R v Stratton [2008] VSCA 130

2 The appellant pleaded guilty to manslaughter. He thereby admitted to the elements of the offence, which in his case was the killing of Dai Van Nong by an unlawful and dangerous act. The unlawful act was the presenting of the firearm in the victim's general direction. Such conduct was unlawful, I think, because it contravened one or other of s 5(1) or (1A) of the Firearms Act 1996.[1] The act was dangerous because a reasonable person in the appellant's position would have realised that he was exposing another to an appreciable risk of serious injury.[2] Even if it be assumed that the appellant was unaware that the weapon had a hair trigger, presenting a loaded weapon in the general direction of another person in the dark was an act of that quality.

3 Other than what I have just said, the learned sentencing judge was asked to sentence the appellant on the basis that he had simply presented the gun in [the deceased's general] direction and [it had] discharged.' It was implicit in this version of events that the appellant had not intentionally discharged the firearm. This was consistent with the weapon - which was never recovered - being described as having had a 'hair trigger'.

4 It is not to the point whether the version of events upon which the learned judge was asked to sentence the appellant strains credulity. For it was the basis upon which the Crown, having accepted the appellant's plea, presented the matter to the learned sentencing judge.

Contextual circumstances. Aggravated burglary

5 The offending conduct, thus identified, did not occur in a vacuum. This focuses attention on the principle that all circumstances relevant to the commission of an offence, as well as the circumstances of the offender, should be taken into account by a sentencing judge.

6 The first aspect of that principle is qualified in its operation. It is qualified by the jurisprudence with respect to uncharged acts. It is also qualified by the principle that an offender must be given the full benefit of an acquittal.

7 How then did the principle that all circumstances relevant to the commission of the offence should be taken into account operate in the particular case? The question invites consideration, particularly, of the circumstances of the appellant's entry onto the victim's property.

8 The appellant and the co-accused, Masuglia, were presented on counts of murder and aggravated burglary. When the appellant agreed to plead guilty to manslaughter, he did so by pleading not guilty to each count on the presentment but guilty to manslaughter in respect of the count of murder. Masuglia did the reverse. He pleaded not guilty to murder but guilty to the count of aggravated burglary.

9 As appears from the endorsement made by the judge's associate on the back of the presentment, the Crown led no evidence in respect of the counts of murder or aggravated burglary in the appellant's case, and no evidence in respect of the counts of murder in the case of Masuglia. The consequence was that the learned sentencing judge directed verdicts of not guilty on those counts.

10 In respect of the aggravated burglary, the presentment alleged that the appellant and Masuglia -

entered as trespassers a part of a building at 121 Hall Street with intent to steal therein and at the time had with them a firearm.

• Entry as a trespasser (s 76(1) Crimes Act 1958).
• With intent to steal (s 76(1)(a)).
• Having at the time a firearm (s 77(1)(a)).

11 The offence was complete at time of entry, so armed, and with relevant intent.

12 The elements of the offence were distinct from the elements, pertinent to the case as presented, of the count of manslaughter.

13 Two questions arise. First, in sentencing the appellant for the manslaughter, did the learned sentencing judge take into account, and if so in what way, the circumstances which constituted the elements of the count of aggravated burglary, as being circumstances relevant to the commission of the offence? If they were able to be taken into account, I should think that they added to the gravity of the manslaughter. Second, if the judge did take those circumstances into account in some and what way, was she entitled to do so? If the judge was not so entitled, it might explain how she arrived at a sentence which, as the appellant would have it, was manifestly excessive.

14 Those questions were briefly addressed before this Court. They were not the subject of detailed submissions. Nor was there comprehensive citation of authority in respect of the second of them. Nonetheless, it is possible to reach a firm conclusion about the first question, and a conclusion sufficient for the purposes of determination of this appeal upon a variant of the second question.

15 The appellant and Masuglia were sentenced at the one time. Early on in her sentencing remarks, the judge said this:

In the early hours of 21 May 2002 you, Leonard Stratton, and you, Joshua Masuglia, in the company of at least one other gained entry to a garage at the rear of a house at 121 Hall Street, Ardeer. Your purpose was to steal a cannabis crop which was under cultivation in the garage. To that end you, Leonard Stratton, were armed with a loaded .22 sawn off rifle and it is said that your role was to "keep nit."[3]

Then her Honour identified the circumstances pertinent to the count of manslaughter, and explained that the episode as she had generally described it gave rise to the count of aggravated burglary to which Masuglia had pleaded guilty.

16 Later in her remarks, concerning Masuglia, the learned judge said this:

The fact that Mr Dai Nong died during the course of the aggravated burglary forms no part of my sentencing function and I acknowledge that I am not sentencing you in any way in respect of [his] death.

17 Her Honour made no equivalent (though obverse) statement in respect of the appellant. But it seems to me to be a fair inference that she approached the matter in the same way. In the event, I consider the passage which I cited at [15] was simply introductory; and was not, so far as it asserted circumstances necessarily inconsistent with the appellant's acquittal on the count of aggravated burglary, a finding of sentencing facts, in the appellant's case, to that effect.

18 The conclusion which I have just expressed renders the second question which I framed at [13] irrelevant. But it gives rise to a different question: Could such circumstances properly have been taken into account? For, if the answer is yes, then taking them into account in a permissible way would be likely to assist a conclusion that the sentence passed was not manifestly excessive.

19 In answering that question, there may be put to one side the large jurisprudence which has been developed with respect to consideration of uncharged acts when sentencing. That jurisprudence takes as its starting point the fact that circumstances which would constitute a discrete offence (or offences) are sought to be relied upon by the prosecution in the sentencing of an offender for a charged offence, despite those circumstances not being the subject of a charge.[4] That is not this case. The appellant was charged with, and acquitted of, the aggravated burglary.

20 Next, this is not a case in which there were jury verdicts of not guilty and guilty on alternative counts deriving from the one factual situation, and of the question than arising, on sentencing, what findings were necessarily implicit in the charge on which the accused was acquitted. That was the situation which arose in R v Sulemanov,[5] where the appellant was charged with alternative counts of rape and sexual penetration of a child under 16 years. The appellant was found not guilty on the former count, but guilty on the latter. The jury's verdict on the count of rape was inscrutable. The appellant might have been acquitted on the ground of consent; or he might have been acquitted on the ground that the jury was not satisfied to the criminal standard that the appellant was aware that the complainant was not consenting.

21 The appellant complained that the judge had erred by denying him the full benefit of his acquittal by making a finding that the acquittal was probably explicable on the second basis. This Court held that the principle upon which the appellant relied had not been infringed. Vincent JA, who gave the leading judgment, cited the following passages in Cheung v The Queen:[6]

1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...
2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings ...
3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury ...

1. As to proposition 3, the required consistency is with the verdict, ie the decision of the jury upon the issue or issues joined for trial. It is at this point that the distinction between issues, facts relevant to an issue, and evidence, is important. Failure to observe that distinction is apt to cause confusion and error. If, as in the present case, a jury returns a general verdict upon a single count in an indictment, the resolution of issues which is express, or necessarily implied, in that verdict, is binding upon the sentencing judge. But the judge does not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that is revealed by the verdict.

1. Bearing in mind that the principal matter relied upon by the appellant, in the sentencing proceedings, by way of mitigation, was his assertion as to the benign motive with which he became involved in the importation, and bearing also in mind that the presence or absence of that motive was not an element of the offence charged, and was not a matter upon which issue was joined for resolution by the jury it is impossible to understand what course was open to the judge but to decide that question for himself. Not only were the sentencing proceedings conducted by both sides upon the basis that he should do so; no other course was available to him.[7]

... the sentencing judge pointed out that there were, in effect, three substantial issues before the jury and that the most that could be stated with certainty by reference to the verdict was that the prosecution had not established that the appellant's conduct constituted rape. Which of the available reasoning processes led them to this verdict could only be the subject of speculation.[8]

That was why it had been open to the sentencing judge to find the fact that he did.

