CRIMINAL LAW - Sentence - Applicant sentenced to total effective sentence of 17½ years' imprisonment with non-parole period of 14½ years - Sentencing judge intended to fix 'relatively short' non-parole period - Whether he did so - Whether sentence manifestly excessive - Whether sentencing judge erred in sentencing the applicant on the basis of reckless indifference to human life - Application for leave to appeal against sentence granted - Appeal allowed - Sentences imposed below and order for cumulation confirmed - Non-parole period reduced to 13½ years.

1 I have read the reasons for judgment of Bongiorno JA, and respectfully agree with them. I add, simply to underline what should otherwise be obvious, that the non-parole period which Bongiorno JA proposes is not premised upon the non-parole period fixed by the learned sentencing judge being manifestly excessive, but rather upon there being a disconformity between what his Honour said that he would do and what he in fact did. There is a relevant similarity between this case and Diver v The Queen,[1] where I attempted to make it clear - perhaps I did not do it well enough - that the challenge to the non-parole period was being upheld on the basis of specific error.

2 In 1981, the Victorian Parliament passed the Crimes (Classification of Offences) Act 1981 which abolished the legal distinction between felony and misdemeanour - the historical common law classification of indictable offences. Consequent upon that abolition, the same statute provided for a statutory form of constructive murder to deal with those cases previously rendered criminal by what was known as the 'felony-murder' rule. Hence, s 3 of that Act inserted s 3A into the Crimes Act 1958. In its current form, that provision is as follows:

3A Unintentional killing in the course or furtherance of a crime of violence

(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.

3 Although s 3A originated in the felony-murder rule, its application now depends solely on its proper construction as a criminal statute. Thus, for an accused to be convicted of this form of murder, the Crown must prove that he or she:

(d) done in the course of or in furtherance of a crime, a necessary element of which was violence and which carried a maximum penalty of imprisonment for life or for at least 10 years.

4 The Full Court (Murphy, Murray & Gobbo JJ) in R v Butcher[3] considered at some length the elements of the crime created by s 3A. In particular, it explained that:

...the word 'violence' where it is used in s3A is not to be understood to refer only to physical force but rather to include those aspects of intimidation and seeking to intimidate by the exhibition of physical force or menaces as in the past have been considered to constitute violence.

When the words 'act of violence' and 'crime the necessary elements of which include violence' are used in s3A, violence is used in a descriptive sense. 'Act of violence' means an act of a violent kind, for there is no legal definition of violence as such inside or outside which any particular act or threats may be said to fall. Nor is there any common law crime in which violence is by definition an element.

This view is also consistent with violence as understood during the development of the English language. As a matter of etymology, violence is a word having its origin in the Latin violentia, often connoting vehemence or impetuosity. It is not synonymous with the use of physical force, although physical force falls within its meaning. It is a word of wider significance in the law, as the cases show. Smith and Hall in their English-Latin Dictionary give as their first meaning of violence: 'inherent overpowering force, whether physical or mental'. In the Oxford English Dictionary violence is defined as follows: '(Law) unlawful exercise of physical force, intimidation by the exhibition of this.'

...

... it seems to us that if the word violence in the phrase 'act of violence' is understood to be used in its etymological sense and in the descriptive way that it has been used in the cases, and to embrace actual force used to overcome or nullify resistance and as well, threats or menaces to induce fear and terror or to intimidate in order to remove or nullify resistance, the phrase is apt to express the type of act which is required to call into play the felony murder rule under s3A.

Hobbes appears to have appreciated the difference between robbery and theft when he said: 'Robbery is committed by force, or terror; of which neither is in theft, for theft is a secret act.' To rob is said in the Oxford English Dictionary to mean 'to despoil by violence'.[4]

5 This judgment concerns an application for leave to appeal against conviction and sentence of Eyyub Bayram Zaim, who was convicted of the murder of a taxi driver, Rajneesh Joga. Mr Joga was fatally injured when he was jammed between the door of his taxi and its door pillar when the taxi collided with a tree. The Crown case was that at the time of or immediately before this event occurred the applicant tried to push Mr Joga out of his taxi so that he could steal the taxi from him. That is to say, he was trying to rob Mr Joga of his taxi, a crime of which one of the elements is violence which carries a penalty of level 4 imprisonment (15 years maximum).[5]

6 The chain of events which culminated in Mr Joga's tragic death began about 4.00 pm on 8 August 2006 when the applicant, who was affected by drugs, including methamphetamine (ice), stole a car from an acquaintance, Peter Kondogonis, in Footscray. After stealing some petrol from a service station the applicant drove towards Donvale. Why he did so has never emerged.

7 The applicant's erratic driving in the Donvale area aroused the interest of patrolling police who sought to intercept him. A chase followed in which speeds of 130 kph were attained both by the applicant and the police. The police were ultimately unsuccessful in apprehending the applicant and the chase was abandoned for public safety reasons.

