Cottrell initially denied committing the offences and made up various stories to explain incriminating evidence found by police. He also suggested that the victim provoked him by calling him "a creep" and slapping him. He tried to concoct a defence that would reduce the charge of murder to one of manslaughter, but without success. He pleaded guilty on being arraigned in the Supreme Court, though the case against him was described as strong. He had suffered as a child from multiple learning difficulties and had been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder and substance and alcohol abuse.

97. He had been raised in a highly dysfunctional family. This led the Court to mitigate sentence "to some slight degree". The offender was eighteen years and nine months at the time of the offence. The court said:

It was noted on behalf of the offender that, in light of his youth at the time of the offence, the Court must be astute not to impose a sentence that is 'crushing' or of such severity as to hinder the offender's prospects of rehabilitation. The Court of Criminal Appeal has acknowledged the importance of that consideration: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [17]. I have endeavoured to give it some reflection in the sentence to be imposed and the structure of those sentences.

98. Mr Cottrell was sentenced to imprisonment for twenty-two years with a non-parole period of sixteen years.

99. The second case was R v Brilliantes [2013] NSWSC 1693, where Mr Brilliantes was telephoned to attend at an altercation which had earlier been caused by three men, including the victim, taunting some females. Mr Brilliantes and four other males approached the three men and three of them began to assault them. Mr Brilliantes, who had brought a knife with him, produced it and one of the females pointed out the victim to him and then "cheered with her fist in the air".

100. Mr Brilliantes lunged at the victim and stabbed him in the torso and then ran from the scene. He tried twice to pass the knife to one of his companions as they ran away. He later told police that he "just snapped and stabbed [the victim] in the back". The altercation happened in a public place, a bus stop, where members of the public are required to wait. Mr Brilliantes was twenty-one years and nine months old at the time of the offence.

101. He had a serious criminal record and was on conditional liberty at the time of the offence. He had committed other breaches of his parole and had committed other offences eleven days before the murder. He suffered from a substance abuse disorder, he expressed remorse. He pleaded guilty at arraignment shortly after being committed to the Supreme Court. The Court held that this justified a discount for the plea of guilty of twenty-five percent, leading to a sentence being imposed of eighteen years imprisonment with a non-parole period of thirteen years.

102. These are helpful sentences which I will take into account. It seems to me that the case of Mr Schmidt stands somewhere in the middle between the two. There are some differences, obviously, especially as to the precise participation in the offences by the offenders compared to that of Mr Schmidt.

103. I take into account the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act which need to be balanced in the sentence to be imposed. I take into account Mr Schmidt's plea of guilty. It was not made at an early time but it had a utilitarian value, although, being entered so late, it was of more limited value.

104. I take into account the objective seriousness of the offence; it was a brutal, vicious and senseless attack, though Mr Schmidt's actual participation was somewhat limited and, on the facts before me, less than that of JJ and probably not, by itself, lethal. Nevertheless, it was a serious version of the offence which deserves condign punishment.

105. I have regard to the offences on the List of Additional Offences in the way I have indicated. I also note that as a matter of aggravation Mr Schmidt was on conditional liberty at the time of the offence. It is significant that the offence for which he had been sentenced and for which the period of imprisonment was partially suspended was an offence of serious violence. I accept, however, as made clear in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477, he cannot be punished twice for the offences for which he has already been sentenced.

106. That Mr Schmidt was affected by drugs and alcohol does not seem to me to be a mitigating factor. That accords with principle as noted in cases such as R v Redenbach (1991) 52 A Crim R 95 at 100.

107. The case was referred to by the prosecution and was also helpful in the terms of the sentence there imposed. I note the subjective features of Mr Schmidt to which I have referred in some detail. I note, that while he seems to have matured while in custody, he did not take the opportunity while at liberty to address his problems, especially his problematic drug use. I accept, however, that he is remorseful and has insight into the effect of his offending.

108. I consider the Victim Impact Statements and the effect the offence has had on the family of Mr Zhao. That can never be repaired.

109. I take into account Mr Schmidt's age, though in such an offence it can only have limited mitigatory effect, but, as the Supreme Court New South Wales has noted, the sentence should not be crushing. I note that Mr Schmidt left Canberra and used a fake name to relocate in Queanbeyan immediately after the offences.

1. I convict you of the murder of Liang Zhao on 4 August 2011.

2. I sentence you imprisonment for twenty years and six months, to commence on 7 August 2011. Had you not pleaded guilty I would have sentenced you to imprisonment for twenty-three years.

111. [His Honour then addressed Mr Schmidt directly]

112. Mr Schmidt, this was a brutal, vicious, unprovoked cowardly attack which you started by striking Mr Zhao with a fearsome weapon, a baseball bat, resulting in the death of another human being. That will live with you forever as it will live with his family. You are not to be punished beyond what is just, but severe punishment, as I have imposed it, is inevitable. There are relevant differences between you and your co-offender, but also his punishment must be taken into account.

113. I trust the penalty is not crushing despite its severity and that it adequately meets the need for denunciation to the community and retribution for the offence. You may be seated.

I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Date of hearing: 4 September, 31 October, 25 November, 9 December 2013

(Sentencing) Act 2005

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