1 The appellant, Benjamin James Wilson, pleaded guilty in the Supreme Court on 12 March 2009 to one count of defensive homicide. He was sentenced to a term of ten years' imprisonment with a non-parole period of seven years. The sentencing judge declared that, but for the plea of guilty, he would have received a total effective sentence of 12 years with a non-parole period of ten years.

2 In brief, the circumstances surrounding this offending were as follows. On Sunday 22 July 2007 the appellant, together with a friend, went to a boarding house in Jackson Street, St Kilda, which was where the deceased, Setla Hung, resided. The appellant spent the afternoon drinking and became intoxicated and argumentative. A violent confrontation took place after the appellant accused Mr Hung of stealing the other tenants' food.

3 Mr Hung struck the appellant on the head with an object, causing him to bleed. An ambulance was called. Despite this, the appellant left the boarding house covered in blood, and still bleeding profusely.

4 The appellant went to a crisis centre in Grey Street, St Kilda. He appeared agitated and, despite requesting the staff to ring an ambulance, he then left. Following this, he began to indulge in strange behaviour, such as jumping out in front of passing motorists and pedestrians with the apparent object of frightening them. He also left a series of bloodied handprints on various fences. The appellant then continued towards nearby Fitzroy Street, where he was seen to be drunk, aggressive and abusive to patrons. He was also observed to pick up a partition and throw it onto the ground.

5 The police ultimately located the appellant, who acknowledged his intoxicated state and the consequences of his being in that condition. He asked the police to handcuff him, telling them that he was a 'bad drunk'. He was duly arrested and transported by ambulance to the Alfred Hospital.

6 The appellant was breathalysed at the hospital and found to have a blood alcohol level of .017. Once again, he left the hospital before he could be treated. He then returned to the house in Jackson Street. His discharge from the hospital was noted on its records as having occurred at 8.01pm.

7 At about 8.30pm, a number of boarding house residents heard an altercation which appeared to come from the corridor. The words 'die, die, die, cunt' were repeated. There were no witnesses to what took place in the hallway. The first person to observe anything was a resident who came out of his room and saw Mr Hung lying face down in the hallway in a pool of blood. The police and ambulance were contacted and Mr Hung declared dead at 8.47pm.

8 In the interim, the appellant had left the Jackson Street premises and gone to the home of a friend, Charlie Lye. He told Mr Lye that he had stabbed a man in the throat, and killed him. On the way to Mr Lye's home, the appellant had buried the knife in the garden of a St Kilda property. Mr Lye described the appellant as having appeared to be drunk and psychotic. The appellant then showered, changed his clothes and stayed the night. He left the next morning and returned to his residence in Collingwood. Shortly thereafter, he was arrested.

9 The appellant showed the police where he had discarded the two T-shirts that he had been wearing on the previous day. He also showed them where he had disposed of the knife. He was questioned later that night in the form of a record of interview.

10 The post mortem revealed seven stab wounds to the face, neck and upper back of Mr Hung. The majority of these extended only to the subcutaneous tissue. However, two were more serious, one extending through the ribs and into the pleural cavity and the other, a wound to the neck which had severed the right jugular vein. It was this latter wound that was the likely cause of death. Expert opinion was that it had been inflicted with a moderate degree of force.

11 There are two grounds of appeal. The first is that the sentencing judge erred in her classification of the comparative seriousness of the offence of defensive homicide. The second is that the sentence imposed was manifestly excessive.

12 In relation to ground 1, it was submitted that the appellant's conduct in relation to this particular offence should be regarded as falling at the lower end of the spectrum. On the other hand, the Crown submitted that this was a serious example of defensive homicide, putting it at the higher end of defensive homicide cases.

13 The primary submission in support of ground 1 was that the appellant fell to be sentenced on the basis that he had been wrestling with Mr Hung who was himself armed with the knife used to bring about his death and that he stabbed Mr Hung intending not to kill him but only to cause him really serious injury. Support for that submission was drawn from her Honour's comments at [23] of her sentencing remarks where she said:

The Crown cannot disprove that Mr Hung produced the pocket knife, and in these circumstances I cannot be satisfied that your intention was to kill Mr Hung, and accordingly I proceed on the basis that in wrestling with the knife you stabbed the deceased with the intention of causing him really serious injury in the belief that it was necessary to do so in self-defence, but that there were no reasonable grounds for such belief.

14 Next, it was submitted that the sentencing judge had accepted that the appellant had, at all times, believed that his actions were necessary in order to defend himself. In that regard, it was noted that he was not sentenced upon the basis that he had produced the weapon during the confrontation, but rather that it was Mr Hung who had done so.

15 Reliance was also placed upon the fact that Mr Hung had previously injured the appellant, causing him to sustain heavy bleeding from a head wound.

16 Finally, it was noted that there were only a total of seven stab wounds to Mr Hung's body, and five of these were of a relatively insignificant nature.

17 It was submitted that when all of these factors are taken into account, this particular case involved a lesser degree of moral culpability on the appellant's part than the sentence itself reflected.

18 The Crown replied by submitting that the sentencing judge had been entitled to characterise the offending as a serious example of defensive homicide on the basis that the appellant had returned to the boarding house seeking the confrontation after leaving the premises quite some time earlier in order to obtain treatment for his head injury. Moreover, the appellant was affected by alcohol and well aware of the effect that it had upon him. Indeed, he had told the police that he was a 'bad drunk' earlier in the day.

19 The charge upon which the appellant was presented read as follows:

[The appellant] at St Kilda in the said State on the 22nd day of July 2007 carried out conduct which killed SETLA HUNG in the belief that it was necessary to carry out the conduct which killed SETLA HUNG in order to defend himself from the infliction of death or really serious injury in circumstances where [the appellant] did not have reasonable grounds for this belief.

These are, of course, the elements of the offence of defensive homicide. They are relevant to the issue raised on the appellant's behalf in ground 1, that being the argument as to the comparative seriousness of his offending.

20 Counsel submitted that it was significant that the sentencing judge had accepted that the appellant genuinely believed that his actions were necessary in order to defend himself. That, it was submitted, was an ameliorating factor when compared with cases where such a positive finding cannot be made but the appellant is given the benefit of the doubt in that respect. Counsel relied in that regard upon the decision of this Court in Director of Public Prosecutions v Edwards.[1]

21 As regards the ameliorating effect of the appellant's subjective belief that he was in danger of being killed or really seriously injured, counsel referred to [36] in Edwards. Hansen AJA (as his Honour then was) stated:

The plea of guilty meant, and the respondent was sentenced on the basis, that in carrying out the conduct which killed O'Neill, the respondent had a subjective belief that it was necessary for him to carry out such conduct to defend himself from the infliction of death or really serious injury. The fact of that subjective belief was significant, and meant that the respondent's case should not have been regarded as falling within the most serious example of this type of offence.[2]

22 The passage in question constituted a summary by his Honour of one aspect of the respondent's argument in Edwards. It was no more than that. Accordingly, it cannot be relied upon to establish that the existence of a subjective belief of that kind should be viewed as a significant mitigating factor when it comes to evaluating the gravity of any particular case of defensive homicide.

23 Nonetheless, and putting Edwards to one side, the appellant in the present case relied upon various passages in her Honour's sentencing remarks which, he submitted, showed that she had accepted that he had genuinely believed that what he was doing was necessary in order to defend himself. This was said to put the present case into a less serious category than one where no such positive finding could be made.

24 Considering that it is a necessary condition of the offence of defensive homicide that the offender kills another in circumstances that, but for s 9AC of the Crimes Act 1958, would constitute murder (provided that he or she did not have reasonable grounds for the belief referred to in that section), and the belief in question is that it is necessary to defend oneself from the infliction of death or really serious injury, there is little scope for such a belief to be regarded as in any way mitigating the gravity of the offence. The allegation that the appellant had such a belief was, of course, specifically pleaded in the indictment, as it had to be. Accordingly, the sentencing judge could hardly have done otherwise than to act upon the basis that he had that belief. Had the appellant done what he did without such a belief, the offence would have been one of murder and not defensive homicide.

25 There was, of course, no evidence as to the appellant's state of mind at the time of the altercation with Mr Hung, other than what he told the police in his record of interview. The Crown must have accepted that it might not have been able to prove that he held no such belief. Otherwise, it would hardly have been likely to have accepted his plea of guilty to the lesser offence.

The maximum penalty for the crime of defensive homicide is 20 years' imprisonment. It is a serious offence and, in my view, your offending is a serious example of it. Although you were responding to the production of a knife and I accept that there is no evidence that you took a knife with you, it was you who returned to the boarding house angry and drunk and apparently intent on some confrontation which resulted in the production of a knife.

You responded in circumstances where your judgement was clouded by alcohol and when you knew that when affected by alcohol you were an aggressive drunk. It is in this context that you effectively created the circumstances that resulted in the need to defend yourself.

27 Her Honour acted on the basis that she could not be satisfied that the appellant intended to kill Mr Hung. She also proceeded on the basis that the Crown could not disprove the appellant's claim that it was Mr Hung, and not the appellant, who had produced the knife. She was, however, satisfied that the appellant stabbed Mr Hung with the intention of causing him really serious injury.

28 As a result of discussions that took place during the hearing of the appeal, counsel for the appellant sought, and was granted, an opportunity to review the authorities, and to make further written submissions in support of his argument that an intent to cause really serious injury, in a charge of murder (and by analogy also in a charge of defensive homicide), rather than an intent to kill, should be viewed as a mitigating factor when considering the nature and seriousness of the offending.

29 Subsequently, counsel for the appellant provided the Court with a supplementary submission. The Crown notified the Court that it did not seek to make any submission in response.

30 In his supplementary submission, counsel referred to a number of decisions of this Court, none of which, he frankly conceded, supported his primary argument.[3] In all of these cases, it was sought to be argued that an offender who had been convicted of reckless, rather than intentional, murder, should be viewed as having a lesser moral culpability. In every one of these cases, that argument was rejected.

31 Importantly, for present purposes, in Barrett v R[4] this Court held that a person convicted of reckless murder on the basis of foresight that his actions would result in really serious injury was no less culpable than a person convicted of reckless murder on the basis of foresight that what he did would probably lead to death.

32 In Barrett[5] the Court referred with approval to R v Aiton[6] and cited the following passage from that judgment:

There is no basis, of which we are aware, in the practice of the Court for the acceptance of the view that any such distinction exists, and none in principle why it should. As earlier pointed out, the High Court in Crabbe's case made it clear that no assessment can be made of the level of moral culpability attached to a person who commits the crime of murder by reference simply to the category of malice involved. Obviously each case must be considered in the light of its own particular relevant facts. [7]

In our view her Honour's reference to the appellant's foresight of serious injury causing death was simply an allusion to the fact that the victim did in fact die. However even if that was not what her Honour meant, in the circumstances of this case we do not consider that there was any significant distinction in moral culpability between the appellant foreseeing the probability that he would cause really serious injury to the victim and foreseeing the probability that if he continued to assault her, she would die. [9]

34 Counsel did note, however, that there were some cases where sentencing judges in the Trial Division of this Court appeared to have distinguished between an intention to kill and an intention to cause really serious injury when considering the moral culpability involved in the particular offence in question.

35 Counsel referred to R v Baker[10] where the sentencing judge was said to have approached the matter of moral culpability, in relation to the offence of murder, on the basis that a lack of intention to kill, but merely an intention to cause really serious injury, was in some way mitigatory.

36 It was submitted that some support for that approach could be gleaned from the judgment of Eames JA in Director of Public Prosecutions v Heblos[11]. On the other hand, given the shocking nature of the injuries in that case, that finding did not prevent Eames JA from describing the case as falling into a category of one of the worst cases of its kind. Brooking JA also described it as a very bad case of murder.

37 Counsel noted that in relation to the new offence of defensive homicide, sentencing judges in the Trial Division had on two occasions, when considering the gravity of the offending, drawn a distinction between an intention to kill and an intention to cause really serious injury.[12] In one of those cases, at least, though the distinction was drawn, little if anything appeared to have been made of it.[13]

38 In our view, the suggestion that a finding of an intent to cause really serious injury rather than an intent to kill, significantly mitigates the seriousness of the offence, and helps to place it at the lower end of the scale of seriousness, cannot be accepted. Murder can be proved either by the establishment of an intent to kill, or by proof of an intent to cause really serious injury. The same is true of defensive homicide.

39 Notwithstanding the examples of sentencing remarks at first instance to which counsel for the appellant properly drew our attention, it is rare, in our experience, for a sentencing judge to embark upon the task of distinguishing between an intention to kill and an intention to cause really serious injury when determining the level of moral culpability once the offence of murder has been proved. In general terms, the same approach should be taken when sentencing for defensive homicide. To do otherwise would offend the reasoning underlined in decision of this Court in Barrett v R[14].

40 Accordingly, it is our view that the sentencing judge was fully entitled to make the finding that she did in relation to seriousness of the offending in this case. Ground 1 therefore fails.

41 Ground 2 was argued essentially on the basis that this was a heavier sentence than that imposed in other cases of defensive homicide. It must be noted, however, that defensive homicide is a relatively new crime in this State. To this stage, there have been only 11 other sentences imposed for this offence.

42 Edwards[15] is, it seems, the only case in which this Court has thus far considered the principles which should govern sentencing for defensive homicide. It involved a Crown appeal against the inadequacy of a sentence of ten years, with a minimum term of eight years. The Court in Edwards considered and rejected a submission that the same approach should be taken to sentencing for defensive homicide as was generally adopted in relation to manslaughter. Hansen AJA, in comparing the two offences, and accepting the Crown's submission that manslaughter cases were not an appropriate reference point, said:

.... First, there was a danger in regarding a sentence for manslaughter as analogous to defensive homicide, by reason of the different requirements for the offence of defensive homicide and the relative seriousness or criminality of the varying types of manslaughter. As to that, Nettle JA referred to the range of manslaughter cases in R v Casey thus:

1. The maximum penalty for the offence of manslaughter is 20 years' imprisonment and the most serious cases of manslaughter are liable to attract a penalty of 15 years' imprisonment or more. Such cases involve death caused by acts committed with intent to kill or inflict really serious injury, which, but for provocation, would be murder. Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47 at 68, per Windeyer J; R v Osip [2000] VSCA 237; (2000) 2 VR 595 at [46]. At the other end of the spectrum there are cases of accidental homicide the result of nothing more culpable than momentary neglect, which, depending upon the facts and circumstances, may attract a short sentence of imprisonment or perhaps even a non-custodial penalty. Between those extremes lies a broad range of cases, of both voluntary and involuntary acts of homicide in a wide spread of circumstances, attracting a range of penalties that is very wide indeed. [16]

43 In Edwards, the Court accepted that the facts of that case put it into a category of being near the worst of its type. Hansen AJA identified a series of factors which were relevant when assessing the objective gravity of the offence. The case had a number of aggravating factors, including the fact that the respondent's conduct was grossly disproportionate to the threat he received, a number of the injuries were inflicted after the victim lost consciousness, and the respondent not only lied about his own involvement, but pressed his son to support him in that lie. In addition, the respondent was, at the time, on parole for armed robbery and had an extensive criminal history, including offences involving violence and weapons.

44 Nonetheless, the Court declined to intervene in the sentence imposed, and ordered that the appeal be dismissed in the exercise of its discretion. It did so, in part, on the basis of double jeopardy, a matter that would now no longer be taken into account.