8 Subsequently, whilst travelling south in Springvale Road, Nunawading, two tyres of the car driven by the applicant blew out causing him to abandon it and attempt to acquire another. He did this by threatening a motorist, one Christopher Blain, who thwarted his attempt to get into his Ford Telstar and take possession of it by locking the doors and driving off. The applicant then tried to obtain possession of another car - a Holden Statesman driven by Wallace McDonald. He jumped onto the bonnet of this car and banged on the roof but was unsuccessful in forcing his way in. He then crossed from the south bound to the north bound carriageway of Springvale Road by running down an embankment on the median strip. Upon entering the north bound carriageway he was struck by a car driven by Fiona Rogers, but was not seriously injured. He continued to run along Springvale Road and got into the taxi driven by Mr Joga, probably after hailing it, near the intersection of Springvale Road and Olwen Street.

9 What follows is the substance of the case advanced for the Crown on the count of murder.

10 After the applicant entered Mr Joga's taxi, it drove north towards the intersection of Astelot Drive and Springvale Road where it came to a halt in or in the vicinity of the intersection, probably in the gap in the median strip at that point. Automatic global positioning equipment and associated security cameras in the taxi recorded that it remained stationary in that position for about 33 seconds during which time its engine continued to run. During this time, a struggle for control of the taxi took place between the applicant and Mr Joga. Photographs automatically taken by the taxi security system show the applicant trying to push Mr Joga from the taxi. However, the taxi eventually moved into Astelot Drive (a residential street running east from Springvale Road) where, at some indeterminable point, the applicant succeeded in pushing Mr Joga into a position between the partly open driver's door and the inside of the vehicle. At some point in Astelot Drive, the taxi began rolling without power from its motor, although the motor kept running. It then veered off the roadway and struck or sideswiped a tree on the nature strip. This collision forced the driver's door against Mr Joga's body, crushing him between it and the B pillar of the taxi - the pillar between the front and back seats. This event caused Mr Joga very severe injuries. He fell to the ground as the taxi continued to move forward until it mounted a low line of rocks on the property line of a nearby house. The applicant then took control of the taxi and reversed it, colliding again with the tree against which Mr Joga had been crushed. The taxi then finally came to a stop.

11 Upon the taxi stopping, the applicant left it and engaged in some bizarre behaviour, including punching the ground with his fist and talking incoherently. He then attempted to drive away from the scene in a truck parked nearby which belonged to Roberto Orsillo. He was apprehended.

12 Mr Joga was conveyed to the Royal Melbourne Hospital suffering severe injuries to his head and abdomen, including fractures of his skull, ribs, vertebrae, left arm, left pelvis and right leg. He died early the following morning.

13 The applicant was tried before Harper J and a jury in the Supreme Court in August 2008 on a six count presentment which alleged one count of robbery (Mr Kondogonis' car), one count of theft (petrol from the petrol station), two counts of attempted robbery (Mr Blain's car and Mr McDonald's car), one count of murder (Mr Joga) and one count of attempted theft (Mr Orsillo's truck). He pleaded guilty to the theft of the petrol and to the attempted theft of Mr Orsillo's truck but otherwise pleaded not guilty. He was found guilty by the jury of theft in respect of Mr Kondogonis' car and attempted robbery in respect of Mr Blain's car, not guilty of attempted robbery in respect of Mr McDonald's car and guilty in respect of the murder of Mr Joga. He was sentenced to a total effective sentence of 17½ years' imprisonment with a non-parole period of 14½ years by Harper J.[6] He now seeks leave to appeal his conviction in respect of the murder of Mr Joga, and the sentences imposed for the murder and the attempted robbery in respect of Mr Kondogonis' car.

14 The applicant sought leave to appeal his conviction on three grounds, only two of which were pressed when the application was heard. The grounds pressed were:

Ground 2: The conviction on the count of murder was unsafe and unsatisfactory.

Ground 3: When redirecting the jury on the issue of causation, the learned judge erred in failing to direct the jury that:

(i) the Crown had to establish, beyond reasonable doubt, that the death was caused by an act of violence done in the course or furtherance of the crime of robbery pursuant to s 3A of the Crimes Act 1958; and

(ii) the said act had to be an operating and substantial cause of death.

15 Counsel for the applicant argued the unsafe and unsatisfactory ground by seeking to make good a submission that, on the evidence, there was a gap or a vacuum as to what happened between the applicant and the taxi driver after the taxi entered Astelot Drive. Thus, the Crown had not proved that the deceased died as a result of an act of violence performed by the applicant in the course of or in furtherance of the commission by him of the crime of robbery. This argument had formed the basis of a no case submission rejected by Harper J at the end of the Crown case.

16 Counsel relied, particularly, on the evidence of a passing driver, one Jane Bowden-Dodd whose account, he submitted, cast great doubt on the Crown case, which rested on the applicant having continued to push the deceased from the taxi whilst it traversed Astelot Drive and until he was pushed into the position he was in when the taxi rolled into the tree. The attempt to eject Mr Joga from his taxi constituted, on the Crown case, an act of violence performed in the course of or in furtherance of the crime of robbery.

17 The Crown case, as already outlined, rested on inferences which, the prosecutor argued, the jury could draw from the evidence of a number of witnesses who were in the area when the final events of this drama were played out and from photographic evidence produced by the taxi's security equipment.

