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File Number(s): ACTCA 36 of 2016

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Murrell CJ Date of Decision: 18 August 2016 Case Title: R v Lee Citation: [2016] ACTSC 233

THE COURT:

1. On 10 March 2015, the respondent, Jeffrey David Lee, attempted to enter a house in Canberra co-habited by his mother, Maureen Therese Lee, and her de facto partner, Neal Keith Wilkinson. The respondent had an altercation with Mr Wilkinson at the front door of the house, during which he repeatedly punched Mr Wilkinson. Mr Wilkinson sustained fatal injuries during or as a result of the altercation. The respondent initially left the property, but later returned and stole approximately $53,000 belonging to his mother and Mr Wilkinson (the deceased).

2. On 12 May 2016, the respondent pleaded guilty to one count of murder contrary to s 12 of the Crimes Act 1900 (ACT) and one count of theft contrary to s 308 of the Criminal Code 2002 (ACT).

3. The respondent was sentenced by Murrell CJ on 18 August 2016. Her Honour sentenced the respondent to a total head sentence of imprisonment for 13 years and six months, with a non-parole period of 7 years.

4. The appellant appealed the sentence, on the grounds that the sentences imposed were manifestly inadequate, and that the sentencing judge made a specific error in exercising her sentencing discretion.

5. For the reasons that follow, the appeal should be dismissed.

Factual background

6. The respondent’s parents divorced in 1981. In about 1984, the respondent’s mother Ms Lee commenced a relationship with the deceased. In 1986 the pair co-purchased a property in Wanniassa in the ACT.

7. The respondent’s mother suffered from a number of medical conditions which left her home-bound. The deceased came to act as her primary carer and, aside from some brief excursions, he spent the majority of his time at home caring for her. As part of this care, the deceased took charge of monitoring the couple’s finances.

8. The respondent’s mother and the deceased contributed to shared savings, which they kept in cash inside a pillowcase hidden under Ms Lee’s bed. As at 10 March 2015, the cash totalled approximately $53,000.

9. Prior to the murder, the respondent had borrowed money from his mother on a number of occasions. The last such loan was in August 2014, when the respondent borrowed $1,000. The deceased was apparently not happy that Ms Lee continued to loan the respondent money, nor that she told the respondent where their savings were kept. He took to changing the hiding place.

10. The respondent lived at the Wanniassa property for a short period in 2014, but otherwise lived a transient lifestyle. At the date of the murder, he was living in Fyshwick.

11. On the date of the murder, the respondent was 45 years old. The deceased was 61 years old.

The offences

12. Murder is an offence contrary to s 12 of the Crimes Act 1900 (ACT). It carries a maximum penalty of life imprisonment.

13. Theft is an offence contrary to s 308 of the Criminal Code 2002 (ACT). It carries a maximum penalty of 10 years’ imprisonment.

14. At approximately 10.30am on or about 10 March 2015, the respondent arrived at the Wanniassa property. At the time, the respondent’s mother was asleep. The deceased had woken her up at approximately 9.00am to administer her medication, after which Ms Lee went back to sleep.

15. The deceased answered the door when the respondent knocked. There was then an altercation between the two men at the entrance or in the foyer of the property. The respondent lost his temper and punched the deceased’s right cheek several times. It was the Crown case, and by his plea the respondent admitted, that when he punched the deceased he intended to cause serious harm. The deceased fell to the floor.

16. While it is tolerably clear that the respondent’s punches led to the deceased’s death, the precise mechanism of death was not clear. Post-mortem examination revealed that the punches caused multiple fractures, and dislodged the deceased’s right cheek.

17. Immediately following the altercation, the respondent returned to his vehicle at the front of the property and drove to a nearby service station, before parking his car at a shopping centre. He then walked back to the Wanniassa property, a distance of approximately 350 metres. This round trip took approximately one hour.

18. Some time later, between about 12.00pm and 2.00pm, Ms Lee awoke to find the respondent sitting at the edge of her bed. She initially thought it was the deceased until the respondent identified himself. The respondent spoke to his mother, and at her request brought her food and drink from the kitchen. In doing so, he gave Ms Lee the impression that the deceased was in the house and knew he was there, or at least did nothing to dispel that impression.

19. Ms Lee then asked the respondent to leave, as she was tired. The respondent left, but returned a short time later, and said words to the effect of “things don’t look too good, I think I better stay with you.” The respondent then lay on the bed with his mother and turned on the air conditioner at Ms Lee’s request.

20. The respondent then went to fetch a bottle of rum from the kitchen. When he returned, he went into the ensuite of Ms Lee’s bedroom and began vomiting and heaving into the basin. He then returned to the bedroom and told his mother “Neal’s dead, I killed him. Where are the razors, I want to kill myself.” When his mother asked him what he was talking about, the respondent became agitated and upset and replied “I lost my temper and punched him, but he was still breathing.”

21. Ms Lee told the respondent she wanted to call the police, and then a friend. The respondent told his mother she wasn’t allowed to ring anyone, and disconnected the phone. He told his mother to give him 15 minutes and then ring the police.