An accused must receive the 'full benefit of his or her acquittal' to comply with the fundamental principle that a verdict of acquittal cannot be controverted. This principle was engaged as a consequence of the jury's acquittal on the count of rape. It was submitted that the learned sentencing judge denied him the full benefit of his acquittal on this count by acting upon a finding that the complainant had not consented to intercourse in sentencing him on the second count. It is clear enough from the transcript of the plea in mitigation and the reasons for sentence that his Honour was of the view that the acquittal of the appellant on the count of rape was consistent with the jury being satisfied that the complainant had not consented to intercourse with the appellant but was not satisfied that the crown had established that the appellant had the necessary mens rea.

It is commonplace for a sentencing judge to make findings which bear significantly upon the offender's culpability, and which, while consistent with the jury verdict, will not necessarily have been resolved by the verdict. The verdict of a jury may leave unresolved, large questions as to the offender's degree of culpability. It is only the resolution of those factual issues which are necessarily implied in the jury's verdict that bind the sentencing judge. Thus the primary constraint upon the power and duty of the sentencing judge is that the view of the facts adopted for purposes of sentencing must be consistent with the verdict of the jury, and if it be a finding against the offender, must be arrived at beyond reasonable doubt.

Where the accused has been acquitted of an offence, a fact relating to that offence may be relied upon in relation to another offence so long as the acquittal does not give rise to an inference that the particular fact was negatived by the jury so as to make that fact a res judicatum. In those circumstances the fact will not infringe the principle that the accused should be given the full benefit of his acquittal. Were the law otherwise, an offender could not be sentenced for a lesser alternative charge to the charge on which the offender was acquitted.[9]

24 Reference by Redlich JA to R v Storey,[10] R v Carroll[11] and Washer v The State of Western Australia[12] in support of the above propositions calls attention to another class of case; that is, a class in which an accused person is acquitted of an offence, but a fact relating to that offence is sought to be relied upon in relation to another offence.[13]

25 Such cases have been concerned with conviction, not sentencing. They have raised different issues to do with a second count or a count in a second trial.

26 Storey raised the question whether issue estoppel applied in the criminal law. It did so in the context of the admission of evidence, on a trial for rape, of circumstances which tended to show - as negating the defence of consent - that the complainant had been forcibly taken away by the appellants; and in the further context that the appellants had previously been charged with, and acquitted of, the forcible abduction of the complainant. The evidence was admitted on trial and the appellants were convicted. Their convictions were quashed on appeal. That decision was upheld, on different grounds, by a majority in the High Court. But although the majority for affirming the decision of the Court of Criminal Appeal was only four to three, six of the seven judges held that the evidence had been admissible - not to prove forcible abduction, about which there had been a determination that could not be controverted, but to negative consent.

27 The majority conclusion that, if issue estoppel could ever apply in a criminal case,[14] it did not do so in this case, and that the evidence in question was admissible, turned on the fact that the jury had only determined the general issue of guilty or not guilty at the first trial. It could not be said that any particular issue in that trial had been determined favourably to the appellant.

28 In Carroll, the respondent was tried for murder. He was found guilty, but a verdict of acquittal was entered on appeal. The respondent gave evidence at the trial in which he denied killing the victim. Much later, he was charged with perjury, the particulars of which were that he had lied in denying that he had killed the victim. The question which came before the High Court was whether the perjury indictment should have been stayed as an abuse of process - a stay application having been made to and refused by the trial judge.

29 The High Court affirmed the decision of the Queensland Court of Appeal that the indictment should have been stayed. By the second charge the jury had been asked to find, in effect, that the respondent had killed the victim. Only by so finding could the jury have found the charge of perjury proved. But the respondent's acquittal of murder had foreclosed that issue.

30 I should mention several passages in the joint judgment of Gleeson CJ and Hayne J:

There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial.

The present case provides an example. The only element of the offence of murder that was in issue at the original trial of the respondent was whether he killed Deidre Kennedy. The perjury alleged at the second trial consisted of the respondent's falsely denying, on oath, that he killed Deidre Kennedy. The falsity of the testimony was claimed to be that he said he did not kill Deidre Kennedy whereas in truth he killed her. It was accepted in argument in this Court that, although it was not expressly averred, it was necessarily implied in the perjury indictment that the respondent had killed the child.[15]

The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility ...[16]

... where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive.

To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided.[17]

31 In Washer, there was no debate that evidence given in a second trial on a count of conspiracy to possess a prohibited drug had been admissible despite the appellant having been acquitted of a different conspiracy referable a period of time which partly overlapped that involved in the later count. The questions were first, whether the appellant should have been permitted to adduce evidence of the acquittal; and second, whether the trial judge should have directed the jury that it was bound to give the appellant the full benefit of his acquittal. The majority in the High Court answered both questions in the negative. The essential issue was framed this way in the joint judgment of Gleeson CJ, Heydon and Crennan JJ:

In whatever way the problem arises, and whether it takes the form of a question of admissibility of evidence, preclusion of proceedings, or the exercise of a discretion to stay proceedings, the underlying legal principles relating to double jeopardy require, in their application, an accurate identification of the effect of the earlier acquittal and its relationship to the later charge. Where the issue arises as one of the admissibility of evidence, then relevance is likely to be the focus of argument. Relevance will be decided in the light of the legal principles applicable to the prosecution and defence of the charge against the accused, as related to the facts and circumstances of the particular case. If, in this case, the appellant had a legal right, by reason of his acquittal, to be given the benefit of an assumption relevant to the assessment of the other evidence in the case, then evidence of the acquittal would be relevant. If the fact of the acquittal had some logical connection with the assessment of the probabilities concerning some fact or facts in issue, the evidence would be relevant. In either case, however, a decision about relevance requires consideration of the effect of the acquittal. Accepting that the appellant was entitled to "the full benefit of the acquittal", the question is what that "full benefit" entailed.[18]

32 The application of that approach in the instant case was described as follows:

In this case, the prosecution did not ask the jury to accept that the conversations between the appellant and Whitsed and Bowles showed the appellant making or pursuing an agreement with Whitsed and Bowles that the three of them would supply drugs to other people. It asked the jury to accept that the appellant, at the time of the proposed importation from Queensland, was a drug dealer, and from that to infer, among other things, that he intended to sell or supply to others his share of the amount imported. It was neither explicit nor implicit in the acquittal at the earlier trial that the appellant was not a drug dealer. For the purposes of the law, the acquittal established that the appellant was not a party to a conspiracy with Whitsed and Bowles to supply drugs to others; nothing more, and nothing less.[19]

33 As to the submission that a direction should have been given about the acquittal, their Honours' said:

Let it be supposed that the jury had been informed that the appellant had been charged previously with being a party to an agreement (not related to the Queensland importation) with Whitsed and Bowles, that he had been acquitted, and that the jury must therefore act on the basis that there was no agreement to supply between those three men. That would have been a complete statement of what was involved in the benefit of the acquittal. There was no process of reasoning whereby that information would have made less plausible any step in the prosecution case as it was finally left to the jury. There was nothing more that the jury could properly have been told. If the jury had been told that the earlier acquittal established that the appellant was not a drug dealer, or that he was not talking about drugs in his conversations with Whitsed and Bowles, that would have been untrue. If the trial judge had told the jury they must give the appellant the full benefit of his acquittal without further explanation, that would have been mischievous.[20]

34 Although the line of authorities just discussed was concerned with conviction issues, it shows, I think, the importance of considering just what was decided by an acquittal. It is what was decided which cannot be controverted. Primary focus is upon the elements of the offence of which person has been acquitted. Can it be said that the acquittal determined one or more, and in any case which, of those elements?