18 A number of witnesses who were concerned with the actions of the applicant before he got to the corner of Springvale Road and Astelot Drive in the deceased's taxi gave evidence relevant to a number of the counts upon which the applicant was presented. Although they were only of peripheral relevance to the events by which Mr Joga was eventually killed, this evidence permitted the jury to infer an intention by the applicant throughout the saga played out in and near Springvale Road that he wanted to acquire a motor vehicle to replace Mr Kondogonis' which had become disabled in or shortly after the police pursuit and that he was prepared to use violence to so acquire one.

19 Jane Bowden-Dodd's evidence was directly relevant to the events leading up to the taxi entering Astelot Drive and colliding with the tree. She said she was in the far right hand lane of Springvale Road driving north some time after about 8.00 pm on 8 August 2006. She was travelling at about 60 kph or perhaps less when she saw Mr Joga's taxi stationary in the middle of Springvale Road. She described it as being 'parked on a sort of angle heading back south down Springvale Road'. She said the driver's door was open which is what caught her attention. She said she was driving towards the taxi and at one point she was right next to it. Ms Bowden-Dodd said that she could see that the driver was in the car and there was another male leaning over the driver struggling with him. She said she saw the driver's feet kicking out at the other male who was struggling with him. She gave a description of the man leaning over the driver as being of slight build, wearing baggy pants like jeans and a light coloured jumper with a hood or some sort of cap on his head. She thought he was in his late teens or early 20s. She said that the man that the driver was struggling with was standing outside the taxi. She said that when the driver kicked his leg out at that man, his leg came outside the actual carriage of the car. She said that she kept driving and saw the taxi driver drive off and into either Astelot Drive or Solson Street, a parallel street immediately north of Astelot Drive. Whether this observation was made directly or in her rear view mirrors (centre and side) is unclear. The last thing Ms Bowden-Dodd said she saw as far as the taxi was concerned was that the door was still ajar.

20 In cross-examination she repeated that one of the men was standing on the ground whilst he was struggling with the other one in the car and that when the taxi drove off she did not see where that man went but that he was not in the taxi.

21 An Astelot Drive resident Ms Helen McMillan, a registered nurse, gave evidence that upon hearing a 'crash' she and her husband went to investigate and saw a taxi in what she called 'a very unusual position'. She identified a police photograph of the taxi on the footpath of Astelot Drive with its rear against a tree as being what she saw. She said there was a male person wearing jeans with short cropped hair on the roadway of Astelot Drive yelling. She said he was very agitated and that he got down onto the road and began punching the ground. Ms McMillan said that subsequently she saw a body lying in the foetal position 'just to the front of the cab slumped on the pavement'. She could not tell if the body was male or female but the person was wearing a blue shirt and blue pants. She identified the position in which she saw the person in another police photograph. Both those photographs, and many others, were before the jury.

22 Ms McMillan examined the person she described and found a faint carotid pulse but, initially, no respiration. The person responded to auditory stimulation and then commenced shallow abdominal breathing. There was some blood around the mouth and on top of the head.

23 Ms McMillan's husband corroborated her evidence. He described the man on the roadway as being 'Middle Eastern'. He said the man was on the ground 'hitting his fist on the ground and saying various things'. Some of what he said was incoherent and he was not making sense. He was very agitated. There was some blood on his face and some on his shirt. Mr McMillan described the taxi as appearing as if it had reversed into the tree.

24 Another Astelot Drive resident, Andrew Tartaglia, gave evidence of his observations after he heard two crash sounds. Upon hearing the first of these sounds he went towards his front door, but before he got there he heard a second crash. Mr Tartaglia subsequently witnessed a man being pulled out of a truck which was parked in Astelot Drive. He also saw the owner of the truck pull his keys out as he pulled the man out. Earlier he had seen the same man pacing up and down the roadway of Astelot Drive.

25 Steven Buchanan gave evidence that at the relevant time he drove his truck into Astelot Drive and stopped some distance beyond the taxi. He described seeing a male running around in the vicinity of the scene who looked as if he was panicking. He spoke to him. He was slurring his words and talking very fast. He saw this man run towards the truck from which he, Mr Buchanan, had just alighted. He jumped into the driver's seat and attempted to drive away. The truck stalled and Mr Buchanan and another man opened the door and pulled the handbrake on whereupon the man jumped out and landed on the road.

26 Mr Buchanan's companion, Roberto Orsillo, the owner of the truck, corroborated his evidence. He described the attempt by the man who had been on the roadway to steal the truck from which he, Mr Orsillo, had just alighted with Mr Buchanan. This man was, quite clearly, the applicant.

27 Senior Constable Geoffrey Draper, a vehicle collision expert, gave evidence that the taxi had initially collided with the tree whilst the driver's side door was open and that the injuries to Mr Joga's body found by the pathologist at post-mortem were consistent with his having being jammed between the open door and the B pillar of the taxi at the time the collision occurred. In his opinion, the taxi had mounted the kerb of Astelot Drive without being under power and probably at a speed of 30 kph or less whilst not being actively steered. He said that after the vehicle had struck the tree it proceeded in a forward direction. It was subsequently reversed and again struck the tree, this time with its rear bumper bar. None of this evidence, including the fact that the applicant had reversed the taxi after it struck the tree, was contested.

