Wijesinghe v DPP

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Wijesinghe v DPP Citation: [2026] ACTCA 30 Hearing Date: 29 July 2026 Decision Date: 2 September 2026 Before: Muller, White and Rangiah JJ Decision: (1) The appeal is allowed. (2) The sentence imposed by the primary judge is set aside. (3) The respondent is re-sentenced to 26 years and 6 months’ imprisonment, to commence on 18 December 2023 and ending on 17 June 2050. (4) A non-parole period of 18 years is to apply, commencing on 18 December 2023 and ending on 17 December 2041. Catchwords: APPEAL – CRIMINAL LAW – Murder – Appeal against sentence – whether primary judge erred in failing to reduce sentence to reflect reduced moral culpability due to mental illness – whether offender’s mental illness reduced objective seriousness of offending – whether primary judge erred in failing to apply discount for guilty plea to head sentence – whether primary judge erred in applying discount only to non-parole period – whether primary judge erred in taking into account the reduction in moral culpability due to the offender’s mental illness only in relation to non-parole period - whether total effective sentence and non-parole period manifestly excessive – appeal allowed Legislation Cited: Crimes Act 1900 (ACT), s 12 Crimes (Sentencing) Act 2005 (ACT), ss 10, 33(1), 35, 37, 65 Crimes (Sentencing) Bill 2005 (ACT) Cases Cited: AB v The Queen (1999) 198 CLR 111 Bugmy v The Queen [1990] HCA 18, 169 CLR 525 Coggan v The Queen [2013] ACTCA 49 Dalton v The Queen [2015] ACTCA 48 DPP v Vu [2026] ACTSC 39 DPP v Wijesinghe [2025] ACTSC 543 DS v R; DM v R [2022] NSWCCA 156; 109 NSWLR 82 Heard v The Queen [2015] ACTCA 6 Kourpanidis v The Queen [2022] ACTCA 11 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Paterson v R [2021] NSWCCA 273 R v Al-Harazi (No 7) [2017] ACTSC 350 R v Howell [2007] VSCA 119; 16 VR 349 R v Lee [2017] ACTCA 30 R v Lindsay [2020] ACTCA 25 R v Newby [2022] ACTCA 20 R v Rappel [2017] ACTSC 38 R v Toumo’ua [2017] ACTCA 9 R v Verdins [2007] VSCA 102; 16 VR 26 R v Vosikata (No 2) [2016] ACTSC 391 R v Duffy & Ors [2014] ACTCA 53 Robertson v DPP [2024] ACTCA 26 The Queen v Miller [2019] ACTCA 25 The Queen v Omani [2022] ACTCA 4 Vojneski v The Queen [2016] ACTCA 57 Wong v The Queen [2001] HCA 64; 207 CLR 584 Parties: Jude Luckshan Wijesinghe (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel K Weston-Scheuber with E Wallis (Appellant) Elizabeth Ruddle KC with Lisa-Claire Hutchinson (Respondent) Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 2 of 2026 Decision Under Appeal: Court: ACT Supreme Court Before: McCallum CJ Date of Decision: 12 December 2025 Case Title: DPP v Wijesinghe Citation: [2025] ACTSC 543 Court File Number: SCC 194 of 2024 THE COURT: Introduction

1. On 28 July 2025, about four weeks before the date scheduled for the commencement of his trial by jury, the appellant entered a plea of guilty to one count of murder, contrary to s 12 of the Crimes Act 1900 (ACT). The maximum penalty for murder is life imprisonment.

2. On 12 December 2025, the appellant was sentenced by McCallum CJ to 30 years’ imprisonment, with a non-parole period of 20 years: DPP v Wijesinghe [2025] ACTSC 543 (the primary judgment). The appellant now appeals from that sentence.

Facts

3. The circumstances of the offending are set out in detail at [3]-[22] of the primary judgment.

4. In summary, the appellant and the victim worked together as chefs at the Jamala Wildlife Lodge at the National Zoo and Aquarium. The appellant developed a romantic interest in the victim in early 2023, which was never reciprocated. He asked her out to dinner, but she declined. He became increasingly infatuated with her. The victim and other colleagues observed the appellant to be jealous of other men who interacted with her. The appellant exchanged text messages with a friend about his feelings about the victim during 2023 which demonstrated, the primary judge found at [8], both a growing fixation on the victim and a resistance to take any constructive steps to address his deteriorating mental state.

5. By December 2023, the appellant was taking steps to get rid of his possessions, searched for flights from Canberra to Melbourne, told a friend that he intended to resign, and suggested to friends and colleagues that he would be leaving soon. On 11 December 2023, he drafted a note on his phone to a man named Ugyen which included the words: “Now see what happened. Two people are gone never to come back. I hope you live with this regret for the rest of your life. I would never forgive you”.

6. As the primary judge found at [10], the inescapable inference is that the reference to “two people are gone” was a reference to the appellant and his victim. It appears that the appellant’s plan for a murder suicide had already been formulated by this stage.