35 Reserving my opinion only to the extent that full argument in another case might satisfy me that the approach was flawed, I consider that such approach may be applied, by analogy, to a sentencing issue of the present kind. So approached, the appellant's acquittal on the count of aggravated burglary was a consequence of the Crown leading no evidence on that count. It seems to me to follow that the acquittal reflected failure to establish any element of the offence; and that it was an acquittal with that characteristic which was incontrovertible with respect to consideration of all circumstances pertinent to the manslaughter. This would seem to mean that there should not be brought to account the circumstance that the killing followed upon the appellant's entry onto the land as a trespasser, intending to steal, and armed.

36 I have considered whether the conclusion could be sound; for it means that the offence of manslaughter had to be considered in an artificial and unrealistic context. That is the more so when Masuglia was sentenced, in respect of the same entry, for aggravated burglary; and when there was no reason why the appellant would not have been properly sentenced for the same offence had there not been - as there must have been - an agreement between the Crown and the appellant's legal advisers which led to the appellant pleading guilty to the killing.

37 But legal principle is not determined by convenience. Artificial though the consequence is, I think that the particular circumstances of this case oblige the provisional conclusion which I have reached.

38 It is possible to think of other ways in which the agreement might have been implemented which would not, or might not, have obliged this outcome. But there is no point investigating what might have been.

39 In the event, I think that the appellant fell to be sentenced for the manslaughter, and the sentence imposed below must be considered, in the context that it was a killing having the characteristics which I identified at [2]-[3].

40 Other than that, I consider that the sentencing judge was, and this Court is, able to take account of certain uncontroversial facts: that the appellant was on the residential property of another person - though it cannot be said with intent to steal - late at night; and that, for whatever reason, he was then armed. Those circumstances would not controvert the acquittal. It is true that his being armed was itself unlawful; and that to take such circumstance into account would be to take an uncharged act into account. But it was evidently a lesser offence than the killing; and would not be proscribed from consideration.

41 I have considered whether it might also be possible to take into account the fact that the appellant was on the land in company; or to conclude that his being there was unlawful for some reason not caught up by the count of aggravated burglary. I have decided against doing so. The former circumstance might imply another uncharged criminal offence of consequence. The latter would involve speculation.

42 With great respect to the opinion of the learned sentencing judge, I cannot accept that the sentence was within the boundaries of the sentencing discretion. The matters which have mainly influenced me to that conclusion are the circumstances of

the killing which the judge was asked to assume for sentencing purposes; and, (although her Honour made no error in this respect) the limits imposed upon recourse to the circumstances of the appellant's entry onto the land which flowed from the appellant's acquittal on the count of aggravated burglary.

43 The appellant, Leonard Noel Stratton, pleaded guilty to one count of manslaughter of Dai Van Nong, by unlawful and dangerous act. He was sentenced by a judge of the Supreme Court to eleven years' imprisonment, with a non-parole period of eight years, for that offence. This is an appeal against that sentence.[21]

44 At around 3.00 am on 21 May 2002, the appellant, Joshua Masuglia and at least one other unidentified man broke into the garage at the rear of a house in 121 Hall Street, Ardeer, by kicking in a wooden door. The appellant was armed with .22 sawn off rifle and it was said that his role was to 'keep nit'. The purpose of breaking into the garage was to steal a mature cannabis crop which was being cultivated there.

45 The residents of the house, Dai Van Nong and his wife, Lan Hong, became aware that there were intruders in the back yard. Dai Van Nong armed himself with a tomahawk and went out to investigate. Lan Hong did not go into the backyard, but she looked out the window and yelled at the intruders. One of them approached the window and yelled 'you dead'.

46 The appellant, who was in the back yard, pointed the sawn off rifle in the general direction of Dai Van Nong and the gun discharged, shooting him through the left eye socket.

47 The victim was later found lying unconscious in the backyard by his wife and other relatives she had called to the house. He was taken to the hospital where he was pronounced dead.

48 After the robbery and shooting, the offenders jumped over the rear fence, taking the cannabis with them. The men split up and the appellant went to his sister's house in Laverton.

49 When the appellant arrived at his sister's house they telephoned Gavin Blair and asked him to come to the house. When Gavin Blair arrived, a sawn off rifle was sitting on the kitchen bench. The appellant told his sister and Gavin Blair that 'I think I shot some [someone] when I went and pinched his dope tonight. He ran after me and I just shot.'

50 The appellant, his sister and Gavin Blair spent most of the following day trimming the plants. Over the next few days, the gun was moved several times. Eventually it was left in a cubby house in the rear yard of that address. After the appellant's sister moved, it was found by the next occupants and sold. It has not been located since.

51 On 25 August 2004, following a covert operation focussing on Gavin Blair and the appellant's sister, Tracey Stratton, the appellant was interviewed by the police. He refused to answer questions about his involvement in the aggravated burglary or the death of Dai Van Nong. On the same day he was charged with murder and aggravated burglary.

52 In June 2005, the matter proceeded as a contested committal hearing. At the conclusion of that hearing, the appellant and Masuglia were committed to stand trial for murder and aggravated burglary.

53 On 6 September 2005 the appellant entered a plea of not guilty in relation to both of those counts. A trial was set down for 28 February 2006. That trial date was vacated and another trial was set down for March 2007. That trial date was also adjourned, due to the appellant's legal representatives withdrawing from the proceedings.

54 On 22 March 2007, following discussions with the Crown, the appellant was arraigned and pleaded guilty to manslaughter. The Crown led no evidence relating to the counts of murder and aggravated burglary and her Honour directed verdicts of not guilty to be entered on these counts. The appellant's co-offender Masuglia pleaded not guilty to murder, but guilty to aggravated burglary.[22]

55 On 24 April 2007, the appellant was sentenced for manslaughter. There was thus a delay of two years and nine months between the time that the appellant was charged and the time that he was sentenced.

56 During the plea hearing the learned sentencing judge asked counsel for the Crown whether the manslaughter to which the appellant pleaded guilty was based on the unlawful and dangerous act committed by the appellant in presenting the gun. Counsel answered that:

In presenting the gun, yes, in taking the gun there, taking a loaded gun there and presenting it according to Gavin Blair, Leonard Stratton said something to the effect of in the opening, he ran after me I just shot him, so having the loaded gun. Of course it's not contended that he turned around and aimed it at him, in that case it would have been murder rather than manslaughter but obviously he had a loaded gun and pointed it in his general direction. It would be conceded on the evidence it would appear that the gun had a hair trigger...

57 During the plea hearing counsel for the appellant said that:

So we are talking about a hair trigger rifle and a shot in the dark, quickly reacting to the situation of either being observed or having been told that someone was coming. The lighting situation from the photographs, it would appear that there was probably not much lighting being cast in that area of the backyard.

58 In her sentencing reasons the learned judge said that:

It [was] not put that [the appellant] directly aimed the rifle at Dai Nong, but that [he] committed an unlawful and dangerous act in presenting a loaded firearm in the direction of Dai Nong in the course of which a bullet was discharged and death resulted.[23]

59 Her Honour therefore had to sentence the appellant on the basis that he had not intentionally shot at Dai Van Nong.

60 The fifth ground of appeal alleges that the sentence was manifestly excessive. Grounds 1-4 are that her Honour erred by:

• giving inadequate consideration to the effect of the appellant's imprisonment on the prisoner's family;
• giving inadequate weight to the appellant's guilty plea;
• finding that 'this type of offending was a serious example of the crime' and was 'at the mid to higher end ' of the sentencing range; and
• giving inadequate weight to the appellant's personal circumstances and unfortunate background.

Counsel relied on these grounds as particulars of the manifest excess ground.

The Crown has submitted and I accept, that this is a serious example of an unlawful and dangerous act, presenting a loaded firearm in the general direction of a person coming at you. I accept that your offending conduct is to be placed at the mid to higher end of offences of this kind.[24]

62 Counsel for the appellant said that the circumstances of the offence did not permit the learned sentencing judge to regard it as 'a serious example' of unlawful and dangerous act manslaughter, which was 'at the mid to higher end' of the

63 Counsel conceded that, following the decision of this Court in AB (No 2),[26] the 1997 increase in the maximum term of imprisonment for manslaughter from 15 to 20 years must be taken into account in considering the appropriate sentence for this offence. However, he submitted that even when that increase was taken into account, the sentence of 11 years imposed on the appellant was outside the range of sentences which could be imposed for an 'unlawful and dangerous act' manslaughter in which the appellant had no intention to injure the deceased.