28 An officer of the Victorian Taxi Directorate, Peter Hannah, described the camera security system installed in the deceased's taxi. It was a Raywood camera system which consisted of a camera above the rear vision mirror, various electronic sensors and a hard drive upon which images were stored, located in the taxi boot. Mr Hannah said that the system took still photographs upon being activated by various triggers - the taxi doors opening, the doors closing, the brake being applied and the meter being switched on and off. There was also a manual control which enabled the driver to take an image at will and, if there was no activity in the taxi, it automatically took an intermittent photograph from time to time. Each photograph is over printed with a date, a time, a latitude and a longitude, the latter obtained from a global positioning system (GPS) also installed in the taxi. The event which triggered each particular picture is also printed on the photograph so that each photograph has the word 'brake', 'meter', etc, on it.

29 Mr Hannah attended the scene at Astelot Drive at 10.30 pm on 8 August 2006 after the events already described. However, an examination of the photographs recorded by the Raywood camera system showed that they were date and time stamped 3 August 2006, with times commencing about 13:00. Mr Hannah explained this obvious discrepancy as probably due to the taxi having been 'out of power for some time, then reconnected' without its clock being subsequently reset. Mr Hannah deposed that although the date and time stamped on the photographs produced by the Raywood system were incorrect, the system was functioning correctly as far as the clock and other functions were concerned.

30 Mr Daniel McLaughlin, an employee of Raywood Communications, gave evidence as to the operation of the Raywood system. He corroborated the evidence of Mr Hannah and described the operation of the system in similar terms with greater detail. He said that the full memory of the camera consisted of approximately 407 images.

31 A bundle of 36 photographs derived from the camera in the deceased's taxi were tendered by the Crown together with satellite photographs and a map of the whole of the area, including the position of each of the latitude/longitude coordinates imprinted on each of the photographs. Those satellite photographs were overprinted with the place at which, according to the coordinates stamped on it, each of the photographs was taken. Evidence was given by Leading Senior Constable Jason Ball of the Victoria Police Search and Rescue Squad as to the accurate calibration for GPS purposes of the system in the taxi, the notations on each of the Raywood photographs, as to where they were taken and the accuracy of the GPS system. In this regard Leading Senior Constable Ball said that

a general consumer-type GPS device would be expected to get better than 10 metres in accuracy, so you would be within 10 metres of where the GPS says you are...

32 It was open to the jury to accept the Crown evidence as to the accurate operation of the Raywood system and the associated GPS triangulation device in the deceased's taxi (subject to its limit of error - 10 metres) and to accept that the data collected was accurately stamped on the satellite photographs and associated maps produced in evidence. If it did so, it could then legitimately proceed to reach the following conclusions with respect to the 36 photographs tendered:

Photograph 1: This photograph shows the deceased's taxi, driven by him, in Whitehorse Road, Nunawading, some distance east of Springvale Road. There are no passengers in the taxi.

Photographs 2 & 3: These photographs show the taxi, still driven by the deceased with no passengers, at two different points in Springvale Road proceeding in a generally northerly direction, north of Whitehorse Road.

Photograph 4: This photograph shows the taxi, still driven by the deceased who is looking towards the passenger side of the front seat. The door is open and there may be part of a person's body shown getting into the front passenger seat.

Photograph 5: This photograph is taken within about two seconds of photograph 4 upon the door of the taxi closing. The applicant is now seated in the front passenger seat. He has entered the taxi in Springvale Road some distance north of the point at which photograph 3 was taken, at or near the intersection of Springvale Road and Olwen Street.

Photographs 6-13: These photographs, all taken within about seven seconds of photograph 4 are all taken at the point at which photograph 4 was taken or very close to it. The applicant appears to be talking to the driver who, up until photograph 11, is looking at him or in his direction.

Photograph 14: This photograph, taken about 10 seconds after photograph 13, shows the taxi further north in Springvale Road. The applicant is seated normally in the front passenger seat.

Photograph 15: This photograph is taken about 30 seconds after photograph 14 and shows the taxi in Springvale Road still proceeding north on or near the overpass over the Eastern Freeway. The applicant is still seated in the front passenger seat.

Photograph 16: This photograph, taken about 32 seconds after photograph 15, shows the taxi still proceeding north in Springvale Road some distance north of the Eastern Freeway.

Photograph 17: This photograph shows the taxi stationary at Latitude 37° 47.955' south and Longitude 145° 10.711' east. The applicant is raising his right arm in the direction of the driver. The GPS coordinates place the taxi at a point in Springvale Road about opposite the entrance to Astelot Drive. It did not move from this position until after photograph 33, approximately 33 seconds later.

Photograph 18: This photograph, taken about four seconds after photograph 17, shows the applicant leaning across the driver in the direction of the driver's side door. The camera was activated by a door of the taxi being opened.

Photographs 19-22: These four photographs were taken at about one second intervals, over about the next four seconds, because the door remained open. In each of them the applicant is trying to push the driver out of the taxi.

