CRIMINAL LAW - Appeal - Sentence - Murder - Sentenced to 20 years' imprisonment - Non-parole period 17 years - Whether culpability reduced because applicant intended to cause really serious injury rather than to kill - Whether sentence manifestly excessive - Culpability to be assessed by reference to full circumstances of killing - Applicant's culpability high - Leave to appeal refused - Barrett v The Queen (2010) 27 VR 522 applied

**1 I invite Coghlan JA to deliver the first judgment.

2 After a trial lasting nine days the applicant was convicted of murder. On 7 December 2012 he was sentenced to be imprisoned for 20 years and a period of 17 years was fixed before he was to be eligible for parole. The applicant had been in custody for 431 days at the time of sentence.

3 The applicant seeks leave to appeal on the following grounds:**

Ground 1: the sentencing judge erred in finding that the Applicant intending to cause really serious injury rather than intending to kill was not a factor to be taken into account on sentence.

Ground 2: the sentence imposed was manifestly excessive.

4 The circumstances of the offending are set out in the Registrar's Neutral Summary as follows:

The applicant and Edwin Singer (the deceased) were residents of a boarding house in Geelong. Both had issues relating to alcohol abuse.

The applicant had a number of run-ins with the deceased over the latter's habit of defecating in the corridor. They had an altercation the day before the deceased was killed over the issue.

On the morning of Sunday 2 October 2011, the publican, Mr Moore, told the deceased he had to leave the boarding house by the end of the week due to complaints from other residents about his unsanitary habit.

Later that afternoon the applicant was drinking alcohol with other residents on the first floor. As he became more affected by alcohol, he became more agitated at the deceased. The applicant repeatedly went to the deceased's room and demanded he come out and clean up his mess. The deceased remained in his room for some time, until he eventually left to use the bathroom. The applicant accosted the deceased as he returned to his room.

The applicant punched the deceased in the head and chest until he went to ground. The applicant, who was wearing steel capped boots, then kicked him in the chest. The applicant then left the deceased and went back to the room where he was drinking. But he returned on at least one occasion to continue the assault on the deceased. The subsequent assault was assisted by cooffender Brett Drummond and Paul Russell. While assaulting the

deceased, the applicant also abused him and called him names. The deceased pleaded for the applicant to leave him alone and was heard to be moaning as he was beaten.

The deceased eventually ceased responding and with the help of others the applicant moved the deceased to the fire escape. At this stage he was either dead or he died on the fire escape. His body was left there for some time while the applicant consulted an associate as to what to do. Later, again with the help of others, the applicant moved the deceased's body to the driveway of an adjacent building.

The applicant then went to visit his brother at another hotel in Geelong. He told his brother that he had bashed another man to death and he would go to gaol for a long time.

The deceased died from blunt force trauma, due to multiple injuries including 27 broken ribs and a collapsed lung. He also received a fractured nose and numerous abrasions and bruises. The deceased's health was already compromised due to emphysema and long standing alcohol abuse.

5 It is submitted on behalf of the applicant that, because it was accepted by the learned sentencing judge that the applicant intended to cause really serious injury rather than intending to kill,[1] he should have imposed a lesser sentence. It followed, so the argument was, that his Honour was in error when he said:[2]

In the circumstances of this particular case, in weighing your culpability I am not assisted by distinguishing between your culpability on the basis that you intended to beat Mr Singer to death or intended to cause him really serious injury from which he in fact died. That is particularly so when, as you said, you 'lost the plot'. Whether you lost the plot and intended to kill him, or lost the plot and intended to cause him really serious injury, serious enough for him to die from those injuries, matters little in evaluating your moral culpability for his death. There may be cases in which such a distinction is potent; it is not in this case.

**6 It was submitted that the intention must be relevant to the sentencing process. The argument being that the greater the degree of harm intended, the more serious the offending would be, and vice versa.

7 That proposition is not supported by authority. The one feature common to all murders is that the accused has caused the death of another. The moral culpability will be determined by the nature of the killing, including the conduct of the accused, rather than the particular intent with which the conduct was carried out.

8 In his reasons his Honour quoted a passage from Barrett v The Queen,[3] in which this Court made it clear that when dealing with reckless murder the question of moral culpability will not depend solely on the question of mens rea applicable to that form of murder. Barrett is consistent with a line of authority going back to Crabbe v The Queen.[4]

9 The distinction when dealing with the question of intent between murder with reckless intent and intentional murder is more clear cut than that between the two intentions which satisfy intentional murder. The distinction between intent to cause really serious injury (previously grievous bodily harm) and intent to kill is a very fine one. That distinction cannot inform the question of moral culpability in all cases.

10 When the facts of this case are examined, the level of moral culpability is high. His Honour was correct in his conclusion that the applicant's moral culpability could not be reduced on the basis that he may not have intended to kill the deceased but intended to cause him really serious injury.**

**11 It is submitted that his Honour gave insufficient weight to the matters put in mitigation and that his Honour had characterised the offending as being more serious than it warranted on the facts.