22. The respondent then left his mother’s bedroom. He located the pillowcase containing approximately $53,000 cash and left the house, taking the cash with him. Once she was sure the respondent was gone, Ms Lee got up. It was at this time that she discovered the deceased on the floor in the hallway. Her screams attracted the attention of a neighbour, who called the police. The police arrived at approximately 7.00pm. Ms Lee told the police “my partner is dead; my son Jeffrey Lee killed him. I saw him lying in the hallway.” The deceased was confirmed dead by paramedics a short time later, and Ms Lee was taken to hospital for review.

23. After leaving the Wanniassa property, the respondent met up with a friend, identified in the sentencing judge’s reasons as NC. At NC’s house the respondent told NC that he had killed his stepfather, and the two counted the money in the pillowcase. The following morning, 11 March 2015, NC reported the respondent’s whereabouts to the police. At 2.50pm that afternoon, the respondent was arrested by police in the vicinity of NC’s house. When police searched the offender’s person, they found a syringe, cannabis and cash. They also found three silver rings which were later found to contain the deceased’s DNA profile.

24. The respondent was taken by police to the ACT Watch House. On the way, unprompted, the respondent told police officers: “I went there with the intention of forcing my way in. I was mad that I didn’t get in”; “It got out of hand quickly”; “I have all these images in my mind about what happened”; and “It’s actually a relief to be caught. I just ran after it happened, I didn’t know what to do.”

25. At the Watch House, the respondent participated in a forensic procedure examination where swabs, hair samples, fingerprints, fingernail scrapings and photographs were taken. The respondent also told police that he had consumed ice and heroin over the past 48 hours.

26. A search warrant was executed at NC’s house. The pillowcase of cash was found underneath the house. It contained $44,300.

27. On the morning of 12 March 2015 police interviewed the respondent and showed him photographs of the Wanniassa property, the pillowcase and the deceased. The respondent became distressed and refused to answer any questions.

Procedural history

28. On 12 March 2015, the respondent was charged with murder in the ACT Magistrates Court and remanded in custody. He pleaded not guilty to that charge on 28 August 2015. The matter was mentioned on six occasions in the ACT Magistrates Court. At the final mention, on 22 October 2015, the respondent was charged with theft. He entered a plea of not guilty to that charge. The respondent was committed for trial to the Supreme Court in respect of both charges.

29. On 10 December 2015, the matter was first mentioned before the Supreme Court Registrar. It was mentioned a further seven times.

30. In late April 2016, the defence and prosecution discussed changes to the agreed statement of facts. A plea of guilty was foreshadowed if a proposed statement of facts was consented to. On 12 May 2016 the respondent was arraigned and he entered pleas of guilty to both charges.

31. The sentence proceedings were conducted on 17 August 2016. The Crown’s evidence at the hearing included, among other things, a pre-sentence report, an autopsy report of the deceased, post-mortem CT scans of the deceased, and a report on the CT scans. The respondent did not give or adduce any evidence. The sentencing judge handed down the sentence and published her reasons on 18 August 2016.

The sentencing judge’s reasons

32. The sentencing judge commenced by noting the maximum penalties for the offences charged, and provided a brief summary of the procedural history.

33. Her Honour stated at the outset that she would allow a discount of 15 per cent for the plea of guilty to the theft charge, and 20 per cent for the plea of guilty to the murder charge. Her Honour said that, despite the relatively late entry of the guilty pleas, they nonetheless had significant utilitarian value in avoiding the expense of a long trial and the associated trauma to witnesses. Her Honour also noted that the respondent never denied being the perpetrator; the contentious question was the causal relationship between his conduct and the deceased’s death. In this context, her Honour noted that the prosecution did not serve the autopsy report until after the respondent was committed for trial, and the respondent then needed to obtain his own expert advice before he considered pleading guilty.

34. Her Honour then set out the background and narrative of the offences, in much the same terms as recited earlier in these reasons. Her Honour also noted that the absence of a victim impact statement was not surprising, considering the profound emotional impact the offences would inevitably have had on Ms Lee, who lost both a life partner and her capacity to live with relative independence.

35. Turning to the objective seriousness of the murder, the sentencing judge noted that s 12 of the Crimes Act provides that a person commits murder if they cause a death with the intention to cause death, with reckless indifference to the probability of causing death, or with the intention of causing serious harm. Her Honour then observed that “generally speaking” an intention to cause death is more culpable than reckless indifference to the probability of doing so, and reckless indifference is more serious than an intention to cause serious harm. Her Honour went on to say, however, that the objective seriousness of any offence depends on the particular circumstances, and that an offence of murder involving an intention to cause serious harm may be more objectively serious than one involving an intention to cause death.