Photographs 23-27: This sequence of photographs, taken over about five seconds as a consequence of the door of the taxi being closed, shows the driver and the applicant in the vehicle with the applicant's right arm either in contact with him or close to him. He appears to be retreating towards the driver's side door.

Photograph 28: This photograph shows the applicant's upper body encroaching into the driver's seat on top of the driver. It was taken about 13 seconds after photograph 27.

Photographs 29-33: In this sequence of photographs (taken over about four seconds) the door of the taxi is open. The applicant is continuing to encroach into the driver's seat and to make contact with the driver with his hands and body. The applicant's lower body and legs are still in or in the vicinity of the passenger seat. One of these photographs, number 30, was taken manually; that is by pressure applied to a white button located near the ignition keyhole on the taxi dashboard, probably by the driver, not the applicant.

Photograph 34: This photograph, taken about 15 seconds after photograph 33, shows the applicant hard against the driver who is either himself hard against the driver's door or, perhaps, partly out the door. The applicant's lower body is still towards the passenger side of the driver's seat. The applicant is still trying to eject the driver from the taxi. The GPS coordinates show that the taxi has moved and is now some distance into Astelot Drive. The camera was activated for this photograph by the taxi's brake having been applied probably by the driver, whose lower body and legs appear to be still in the taxi.

Photographs 35 & 36: These photographs were taken almost 30 minutes after photograph 34 when the taxi was in Astelot Drive, east of the point at which photograph 34 was taken and at the scene of its finally coming to rest against a tree. The taxi is empty, the camera having been activated by a door being closed.

33 A close examination of Ms Bowden-Dodd's evidence would allow the jury to conclude that some of it, at least, was inconsistent with the photographic evidence just referred to. She said that the driver's door of the taxi was open as she approached the point where it was stopped and remained open until she saw it drive away. She said this is what caught her attention. The photographs show that of the approximately 33 seconds that the taxi was stationary at about the point Ms Bowden-Dodd said she saw it, a door was opened twice for only about four seconds each time (photographs 18-22 and 28-33). Reconciliation between her evidence and the photographs is only achieved if the open door which Ms Bowden-Dodd said she saw was that recorded on photographs 28-33, immediately before the taxi moved some distance into Astelot Drive where, about 15 seconds later, photograph 34 was taken. Certainly, after photograph 33 there is no record of the taxi door having closed before the camera was activated by the brake being applied and photograph 34 taken as a consequence. The jury may well have concluded that Ms Bowden-Dodd's observation of the taxi occurred only over a period of about four seconds. This may have thrown some doubt on the reliability of her observations.

34 The next matter of significance in Ms Bowden-Dodd's evidence was her description of the struggle she said she saw between the driver of the taxi and another man. She described this struggle in a manner quite inconsistent with the photographs. They showed a struggle between two men, both within the taxi for the whole period it was stationary, which period must have included the whole of the time it was under observation by the witness. Indeed, no photograph taken at any time whilst the taxi was stationary at this point shows other than that the driver and the applicant were in the taxi. Ms Bowden-Dodd said that (by inference) the applicant was standing outside the taxi on the driver's side being kicked by the driver who was inside. No evidence was elicited from her as to why she nominated the person kicking as the driver.

35 The third point of discrepancy between Ms Bowden-Dodd's evidence and the photographs was that she deposed that the man she nominated as the taxi driver drove off and that when he did so the other man was not in the taxi. This evidence could only be reconciled with the photographs if in some way, one of the two men exited the taxi before it drove off but subsequently got back in before the taxi got to the point at which photograph 34 was taken. In that photograph, both men are shown as being in the taxi with the applicant in or near the passenger seat pushing the driver towards or out the driver's side door to his right. The more likely explanation (and one which was open to the jury) is that the two men were in the taxi at all relevant times. Certainly, they were both at least partly in it at the point at which photograph 34 was taken.

36 When Ms Bowden-Dodd made her observations it was after 8.00 pm on an August night. It would have been dark, although it might be assumed that Springvale Road would have been well lit. She was travelling towards the taxi at 60 kph, or, as she put it, 'even less in hindsight'. She described the taxi as being '...on a sort of angle heading back south down Springvale Road'. The jury was entitled to conclude that once she had passed the taxi its driver's side and anything occurring near it would have been out of sight, obscured by the taxi. The time available for her to observe the taxi with its driver's side door open may well have been not much more than four seconds. The jury would have been quite entitled to reject Ms Bowden-Dodd's evidence on those matters in which it was inconsistent with the photographs produced by the Crown. If it did, it could well have reasoned to a conviction on the interpretation of the photographs set out above or some variant of it.