7. On 18 December 2023, the victim commenced her work shift at 6am, being scheduled to work until 1pm. The appellant arrived at work at about 12:20pm. After texting a number of friends to say goodbye and deleting messages from his phone, the appellant trapped the victim in a storeroom by locking it from the inside and stabbed her numerous times with his own boning knife.

8. A construction worker and two colleagues heard screaming and banging from inside the storeroom, located just outside the kitchen. The construction worker tried to open the door, but it was locked. They went to seek help and, when they returned, the screaming had stopped and the wooden door of the storeroom was open, but the screen mesh door remained closed. They saw the appellant inside holding a knife with blood on it. The appellant walked out of the storeroom and slit his own throat with the knife. He had fresh lacerations on his neck and wrists. He had also apparently swallowed some poison and vomited it back up. He was later taken to hospital.

9. The victim was found inside the storeroom. Paramedics confirmed that she was dead. An autopsy identified 14 stab and slashing wounds to the victim’s body, including four to her head and neck, three to her trunk, six to her upper extremities and one to her upper thigh. There is no doubt that her life ended in the most terrifying of circumstances.

The psychiatric evidence

12. None of the evidence set out above was in dispute, and the main focus of evidence before the primary judge was the psychiatric evidence. Indeed, the issues in dispute on this appeal turned largely on the psychiatric evidence, and it will be necessary to refer to that evidence in some detail.

13. On behalf of the appellant in the proceedings below, a number of reports were obtained from Dr Andrew Carroll, an experienced consultant forensic psychiatrist. In preparing his reports, Dr Carroll conducted a lengthy face-to-face interview with the appellant and also spoke to him at length by video link. Three reports were tendered in the sentence proceedings. The first dated 11 June 2024 related to a possible mental impairment defence. The second dated 18 July 2024 had been obtained to consider the issue of diminished responsibility. The third, dated 18 September 2025, was prepared after the appellant had entered a plea of guilty to murder but before his sentencing. Dr Carroll also gave evidence and was cross-examined before the primary judge.

14. The respondent obtained a report dated 22 April 2025 from Dr Adam Martin, a forensic psychiatrist. Dr Martin also interviewed the appellant face-to-face. In preparing his report he had access to the earlier reports of Dr Carroll. Dr Martin’s report was tendered at sentence but he was not required for cross-examination.

15. There was a great deal of agreement between Dr Carroll and Dr Martin in their reports, and as the appellant noted in argument before us, the primary judge did not in any respect dispute or reject any of the evidence of either of the psychiatrists. Dr Carroll’s opinion

16. Dr Carroll’s first report addressed issues of a mental impairment defence. Relevantly, Dr Carroll opined (at [365]-[367]): Did Mr Wijesinghe know the nature and quality of his conduct? In my opinion Mr Wijesinghe knew the nature and quality of his conduct. Did Mr Wijesinghe know that his conduct was wrong, in the sense that he could reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong? As noted above, in my opinion notwithstanding his being significantly mentally ill at the time, with some psychotic delusional beliefs regarding his co-worker and pathological infatuation with the victim, he was nonetheless able to reason that his conduct would be seen by a reasonable person as wrongful. The most powerful evidence for this is contained in the suicide notes that he wrote prior to the incident. Could Mr Wijesinghe control his conduct? Given the clear planning that went into the alleged offence and attempted suicide in my opinion Mr Wijesinghe could control his conduct.

17. In his second report at [370]-[371], Dr Carroll opined: He suffers with mental impairment in the form a [sic] Major Depressive Disorder and a syndrome of Pathological Infatuation on the background of a Mild Personality Disorder. There is no evidence of intellectual impairment.

The primary judgment

33. After setting out the circumstances of the offending and the victim impact statements, the primary judge turned to the objective seriousness of the offence. Her Honour found that the offence was of the “utmost gravity” but accepted that, “because of the guilty plea and the need to take into account the [appellant’s] mental health”, the maximum penalty of life imprisonment should not be imposed: at [27]. In reaching the conclusion about objective seriousness, her Honour took into account (at [28]-[36]) that: (a) the offence was premeditated for at least one week beforehand, reflecting “calculation, self-focussed rumination and a slow-burning rage”, and the appellant’s plan to also commit suicide did not lessen the objective seriousness; (b) the offence was serious and involved “sustained brutality”, including trapping and attacking the victim in a locked room and stabbing her multiple times; (c) the offence had traumatising impact on others; and (d) the only reasonable inferences were that the appellant intended to kill the victim and that the motivation for the offence was that the appellant could not have the victim for himself. Her Honour found: “It was an offence of murderous violence against a vulnerable woman at the hands of a jealous, possessive man. Such violence against women is a scourge; it warrants the sternest punishment”.

34. The primary judge then addressed the appellant’s mental health: at [37]-[64]. Having accepted that the appellant’s moral culpability was reduced due to his mental illness, her Honour noted that it was necessary to determine whether the appellant’s mental impairment reduced the objective seriousness of the offence in circumstances where the prosecution submitted that it did not do so: at [38]. Her Honour set out and adopted the analysis of the New South Wales Court of Criminal Appeal from DS v R; DM v R [2022] NSWCCA 156; 109 NSWLR 82 at [96] (DS). We will return to this aspect later.