36. Her Honour noted that the plea of guilty to the murder charge was entered on the basis that the respondent caused the death of the deceased by repeatedly punching him, which had the natural consequence that the deceased died, notwithstanding that the precise mechanism by which the blows caused his death was uncertain. Her Honour also noted that the prosecution case was that the respondent struck the deceased with the intention of causing serious harm. Her Honour concluded that the plea of guilty to causing the deceased’s death with the intention of causing serious harm must be taken to mean harm that “is, or is likely to be, significant and longstanding”. That was because the alternative definition of “serious harm” in the Dictionary to the Criminal Code, being harm that “endangers, or is likely to endanger, human life”, generally amounts to reckless indifference to the probability of causing death, and therefore sits uncomfortably with the types of mens rea in s 12 of the Crimes Act.

37. Her Honour next observed that, while the offence of murder is the most serious in the criminal calendar, the subject offence was “objectively less serious than most murders”. While the fact that it occurred in the deceased’s own home made the offence more serious, a number of factors were said to weigh in favour of lower objective seriousness: the offence was not premeditated, but was rather reactionary; there was no murder weapon; the incident involved several blows rather than a relentless attack; the autopsy report noted that the deceased’s head injuries were less severe than typical fatal head injuries, meaning there may have been another contributing factor; and the respondent intended to cause serious harm – he did not intend to cause death and was not recklessly indifferent to the probability of causing death.

38. The sentencing judge then directed her attention to the objective seriousness of the theft offence. Her Honour concluded that the theft offence was of “very substantial objective seriousness”. Her Honour took into consideration that prior to the theft the respondent left the scene of the murder, returned, presumably stepped over the deceased’s body, told his mother of the murder, and then proceeded to remove the money which he knew to be his mother’s and the deceased’s life savings. This, her Honour concluded, constituted a breach of trust. There was also a substantial sum of money involved in the theft. While the respondent may not have known the precise sum, her Honour concluded that he nevertheless knew it to be substantial.

39. Her Honour then considered the respondent’s subjective circumstances. At the time of sentencing, he was a 45 year old man with no relevant criminal history. Her Honour noted that the respondent had a nurturing and supportive early childhood, however his relationship with his mother deteriorated from age 13 when his parents separated. The respondent’s mother asked him to leave home at 16. The respondent then lived with his father briefly, before returning to live with his mother. The respondent had never had a strong relationship with his father, who lived interstate.

40. The respondent’s relationship with his mother deteriorated further as the years went by. By the time the respondent got married in 1994, aged 25, he was effectively estranged from his mother. The respondent attributed part of this deterioration to his mother’s mental health problems and alcohol consumption. The respondent only resumed sporadic contact with his mother in 2012.

41. The respondent had a respectable history of employment. He worked as a public servant from 1986 to 1999, and then operated a successful landscaping business from 1999 to 2007. After selling the business, the respondent worked in sales and warehouse positions in the building industry until 2012. Thereafter, he worked as a casual labourer. In 2012, the respondent sold his home for $200,000. Unfortunately, however, the respondent developed a problematic gambling habit, and most of the proceeds of the sale of his house were lost to gambling.

42. The respondent’s marriage ended in 2005. There were two children to that marriage. The respondent was involved in raising his two children for a time; however those relationships also eventually deteriorated, largely due to the respondent’s escalating drug use and chaotic lifestyle. In the years before the murder, the respondent had little contact with his children.

43. Her Honour noted that the period of 2014-2015 was the lowest period in the respondent’s life. His drug use had escalated to the point that he was using cannabis and methamphetamine (ice) two to three times per week in the 12 months prior to the murder. While he had attempted to address his substance abuse by entering a rehabilitation program in 2014, the respondent only remained in the program for four weeks. The respondent was isolated and itinerant, had lost his family, and had no financial security due to limited income from his casual employment and the continuation of his problematic gambling.

44. Her Honour considered that the respondent was remorseful for the murder from the outset, and had accepted responsibility for his behaviour. Her Honour also concluded that the respondent had good prospects of rehabilitation, on the basis that he would spend a lengthy period in custody, with drug rehabilitation programs available, and that the respondent had in the past proven his capacity to live a productive and law-abiding lifestyle.

45. Her Honour then briefly discussed comparative cases of murder, noting that very few were significantly comparable to the present case. Her Honour made short reference to R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 28 July 2011). That case involved a non-premeditated murder of a person with whom the offender had a long-standing animosity, in circumstances where the offender was recklessly indifferent to the probability of causing death. The offender had favourable prospects of rehabilitation. Gray J imposed a sentence of imprisonment of 16 years with a ten year non-parole period.

46. Finally, her Honour observed that an offence of murder generally calls for a lengthy sentence to ensure adequate punishment, to make the offender accountable for their actions, and to denounce the offending conduct. The sentence must also recognise that the victim sustained the most serious possible harm, and that those close to the victim sustained an irretrievable loss.

47. In that context, however, her Honour reiterated that the respondent’s offence was of lower objective seriousness than most offences of murder, and concluded that the offender’s subjective circumstances called for “significant leniency.” The theft, by contrast, was of substantial objective seriousness and called for a significant sentence. Her Honour considered that the offences were related, but of a different nature, and occurred at separate times. Consequentially, her Honour concluded that there should be significant accumulation of the sentences. Finally, her Honour stated that the non-parole period would reflect the respondent’s good prospects for rehabilitation.