37 Finally as to this aspect of the case, even if some of Ms Bowden-Dodd's evidence was preferred to some of the photographs, if the jury accepted that photograph 34 was taken at or about the point in Astelot Drive contended for by the Crown and shown by the GPS coordinates (±10 metres) it would have been entitled to find that at that point the applicant was in the taxi and was attempting to eject the driver from it through the driver's side door. If they accepted this evidence, what happened at the Springvale Road intersection or in Astelot Drive before photograph 34 was taken is of little consequence. Whether the driver was entirely in the taxi or outside it also matters little. A few metres further east of the point at which photograph 34 was taken he was at least partly out of the taxi and in a position where, when the taxi struck the tree, he was fatally crushed between the driver's side door and the B pillar of the car. The jury would have been entitled to infer that the reason he was in that position was as a result of a conscious, voluntary and deliberate act of violence on the part of the applicant and that that was a cause of his death some hours later at the Royal Melbourne Hospital. The jury was also entitled to find that that act was performed by the applicant in the course of attempting to rob Mr Joga of his taxi, a crime of violence within s 3A of the Crimes Act 1958.

38 Ultimately, the test to be applied by the Court in determining this ground is whether on the whole of the evidence the finding of guilt was open to the jury.[7] There is no reason to conclude here that a reasonable jury considering the whole of the evidence in this case must have had a reasonable doubt as to the applicant's guilt. Quite the contrary, the evidence points very strongly to the applicant's guilt notwithstanding the evidence of Ms Bowden-Dodd. Indeed, whatever the jury might have made of her evidence as to what occurred between the applicant and Mr Joga when she could observe them, if it accepted that photograph 34 was taken where the Crown contended and that it showed the applicant pushing Mr Joga out of the taxi their verdict was inevitable. There is no substance in this ground.

39 This ground complains that when he redirected the jury on the issue of causation in this case the trial judge erred in failing to direct their attention to the fact that the Crown had to establish that the death of the deceased was caused by an act of violence done in the course or furtherance of the crime of robbery pursuant to s 3A of the Crimes Act 1958 and that that act had to be an operating and substantial cause of death.

40 In this case, the trial judge commenced his directions to the jury before counsel for the Crown opened its case. He did this by providing the jury with two written documents. The first document stated the elements of robbery. This document was relevant to both the counts of robbery upon which the applicant was presented and the crime of violence which the Crown alleged was in the course of being committed when the deceased was killed. The second document described the elements of the crime created by s 3A of the Crimes Act 1958.

41 His Honour explained each of these documents in some detail to the jury and, as presently relevant, went through the elements of constructive murder. Subsequently, in his charge to the jury, his Honour took the jury through the evidence relevant to the count of murder and summarised the way in which the Crown and the defence had put their respective cases. After he completed his charge and the jury had retired, counsel for the Crown asked his Honour to give the jury further directions on the elements of statutory murder 'reminding the jury what those elements are, particularly the element of causation'. Counsel for the applicant opposed any redirection and submitted that the trial judge's charge had been 'adequate and proper'. His Honour rejected the defence objection and redirected the jury.

42 In the course of that redirection, he took the jury again to the documents which he had provided to them at the beginning of the trial. Specifically, he drew their attention to the note on the document concerned with the elements of statutory murder concerning the question of 'Cause'. That note was in the following terms:

'Cause' means a substantial operating cause. It need not be the only cause and it need not be the major one.

He reminded the jury of earlier directions he had given about 'the chain of causation' and noted that it was an important issue in the case. He then said:

It is not a technical legal expression. What causes something else is basically a matter for the application of commonsense and judgment and experience, the very virtues which juries bring to the criminal trial process. If you think and are satisfied beyond reasonable doubt of it that there was an ongoing struggle which resulted in Mr Joga's death, then the Crown's submission that the chain of causation was not broken will be made out. You will find that the Crown case in that respect is the one that you accept. On the other hand, of course, there is the alternative defence version and if you are not satisfied beyond reasonable doubt of the Crown's version, then you will not be able to be satisfied that the chain of causation has not been broken and that would result in a verdict of not guilty on Count 5.

But you look at whether one factor has caused another, through the prism, through the eyes of commonsense and experience. There is no legal magic in the concept of 'cause'. As I say, what causes something else is a matter that you will reason your way towards using your intellectual endeavours as you will throughout your consideration of the matters which you now have before you.

In summary then, whether one factor causes another is to be determined by the application of practical commonsense and the ordinary reasoning process to the problem. But I ask you not to look at it or not to think of it as having any magical legal connotations. It does not. So ask yourselves as a matter of commonsense are we satisfied beyond reasonable doubt that any action of Mr Zaim, any relevant action, caused the death of Mr Joga.

43 The trial judge's redirection was confined to the issue of causation. He had already directed the jury on the burden and standard of proof in his preliminary directions (before the evidence commenced). In those directions, he described the elements of constructive murder, including the requirement that the Crown prove that Mr Joga's death was caused by an act of violence by the applicant which was conscious, voluntary and deliberate, such act performed in the course of or furtherance of the commission of a crime of violence. His Honour repeated those directions in more detail at the end of the evidence and before counsel's first address and related them to the evidence on each element. It was because his Honour did not explain causation in the same detail that the prosecutor sought the redirection which his Honour gave on causation after the jury had retired. Counsel for the applicant did not oppose the trial judge giving a redirection on causation but submitted that it would be superfluous. He said:

I am not against Your Honour doing it, but it's not necessary and my learned friend didn't make an exception, I didn't make an exception. Your Honour's charge was adequate and proper at the time it was completed.

