· The Victim Impact Statements
96 Once again it is useful to attend to what Levine J actually said:
"18. In the course of the sentencing hearing, three victim impact statements were read aloud, in accordance with what I was informed to be the now common practice and one permitted by law. In relation to those victim impact statements, I have had regard to the relevant provisions of the Crimes (Sentencing Procedure) Act and the decisions of Hunt CJ at CL in Regina v Previtera (1997) 94 A Crim R 76, Regina V Berg [2004] NSWCCA and Regina v King [2004] NSWCCA 444 at 471 per McColl JA.
19. Mrs. Rosalie Taylor read her statement as a family victim in relation to the death of her son. Mrs. Jane Chapman read her statement as a family victim in relation to Simon's death as Simon's sister. Mr. Robert Taylor read his statement as both a family victim in relation to the death of his son and as a primary victim in relation to the malicious wounding with intent to cause grievous bodily harm done to him by F.D. By reason of the status of victim impact statements, and in no way seeking to diminish what each of the victims have said, I think in the case of Mr. Robert Taylor it is appropriate that I have regard to what he said about the physical scars from the knifing, not as a discrete matter in aggravation of the penalty under s 21A, but as a factor to be taken into account, as it always is in a case such as this, where a knife has been used to stab a victim so grievously, in weighing the elements of general deterrence and personal deterrence.
20. Otherwise, in relation to Mr. and Mrs. Taylor and Mrs. Chapman, each has expressed intense grief for himself or herself and for the family eloquently, and it is appropriate that I should acknowledge the dreadful loss that Simon's death has caused to his family and, from what they said, to the community.
21. For myself, the process of sentencing is to be dispassionate and objective."
97 The provisions of Division 2 of Part 3A of the Crimes (Sentencing Procedure) Act, and of its statutory predecessor, have always been controversial. That is because, at least as it seems to me, the statutory scheme attempts to balance interests that are not easily balanced.
98 There is, first, the imperative need to ensure that no offender is sentenced upon a basis that yields to a "lynch mentality", to borrow from Perry J in Reg v Bermingham (No. 2) (1997) 96 A Crim R 545 at 549.
99 There is, secondly, the no less imperative need not to allow an offender to be sentenced upon a basis, or in a particular manner, that is dictated, more or less, by the victim(s). And even less so upon a basis, or in a particular manner, that responds, more or less, to the malignant prejudices that are daily the fruit of what Brennan J described as follows in The Queen v Glennon (1992) 173 CLR 592 at 611:
"Another phenomenon which has contributed to the problem in recent years, especially in the media of television and radio, is the promotion of personalities who affect to convey the moral conscience of the community and to possess information, insights and expertise in exceptional measure."
100 There is, thirdly, the need to afford the victims of crime, and especially the victims of violent crime, a forum in which they can make a public statement in words of their own choosing, in order to have the emotional catharsis of ensuring that their grief and loss have not been either ignored altogether, or expressed in what they see as an inadequate way.
101 There is, fourthly, a political imperative deriving from perceived voter dissatisfaction with sentencing outcomes in serious criminal cases, and especially in cases of serious crimes of violence. This is, for many a politician, an issue of real consequence; but it is no easy matter to deal with volatile electoral emotions in a way that does not lay waste the accumulated wisdom of the common law of crime and punishment.
102 Division 2 seeks to grapple with all of these considerations. Not surprisingly, the sections which constitute the Division are replete with finely calibrated ambiguities. Thus, for example, section 28(4)(b) and (5):
"(4) Despite subsections (1), (2) and (3), a court: ………… (b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so.
(5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate."
103 In Reg v Previtera (1997) 94 A Crim R 76, Hunt CJ at CL in the course of passing sentence upon an offender who had been convicted of murder, ruled that it was inappropriate to consider a victim impact statement provided by two children of the murder victim. His Honour explained at pp 86, 87 as follows what he saw as the correct principles:
"It is of course important that the sentences imposed by the criminal courts are acceptable to the community (including the victim and others affected by the crime), important that those sentences are such as to demonstrate to the community that the offender has been given his just desserts - in other words, that justice has been done. But it is unfortunately inescapable that those sentences sometimes do not satisfy the victim and the others affected by the crime. There are at least two reasons why that is so.