48. Her Honour convicted the respondent of each offence and imposed the following sentences:

(a) For the offence of theft, two years and six months’ imprisonment (reduced from three years’ imprisonment by 15% for the plea of guilty) from 11 March 2015 to 10 September 2017;

(b) For the offence of murder, twelve years’ imprisonment (reduced from 15 years’ imprisonment by 20% for the plea of guilty) from 11 September 2016 to 10 September 2028.

49. The total head sentence was therefore 13 years and six months’ imprisonment. Her Honour set a non-parole period of seven years from 11 March 2015 to 10 March 2022, representing just over 50% of the total head sentence.

The grounds of appeal

50. The Crown’s grounds of appeal were:

(a) The sentence imposed is manifestly inadequate; and

(b) The learned sentencing judge erred in holding that for the offence of murder an intention to cause death is more culpable than reckless indifference to the probability of doing so and reckless indifference to the probability of causing death is more serious than an intention to cause serious harm.

51. The Crown sought an order that the sentences be set aside and an appropriate sentence be imposed.

52. It is convenient to address the Crown’s second ground, which asserts specific error, before addressing the more general ground of manifest inadequacy. Before addressing either ground, however, it is useful to reiterate the principles that apply in relation to Crown appeals.

Crown appeals – general principles

53. Crown appeals against sentence are a unique species of appeal. The relevant principles are relatively well-settled, and were summarised in the following terms by Refshauge J (with whom Penfold and Lander JJ agreed) in R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3]-[6]:

While s 37E of the Supreme Court Act 1933 (ACT) permits an appeal to the Court of Appeal from any order of the Court, the courts have articulated an approach to Crown appeals against sentence which recognises that they constitute an anomaly in the criminal justice system and so should be instituted sparingly. They are, accordingly, subject to particular principles set out in a number of cases. The principles have been helpfully set out by Charles JA (with whom Winneke P and Hayne JA, as his Honour then was, agreed) in R v Clarke [1996] VICSC 30; 2 VR 520 at 522, after a careful consideration and analysis of the cases. I summarise those principles as follows: (i) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle. (ii) Occasions may arise for the bringing of a Crown appeal: (a) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and (f) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing. (iii) When, in response to a Crown appeal, the court decides to re-sentence an offender it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat lesser than the sentence it considers should have been imposed at first instance. (iv) The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown.

54. Three points should be made in relation to this summary by way of clarification or qualification. First, his Honour’s reference to the “occasions” which might give rise to a Crown appeal are no more than examples and must be read in that context.

55. Second, his Honour’s reference in (ii)(e) to sentences which might “shock the public conscience” rehearses a formulation that has been used by appellate courts in the past. It has, however, been the subject of criticism in more recent times: see for example R v McPartland & Polkinghorne (2014) 120 SASR 69 at [22]-[29]. It may be apt to mislead and suggest a more populist influence on sentencing than was intended or is appropriate: R v Duffy & Ors [2014] ACTCA 53 at [57].

56. Third, the point made by his Honour in (iii) concerning re-sentencing and double jeopardy is no longer applicable in light of the decision of the High Court in Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; R v Chatfield [2012] ACTCA 32 at [71]-[73]; R v JJ [2014] ACTCA 23 at [11];. In resentencing after a successful Crown appeal, the Court is bound to consider the matters set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT) and impose a sentence that was appropriate in the first place: Duffy at [61].

57. Save for these matters, Refshauge J’s summary of the relevant principles in TW may be accepted as accurate and is applicable to this appeal. It was recently referred to with approval in R v TL [2017] ACTCA 18.

Ground 2 – sentencing by reference to a supposed “hierarchy”

58. The Crown’s second ground of appeal was narrow in terms and can be dealt with shortly.

59. In short terms, the Crown contended that the sentencing judge sentenced the respondent by reference to an erroneous hierarchy of seriousness based on the different and alternative states of mind that must accompany the act of causing death for the offence of murder to be made out. The Crown’s contention in that regard hinged, in effect, on a single sentence in the sentencing judge’s reasons.

60. As noted earlier in these reasons, the sentencing judge referred to s 12 of the Crimes Act and made some general observations concerning the objective seriousness of the offence of murder. It is important to reproduce the entire passage so the impugned sentence may be read in context. At [29] of the reasons, her Honour said:

A person commits murder if they “cause” a death with the intention of causing death, with reckless indifference to the probability of causing death, or with the intention of causing serious harm. Generally speaking, an intention to cause death is more culpable than reckless indifference to the probability of doing so and reckless indifference to the probability of causing death is more serious than an intention to cause serious harm. Of course, the objective seriousness of any offence, including murder, depends upon the particular circumstances and an offence involving an intention to cause serious harm may be more objectively serious than one involving an intention to cause death. (Emphasis added)

61. The Crown took issue with the second sentence of this passage, which is highlighted in the above extract for convenience. In short, the Crown’s submission was that, despite the fact that her Honour immediately qualified her comment by acknowledging that the objective seriousness of each offence depends on the particular circumstances, the sentencing judge imposed upon herself a non-existent hierarchy for considering the objective seriousness of an offence of murder, or at the very least articulated and had regard to that hierarchy.