No exception was taken, either in terms of Ground 3 or otherwise, by either counsel after the redirection. This ground is not made out.

44 Neither ground having been made out, the application for leave to appeal against conviction on the count of murder should be refused.

45 The trial judge sentenced Zaim to 17 years' imprisonment in respect of the murder of Mr Joga, 12 months' imprisonment in respect of the theft of Mr Kondogonis' car, 14 days' imprisonment in respect of the theft of petrol from the petrol station, six months' imprisonment in respect of the count of attempted robbery of the car belonging to Mr Blain and two months' imprisonment in respect of the count of attempted theft of the truck belonging to Mr Orsillo. His Honour ordered that six months of the sentence for the theft of Mr Kondogonis' car should be cumulated on the sentence for murder making a total effective sentence of 17 years and 6 months' imprisonment. He fixed a non-parole period of 14 years and 6 months.

46 Three grounds were argued in support of Mr Zaim's application for leave to appeal his sentence:

1. The learned sentencing judge erred in imposing a manifestly excessive sentence;

1.2 The learned sentencing judge erred in sentencing the applicant on the basis that he possessed a reckless indifference to human life;

1. The learned sentencing judge erred in imposing a non-parole period that was disproportionate to the head sentence.

47 The maximum penalty for murder, including statutory murder, is life imprisonment. It is against that yardstick that the sentence imposed on Mr Zaim must be examined for manifest excess. The complaint of manifest excess was made in respect of both the sentence for murder and that for the theft of Mr Kondogonis' motor car. The applicant's principal complaint is, however, in relation to the 17 year sentence imposed by the trial judge for murder.

48 The culpability of a person convicted of constructive or statutory murder can vary across a very wide range - from accessorial involvement in a homicide where death could be truly characterised as accidental - to direct involvement in a crime of violence where intentional violence results in unintentional death. In this case, the actions of the applicant place his culpability much closer to the higher end of this spectrum than to the lower. To attempt to push a person out of a moving car, as the jury must have found the applicant did, carries with it at least a foreseeable risk of serious injury even if the actual mechanism by which Mr Joga met his death might not have been foreseeable or foreseen by the applicant. It is in this light that the sentence must be considered.

49 The applicant's argument as to manifest excess concentrated, as might have been expected, on the fact that he had no intention of killing Mr Joga or of inflicting really serious injury upon him. But counsel also argued a number of specific errors concerning an alleged failure by the trial judge to take into account, as well as the lack of intention, five other allegedly relevant mitigatory considerations.

50 In his argument, counsel also urged the view that the crime of which Mr Zaim was convicted was far removed from those in a number of reported cases. This submission was made in the context of an argument that constructive murder is, itself, an anomalous crime where the actus reus does not have to be accompanied by an intention to kill or inflict really serious injury. He referred to a dissenting judgment of Kirby J in Arulthilakan v The Queen,[8] an English Royal Commission report on capital punishment and a Canadian case which determined that the felony murder principle was inconsistent with the Canadian Charter of Rights and Freedoms.[9]

51 Whatever might be said about the theoretical basis of s 3A of the Crimes Act 1958, the sentencing judge in this case was bound to sentence Mr Zaim for the crime of which he was found guilty, namely murder as defined by that section. He was entitled to have regard to what Zaim actually did in performing the 'actus reus' of the crime; that is to say attempting to push Mr Joga out of a moving motor vehicle.

52 In his sentencing remarks, the trial judge referred to the applicant's criminal record which commenced with three charges of armed robbery in the Children's Court when he was aged 15. These charges were followed a year later with another charge of armed robbery and his history went on to include a conviction for recklessly causing injury and attempted armed robbery. His Honour also referred to the particular vulnerability of Mr Joga as a taxi driver and the relevance of general deterrence as a consequence.

53 On the other side of the ledger, the trial judge took into account in the applicant's favour opinions expressed by the experienced forensic psychiatrist, Dr Ruth Vine, in two reports of 14 August 2006 and 17 September 2008, including her opinion as to his intoxication at the time of these offences and that he had shown some remorse for what he had done. Further, the trial judge was acutely conscious of the applicant's youth. Despite, however, the usual consideration given to young offenders which, it is hoped, will encourage their rehabilitation,[10] sometimes a crime is so serious as to require condign punishment notwithstanding an offender's youth.[11]

54 In light of the above, I am satisfied that the sentencing judge took into account all of the matters argued by counsel as having been inadequately considered. With respect to the complaint that the sentencing judge did not take the applicant's offer to plead guilty to manslaughter prior to his committal into account, that complaint is without foundation. An offer to plead guilty to manslaughter indicates nothing more, in this case, than an acceptance of forensic reality. It was not the crime of which the applicant was ultimately convicted.

55 The sentence imposed by the sentencing judge in this case on the count of murder was within the range available to him in the exercise of a reasonable sentencing discretion.

56 The complaint as to the 12-month sentence imposed on his conviction in respect of the theft of Mr Kondogonis' car is also without foundation. The circumstances of that theft included not only that the applicant took the car from its owner after the owner had fled but also that the car was damaged before it was recovered by police. Having regard, particularly, to the applicant's antecedents the sentence imposed was within the exercise of a reasonable sentencing discretion.