35. Her Honour reached the conclusion that the appellant’s mental illness did not reduce the objective seriousness of the offence: at [40]. Her Honour summarised the findings of Dr Martin and Dr Carroll. While finding that there was a “measure of disordered thinking associated with the offender’s major depressive disorder that impaired the offender’s ability to think clearly”, her Honour considered that the appellant had opportunities to seek support and was capable of rational deliberation in the days and weeks leading up to the offence: at [56]. Further, her Honour observed (at [57]) that, while the appellant’s mental illness did not reduce the objective seriousness of his offending, it could otherwise be taken into account pursuant to R v Verdins [2007] VSCA 102; 16 VR 269.

36. The primary judge next considered the appellant’s subjective circumstances, including the absence of prior criminal convictions and numerous character references: at [67]. Her Honour noted that the appellant had expressed remorse for the offence but found that his letter to the court showed an ongoing fixation with the victim and that his “ongoing lack of insight” indicated that significant weight should be given to specific deterrence: at [68]-[71].

Grounds of appeal

40. The notice of appeal contains the following four grounds of appeal: (a) the primary judge erred in failing to reduce the sentence to take into account the reduction in moral culpability due to the offender’s mental illness (ground 1); (b) the primary judge erred in failing to find that the offender’s mental illness reduced the objective seriousness of the offence (ground 2); (c) the primary judge erred in failing to apply a discount to the head sentence for the plea of guilty (ground 3); and (d) the sentence was manifestly excessive (ground 4).

Determination

Ground 1: error in failing to reduce the sentence to take into account the reduction in moral culpability due to the offender’s mental illness

41. The difficulty with this ground of appeal, expressed as it was, is that the primary judge did accept that the appellant’s mental illness reduced his moral culpability, “and may otherwise be taken into account in the ways explained by R v Verdins” (at [57]).

42. The primary judge continued at [58]-[62]: First, the condition “may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility”: at [32(1)]. The Court explained that where an offender’s moral culpability is reduced, “the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective”. The second Verdins principle is not relevant here. Thirdly, the condition may be relevant to an assessment of the weight to be given to general deterrence. The Court emphasised that “[w]hether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both”: at [32(3)]. Fourthly, the condition may be relevant to an assessment of the weight to be given to specific deterrence, again depending on “the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender”: at [32(4)]. Fifthly, “the existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health”: at [32(5)]. As explained in [McBride v The King [2025] ACTCA 16; 22 ACTLR 119 (McBride)] at [123](iv), this may indicate that the weight to be given to the sentencing objects of punishment, denunciation and deterrence should be moderated.

43. Her Honour concluded at [63]-[64]: The offender submitted that his mental illness enlivens the first, third and fourth of those principles. As to moral culpability, the offender submitted that his mental condition was significant and provided “almost a complete explanation” for his offending (principle 1). While I accept that the offender’s condition provides some explanation for the offence, I do not think that warrants any reduction in the overall sentence having regard to the very serious objective features of the offence. I have reflected that consideration primarily in the fixing of the non-parole period. As to the objects of sentencing, the offender submitted that his mental illness reduces the need for both general and specific deterrence (principles 3 and 4). However, as the Court of Appeal noted in McBride at [128], “a finding of reduced moral culpability does not necessarily require the weight to be given to general or specific deterrence to be reduced or eliminated”. As I will explain, I consider that both general and specific deterrence must be given some weight in the present case.

Ground 2: error in failing to find that the offender’s mental illness reduced the objective seriousness of the offence

46. The essence of this argument was that the appellant’s undoubted mental illness was necessarily relevant to an assessment of the objective seriousness of the offence.

47. Much emphasis was placed by the appellant’s counsel on the pathological nature of the infatuation that the appellant suffered. This was, counsel argued, quite different from what might ordinarily be understood of a person who is jealous, angry or possessive, the difference being that this was a diagnosed mental condition. Expressions of human emotion could be extreme, counsel argued, such as jealousy, possessiveness or rage, but if they were generated from ordinary human experience, and there was no evidence of mental impairment being causally related to those emotions, then a person is held to be responsible for their actions as though they are rational even though to an objective bystander they may appear to be irrational. That however was not the case here.

48. The appellant argued that the primary judge had wrongly failed to draw a distinction between male violence against women as a product of rational choice, and the offender’s violence against the victim as the subject of his infatuation, which was squarely the product of his mental illness. The appellant’s submission was essentially that the primary judge should have found that there was a causal relationship between the mental illness and the offending which had the effect of reducing the objective seriousness of the offending.

49. We observe that while in some limited situations mental illness might reduce the objective seriousness of an offence, it will not necessarily do so. Whether or not objective seriousness is reduced, when considering the nature and circumstances of the offence, as required by s 33(1)(a) of the Crimes (Sentencing) Act 2005 (ACT), the sentencing judge will balance the objective seriousness of an offence against any relevant subjective factors. Those factors will include the mental condition of the offender which is specifically required to be taken into account under s 33(1)(m) of the Sentencing Act.