Doubtless it is axiomatic, but it is important to keep in mind that the offence is defensive homicide (which but for the subjective element would be murder), and the fact that the legislation provides for the same maximum penalty for defensive homicide and manslaughter should not blur the lines between the two. Moreover, in relation to the maximum penalty and its significance in sentencing, it is important to keep in mind the statements in R v AB (No 2). In a sense, sentencing practice in defensive homicide cases may be regarded as in its infancy, and the present case may provide some guidance for the future. In the present appeal, where sentencing practice was not a specific ground of appeal and the sentences in the other defensive homicide cases were not the subject of attack, it is neither desirable nor appropriate to consider the matter of sentencing practice, such as it is, in defensive homicide cases. The task is confined to the present case, and this judgment is to be understood accordingly.[17]

46 Whilst the Court dismissed the Crown appeal in Edwards, it made clear the seriousness with which defensive homicide should be viewed. Hansen AJA stated:

Yet allowing for all of this the sentence imposed was so disproportionate to the seriousness of the offence as to shock the public conscience and be manifestly inadequate. It seems reasonable to suppose that the learned judge started from a base that was too low having regard to the seriousness of the offence and the considerations expressed in R v AB (No. 2). Considerations of general and specific deterrence, denunciation, the need for a punishment that was just and appropriate in the circumstances including considerations of the sanctity of human life and community protection, required a sentence of greater magnitude.[18]

47 Returning to the facts of the present case, the appellant relied upon various mitigating factors, which he submitted had not been given sufficient weight. These included his plea of guilty, the early stage at which the offer to plead guilty to defensive homicide was made, his remorse, his limited prior convictions, his relative youth (he having been aged 24 at the time of the offending), his troubled psychological background (including self-harm and attempted suicide), and his attempts at and prospects for rehabilitation. He also relied upon Renzella[19] time of five months, given that he had served another sentence whilst on remand for the present offence.

48 The evidence of the appellant's drug and mental health history, and the views of Dr Danny Sullivan, were referred to by the sentencing judge in her reasons for sentence. She concluded that the appellant did not suffer from any psychiatric illness, but had suffered drug-induced psychosis in the past. Equally, in respect of the prospects of rehabilitation, her Honour stated:

Dr Sullivan is of the opinion that you would benefit from long-term drug and alcohol input, in particular that you should attend Alcohol Anonymous while in prison and that upon your release, you should undergo sustained drug and alcohol counselling and abstinence from substance abuse. If not, in his opinion, your "Psycho-social adjustment and prognosis will be poor." Dr Sullivan describes you as "Insightless as to the severity of your problem."

The other matters upon which the appellant relied were all individually referred to by her Honour. She said that she had taken those matters into account when imposing sentence, and there is no reason to doubt that she had done so.

49 It must be remembered, when considering whether this sentence was excessive, that the appellant had previously left the boarding house, and chose to return to that location in an angry and intoxicated state. He was plainly intent on some form of confrontation with Mr Hung.

50 As the sentencing judge correctly observed, defensive homicide is a very serious offence because it requires the formation of an intention to kill or to inflict really serious injury. Her Honour correctly gave the appellant the benefit of not utilising his words 'die, die, die, cunt' as establishing an intention to kill because she could not be satisfied whether those words were said before, during or after the infliction of the injuries. In the context of this case, and for the reasons set out above, that counted for very little.

51 In light of all of these circumstances, the argument that the sentence imposed by her Honour was manifestly excessive cannot be sustained. The appeal must be dismissed.

[1] [2009] VSCA 232 ('Edwards').

[3] R v Aiton (1993) 68 A Crim R 578, 597-598; R v Lindrea (unreported Court of Criminal Appeal 4 August 1994) and Barrett v R [2010] VSCA 133 [18]-[31].

[4] [2010] VSCA 133 (Maxwell P and Neave JA with whom Nettle JA agreed).

[6] (1993) 58 A Crim R 578

[8] Barrett v R [2010] VSCA 133.

[10] [2008] VSC 390.

[11] [2000] VSCA 229; (2000) 117 A Crim R 49, [13]-[15].

[12] R v Wilson [2009] VSC 431 at [23]; R v Croxford and Doubleday [2009] VSC 516 at [18].

[13] R v Croxford and Doubleday [2009] VSC 516 at [18]

[14] [2010] VSCA 133.

[15] DPP v Edwards [2009] VSCA 232.

[19] R v Renzella [1997] 2 VR 88