64 Counsel contended that even if her Honour's comment that the offence was 'at the mid to higher end' of the sentencing range was intended to refer to the sentences imposed for all forms of manslaughter, sentences exceeding 10 years' imprisonment are relatively rare.

65 In his written outline of submissions counsel referred to the following cases:

• R v Bangard,[27] in which a man who killed his de facto partner by manually strangling her was convicted of unlawful and dangerous act manslaughter. Having found a specific sentencing error this Court re-sentenced the appellant to a term of 9 years' imprisonment for manslaughter.
• DPP v Arney,[28] where a man who had killed his five month old daughter by punching her in the stomach was re-sentenced on a DPP appeal to a maximum term of nine years' imprisonment on the manslaughter count. Arney also received a sentence of 4 years on a count of recklessly causing serious injury, two years of which was to be served cumulatively on the manslaughter sentence. In that case Nettle JA commented that the offence 'stood towards the upper end of seriousness of cases of this kind'.[29]
• DPP v Jagroop[30] in which a woman died after her husband pushed her over, she hit her head on the footpath and he dragged her down a slope and left her in an unconscious state near some water, where she was later found submerged. Teague J said he regarded this as 'a particularly serious case of manslaughter, although far from the top of the scale'[31] and sentenced Jagroop to 10 years' imprisonment.

Counsel submitted that in each of these cases the offender had intended to harm the victim and was accordingly more morally culpable than the appellant, who had no intention of harming Dai Van Nong.

66 In oral submissions, counsel for the appellant also referred to a number of cases involving accidental shootings, where the offender was convicted of unlawful and dangerous act manslaughter or manslaughter by criminal negligence. None of the sentences imposed on the offenders in these cases had exceeded 10 years.[32] Counsel said that although these offenders were sentenced prior to the Court of Appeal decision in AB (No 2), the effect of increasing the maximum sentence for manslaughter from 15 to 20 years had been recognised before the decision in AB (No 2), in cases such as R v Arney.[33]

67 Counsel submitted that having regard to the sentences imposed in these cases, and to the fact that the appellant did not intend the consequences of his act, her Honour must have given insufficient weight to the appellant's guilty plea and remorse, his dysfunctional childhood and his attempts to overcome his drug abuse.

68 Counsel for the Crown submitted that her Honour was comparing the sentence imposed in the present case with manslaughter sentences generally, when she said that this conduct could be placed at the mid to higher end of offences of this kind. Her Honour was not confining her comments to the sentences imposed for manslaughter by unlawful and dangerous act. Her Honour had correctly characterised the offence as at the mid to higher end of the scale for manslaughter.

69 Counsel for the Crown said that contrary to the submission on behalf of the appellant, sentences of the magnitude imposed by her Honour had previously been imposed in a number of cases where an offender had been convicted of a single count of manslaughter. He referred to the sentence upheld by the Court of Appeal in R v Kesic,[34] and to the sentences imposed by Harper J in R v McMaster[35] and by Teague J in R v Quach.[36] In each of these cases the victim was a young child and the killing was caused by the offender's unlawful and dangerous act. These offenders received maximum terms of imprisonment of 10 years or more, prior to the Court of Appeal decision in AB (No 2).

70 Counsel for the Crown also relied on R v Lennon,[37] a case in which the Court of Appeal upheld a maximum sentence of 10 years' imprisonment, and R v Presnell[38] where Vincent J (as he then was) imposed a maximum term of 10 years. In both

70 these cases the offender was charged with murder and a jury convicted him of manslaughter by unlawful and dangerous act.

71 In addition, counsel for the Crown referred to the cases of R v Ramage,[39] R v Mohammed[40] and R v Watson.[41] In both Ramage and Mohammed, the accused was charged with murder, relied on the partial excuse of provocation and was convicted by a jury of manslaughter. In Ramage, the offender was sentenced to 11 years' imprisonment for killing his estranged wife, in circumstances where the Crown had failed to negative provocation.[42] In Mohammed, the offender was sentenced to 10 years' imprisonment for unlawful and dangerous act manslaughter after he killed a man and injured several other co-workers, some of whom had racially taunted him.

72 Counsel alluded to King CJ's remark in R v Weinman that:

Manslaughter is a very variable offence. In its lowest range of criminality, it may be little more than a practical joke that went wrong, and in its highest it stops just short of murder. [43]

73 Counsel for the Crown conceded that manslaughter based on provocation, such as occurred in Ramage and Mohammed, would normally attract a higher sentence than an unlawful and dangerous act manslaughter which did not involve the intentional infliction of injury on the deceased. Counsel also conceded that an unlawful and dangerous act manslaughter resulting in the death of a child would also be regarded as particularly reprehensible.

74 Counsel said that, while this case did not fall into either of those categories, it was, nevertheless, a serious example of manslaughter occurring in the course of an unlawful and dangerous act. The sentence reflected the fact that this was a violent offence, which involved a man who had prior convictions for violent offences, pointing a gun in the general direction of the victim, in the course of a home invasion.

75 Counsel for the Crown also said that the cases relied upon by the appellant pre-dated the decision in AB(No 2). In that case the Court of Appeal said that it would have been a sentencing error for the judge below to have disregarded the increase in the maximum penalty for manslaughter from 15 to 20 years and that, despite a specific sentencing error, the maximum term of 15 years imposed by the sentencing judge for 'a manslaughter of the very gravest kind' reaching to 'the confines of murder' should not be altered. In that case the Court of Appeal recognised that the increase has 'potential significance for all sentences to which the new maximum applies,' and must be regarded as the 'yardstick' which must be balanced with all other relevant factors.[44]

76 Towards the conclusion of the hearing the Court asked counsel whether the sentencing judge had treated the fact that the manslaughter had occurred in the course of an aggravated burglary as aggravating the appellant's culpability and if so, whether she was entitled to do so. This matter had not been explicitly raised in the grounds of appeal and the submissions made by counsel in response to the question were relatively brief.

77 Counsel for the Crown submitted that the sentencing judge was entitled to take account of the totality of circumstances in which the offence occurred, relying on the authority of R v Newman & Turnbull[45] and DPP v Heblos.[46] Counsel for the appellant contended that, consistent with the principle that a person cannot be sentenced for an offence of which he has not been charged or convicted,[47] it would have been an error for her Honour to take account of the fact that the manslaughter occurred in the context of an aggravated burglary.

78 Before considering the grounds of appeal set out above (see para [60]), I deal briefly with the question whether her Honour treated the fact that the manslaughter occurred in the context of an aggravated burglary as a circumstance aggravating the gravity of the manslaughter of which the appellant was convicted and, if so, whether she was entitled to do so.

79 In my opinion her Honour took care to sentence the appellant solely for the conduct forming the subject of the manslaughter count and did not treat the aggravated burglary of which the appellant was acquitted as an aggravating circumstance. Her Honour described the offence for which the appellant had to be sentenced as 'presenting a loaded firearm in the direction of Dai Nong in the course of which a bullet was discharged and death resulted'.[48]

80 Because the matter was not fully argued I do not wish to express a final view on the extent to which it would have been permissible for her Honour to take account of some, though not all, of the elements of the offence of aggravated burglary, in circumstances where the appellant was acquitted of that offence. However, as Ashley JA and Lasry AJA have both examined that issue in their judgments I will make some brief comments on it.

the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. ... The combined effect of the two principles ... is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[49]

82 In this case the crime of manslaughter for which the appellant had to be sentenced was committed during an aggravated burglary. In Heblos, the Court of Appeal considered that the sentencing judge was entitled to treat the fact that a murder occurred in the course of an armed robbery as a factor aggravating the culpability of the offender, despite the fact that the offender had not been charged with armed robbery.[50] However, as Lasry AJA points out,[51] the situation here is distinguishable. In Heblos the offender had not been charged with armed robbery. In this case, the appellant had been charged with and acquitted of aggravated burglary, the Crown having failed to lead any evidence on that count.[52]

83 Like Ashley JA,[53] I am troubled by the artificiality of a principle which would require the sentencing judge to ignore the context in which the manslaughter occurred, because there was a directed acquittal on the aggravated burglary count.[54]

84 In my opinion, the important principle that offenders should not be punished for offences of which they have not been charged[55] or have been acquitted[56] does not require a sentencing judge to disregard all of the facts relevant to the establishment of the elements of the offence of which the person has been acquitted.