50. The balancing of those factors will not necessarily result in a moderation of the sentence.

51. In relation to the second ground of appeal, an issue arose in the hearing of the appeal about the extent, if any, to which authorities in this jurisdiction were in conflict with New South Wales authority on the question of whether an offender’s mental state could inform the objective seriousness of an offence. The appellant submitted that the primary judge was wrong to adopt the reasoning of the New South Wales Court of Criminal Appeal in DS, which the appellant said was in conflict with the approach adopted by this court in R v Lindsay [2020] ACTCA 25. For its part, the respondent submitted that were this court to find any conflict between the two cases, then we should follow DS and find that on this point Lindsay was in error.

Ground 3: error in failing to apply a discount to the head sentence for the plea of guilty

75. The complaint under ground 3 was that the primary judge failed to take into account the appellant’s plea of guilty in determining the head sentence. Although there was no specific ground complaining that the primary judge had failed to take the appellant’s mental illness into account in determining the head sentence, there was a general complaint in ground 1 that the primary judge had erred in failing to reduce the sentence to take into account the reduction in moral culpability due to the offender’s mental illness.

76. The primary judge identified that some reduction was called for, in the light of both the appellant’s mental illness and his plea of guilty. However her Honour reflected reductions in relation to those matters not in the head sentence but in the non-parole period. For the reasons that follow, that was an error.

77. The first context in which these matters arose was in relation to a submission by the prosecutor that the offence warranted the application of the maximum penalty, namely imprisonment for life. In relation to that submission, her Honour noted at [27] of the primary judgment: … [I]n my assessment, the murder of Ms Choden was an offence of the utmost gravity. I accept the submission of the prosecutor that, objectively, the offence is so grave as to warrant the imposition of the maximum penalty. However, the prosecutor also acknowledged, and I accept, that because of the guilty plea and the need to take into account the offender’s mental health at the time of the offence, a sentence of life imprisonment should not be imposed.

78. The effect of this was to recognise the significance of the guilty plea and the offender’s mental health issues as being relevant to the head sentence which, taking into account those matters, would be reduced from the maximum available sentence.

79. However, when her Honour went on to deal specifically with the mental health issues, her Honour stated (at [63]): The offender submitted that his mental illness enlivens the first, third and fourth of those principles [of Verdins]. As to moral culpability, the offender submitted that his mental condition was significant and provided “almost a complete explanation” for his offending (principle 1). While I accept that the offender’s condition provides some explanation for the offence, I do not think that warrants any reduction in the overall sentence having regard to the very serious objective features of the offence. I have reflected that consideration primarily in the fixing of the non-parole period.

80. There seems to have been an acceptance by her Honour that the offender’s mental condition did justify some reduction in penalty, albeit that reduction would be reflected not in the head sentence but in the non-parole period.

81. When it came to discussion of the offender’s guilty plea, her Honour noted (at [80]-[81]): The offender pleaded guilty on 28 July 2025, about four weeks before the date scheduled for the commencement of his trial by jury. A sentence may be reduced in recognition of the utilitarian value of a guilty plea: Crimes (Sentencing) Act s 35(3). However, a significant reduction must not be made where the prosecution case was particularly overwhelming: s 35(4). The offender noted that, during the period before the plea was entered, the parties were investigating the issue of fitness to plead. I accept that he was entitled to seek and consider expert evidence on that issue and that that warrants some consideration: [R v Toumo’ua [2017] ACTCA 9] at [47]. The offender submitted that, as he entered his plea as soon that issue was resolved, a discount of 20% remains appropriate. I do not accept that submission. That would be a wholly excessive reduction in a matter of this kind. The offender further submitted that the entry of the plea, while later than a plea entered in the Magistrates Court or following criminal case conference, obviated the need for witnesses to give evidence and so still had some utilitarian value. I accept that to be the case, but it remains the fact that the prosecution case was overwhelming. I have allowed a moderate reduction in the non-parole period to reflect the plea of guilty.

Reduction in sentence for plea of guilty – the statutory scheme

84. Section 35 of the Sentencing Act provides: 35 Reduction of sentence—guilty plea (1) This section applies if— (a) an offender pleads guilty to an offence; and (b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment. (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement. Note For who may make a victim impact statement, see s 49. (3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. (4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong. (5) For subsection (2) (b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose. (6) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

85. Section 37 of the Sentencing Act provides: 37 Reduction of sentence—statement by court about penalty (1) This section applies if a court imposes a lesser penalty for an offence under section 35 (Reduction of sentence—guilty plea), section 35A (Reduction of sentence—assistance in administration of justice) or section 36 (Reduction of sentence—assistance to law enforcement authorities). (2) The court must state— (a) the penalty (including any shorter nonparole period) it would otherwise have imposed; and (b) if the lesser penalty is imposed under section 35A or section 36—the reason for the imposition of the lesser penalty.