12 In submissions at the plea hearing, reference was made to Likiardopoulos v The Queen[5] and other cases including Morrison v The Queen.[6]

13 In support of the applicant's case it is submitted that although this case is nearer on its facts to Morrison, a sentence the same as that in Likiardopoulos was imposed. It would follow, it was submitted, that such a sentence indicates that his Honour has gone outside the range of sentence reasonably open to him.

14 It is true that the offending of Likiardopoulos was more serious than that of the applicant but there were some features of his personal circumstances which were different. The fact is Morrison was quite similar to the facts of this case but Morrison pleaded guilty and had other matters taken into account not present in this case.

15 The High Court has made clear in Hili v The Queen[7] the use which may be made of other sentences:**

Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases.

In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out,[8] a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'.

**16 It is true that other sentences will indicate current sentencing practices and the range of sentences which have been imposed for like offending. Knowledge of other sentences will aid courts in establishing a consistent approach to like offending. Other sentences do not, other than in cases where the principle of parity is to be strictly applied, inform the particular sentence to be imposed in any given case.[9]

17 I do not regard the comparison between this case and either Likiardopoulos or Morrison as being particularly instructive.

18 In support of this ground reliance was placed on the matters in mitigation, namely,[10]**

• the applicant was 46 years at the time of sentence,
• acceptance of responsibility for the death shortly afterwards,
• a degree of remorse,
• difficulties in his upbringing,
• the offence being out of character, and
• prospects for rehabilitation; although strongly linked to his alcohol dependency these had to be viewed in the light of his lack of serious prior offending and the lengthy time that would elapse prior to any parole period commencing.

It was argued that in light of those considerations the sentence imposed was manifestly excessive.

19 The task of an applicant to demonstrate that a sentence is manifestly excessive is not an easy one. The difficulty was aptly expressed by Winneke P in R v Boaza:[11]

In the absence of specific error it is, of course, not an easy task for an applicant to demonstrate to an appellate court that the sentencing discretion has miscarried on the ground that the sentence imposed is a manifestly excessive one. It is trite to say that before an appellate court can interfere it would need to be persuaded that the sentence imposed by this very experienced judge was wholly outside the range of sentencing options available to him.

**20 It is trite to say that before an appellant court can interfere, it would need to be persuaded that the sentence imposed by this very experienced judge was wholly outside the range of sentencing options available to him.

21 This was a very brutal and pointless murder involving sustained conduct over a long period. His Honour found the following matters in aggravation:[12]**

But, putting aside the essential features of the assaults which brought about death and made this a crime of murder, the fact that Mr Singer was an easy target as a weak, vulnerable man; that the assaults were, in part, carried out in company and were accompanied by humiliating abuse; and that they were prolonged with the opportunity to desist (accentuating the degree of deliberation), all constitute aggravating features of your crime.

**22 Having had regard to the matters in mitigation, I am not convinced that the sentence imposed was wholly outside the range available to the sentencing judge.

23 I would refuse the application for leave to appeal on both grounds.

25 The circumstances that may attend the offence of murder vary so widely that it is often unproductive, in my opinion, to try and distinguish the objective seriousness of a given offence based solely on whether the intention was to kill or to cause really serious injury. It is axiomatic that every case must depend on its own

particular facts, and the sentence to be imposed according to the particular constellation of factors - both aggravating and mitigating - which are found to be present, intention being but one.

26 Thus the deliberate killing by a person of their beloved, suffering and terminally ill spouse, motivated by considerations of mercy, might - all other things being equal - be regarded as morally less culpable than a protracted and savage assault where the intention is to cause really serious injury.

27 Each case must depend on its own facts. I am unpersuaded that the sentence in this case was attended by any specific error and I am unpersuaded that it is otherwise manifestly excessive. I too would refuse the application.

28 For the reasons given by their Honours, I too would refuse leave to appeal.

29 The order of the Court is: application for leave to appeal refused.

[1] R v Walters [2012] VSC 608 ('Sentencing reasons'), [19].

[3] (2010) 27 VR 522.

[4] [1985] HCA 22; (1985) 156 CLR 464, see also R v Aiton (1993) 68 A Crim R 578 and R v Lindra (Unreported, Court of Criminal Appeal, 4 August 1994).

[5] [2010] VSCA 344.

[6] [2012] VSCA 222.

[7] [2010] HCA 45; (2010) 242 CLR 520, [53] and [54]. Citations omitted.

[8] [2010] NSWCCA 194; (2010) 243 FLR 28, 98 [303].

[9] Ashdown v The Queen [2011] VSCA 408.

[10] Applicant's written case, [5.6].

[11] [1999] VSCA 126 at [42]. See also R v Abbott (2007) VSCA 32.