85 If the appellant had pleaded not guilty to the offence of aggravated burglary a jury could have acquitted him, even if it had been satisfied beyond reasonable doubt that he entered the building as a trespasser, because it was not satisfied beyond reasonable doubt that he did so with an intention to steal, or to commit an offence involving an assault or damage to the building or property, punishable by imprisonment for five years or more.[57] Thus, even if the appellant had been acquitted by a jury of aggravated burglary, this would not necessarily have been inconsistent with a finding by the judge for sentencing purposes that the appellant had entered the premises as a trespasser carrying a loaded gun.

86 The view I have expressed is consistent with Ashley JA's analysis of cases in which 'an accused person is acquitted of an offence, but a fact relating to that offence is sought to be relied upon in relation to another offence'.[58] However, I do not agree with Ashley JA's view that because the acquittal in this case arose from the Crown's failure to lead any evidence on the aggravated burglary count, her Honour could not have taken account of any element of that offence in sentencing the appellant for manslaughter.

87 The Crown opening on the plea described the circumstances in which the manslaughter occurred as including the unlawful entry onto the premises. Counsel for the appellant described the Crown opening as 'fair'. In these circumstances, I do not consider that the failure of the Crown to lead evidence on the aggravated burglary count prevented the learned judge from taking account of some, but not all, of the facts relevant to elements of the offence of aggravated burglary. The difference between my view and that of Ashley JA is that I consider her Honour would have been entitled to take account of the fact that the appellant had unlawfully entered the premises of the victim, late at night, in the company of others, while carrying a loaded gun.

88 Even if I am wrong in that view, the judge could, at the very least, have sentenced the appellant on the basis that he was on the residential property of another person late at night, with others, while carrying a loaded gun.

89 I now turn to the question of whether the sentence was manifestly excessive, having regard to the particulars specified in the four grounds of appeal. I do so on the basis of the more favourable view of the circumstances of the offence, which are set out in [88] above.

90 In my opinion the appeal against sentence should be dismissed.

91 Her Honour did not err in describing this offence as manslaughter as 'at the mid to higher end of offences of this kind'. It is clear from the context of that remark that her Honour was comparing this offence with other examples of unlawful and dangerous act manslaughter, rather than with manslaughter sentences generally.

92 The appellant did not intentionally aim the rifle at the victim. This case did not involve the killing of a defenceless child as in Arney, Kesic and Quach. Nor did the offence involve extreme violence of the kind which occurred in Presnell, where the offender stabbed the victim in the head in the course of stealing his car. Nevertheless, I agree with her Honour that this offence was a serious example of manslaughter by unlawful and dangerous act.

93 Counsel for the appellant relied on sentences imposed in many other cases in support of his submission that this sentence was manifestly excessive. Although such comparisons are sometimes helpful, this Court has warned of the limited assistance which such comparisons provide. As Nettle JA commented in R v Arney:

In truth, each case is unique, and accordingly it is always possible that a sentence may properly rise above, or fall below, the greatest or lowest sentences for that sort of crime hitherto imposed. The measures of manifest excessiveness and manifest inadequacy are informed by previous experience. They are not circumscribed by it.[59]

94 The appellant went onto the victim's property at night carrying a loaded rifle. He pointed the loaded rifle in the general direction of the victim. Even though he believed he had shot someone, he fled the scene, rather than rendering any assistance to the victim. If a person carries a loaded rifle while entering a residential property, in the early hours of the morning when residents are likely to be home, there is a significant danger that the gun will be discharged and someone will be seriously injured or killed. Both specific and general deterrence must given considerable weight in these circumstances.

95 As a result of the offence the victim's partner was deprived of her husband and their children lost their father.

96 The appellant was aged 29 at the time of the offending and 34 at the time of sentence and has a long criminal history. He admitted 51 prior convictions from 11 court appearances between 1991 and 1998. Although many of these were for dishonesty and drug offences, he had prior convictions for armed robbery and recklessly causing serious injury, and had previously been sentenced to periods of imprisonment, both served and suspended.

97 The appellant's personal circumstances were described by her Honour as follows:

A report by Mr Bernard Healey, clinical psychologist, dated 1 April 2007 was tendered in evidence as Exhibit LS1 and I accept the matters therein as to your personal history and domestic circumstances. Your father is a heroin addict and has served periods of imprisonment, one of which was for armed robbery. In respect of that sentence he escaped from custody and you and your sister, together with your parents, lived as fugitives from justice for two years until he was apprehended. Your father then remained in prison for a further nine years until you were 18. Your mother was also a heroin addict and in 1984 she was imprisoned for two years for living off the earnings of prostitution. She died in 1997 at the age of 39.

In 1984 you were the subject of a care and protection application and placed on a supervision order for 156 weeks. At some point you and your sister were made wards of the State and lived in Allambie for six months until you went to live with your maternal grandparents on the Gold Coast where you lived for two years until your mother was released from prison. You then lived with your mother in the Housing Commission flats in Kensington until 1990 and in that year you met your wife, Tracey, when you were 18 and she was 22. Together you now have three children aged 16, 14 and six.

Mr Healey reported that your early years were periods of instability for you and, no doubt, your sister. You began using illicit drugs at an early age but you did not commit your first offence until you were 19. Your criminality increased, as did your drug habit, and you became addicted to heroin.

In 1998 you attended Moreland Hall and from then until early 2002 you remained drug free. In that time you were working for your father in law but you suffered a back injury at work which ultimately prevented you from working and you have more recently been in receipt of a disability pension. You became depressed and resorted to drug use. You have, however, been on a methadone program since October 2005 and it is said that you are now heroin free. The only time you have been in stable, consistent employment is whilst you were employed by your father in law. Mr Healey describes you as having sound average intellectual capacity.[60]

98 Having considered these matters and the family support available to Mr Stratton the learned judge said that his prospects of rehabilitation were not without hope.

99 As I have said the counsel for the appellant contended that, in particular, the learned sentencing judge had failed to give sufficient weight to the effect of the appellant's imprisonment on the prisoner's family, his personal circumstances and his guilty plea.

100 Although the appellant's incarceration will be hard on his wife and children, family hardship only operates as a mitigating factor where the degree of hardship is likely to be exceptional.[61] In any case, her Honour specifically referred to the report of the social worker, Kay Haut, about the effect of the appellant's imprisonment on his family.

101 In respect of his plea, it should be observed that the appellant was committed to stand trial on charges of murder and aggravated burglary and entered a plea of not guilty to these offences. It was not until April 2007 that he pleaded guilty to one count of manslaughter. Under Sentencing Act 1991, s 5(2)(e), the stage of proceedings at which the offender pleaded guilty or indicated an intention to do so is a relevant factor in determining the weight which should be given to this matter. Further, the sentencing judge has a very broad discretion as to the weight that should be given to a guilty plea.[62] Her Honour said that she had taken this matter into account and also referred to the submission of the appellant's counsel that he now had 'considerable self reproach, realisation and insight'.

102 Finally, the passage from her Honour's judgment set out above makes it clear that she gave careful consideration to the appellant's personal circumstances, including his dysfunctional childhood, the contribution that his heroin addiction has made to his criminal behaviour and his attempts to overcome that addiction. Her Honour also specifically referred to the effect on the appellant of the delay in the proceedings.