86. It will be noted that although purporting to have imposed a lesser penalty on the basis of the offender’s plea of guilty, her Honour did not state the penalty she would otherwise have imposed. Adherence to s 37 is not only mandatory (“must state”), it is important for transparency and to demonstrate the utility of pleading guilty – see the explanatory statement to the Crimes (Sentencing) Bill 2005 (ACT). The appellant’s complaint in relation to Ground 3

87. The appellant advanced two complaints under this ground.

88. First, it was argued that her Honour had erred in finding that the prosecution case was overwhelming. Her Honour had overlooked the fact that the appellant had available to him a partial defence of diminished responsibility. The strength of the prosecution case had to be assessed taking into account not only the actus reus of the offence but also the mens rea. While the evidence establishing the appellant’s conduct was overwhelming, the fact supported by the expert evidence that the offender’s mental responsibility for the offence was substantially impaired by his mental illness meant that the evidence of mens rea was not overwhelming.

Consideration Scheme of the Sentencing Act

93. We are of the view that to apply a discount for a plea of guilty only to the non-parole period and not to the head sentence is contrary to principle and constitutes an error which calls for the present sentence to be set aside.

94. Section 10(2) of the Sentencing Act provides: (2) The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.

95. Non-parole periods for sentences of imprisonment are dealt with in another part of the Sentencing Act. Section 65 of the Sentencing Act provides that in certain situations the court must set a non-parole period during which the offender is not eligible to be released on parole. The non-parole period is in effect an instruction to the executive government. The executive may not grant parole until the expiration of the non-parole period. However, after the expiration of the non-parole period, whether or not to grant parole is a matter for the executive.

96. The scheme of the Sentencing Act makes it clear that the primary obligation for the court is to impose a head sentence that is appropriate. That head sentence is to be reached by the process of instinctive synthesis, which takes into account all relevant factors in arriving at a head sentence. Instinctive synthesis applies to the head sentence

97. As McHugh J, an early proponent of instinctive synthesis (see AB v The Queen [1999] HCA 46; 198 CLR 111 at 120-123 [13]-[19]) explained in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51], this is what is meant by the term: By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.

98. His Honour added at [73]-[74]: The use of the word "synthesis" in the context of sentencing identifies the very last part of the process. It recognises that, where a variety of considerations, often tending in opposing directions, operate in the context of a statutory maximum, there must finally be a quantification of the sentence to be imposed. There must be a synthesising of the relevant factors. In that process, greater and lesser weight will be allocated to some factors depending on their relevance to the person convicted and his or her crime. Ultimately, community and legal values are translated into a number of years, months and days. That process must involve an instinctive judgment. As Mason CJ, Brennan, Dawson and Toohey JJ said in their joint judgment in [Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465]: "[S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. 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 guideposts to the appropriate sentence but sometimes they point in different directions." (emphasis added [by McHugh J]). Nor is the instinctive synthesis approach inconsistent with awarding a discount for some factor, provided that discount relates to a purpose distinct from a sentencing purpose. The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice. That said, I think the use of discounts should be reserved for only one – maybe two – factors in a particular sentence that serve some goal other than a sentencing goal. (Footnotes omitted.)

The role of the non-parole period

101. As pointed out by Mason CJ and McHugh J in Bugmy v The Queen [1990] HCA 18, 169 CLR 525 at 531: [T]he considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.

102. As this Court noted in Heard v The Queen [2015] ACTCA 6 at [49]-[51]: The purpose of a non-parole period was referred to by Barwick CJ and Menzies, Stephen and Mason JJ in Power v The Queen (1974) 131 CLR 623 at [10], in these terms: “To provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, where appropriate, once the prisoner has served the minimum period that the judge determines justice requires that he must serve having regards to all the circumstances of the offence.” Sentencing judges have a wide discretion in the setting of a non-parole period. The sentencing task is to set an “appropriate relationship” between the head sentence and the non-parole period. In Inge v The Queen (1999) 199 CLR 295 at [59] Kirby J discussed the requirement of a ‘proper proportionality’ between the non-parole period and the head sentence, in these terms: “In the ordinary case, where a head sentence comprises a determinate period in the prison, the non-parole period will constitute a substantial part of that sentence. . . The achievement of a proper proportionality between the head sentence and the non-parole period is a judicial obligation. However, even in the majority of cases where the head sentence is one for a determinate period it is recognised that proportionality is something that cannot be reduced to a mathematical formula (footnotes omitted).” What constitutes an appropriate relationship between the head sentence and the non-parole period depends on the circumstances of the particular case. Non-parole periods are not assessed mathematically by reference to some norm or usual ratio to the head sentence. In fixing a non-parole period, a sentencing judge takes into account all of the considerations which are relevant to the setting of the head sentence, but the weight attached to these factors and the way in which they are relevant will differ. Generally speaking, an offender’s prospects of rehabilitation will be given significant weight in the determination of a non-parole period.