The first is that the attitude of the victim and the others affected by the crime is, basically, that no amount of punishment will ever compensate them for their loss or injury. That is a very understandable human attitude. It is one well based in the Old Testament. But, as I have endeavoured to demonstrate, the issues of punishment and compensation are fundamentally distinct.
The second reason why the victim and the others affected by the crime are sometimes not satisfied by the sentences imposed by the criminal courts is that they do not always realise - or, perhaps, do not accept - that sentences are expected to serve many different purposes, some of them inconsistent with the others. Those purposes are the protection of society, personal and public deterrence, denunciation of the crime, retribution for the injury caused and the reform of the offender. Retribution (or the taking of vengeance for the injury done) is but one of those purposes, and care must be taken that vengeance alone is never equated to justice. Again, it is understandable that the view of the victim and the others affected by the crime as to which purpose should predominate in the particular case will sometimes differ from that of the courts, whose duty it is to attempt to satisfy all of those purposes.
In cases where the victim is still alive - that is, the victim directly injured by the offender's criminal act - victim impact statements will no doubt serve the useful purpose in the criminal courts of establishing the consequences of the crime upon that victim. A problem arises, however, in those cases - such as the present - where the crime involves the death of the victim. The consequences of the crime upon the victim (death) has already been proved (or admitted) by the time the offender comes to be sentenced. It may be that, in the case of a slow lingering and painful death, information from the family would be relevant, but that would be a very rare case. The present case is certainly not such a case.
The law already recognises, without specific evidence, the value which the community places upon human life; that is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar. It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another. It would therefore be wholly inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in the one case than it is in the other."
104 The competing interests of which I previously spoke seem to have become progressively harder to balance sensibly. The views expressed in Previtera have become, in consequence, controversial even in this Court. That such is indeed the case is borne out by the decisions to which reference is made in paragraphs 61 through 70 of the Crown's written submissions.
105 In a very recent appeal: Reg v Tzanis [2005] NSWCCA 274, a five-Judge Court was specially convened in order to resolve various differences in viewpoint that arise by reason of those earlier decisions. The result was, if one may say, something of an anti-climax, for as Spigelman CJ explained, with the concurrence of Wood CJ at CL, of Hunt AJA (as Hunt CJ at CL had become), and of Howie and Buddin JJ:
"It appears that no suitable vehicle has emerged for the grant of special leave by the High Court to resolve these differences. This court has sat a Bench of five in order to reconsider Previtera and Bollen if necessary. Nevertheless it is not appropriate to do so unless the issue squarely arises. In my opinion it does not arise."
106 Tzanis was decided after Levine J had passed the sentences here relevant.
107 My own view about the case now put by the Crown upon the vexed question of victim impact statements is that the present appeal is not an appropriate vehicle for determining current differences of opinion unless such a course cannot properly be avoided.
108 In the present appeal, it seems to me that there is no need to become enmeshed in philosophical or semantic niceties. Levine J was plainly alive to the relevant requirements of the Crimes (Sentencing Procedure) Act. When his Honour speaks, - and, surely, speaks correctly and appropriately, - of his perceived need to take care that he remain "dispassionate and objective", I understand his Honour to be saying that nothing in the Act requires that he treat the victim impact statements in any way that is merely passionate and subjective. Those latter qualities are the antithesis of just and principled sentencing, whether the passion and subjectivity are those of the Judge, of the victim(s), of the media, or of legislators, or of any combination of them.
109 In my opinion a fair reading of the entirety of paragraphs 18 through 21 of the remarks on sentence does not support the complaint now made.
· The Standard Non-Parole Period
110 At the proceedings on sentence the Crown argued that there were certain characteristics of the murder of Mr. Simon Taylor that put the crime into what was described as a "more serious category of murder". I infer that what was actually intended by that description was to fix the criminality of the murder at some indeterminate point between the standard non-parole point: that is to say, "the middle of the range of objective seriousness" for murder; and what was described as the "most serious category of murder".
111 Levine J dealt in paragraphs 52, 53 and 54 of the remarks on sentence with these concepts:
"52. It must be recognised that to identify the ambit of the notion of "more serious category of murder" is extremely difficult. The standard non-parole period, as I have said, is 20 years for the crime of murder and is said to relate to a mid-range of objective seriousness. As a result of the decision in Way , that mid-range represented by that standard non-parole period is now to be taken as a guide or a benchmark. It seems to me that if there is one factor that would distinguish "more serious" from "most serious" it is whether or not the act causing death was done with an intention to kill or an intention to inflict grievous bodily harm. I am of the view that no other finding beyond reasonable doubt is open in this trial than that the act which brought about the death of Simon Taylor was done with the intention of causing grievous bodily harm. I have already indicated that I accept that neither offender anticipated at the beginning of the enterprise that anyone would be harmed, let alone killed.
53 The two characteristics to which the Crown refers would place this matter outside the middle range but still not in the most serious category. That is almost the best one can say. There is no doubt minds would differ as to the ambit of all the categories and ranges within the crime of murder, especially when the intention was not to kill but to cause grievous bodily harm.
54. The upshot of this is that I will treat the standard non-parole period as a guide and as I propose partially to cumulate the sentences in relation to those offences to attain the requisite totality, the non-parole period will in the end be less than the standard non-parole period."
112 In a recent decision of this Court, (Sully, Hidden and Hall JJ): Reg v Reid [2005] NSWCCA 309, I explained at paragraphs 15 through 20 what I believe to be the relevant legal principles in a process of sentencing that entails the application of the standard non-parole period statutory scheme. I need not now repeat myself.
113 In my opinion Levine J correctly assessed the objective seriousness of the murder as lying somewhere above the notional statutory mid-range, and the "worst category of murder" level. That would equate, initially, to a non-parole period of more than 20 years; although just how much more must be, in the nature of things and as Levine J correctly recognised, a matter as to which reasonable minds would differ.
114 His Honour was then required to consider the circumstances of aggravation and of mitigation as enumerated in section 21A of the Crimes (Sentencing Procedure) Act; and "any other matters that are required or permitted to be taken into account by the court under any act or rule of law". Those considerations were pertinent to an assessment of the justification, if any, for setting a non-parole period of less than 20 years for the murder.
115 As Mason CJ, Brennan, Dawson and Toohey JJ remarked in their joint judgment in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476:
"The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide-posts to the appropriate sentence but sometimes they point in different directions."
116 In the present case Levine J was confronted, in making the relevant assessment, by precisely such multi-directional guide-posts. In distilling a conclusion from such guide-posts, his Honour had to synthesise instinctively, in a way that reflected his own very considerable experience as both a trial and an appellate Judge in serious criminal cases, all relevant factors; but bearing always in mind that the exercise in hand was to quantify a sentence that was just in all the circumstances, objective and subjective, of the particular case.
117 The Crown submits, correctly in my opinion, that the breach of the antecedent good behaviour bond was an aggravating feature. There were other section 21A aggravating features, and Levine J draws attention to them in paragraph 64 of the remarks on sentence. There were, also, not insignificant mitigating features: the unlikelihood of re-offending; and good prospects of rehabilitation. The age of the respondent: 20 years at the time of the murder, and 22 years at the date of sentence, was a relevant factor to be put into the general mix; and the sensible application of the principle of totality was certainly relevant.
118 It is true that Levine J did not say in so many words that he was taking the staged approach that was approved in Pearce v The Queen (1998) 194 CLR 610. It is, also, true that, as the Crown submits, the only express explanation given by his Honour for an end result which entailed a non-parole period for the murder of less than 20 years, is that contained in paragraph 54 of the remarks on sentence.