62. In support of that submission, the Crown relied on two further short passages in the sentencing judge’s reasons. First, at [32], under the heading ‘Objective Seriousness’, her Honour observed:

The offence of murder is the most serious in the criminal calendar. However, the subject offence of murder was objectively less serious than most murders.

63. Second, at [49] of the reasons, under the heading ‘Sentencing Purposes’, her Honour said, relevantly:

In this case … the offence was of lower objective seriousness than most offences of murder and the offender’s subjective circumstances call for significant leniency.

64. The Crown contended that, when paragraph [29] is read together with these sentences in paragraphs [32] and [49], it was apparent that her Honour expounded and then adhered to a non-existent hierarchy of seriousness based on the different mens rea for murder under s 12 of the Crimes Act. That, so the Crown contended, had the effect of diverting her Honour from a proper exercise of her sentencing discretion and potentially distorting the sentence imposed.

65. That contention is without merit and must be rejected.

66. There could be no doubt that, when assessing the objective seriousness of the offence in any case involving murder, the state of mind that the offender had when engaging in the act that caused the death in question is likely to be a highly relevant consideration. That has been accepted in in many cases. In Apps v R [2006] NSWCCA 290, for example, Hunt AJA observed (at [4]-[5]):

The crime of murder has a wide variation in the states of mind which must accompany the act which caused the death of the deceased. That particular state of mind is directly relevant to the determination of the objective seriousness of the crime charged, in that it is related to the commission of the crime itself: R v Way (2004) 60 NSWLR 168 at [85]–[86]; R v AJP (2004) 150 A Crim R 575 at [13]–[14] … The intention to kill must therefore be directly relevant to the sentencing judge’s assessment of the objective seriousness of the crime, and whether, in the particular case, that crime falls above or below the mid-range of seriousness.

67. As a matter of common sense and experience, an offence of murder which involves an intention to kill is, all other things being equal, likely to be objectively more serious than an offence involving reckless indifference, or an intention to cause serious harm. Where the relevant facts and circumstances are otherwise the same, an offender who intended to kill is likely to be more culpable than one who did not, but who was recklessly indifferent to the probability that his or her act would cause death, or who acted only with the intention of causing serious harm.

68. That is not to say, however, that an offence involving an intention to kill is always more serious than an offence involving reckless indifference, or an intention to cause serious harm. It is necessary to consider the offender’s state of mind in the context of all the other relevant facts and circumstances. The offender’s state of mind is only one of the relevant facts and circumstances. There may well be cases where an act resulting in death which was committed with intention to cause serious harm could be equal or more serious than an act committed with reckless indifference, or an act committed with intention to kill: R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 at [16]-[17]. The task for the court is to assess the objective seriousness of the offence having regard to all of the facts and circumstances.

69. That point was emphasised by Simpson J (Whealy J agreeing) in Apps (at [49]):

Certainly, in a case of murder, the state of mind in which the offence is committed is a relevant consideration going to objective seriousness. As is well known, murder may be established by proof of an act causing death committed when the act is accompanied by any one of three states of mind: in descending levels of seriousness they are: an intention to kill, an intention to cause grievous bodily harm, or reckless indifference. I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than lesser. So much is obvious. Indeed, in Way, while the Court expressly alluded to mental states, followed this by the parenthetical observation that “intention is more serious than recklessness”. However, of itself, an intention to kill alone cannot establish that a particular instance of the crime of murder is above the mid-range of seriousness. It is not the only circumstance relevant to that assessment. (Emphasis added)

70. It may accordingly be readily accepted that there is no strict hierarchy of seriousness in murder cases based on the offender’s state of mind that accompanied the relevant act. The offender’s state of mind is only one of the relevant considerations.

71. The difficulty for the Crown is that, read fairly and in context, the observations made by the sentencing judge in [29] of her reasons do not suggest that her Honour considered that there was any strict hierarchy of seriousness, or that an offence of murder involving an intention to cause serious harm was necessarily less serious than an offence involving reckless indifference or an intention to kill. In fact, her Honour was saying nothing more than what Simpson J said in Apps.

72. Indeed, her Honour was even less emphatic than Simpson J. In the sentence that is the focus of the Crown’s criticism, her Honour prefaced her observation concerning culpability by the words “generally speaking”. Her Honour then immediately qualified that general observation by stating that objective seriousness depends upon the particular circumstances. Her Honour also expressly noted that an offence of murder where the offender had an intention to cause serious harm could be objectively more serious than a murder involving an intention to cause death.

73. Even more fundamentally, it is clear that her Honour’s finding that the respondent’s offence was of lower objective seriousness than most offences of murder was based on all of the relevant facts and circumstances. Contrary to the Crown’s implicit assertion, her Honour did not reach that conclusion based only, or even predominantly, on the fact that the respondent was to be sentenced on the basis that he had an intention to cause serious harm, not an intention to kill or reckless indifference. That is readily apparent from [32] of her Honour’s reasons, where her Honour lists a number of facts and circumstances that led her to that conclusion: The offence of murder is the most serious in the criminal calendar. However, the subject offence of murder was objectively less serious than most murders. One consideration that tends to make the offence more serious is that it occurred in the deceased’s own home. On the other hand, the physical assault was not premeditated; the offender went to the residence to see his mother and became angry only when he perceived that the deceased was impeding access to his mother. An unanticipated argument quickly escalated to a serious assault. There was no murder weapon such as a knife or firearm. The incident involved several blows rather than a relentless attack. The autopsy report noted that, “[a]s the head injuries are less severe than typical fatal head injuries, there may have been another contributing factor.” The accused intended to cause serious harm; he did not intend to cause death and was not recklessly indifferent to that prospect.

74. It is abundantly clear from this extract from the sentencing judge’s reasons that the respondent’s state of mind was only one of the relevant facts and circumstances taken into account by her Honour in considering the objective seriousness of the offence.

75. The Crown’s contention that the sentencing judge was distracted or diverted from assessing the objective seriousness of the offence by referring to a hierarchy, a word her Honour did not use at all in her reasons, or by her general observations about the different mental states in s 12 of the Crimes Act, is equally unmeritorious.

76. The Crown has failed to demonstrate any specific error by the sentencing judge in the exercise of the sentencing discretion. Ground 2 of the Crown’s notice of appeal is rejected.

Ground 2 - manifest inadequacy

77. The Crown submitted that the head sentences in respect of both the murder and theft counts were manifestly inadequate, and, as a consequence, the overall head sentence was manifestly inadequate. The Crown submitted, in effect, that the offences were more objectively seriousness than permitted by her Honour, and that the respondent’s subjective circumstances were not such as to support the leniency that her Honour apparently afforded him. Importantly, the Crown did not contend that her Honour erred in ordering that the sentences be served partly concurrently and did not contend that a non-parole period of 51.8 per cent of the head sentence was inappropriate or demonstrated error. Nor did the Crown contend that the discounts given for the respondent’s pleas of guilty (15 percent for the theft and 20 per cent for the murder) were excessive or indicative of error.

78. The principles concerning manifest inadequacy as a ground of appeal against a sentence are relevantly the same as those that apply where it is argued that a sentence is manifestly excessive.

79. Manifest inadequacy of sentence, like manifest excess, is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 at [6].

80. Other than the specific error that is the subject of the Crown’s second ground of appeal, which has already been dealt with, the Crown’s notice of appeal does not identify any specific error in the reasoning of the sentencing judge. In its submissions in support of the contention that the sentence was manifestly inadequate, the Crown did criticise some of her Honour’s findings and reasoning. Those criticisms will be addressed later. Suffice it to say at this stage that those criticisms, even if made out, did not amount to errors of principle.

81. In the absence of any specific identifiable errors of principle, the relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too short is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at [61].

82. The Court must approach the task of determining whether the sentence is unreasonable or plainly unjust in the context that there is no one single correct sentence. Rather, the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Melham at [85]. It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

83. In relation to the sentence imposed for the murder count, the Crown contended that the sentencing judge either failed to have sufficient regard to, or gave insufficient weight to, a number of factors that it contended were aggravating factors. Those factors included that the attack by the respondent was unprovoked, unjustified and severe; that the respondent was physically superior to the deceased; that the offence occurred in a “family violence context”; and that the respondent offered no aid and did not call any for emergency assistance. The Crown also drew attention to the callousness of the respondent’s actions after the murder: when he returned to the house and spoke with his mother, he must have stepped over the deceased’s body which was presumably still in the doorway. When those factors are taken into account, in the Crown’s submission the offence was far more serious than as described by the sentencing judge.

84. In relation to the theft count, the Crown acknowledged that the sentencing judge accepted that the offence was one of “substantial objective seriousness”. It contended, however, that the theft was near the “worst category” of thefts, and that the starting point of 3 years imprisonment was “woefully inadequate” to reflect the seriousness of the crime. In that regard, the Crown submitted that the relevant theft involved a breach of trust because of the familial relationship and the fact that the respondent knew that his mother kept her life savings at the property. The Crown also pointed out that it was difficult to envisage a more vulnerable victim than the respondent’s mother.

85. As for the respondent’s subjective circumstances, the Crown criticised two findings made by the sentencing judge. The first criticism was directed to her Honour’s finding that “from the outset, the offender was remorseful for the murder and has accepted responsibility for the offending behaviour”. The Crown submitted that, contrary to her Honour’s finding, there was a marked lack of contrition in this case. That was demonstrated, in the Crown’s submission, by the callousness demonstrated by the respondent when he returned to the scene of the murder later and stole the money, by the fact that the respondent maintained a plea of not guilty in respect of the murder for some time after being charged, and from the terms of the pre-sentence report, which recorded that, while the respondent accepted responsibility for the offences, he “offered justification”. It should also be noted, in this context, that the respondent did not give evidence, and did not adduce any other evidence, at the sentence hearing.

86. The second finding that was criticised by the Crown was the sentencing judge’s finding that “the offender’s prospects for rehabilitation are good”. The Crown submitted that this finding was not supported by the evidence. The Crown relied on the opinion expressed in the pre-sentence report, which was that the respondent was “assessed as being at medium to high risk of reoffending; primarily due to significant history of illicit substance use, lack of pro social companions and acquaintances, lack of stable accommodation and mental health”.

87. There is some merit in some of the Crown’s criticisms of the sentencing judge’s findings concerning both the objective seriousness of the murder offence and the subjective circumstances. It does not necessarily follow, however, that it should be concluded that the sentences imposed were manifestly inadequate.

88. While it is hard to disagree with her Honour’s finding that the murder offence was of lower objective seriousness than most offences of murder, it does not follow that this was anything other than a very serious offence. The offence involved a relatively violent and unprovoked attack on a defenceless 61 year old victim, in his own home, by an offender who was undoubtedly younger and stronger than the victim. While there was no history of violence between the respondent and the deceased, they were in a familial relationship of sorts.

89. The fact that the attack was preceded by an “unanticipated” argument that arose when the deceased impeded the respondent’s access to the house hardly lessened the seriousness of the offence to any significant extent. The deceased had every right to refuse to let the respondent into his house. It is also somewhat doubtful that the argument was in truth unanticipated: the respondent told the police that he went to the house with the intention of forcing his way in. And while the assault may not have been premeditated, the sentencing judge appears to have given little weight to the fact that, after the assault occurred and the deceased was still alive, but obviously injured, the respondent did not render or seek assistance. Rather, he fled.

90. Likewise, the fact that the violence inflicted by the respondent involved only “several blows”, rather than a “relentless attack”, is not of particularly great significance. However the attack may be described, the fact remains that the respondent intended to cause serious harm. The blows that were landed caused sufficient blunt force trauma to the deceased’s head that the autopsy report concluded that they contributed to the deceased’s death, and were possibly the cause of death.

91. As for the respondent’s subjective circumstances, it is difficult to see the basis of the sentencing judge’s finding that the respondent was remorseful. It is true that when the respondent eventually told his mother that he had killed the deceased, he said that he wanted to kill himself. He also told the police, shortly after he was apprehended, that it was a relief to be caught. Those statements do not necessarily suggest remorse for having killed his mother’s life partner. They are equally consistent with the respondent being remorseful about the position he had placed himself in by his actions. And while the respondent told the probation and parole officer that he accepted responsibility for the offences, he nonetheless “offered justification”. He apparently did not express remorse or contrition.

92. As for the finding that the respondent’s prospects of rehabilitation were good, that finding was not supported by the pre-sentence report. While it was open to the sentencing judge to reject the opinion of the author of that report, there appeared to be precious little else to support the finding. The most that could be said was that the respondent had no history of offending and, prior to 2012, had a respectable history of employment. That said, the Crown prosecutor at the sentence hearing expressly conceded that the respondent would be a “suitable candidate for rehabilitation” and did not dispute that a non-parole period as low as 50 percent of the head sentence could be appropriate.

93. There were no other particularly compelling subjective circumstances that weighed significantly in the respondent’s favour. It is difficult to see the basis of the sentencing judge’s finding that the respondent’s subjective circumstances called for significant leniency. That said, the respondent’s subjective circumstances undoubtedly called for a measure of leniency.

94. The Crown’s submissions concerning the theft count were, however, less persuasive. That is because the sentencing judge accepted that the theft offence was objectively very serious. Her Honour accepted that it involved a breach of trust and was “callous in the extreme”. It is, however, difficult to accept the Crown’s contention that it was near the worst category of thefts. The theft was not planned, premeditated or in any sense sophisticated. It was essentially opportunistic.

95. Despite the merit of some of the Crown’s criticisms of the sentencing judge’s reasons, the question remains whether the sentences imposed by the sentencing judge were so low as to manifest error of the sort that would warrant appellate intervention. The Crown did not contend that its criticisms of the sentencing judge’s findings and reasoning (other than the reasoning the subject of the second ground of appeal) constituted or amounted to specific errors of principle of the House v The King type. The approach taken by the Crown in that regard was correct. The criticisms of the sentencing judge’s findings and reasons were essentially matters of emphasis or weight about which reasonable minds might differ. They were not matters of principle.

96. Were the sentences unreasonable or plainly unjust?

97. Before answering that question, it is necessary to say something about the relevance of the so-called comparative cases referred to by the Crown in its submissions. It will be recalled that the sentencing judge referred in her reasons to the case of R v Massey. It would appear that the Crown also provided her Honour with details of other murder sentences imposed in both the ACT and New South Wales. In its written submissions on appeal, the Crown also included details of some of those cases.

98. The consideration of sentences imposed in other comparable cases may be useful, but must be approached with some caution. Comparable cases may be useful in two ways: first, if it is possible to discern from them any unifying sentencing principles that should be applied; and second, if an analysis of the cases discloses discernible sentencing patterns or a range of sentences. However, the cases may not establish a relevant range, or the range may not necessarily be the correct range or otherwise determinative of the upper and lower limits of sentencing discretion: Hili v The Queen (2010) 242 CLR 520 at 537 [54]-[55] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong v The Queen (2001) 207 CLR 584 at 606 [59] (per Gaudron, Gummow and Hayne JJ); R v Pham (2015) 256 CLR 550 at 558 [26]-[27] (per French CJ, Keane and Nettle JJ). Much will depend on the number of cases referred to and whether they are truly comparable. As Hoeben CJ at CL (Schmidt J and Barr AJ agreeing) said in Frahm v The Queen [2014] NSWCCA 10 at [19]: As a matter of principle, submissions based on a small selection of cases [that] produce a result favourable to an applicant, is not an approach which has found favour in this Court. It is, of course, always possible to find cases which favour a particular outcome. This selection of cases is so small that it cannot demonstrate a sentencing trend. Each case of necessity depends on its own particular facts and a selection of cases in this way does no more than demonstrate that a particular outcome occurred in each of the nominated cases. A small selection of cases such as this does not and cannot demonstrate that a particular sentence was manifestly excessive.

99. The comparable cases that were referred to by the Crown did not establish a relevant range of sentences for murder, or disclose any relevant unifying principles that should have been, but were not, applied by the sentencing judge. The number of cases was fairly small and none of them were truly comparable. Even if any of the cases were truly comparable, that is not to say that the sentences imposed in them were necessarily correct, or provided any relevant guide to how the sentencing judge should have exercised the sentencing discretion in the case at hand. Those cases therefore may be put to one side in considering whether the sentences imposed by the sentencing judge were manifestly inadequate, in the sense that they were unreasonable or plainly unjust.

100. Some may consider that the sentences imposed on the respondent by the sentencing judge were lenient sentences. Even if that be so, they are not manifestly inadequate such as to demonstrate appealable error on the part of the sentencing judge.

101. In relation to the murder count, the starting point for her Honour was imprisonment for 15 years. As already noted, the sentencing judge discounted the sentence by 20 per cent for the plea of guilty. The Crown did not challenge the appropriateness of that discount. Even accepting the criticisms of the sentencing judge’s reasons concerning the objective seriousness of the murder, and the respondent’s subjective circumstances, the starting point of 15 years’ imprisonment is not so low as to manifest error. Her Honour was correct in finding that, having regard to all the facts and circumstances, the offence was objectively less serious than most murders. That is not to say that the offence was not serious. A starting point of 15 years’ imprisonment is not inconsistent with the proposition that this was a serious offence, particularly where the respondent’s subjective circumstances also called for some measure of leniency.

102. In all the circumstances, the starting point of 15 years imprisonment could not be said to be outside the range of appropriate penalties that might be arrived at by the proper application of the relevant principles to the facts as agreed and found by the sentencing judge.

103. The same can be said concerning the sentence imposed in respect of the theft count. The starting point for her Honour was a sentence of imprisonment for 3 years. The Crown did not challenge the discount of 15 percent for the plea of guilty. The maximum sentence for theft is imprisonment for 10 years. While her Honour found that the theft perpetrated by the offender was objectively very serious, the offence was not, as contended by the Crown, near the worst case for theft. While the theft was, as accepted by her Honour, callous in the extreme and involved an element of breach of trust, it was largely opportunistic. It was not planned or premediated and was far from sophisticated. As already indicated, the respondent’s subjective circumstances called for some leniency. It could not, in all the circumstances, be concluded that a starting point of 3 years’ imprisonment for the theft was outside the range of appropriate penalties that might be arrived at by the proper application of the relevant principles to the facts.

104. The Crown did not contend that the degree of accumulation of the two sentences (18 months) was inappropriate or unreasonable. The total effective head sentence was imprisonment for 13 years and 6 months. For the reasons already given, that effective head sentence could not be said to be outside the range of appropriate penalties that might be arrived at by the proper application of the relevant principles to the facts. Again, while some may think it lenient, it nonetheless could not be said to be unreasonable or plainly unjust.

105. The non-parole period fixed by the sentencing judge was also not the subject of specific complaint or criticism by the Crown.

106. The Crown’s contention that the sentences imposed by the learned sentencing judge were manifestly inadequate must accordingly be rejected.

107. Neither of the Crown’s grounds of appeal have been demonstrated to have any merit. The Crown appeal must accordingly be dismissed.

I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Mossop and Justice Wigney.

Associate:

Date: 28 July 2017