103. The purposes of the sentencing exercise in setting the non-parole period are different from those concerning the head sentence. The minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole: Bugmy at 538 per Dawson, Toohey and Gaudron JJ. As their Honours noted at 537: Although Brooking J [the primary judge] clearly gave detailed consideration to the task he had to perform, it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term.

Error has been established

107. The plea of guilty entered by the appellant was an important matter to be considered in the instinctive synthesis of the head sentence.

108. We do not accept the argument of the respondent that the words “(including a shorter nonparole period)” in s 35(3) justify a sentencing judge only taking a plea of guilty into account in relation to the non-parole period. Rather those words make it clear that a plea of guilty may also be taken into account in setting the non-parole period. To construe the words in any other way would be to depart from the fundamental obligation of instinctive synthesis which bears primarily upon the head sentence.

109. It has accordingly been established that the primary judge was in error in failing to take the plea of guilty into account in arriving at the head sentence and only taking it into account in relation to the non-parole period. The error was exacerbated by her Honour’s failure to identify in terms of s 37(2) of the Sentencing Act the sentence she would otherwise have imposed. Did the primary judge fail to take into account the mental illness of the appellant on the head sentence?

110. As pointed out above, her Honour accepted in two places in her judgment that the appellant’s mental condition justified a reduction in penalty. First, she accepted at [27] that because of “the need to take into account the offender’s mental health at the time of the offence” the maximum available sentence of life imprisonment should not be imposed. Secondly, at [63] her Honour accepted that the appellant’s mental condition should be reflected on sentence, albeit not in the overall sentence but only in the fixing of the non-parole period.

111. For reasons very similar to our conclusion about her Honour’s failure to take the plea of guilty into account on the head sentence, this was an error. A sentencing judge is specifically enjoined to take into account subjective factors relevant to an offender including the offender’s mental condition (see Sentencing Act s 33(1)(m)). These matters must form part of the instinctive synthesis of the head sentence. There is no basis for ignoring them in relation to the head sentence but taking them into account in relation to the non-parole period.

112. In the context of how to take into account Verdins factors in the process of instinctive synthesis, Nettle JA (as his Honour then was) noted in R v Howell [2007] VSCA 119; 16 VR 349 at [24]: So to say does not mean that the need for general deterrence and denunciation is reduced in every case in which it is shown that the offender's capacity to resist offending is reduced by some sort of psychological condition. Counsel for the Crown referred to the case of a sociopath, by which I took him in this context to mean an offender who harms other people for the fun of it, well knowing the nature and quality of his conduct and that it is wrong. He submitted that it surely cannot be the case that the need for general deterrence and denunciation is reduced in such cases. The point of Verdins is that each case depends upon its own facts and in particular on the nature of the mental condition in question. Accordingly it advances understanding little to conjecture that there may be some classes of sociopath whose conduct warrants the full weight of general deterrence and denunciation, for just as certainly there may be others whose mental condition and circumstances will be such as to warrant a sensible moderation of the need for general deterrence and denunciation. In each case it will depend on the facts. The theory and reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique, and in this case, in my view, it results in the need for amelioration of the need for general deterrence and denunciation.

Ground 4: the sentence was manifestly excessive

115. As we have found specific error and will have to resentence the appellant, is not strictly necessary for us to consider this ground. However in the re-sentencing exercise, the matters relied upon by the parties in relation to this ground, and the comparative sentences, will assist us in the sentencing task.

116. The principles concerning an appeal to this court against manifest in excess of sentence are well known and was summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:

The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:

• 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 (Dinsdale). • 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 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61]. • In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: 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].

117. The appellant conceded that he could only succeed on this ground if he could satisfy the court that the primary judge had imposed a sentence above the range of that which could be justly imposed. The appellant’s argument on this ground was largely directed to cases which the appellant argued were comparable cases that provided guidance towards an appropriate sentence in the present matter.

118. For its part, the respondent argued that there could be no doubt that the offending was vicious, terrifying and barbaric. The respondent relied upon what were described as unchallenged findings of the primary judge which included the following (at [30]-[35]):

• the killing was premeditated by at least a week. It could not be characterised as a spontaneous loss of control rather it was planned and “reflected calculation, self-focused rumination and a slow burning rage”;

• the appellant’s plan to commit suicide did nothing to lessen the objective seriousness of the offence;

• the attack itself was appalling because the appellant trapped the deceased in a locked room, the deceased would have been in the state of abject terror, she was not killed instantly but was defenceless against the weapon he used (his boning knife), the appellant stabbed the victim repeatedly in areas that were most likely to cause her death namely her neck and heart, and the appellant locked the room from the inside so no one could come to the victim’s assistance;

• the appellant intended to kill the victim; and

• the offence was committed at the victim’s place of work and circumstances which caused immense trauma to her workmates.

119. The respondent submitted that as the stabbing attack went on for a period of 7 minutes it was properly characterised as prolonged and sustained. The victim died in terror and pain fighting for her life.