103 AB (No 2) requires this Court to take account of the increase in the maximum sentence of imprisonment which occurred in 1997.[63] In AB (No 2) this Court said:

By increasing the maximum penalty for manslaughter, the legislature conveyed in explicit, unequivocal language its expectation that the worst instances of manslaughter would attract a sentence approaching the maximum of 20 years. ...

The sentencing function is committed to judges and magistrates, but the parameters within which the discretion is to be exercised are fixed by Parliament. When the maximum penalty for an offence is increased - in this case, it was a 33% increase - the parameters are thereby changed. Thereafter the guidance to be derived from the pre-amendment sentencing practice is significantly reduced as a result.

Whenever Parliament increases the maximum sentence for any criminal offence, that increase has potential significance for all sentences to which the new maximum applies. As the present case illustrates, the increase will have very substantial implications for any sentence for an offence that is placed within the worst category of that offence. Even where the offence to which

the increase applies is nowhere near the worst category, the increase remains of relevance since, in the usual case, the increase shows that Parliament regarded the previous penalties as inadequate. Even where the new maximum may only be of general assistance it becomes the 'yardstick' which must be balanced with all other relevant factors.[64]

104 The sentence of 11 years' imprisonment which her Honour imposed was stern. However, despite the mitigating circumstances to which I have referred, I do not consider that the sentence imposed on the appellant was beyond the range of sentences which could have been imposed in the exercise of her Honour's discretion. In the circumstances of this case, a sentence of just over half of the maximum term does not suggest that her Honour gave inadequate weight to the matters relied upon in the grounds of appeal.

106 The appellant was sentenced on 24 April 2007 by a judge of the Trial Division of this Court for the offence of manslaughter. Her Honour imposed a sentence of 11 years' imprisonment with an order that he serve a period of 8 years before being eligible for release on parole. This appeal is brought in relation to that sentence.

107 I have had the advantage of reading in draft the reasons of Neave JA in this appeal and whilst I am unable to agree with her Honour as to the outcome of the appeal, I gratefully adopt her Honour's summary of the background circumstances. In particular, as appears in Neave JA's summary of 'Arrest, plea and sentence',[65] the history of the case shows that the appellant was originally charged with murder in relation to an incident which occurred on 21 May 2002 resulting in the death of Dai Van Nong. That charge was brought not only against the appellant but an accomplice Joshua Masuglia.

108 Both the appellant and Masuglia were also charged on the same date that they did enter as trespassers a part of a building at 121 Hall Street, Ardeer, with intent to steal and at the time had with them a firearm (aggravated burglary). There is a further count on the presentment against the sister of the appellant (Tracey Lee Stratton), being that she assisted in the disposal of stolen cannabis and the retention of a firearm used in the commission of the offence of aggravated burglary in order to impede the apprehension, prosecution, conviction or punishment of Leonard Noel Stratton.

109 There was a contested committal proceeding and the appellant and Masuglia were committed to stand trial in this Court on charges of murder and aggravated burglary.

110 On 22 March 2007 the appellant was arraigned before the sentencing judge and pleaded not guilty to one count of murder but guilty to manslaughter. He also pleaded not guilty to Count 2, being the count of aggravated burglary. In relation to Count 2, the Crown led no evidence and it was directed by the judge that verdicts of not guilty be entered in respect of Count 1, murder, and Count 2, aggravated burglary.

111 On 11 and 12 April 2007 a plea in mitigation of sentence was made on behalf of the appellant, Masuglia and Tracey Lee Stratton. They pleaded guilty to aggravated burglary and assisting an offender respectively, being offences arising out of the same incident and its aftermath. Her Honour imposed sentence on all three offenders on 24 April 2007. As I have already noted, the appellant was sentenced to 11 years' imprisonment with a minimum period to be served before eligibility for parole of 8 years. Pre-sentence detention was determined at 515 days. Masuglia was sentenced in relation to the count of aggravated burglary to 4 years' imprisonment and it was ordered that a period of 18 months be served before eligibility for parole. For the offence of assisting an offender, Tracey Stratton, the sister of the appellant, was sentenced to 12 months' imprisonment.

112 In this matter there were four grounds of appeal. First, that the sentencing judge erred in not giving adequate consideration to the effect of imprisonment on the prisoner's family, and in particular, his children. Second, that the sentencing judge did not give sufficient weight to the plea of guilty. Third, that the sentencing judge erred in finding that 'this type of offending was a serious example of the crime' and 'at the mid to high end' of the sentencing range. Fourth, that the sentencing judge failed to properly take into account the appellant's personal circumstances and unfortunate background. Fifth, that the sentence was manifestly excessive.

113 In the course of sentencing the appellant the sentencing judge said:

You had in your possession a loaded firearm and it appears that it had a hair trigger and as Mr Dai Nong advanced, you presented the gun in his direction and the gun discharged.

The Crown submitted and I accept that this is a serious example of an unlawful and dangerous act, presenting a loaded firearm in the general direction of a person coming at you. I accept that your offending conduct is to be placed at the mid to higher end of offences of this kind.

114 Before us, there was discussion as to what her Honour was referring to when she made the observation and, in particular, used the words '... offences of this kind'. Counsel for the appellant conceded that if, by that observation, her Honour meant that the appellant's offending was to be placed at the mid to higher end of offences where an act is done which causes death and where there is an absence of intention on the part of the offender to cause harm of any kind to the deceased, then her Honour's observation would be correct. On the other hand, it was submitted that if her Honour was referring to unlawful and dangerous act manslaughter cases or all manslaughter cases generally, this would be an observation that would be in error.

115 During the course of submissions before her Honour, the prosecutor had submitted that this was a 'serious example of unlawful and dangerous act manslaughter' because it involved a loaded firearm. Comparing this incident with a one punch manslaughter late at night at a hotel bar, it was submitted that this was towards the more serious end of the scale. Her Honour appears to have accepted that submission and I take the observation that her Honour made to be in effect a conclusion that this offence was at the mid to higher end of unlawful and dangerous manslaughter.

116 In my opinion, to the extent that such categories are valid or identifiable, this case could only be at the mid to higher end of the cases involving the infliction of the fatal injury where that act was entirely unintentional. Such a conclusion throws into sharp relief the significance of the fact that what was done was done without any intent to cause harm to the victim. I will return to this issue shortly.

117 In the course of submissions in this Court, counsel for the appellant argued that the 'home invasion' (also referred to as the aggravated burglary), although relevant and part of the context, could not be treated as a factor which aggravated the offence of manslaughter by unlawful and dangerous act. Towards the conclusion of his submissions, counsel for the Director, on the other hand, submitted that the fact that this occurred during an aggravated burglary was a circumstance which aggravated the seriousness of the offence of manslaughter.

118 Although those submissions were made in very brief summary, the matter is not as straight forward as it first may appear.

119 It is important to keep in mind that the record of the Court indicates that the appellant was acquitted of the crime of aggravated burglary. A verdict of not guilty was entered in relation to that count.

120 In examining the manner in which the act of the killing of the deceased had occurred during an aggravated burglary, the following can be discerned as to how the sentencing judge approached the matter. Her Honour recited the fact of the entry into the house and the role of the appellant as being to 'keep nit'. In the balance of her Honour's sentencing remarks, she did not again refer to the fact of the aggravated burglary but, correctly, identified the presentation of the firearm in the direction of the deceased as being the offending which she concluded was a 'serious example of an unlawful and dangerous act'.

121 In my opinion, her Honour has sought to sentence the appellant purely on the basis of the act of presenting the firearm. She has not, and in my view could not have, treated the fact of the aggravated burglary as capable of aggravating the offence of manslaughter given his directed acquittal of that offence.

122 Therefore, to the extent that Neave JA concludes that for the purpose of sentencing the appellant on the offence of manslaughter, taking into account entry onto the premises by the appellant carrying a loaded gun would not be inconsistent with the Court's directed acquittal of the offence of aggravated burglary, I respectfully disagree. I agree with the conclusion reached by Ashley JA and for the reasons he gives, particularly the consequences to which his Honour refers of the Crown having chosen to lead no evidence on that offence.[66] The willingness of the Director of Public Prosecutions to lead no evidence on particular counts in a presentment in order to encourage resolution of trials by pleas of guilty to more serious counts and expedite disposition of cases is a common, understandable and acceptable practice. But when such a course leads not to the removal of counts from the presentment either by amendment or by filing over, but rather to a directed acquittal, then there is a particular consequence. It is not a mere formality to be partially ignored.

123 Thus, insofar as it might be suggested that any aspect of the alleged aggravated burglary can be taken into account in sentencing in order to give context to the manner in which the manslaughter occurred and which might aggravate its gravity and the moral culpability of the offender, given the particular circumstances which prevailed in this case, I respectfully disagree. In Heblos, Eames AJA observed in relation to that case:

The crime was committed during a robbery, one which, on any view, had as an essential part of the plan that the victim would be struck a severe blow to the head with a potentially deadly weapon, and with such force as to render the victim unconscious. Mr Tehan submitted that the court should not treat the fact that the killing took place during a robbery as being an aggravating factor because the Crown, had it wished to rely on that fact, could have arraigned the respondent on a separate count of armed robbery. Mr Tehan referred to Newman and Turnbull. Murder has long been regarded as the most serious of all crimes, but as also being one in which the circumstances vary to such an extent as between individual cases, that an examination of the circumstances will lead to a wide range of sentences, both as to head sentences and non-parole periods. In my opinion, there is nothing in Newman and Turnbull which suggests that that approach is inappropriate in murder cases, or renders it inappropriate that we have regard to the circumstance that the death in the present case took place during a planned robbery.[67]

124 There are two features of the observations of Eames AJA in Heblos which are to be distinguished from the position in this case. First of all it would appear that the Crown case against the accused in Heblos proceeded on the basis that the violence which was caused to the deceased was 'an essential part of the plan' of the robbery during which the murder was committed. In this case the use of a firearm for the purpose of inflicting injury was not part of the plan of the aggravated burglary even assuming that the fact of the aggravated burglary could be considered as affecting the sentence to be imposed. The second distinguishing feature in this case is, of course, that in relation to the charge of aggravated burglary which had been brought by the Crown against the appellant, a verdict of not guilty had been entered. Therefore, in my opinion, the observations of Eames AJA in Heblos, whilst of general application, do not bear directly on the particular circumstances in this case.

125 The result is that the fact that the death of the deceased in this case occurred during the course of an aggravated burglary is not a fact which can be taken into account as aggravating the offence of manslaughter. In examining whether or not the sentence imposed by her Honour was manifestly excessive, the sentence needs to be examined, for all intents and purposes, independently of the aggravated burglary.

126 In this case counsel for the Director has submitted that the judgment of this Court in R v AB (No. 2)[68] has an important effect on manslaughter sentences generally.

127 The judgment of this Court in AB (No. 2) was referred to only briefly in the written submissions of the Crown in this case and, indeed, counsel for the appellant seemed to accept that the result of the judgment was that it might have some 'descending effect'. Despite that concession, which was appropriate to make, I am not sure that descending effect of AB (No. 2) is entirely linear; nor should it be. In considering this issue, it is necessary to keep steadily in mind the principles articulated by the High Court in Markarian v R.[69]

128 In AB (No. 2), this Court was concerned with an appeal against sentence where, for a case of manslaughter, the appellant had been sentenced to serve a maximum sentence of 15 years' imprisonment, to be served cumulatively on a four year and one month sentence for another crime concerning theft and conspiracy to traffick in drugs of dependence. The total effective sentence was thus 19 years and one month, and in respect of all those sentences a minimum of 13 years was fixed before eligibility for parole.

129 The killing for which AB had been sentenced was a very serious one occurring as a result of a meeting to discuss money and business arrangements. The trial judge found that it was a manslaughter of the gravest kind because on the appellant's own admission it was premeditated and committed with the intention of taking the life of the deceased. Indeed, the trial judge referred to the killing of the deceased as a 'massacre' - a term normally reserved for the killing of a number of people. Both the trial judge and this Court properly regarded the circumstances of the killing by AB as approaching the worst category of this offence. This Court identified the tension between what were then the existing sentencing practises and the increase in the maximum penalty to 20 years' imprisonment. The Court then said:

How was that conflict to be resolved? Because courts have hitherto not responded to the legislative command to increase sentences in manslaughter cases, his Honour was not fettered by the previous pattern of sentencing but was obliged to give effect to Parliament's decision to increase the maximum penalty. As the maximum sentence is reserved for the worst sort of cases - and this was one - the increased maximum called for the imposition of a sentence higher than the general trend of those sentences relied upon by AB.

To have imposed a sentence for a manslaughter of this gravity which did not reflect the increase in the maximum penalty would have been to commit a sentencing error of a fundamental kind. By increasing the maximum penalty for manslaughter, the legislature conveyed in explicit, unequivocal language its expectation that the worst instances of manslaughter would attract a sentence approaching the maximum of 20 years.

The sentencing function is committed to judges and magistrates, but the parameters within which the discretion is to be exercised are fixed by Parliament. When the maximum penalty for an offence is increased - in this case, it was a 33% increase - the parameters are thereby changed. Thereafter the guidance to be derived from the pre-amendment sentencing practise is significantly reduced as a result.

Whenever Parliament increases the maximum sentence for any criminal offence, that increase has potential significance for all sentences to which the new maximum applies. As the present case illustrates, the increase will have very substantial implications for any sentence for an offence that is placed within the worst category of that offence. Even where the offence to which the increase applies is nowhere near the worst category, the increase remains of relevance since, in the usual case, the increase shows that Parliament regard the previous penalties as inadequate. Even where the new maximum may only be of general assistance, it becomes the 'yardstick' which must be balanced with all other relevant factors.[70]

130 In this case, in considering whether the sentence was manifestly excessive, this Court must consider the effect of the judgment of this Court in AB (No. 2). This is the precise category of case where there must be the balancing of the 'yard stick' with all other relevant factors. It is, by no means, a case of manslaughter approaching the worst case category. Thus, in considering the issue, in my opinion the following circumstances are significant in leading to my conclusion that the sentence is manifestly excessive. First, there was a complete lack of intent by the appellant to do harm to the deceased. Second, the fact that given the manner in which the proceedings were dealt with it is necessary to consider the presentation of the firearm which caused the death of the deceased in relative isolation. Third, his personal circumstances which I will now deal with.

131 In the course of the submissions on sentence before the sentencing judge and again before us, a number of aspects of the background of the appellant were relied upon. In particular and in brief summary, counsel referred to the appellant's dysfunctional past and his drug addiction accompanied by what he described as a genuine effort to rehabilitate himself. The evidence suggested that the appellant had children and that he was a conscientious father notwithstanding his own background. At various points in the chronology the appellant had endeavoured to rehabilitate himself and in 1998 had done so by a period at Moreland Hall defeating his drug addiction for some four years. He then suffered a work injury resulting, for among other reasons, in him resuming a heroin habit in 2002 and committing this offence. It was put on his behalf to the sentencing judge and to us that his plea of guilty was significant and showed genuine remorse which did not appear to be in contention.

132 I agree that these matters were canvassed by her Honour in expressing her reasons for sentence. However, in considering the circumstances to which I have already referred, the effect of the personal situation of the appellant does not appear to have had the mitigating effect on sentence that it might have been expected to have.

133 These offences were committed on 21 May 2002. The appellant was arrested and charged with murder and aggravated burglary on 25 August 2004. The committal was heard in June 2005 and he was sentenced in April 2007. Thus, although there was a delay of nearly five years between offending and sentence, the relevant delay was of some two and a half years between the charge and the

133 imposition of the sentence. Regrettably such a delay is not unusual and could not be described as inordinate. However, it is also relevant to take into account, in my opinion, that during the period of time that the appellant was waiting to be dealt with for this matter, he was in custody for a period of 16 months, released on bail and then after 17 months at large was returned to custody as a result of the sentencing judge's order.

134 Both counsel before us spent some time analysing comparative cases. Neave JA has analysed those submissions and has noted the warning this Court has in the past given about the limited assistance that can be gained from such an exercise. Nonetheless it does appear that this sentence is at the very high end of the range for manslaughter sentences. For cases where a head sentence of more than 10 years has been imposed, none have involved circumstances where the appellant asserted and the Crown have accepted that no harm was intended to the deceased.

135 In my opinion, in the circumstances of this case where a shot was fired from a weapon which it was accepted had a 'hair trigger' without any intention to do harm of any kind to the deceased and in circumstances where the fact of the aggravated burglary can occupy no more significance than as a background fact, the sentence of 11 years with a minimum term of 8 years is manifestly excessive. The appellant's personal circumstances do suggest reasonable prospects of rehabilitation, remorse and insight into his offending. In all the circumstances I would allow the appeal and re-sentence the appellant to imprisonment for 9 years and I would order that the appellant serve a minimum of 7 years before being eligible for release on parole.

[1] The appellant was a 'prohibited person' as defined by s 3 of the Act by reason of any one of convictions in December 1997, May 1998, November 1998 and July 2001.

[2] Paraphrasing Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313, 333 (Mason CJ, Toohey, Gaudron and McHugh JJ).

[4] The case of representative counts is slightly different, as mirrored by the consequences for the sentencing process.

[5] [2007] VSCA 288.

[6] [2001] HCA 67; (2001) 209 CLR 1.

[7] [2001] HCA 67; (2001) 209 CLR 1, 12-15, [14], [17], [20] (Gleeson CJ, Gummow and Hayne JJ).

[8] [2007] VSCA 288 [14].

[10] [1978] HCA 39; (1978) 140 CLR 364.

[12] [2007] HCA 48; (2007) 239 ALR 610.

[13] Instances in Victoria are R v Young (1998) 1 VR 402 and R v VN [2006] VSCA 111; (2006) 15 VR 113, particularly 131-133, [65]-[74] and 134-137, [80]-[91] (Redlich JA).

[14] Three judges said it could not, and four said that it could, but in rare cases.

[18] [2007] HCA 48; (2007) 239 ALR 610.

[21] On 8 February 2008, a judge of this Court granted the appellant leave to appeal against his sentence, pursuant to s 582 of the Crimes Act 1958.

[22] Joshua Masuglia was sentenced to 4 years' imprisonment, with a non-parole period of 18 months. Tracey Stratton, the appellant's sister, pleaded guilty to one count of assisting an offender. She was sentenced to a 12 months' imprisonment, all but 36 days of which was suspended.

[26] [2008] VSCA 39.

[27] [2005] VSCA 313; (2005) 13 VR 146.

[28] [2007] VSCA 126.

[30] [2008] VSC 25.

[32] DPP v Sypott [2004] VSCA 9 (Man shot his former de facto partner in the course of attempting to suicide. A five year term was said to be low but not to be manifestly inadequate); R v Osip [2000] VSC 225 (21 year old man accidentally shot a person while deer hunting sentenced to four years' imprisonment for manslaughter by criminal negligence); R v Nguyen [2001] VSC 278 (Man killed partner's son while accidentally cleaning his gun. Sentenced on the basis of manslaughter by criminal negligence to six years' imprisonment); R v Carradine [2000] VSC 18 (Drug affected man took a gun and went to the home of his mother where his former de facto partner had taken refuge and accidentally shot a man there, in the course of a scuffle. Sentenced on the basis of unlawful and dangerous act manslaughter to nine years' imprisonment).

[33] [2007] VSCA 126, [15].

[34] [2001] VSCA 171. The victim, who was the two year old child of the offender's de facto wife, died as the result of a head injury sustained by serious and probable repeated shaking. A sentence of 10 years with a non-parole period of 7 years was held not to be manifestly excessive.

[35] [2007] VSC 133. The victim, who was the child of the offender's de facto wife, died from abdominal injuries caused when the offender forcefully pushed him in the stomach with his foot. He had been assaulted by McMaster on other occasions. McMaster was sentenced to 12 years and six months with a minimum term of 10 years. Since the hearing of the appeal in this case, the Court of Appeal has held that the sentence of imposed by the trial judge in R v McMaster was not manifestly inadequate: See DPP v McMaster [2008] VSCA 102.

[36] [2007] VSC 504. The victim, the three year old daughter of the offender's partner, died from internal injuries caused by being pushed against a hard surface. The offender had done this to her on a number of occasions. The offender was sentenced to 11 years' imprisonment with a minimum term of 8 years.

[37] [2001] VSCA 233.

[38] [2001] VSC 206.

[39] [2004] VSC 508.

[40] [2004] VSC 423.

[41] [2001] VSC 347. In this case a co-offender who assisted Murphy to burgle the home of the lover of Murphy's former girlfriend, kidnap him, and lock him into the boot of his car, was convicted of manslaughter and sentenced to eight years on the manslaughter count and to a total effective sentence of 10 years. The manslaughter was described as 'a very serious example of the crime of manslaughter': see [39].

[42] [2004] VSC 508, [27].

[43] (1987) 49 SASR 248, 250 citing R v Shaw (Unreported, Wells AJ, 27 March 1987).

[45] [1997] 1 VR 146, 150. Note however that in that case it was held that the sentencing judge had erred by including 'a component for aggravated assault on the inhabitant of the house' which had been unlawfully entered by the applicants, with the intention of assaulting him, in circumstances where the applicants had not been charged with aggravated assault.

[46] [2000] VSCA 229; (2000) 117 A Crim R 49, 55 (Eames JA).

[47] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

[49] [1981] HCA 31; (1981) 147 CLR 383, 389 (citations omitted) Mason and Murphy agreed. See also 392 (Gibbs CJ) and 395-6 ( Wilson J)

[50] DPP v Heblos [2000] VSCA 229; (2000) 117 A Crim R 49, 54.

[52] For a discussion of the various situations in which there may be a conflict between the two principles referred to in R v De Simoni, see DPP v McMaster [2008] VSCA 102, [36]-[58]. Note also that the sentence for aggravated burglary is 25 years, while that for manslaughter is 20 years, producing the somewhat odd result that the legislature treats aggravated burglary as a more serious offence than manslaughter.

[54] Reference was made to this artificiality by Winneke P in R v Newman and Turnbull [1997] 1 VR 146, 151, where the applicants had not been charged with the acts which the sentencing judge had treated as aggravating factors. Winneke P said that this matter was 'in the hands of the Crown'.

[55] As in R v Newman and Turnbull [1997] 1 VR 146; R v Birnie [2002]5 VR 426.

[56] Winneke P regarded the same principles as applicable in both situations: Ibid.

[57] See Crimes Act 1958, ss 76, 77.

[58] At [24]. See also R v Storey ( [1978] HCA 39; 1978) 140 CLR 364; R v Carroll (2002)213 CLR 635; Washer v State of South Australia [2007] HCA 48.

[59] [2007] VSCA 126, [14].

[61] R v Holland (2002)134 A Crim R 451.

[62] See for example R v El Ahmad [2004] VSCA 93, [31].

[63] [2008] VSCA 39, [37]-[51].

[64] AB(No 2) [2008] VSCA 39, [49]-[51].

[67] [2000] VSCA 229; (2000) 117 A Crim R 49, 55.

[68] [2008] VSCA 39.

[69] [2005] HCA 25; (2005) 228 CLR 357.

[70] R v AB (No. 2) [2008] VSCA 39, [48]-[51] (emphasis added).