58 In the course of his sentencing remarks, the sentencing judge said:

1. The prosecution accept that you did not intend to kill Mr Joga. You were nevertheless charged with murder, a crime for which the jury has found you guilty. The jury must, in reaching that verdict, have been satisfied beyond reasonable doubt that an act of violence committed by you against the dead man was a cause of his unintentional death, and that that death occurred in the course or furtherance of a crime of violence. In this case that crime was the attempted robbery of the taxi.
2. There is no presumption that murder resulting from reckless indifference to human life is necessarily less culpable than murder involving one of the other categories of malice. Nevertheless your counsel, Mr Rochford, argued that the lack of an intention to kill reduces your criminality from that which it would have been had that intention constituted the foundation of your actions.
3. It seems to me that in this case I should accept Mr Rochford's submission. Even so, yours was a very serious crime indeed. You were entirely reckless for Mr Joga's safety. To the extent that Mr Rochford's submission has force, its strength lies in the fact that the risk to which you exposed Mr Joga was not as great as it might in other circumstances have been. But I cannot avoid the reality that you totally ignored that risk, with consequences which in the result were fatal. What is more, Mr Joga endured the terror of the attack made by you upon him as you attempted to gain control of the taxi. Your violence towards him was a conscious, voluntary and deliberate act.[12]

59 In the second of the paragraphs quoted above, the sentencing judge is not, as the ground of appeal suggests, characterising the applicant's culpability as being that of a person convicted of 'reckless murder'; that is, murder where the mental element involves knowledge by the accused that his act will probably cause death or bodily injury.[13] He is merely commenting on a submission by defence counsel that the applicant's culpability should be regarded as being less than it would have been had he been convicted of reckless murder. His Honour is expressing the view that reckless murder is not necessarily less culpable than other forms of murder where the mens rea is otherwise.

60 His Honour is clearly considering the applicant's culpability on the correct basis and was prepared to accept that in his case he should accept defence counsel's submission that that culpability was less than it would have been had he been guilty of reckless murder.

61 The ground is misconceived. It rests on a misunderstanding or misapprehension of what the trial judge actually said. It must be rejected.

62 In fixing a non-parole period of 14½ years on a total effective sentence of 17½ years, his Honour said:

Because of your age and prospects of rehabilitation, I think that a relatively short period should be fixed before you become eligible for parole.[14]

63 In expressing this view, his Honour was indicating that for the reasons given the applicant should be permitted the possibility of serving more of his sentence on parole in the community than might normally be the case. But it could not be said that the non-parole period actually fixed put his Honour's intention into effect. A non-parole period of 14½ years on a head sentence of 17 ½ years would not normally be regarded as shorter than usual. This is so even though it must be recognised that the fixing of a non-parole period is, like other sentencing decisions, a matter of judicial discretion and thus subject to wide variation depending on the facts of the particular case. The non-parole period fixed by the sentencing judge should be adjusted to reflect his Honour's stated intention.

64 In the circumstances, I would grant the applicant leave to appeal against his sentence on this ground. I would uphold his appeal and refix a non-parole period of 13½ years in lieu of that fixed by the sentencing judge.

65 I would refuse the applicant's application for leave to appeal against his conviction, grant his application for leave to appeal against his sentence, confirm each of the sentences imposed in respect of each of the offences of which he was convicted and the order for cumulation but set aside the non-parole period of 14½ years fixed and substitute in lieu thereof a non-parole period of 13½ years.

[1] [2010] VSCA 254, particularly [30], [31], [33] and [36].

[2] Until the decision of the Full Court in R v Brown [1949] VicLawRp 32; [1949] VLR 177, there was doubt as to whether, in Victoria at least, the felony-murder rule required the death of the victim to have been caused by an 'act of violence': see R v Radalyski [1899] VicLawRp 129; (1899) 24 VLR 687 and Ross v The King [1922] HCA 4; (1922) 30 CLR 246, 252, 271 but contra DPP v Beard [1920] AC 479, 493, 504-7. See also Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205, 240 (Windeyer J).

[3] [1986] VicRp 4; [1986] VR 43.

[5] Crimes Act 1958 s 75.

[6] [2008] VSC 543.

[7] M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432, 443 (Mason CJ), 451 (Dawson J), 458 (Gaudron J), 461-2 (McHugh J).

[8] [2003] HCA 74; (2003) 203 ALR 259.

[9] R v Vaillancourt [1987] 2 SCR 636.

[10] R v Mills [1998] 4 VR 235, 241-2 (Batt JA).

[11] DPP v SJK [2002] VSCA 131, [60]-[61] (Phillips CJ, Chernov and Vincent JJA); DPP (Vic) v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132 (Batt JA), 133 (Winneke P).

[12] DPP (Vic) v Zaim [2008] VSC 543, [20]-[22].

[13] La Fontaine v The Queen (1976) 136 CLR 62, 76 (Gibbs J).

[14] DPP (Vic) v Zaim [2008] VSC 543, [32].