120. Further, the respondent submitted, the appellant’s prospects for rehabilitation are guarded; particularly given that his pathological infatuation is apparently continuing.

121. The respondent for its part also put forward what it said were comparable cases. Comparable cases generally

122. It is to the comparable cases particularly relied upon by the primary judge and the parties that we now turn.

123. The limitations upon the use of comparable cases are well known. As this court said in The Queen v Omani [2022] ACTCA 4 at [57]: Although consideration of sentences imposed in comparable cases may be useful, care must be taken with respect to the range revealed by the cases referred to, noting that current patterns of sentencing do not cap the upper and lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [83]; and Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]. Further, care must be taken to consider whether cases referred to are truly comparable, given the objective and subjective differences between cases and the need to render individual justice: R v Todoroski [2010] NSWCCA 75 at [26]. See generally R v Duffy where this Court observed: “[92] Comparable cases from the relevant jurisdiction are of most interest because, even where the maximum available penalties in different jurisdictions are the same, 'unifying principles' may be expressed slightly differently and sentencing patterns may differ between jurisdictions. Further, a sentencing pattern that is disclosed by comparable cases from the relevant jurisdiction is not determinative because consistency in sentencing is not demonstrated by, and does not require, numerical equivalence: Hili. Nevertheless, current sentencing patterns can provide some evidence of the usual sentencing range and may provide some support for an argument that the sentence under appeal fell outside the available sentencing range.” Comparative cases relied upon by the primary judge

124. The primary judge found two cases put forward by the prosecution were “more relevant and provide better guidance as to the consistent application of principle in the present case”: at [79].

125. In R v Al-Harazi (No 7) [2017] ACTSC 350 the offender had murdered his wife who was the mother of their 3 children. The offender had stabbed the victim numerous times as she sat on her bed with their youngest child at her breast. He then attempted to blame the victim’s father and brother for the offence. The offender’s mental health was a factor as he had suffered depression, bouts of psychosis and a potential personality disorder. The sentencing judge accepted that the offender’s mental impairment affected his culpability to a small degree. There was no premeditation. The offender did not plead guilty prior to trial. The offender was sentenced to imprisonment for 30 years with a non-parole period of 21 years.

Comparative cases put forward by the respondent

127. The respondent put forward three cases as providing guidance as to current sentencing practices. Those cases were the two cases relied upon by her Honour – that is, Al-Harazi and Rappel – and Robertson v DPP [2024] ACTCA 26.

128. In relation to Rappel, the respondent conceded that there were in that case additional aggravating features to the offending, however the respondent submitted the case demonstrated that the current sentence was within an appropriate range.

129. In Robertson, the offender was the intimate partner of the victim. The offender stabbed the victim 11 times and inflicted burns upon her. The circumstances of the attempted murder were understandably described by the sentencing judge as horrific. There had been a degree of premeditation in the offence as the offender had been eavesdropping on phone conversations the victim was having before grabbing a knife from the kitchen and inflicting the stab wounds. He also used spray cans to inflict multiple serious burns. He had intended to kill the victim. The offence was committed in breach of a good behaviour order for an offence of common assault on the victim. For the offence of attempted murder he received a term of imprisonment for 27 years, with a non-parole period of 20 years. He had pleaded guilty. The sentence was upheld on appeal.

130. The respondent also relied upon cases from other jurisdictions. Bearing in mind the remarks in Omani cited above, we respectfully agree with the primary judge’s observation (at [75]) that “on the issue of current sentencing practices, it is appropriate to confine attention to decisions from the Territory.”

Comparative cases put forward by the appellant

131. The appellant put forward three comparative cases.

132. In R v Vosikata (No 2) [2016] ACTSC 391 the offender murdered a woman with whom he had had a brief relationship. The offender could not accept that the relationship was over and had begun to obsess about the deceased. He entered the deceased’s house in the early hours of the morning and attempted to perform an act of indecency. He later wrote a suicide note to the deceased, entered her apartment and strangled her to death, and performed sexual acts after her death. He pleaded guilty. He was sentenced to 22 years and 10 months’ imprisonment, with a non-parole period of 18 years and 4 months taking into account additional offences. He had no criminal history and there was no suggestion of mental impairment. There was a lack of premediation.

133. In Vojneski v The Queen [2016] ACTCA 57, the offender who was 28 years of age stabbed a boarder with whom he was in a relationship 15 times in the chest, heart, lungs and forearms. The offender’s actions were not entirely spontaneous: after obtaining the weapon from the kitchen he had time to reflect on his actions. The offender had taken advantage of the victim’s love of, and trust in, him to kill her in her own bedroom where she was helpless and unarmed. He intended to kill her. The offender suffered from psychosis at the time. The offender had a tendency to anger and had used knives to threatened and inflict harm. He pleaded not guilty and was sentenced at first instance following the guilty verdict with life imprisonment. On appeal he was resentenced to 19 years’ imprisonment with a non-parole period of 10 years. The court on appeal found that the absence of significant aggravating factors in the presence of mental illness that reduced moral culpability meant that the offence was not in the worst category of murder.