119 I would understand paragraph 54 to convey a conclusion that after the relevant requisite assessment had been made, and after a Pearce dissection of discrete sentences had been made, it was appropriate to impose a non-parole period of less than 20 years for the murder, because to do otherwise would offend the principle of totality. On that approach, Levine J did not fall into the error now suggested by the Crown.
· Concurrence and Cumulation of Sentences
120 The Crown puts, essentially, two arguments: first, that Levine J erred in making concurrent the sentences passed in connection with the robbery offence and the malicious wounding offence; and secondly, that his Honour erred in the degree of cumulation which he provided in connection with the sentence passed for the murder offence.
121 The Crown submits that the effect of the overall outcome does not make the respondent either properly accountable at all as to the concurrent sentences; or sufficiently accountable as to the cumulated sentence. It seems to me that a convenient way of testing these propositions is to do some hypothetical Pearce calculations, to see what possible and permissible alternative end results are thus indicated.
122 One such exercise could proceed upon the basis that it is likely that the fixed term of 6 years for the robbery offence could have been expressed as a head sentence of 8 years and a non-parole period of 6 years. No complaint is made of the sufficiency in itself of the head sentence of 12 years and the non-parole period of 9 years imposed for the malicious wounding offence. The murder sentence is one of 24 years with a non-parole period of 18 years.
123 Unadjusted for totality, such sentences would aggregate 44 years for head sentences and 33 years for non-parole periods. These figures contrast with the sentences in fact passed which total, respectively, an overall head sentence of 26 years and an overall non-parole period of 20 years.
124 Had the sentences as passed been cumulated by 2 years in the case of the malicious wounding sentence and a further 2 years in the case of the murder sentence, the result would have been an overall head sentence of 28 years and an overall non-parole period of 22 years.
125 A cumulation of 3 years rather than 2 years would have resulted in an overall head sentence of 30 years and an overall non-parole period of 24 years.
126 An alternative exercise could proceed upon the basis that a non-parole period of at least 20 years should have been passed for the murder. Standing alone, that would have called, normally, for a head sentence of 26-2/3 years for the murder. Assuming no alteration in the other two sentences, the unadjusted totals would then be 46-2/3 years for overall head sentences and 35 years for overall non-parole periods.
127 Two cumulations of 2 years each would then have entailed an overall head sentence of 30-2/3 years and an overall non-parole period of 24 years. Two cumulations of 3 years each would have entailed an overall head sentence of 32-2/3 years and an overall non-parole period of 26 years.
128 It seems to me that any sentencing structure which yielded an overall head sentence of 30 years or more would be outside the range of a sound exercise of sentencing powers and discretions. Youth is not a cloak of convenience for an offender such as F.D; but it is nonetheless a real factor in the overall assessment of how he is justly to be punished for three admittedly serious offences. It is to be borne in mind, in my opinion, that an offender such as F.D is just the kind of offender who might be so pilloried by the media when he comes to the end of his non-parole period as to be made to serve the whole, or very nearly the whole, of his effective head sentence. To send a young man of 20 to prison for quite possibly 30 years or more is not to be done lightly. I am unpersuaded that such an outcome is just in FD's case.
129 It seems to me, therefore, that the real difference about which the Crown must now argue comes down to a difference of 2 years on both the effective head sentence and the effective non-parole period. That seems to me to fall short of demonstrating, as the Crown must do, that Levine J's approach to concurrence and cumulation yielded an outcome which no reasonable exercise of the relevant sentencing discretion could have yielded.
· Discretion
130 On the views which I have expressed thus far, no overall discretion needs to be exercised because no fundamental sentencing error has been established.
131 I wish to say plainly, however, that had there been some error(s) identified, I would have exercised without hesitation this Court's residual discretion to refuse the Crown appeal. Any justifiable increase to the sentences passed by Levine J would have been, in my opinion, so small as not to have permitted, according to proper principle, the intervention of this Court.