134. The appellant submitted to us that although the case of Vojneski had been relied on before the primary judge, her Honour had not referred to it in her sentencing remarks.

135. In R v Newby [2022] ACTCA 20, the offender and his ex-partner had been in a relationship and had a child together. The relationship became acrimonious and was ended by the ex-partner, although the offender struggled to come to terms with that. Both of them saw other people, but being the parents of the child remained in contact. The ex-partner formed a liaison with the victim, who went to the ex-partner’s home shortly after midnight. This was the first time they had met physically. The ex-partner locked the front door and after a time the two had sexual intercourse in the ex-partner’s bedroom. Unbeknownst to the ex-partner or the victim, the offender gained access to the ex-partner’s residence using his house key. He heard the ex-partner and the victim in the bedroom. He walked to the kitchen and removed a large knife from the kitchen drawer. He then went to the bedroom and switched on the light. The victim, who was naked, stood to face the offender at the foot of the bed. The offender immediately attacked him with the knife killing him in a frenzied attack. The victim was stabbed 37 times. The ex-partner had been looking on in horror. There was an absence of remorse. The offender originally offered to plead guilty to manslaughter but entered a plea of guilty to murder two months prior to trial.

Consideration

141. This matter is a good illustration of the warnings given by the High Court and this Court about the use of comparative sentences. As was said in Omani, care must be taken to consider whether cases referred to are truly comparable, given the objective and subjective differences between cases and the need to render individual justice.

142. Nevertheless, we consider that the cases of Rappel, Robertson and Newby provide the best comparisons to the present matter. Of course, points of difference exist. Individual sentences are not in themselves precedents.

143. Of the cases considered, Vojneski which was relied upon by the appellant seems to be somewhat of an outlier. That was a case that must be considered to have been decided on its particular facts and circumstances.

144. The issue we have identified with the sentence imposed by her Honour requires us to embark upon a resentencing exercise. In doing so, we have regard in particular to the comparative cases we have identified as being the most useful.

Conclusion: Re-sentencing

145. The head sentence and non-parole period imposed by the primary judge must be set aside and the appellant must be resentenced by this Court.

146. In doing so, we note and accept the primary judge's conclusion that the offender’s mental illness reduced his moral culpability. This reduced moral culpability will be taken into account in fashioning the head sentence.

147. We also note and accept the primary judge’s conclusion that the offender’s plea of guilty had utilitarian value which should be recognised on sentence. Again, this will be taken into account in arriving at the head sentence. We observe that, given it was reasonable for the appellant to explore through expert evidence the possibility of a plea of diminished responsibility, the plea entered was not especially late: cf R v Toumo’ua [2017] ACTCA 9 at [47].

148. Further, even if the case was overwhelming, the utilitarian value may be recognised: cf Coggan at [16]. In this regard, the appellant argued that the case should not be regarded as overwhelming as the evidence suggested that the appellant had available to him a partial defence of diminished responsibility. Given that the appellant pleaded guilty having had the benefit of Dr Carroll’s various reports, we do not accept this argument, and we do view this case as one of the comparatively few cases where the case was overwhelming. Nevertheless, a discount in the range of 10% for the utilitarian value of the plea is reasonable.

149. We accept the primary judge’s finding that this was an offence of the utmost gravity for the reasons set out at length sentencing remarks at [29]-[36]. None of those matters was subject to challenge either on sentence or on appeal.

150. It is implicit in her Honour’s remarks (at [68] et seq) that the remorse expressed by the appellant was limited. We agree. Further, we agree with the primary judge’s conclusion that the appellant displayed a troubling lack of insight into his offending. This is relevant to the risk of reoffending. Although the appellant’s major depressive disorder is in remission, his obsessive infatuation with the woman he murdered continues.

151. These factors must now all be considered to produce a resentence. Based on her Honour’s assessment and the comparative cases, a starting point of 30 years’ imprisonment is reasonable. Applying a discount of approximately 10% for the utilitarian value of the plea of guilty, and applying a further adjustment to the head sentence to recognise the appellant’s reduced moral culpability, a head sentence of 26 years and 6 months’ imprisonment is produced.

152. In relation to the non-parole period, again regard must be had to the objective seriousness of the offence and the circumstances in which it was committed, the guarded prospects for rehabilitation and the sentencing purposes set out in s 7 of the Sentencing Act; including in particular making the appellant accountable for his actions, denouncing the conduct of the appellant, and recognising the harm done to the victim, her workmates and the general community. The appropriate non-parole period, constituting the minimum period of imprisonment justice requires to be served, is 18 years’ imprisonment.

Orders

154. The orders of the Court are: (1) The appeal is allowed. (2) The sentence imposed by the primary judge is set aside. (3) The respondent is re-sentenced to 26 years and 6 months’ imprisonment, to commence on 18 December 2023 and ending on 17 June 2050. (4) A non-parole period of 18 years is to apply, commencing on 18 December 2023 and ending on 17 December 2041.

I certify that the preceding 154 numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: