Aaron Jamie Ball v The Queen
[2014] VSCA 226
•16 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0093
| AARON JAMIE BALL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NETTLE AP, PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 September 2014 |
| DATE OF JUDGMENT: | 16 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 226 |
| JUDGMENT APPEALED FROM: | The Queen v Ball (Unreported, Supreme Court of Victoria, Curtain J, 23 April 2014) |
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to two charges of defensive homicide and one charge of recklessly causing serious injury – Applicant involved in violent incident with three victims – Applicant laboured under serious mental illness – Verdins principle applicable – Whether total effective sentence of 20 years, and non-parole period of 17 years manifestly excessive – Whether trial judge erred in failing to adequately take into account the applicant’s mental state in assessing the gravity of offending – Whether trial judge erred in application of the totality principle – Appeal allowed – Applicant resentenced to a total effective sentence of 17 years and six months’ imprisonment with a non-parole period of 14 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G A Georgiou SC | Slades and Parsons |
For the Crown | Mr R A Elston QC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE AP:
I agree with Priest JA.
PRIEST JA:
Introduction
On 31 October 2013 the applicant, pleaded guilty to two charges of defensive homicide,[1] charges 1 and 2, and to one charge of recklessly causing serious injury, charge 3.[2]
[1]Crimes Act 1958, s 9AD. The maximum penalty is 20 years’ imprisonment.
[2]Crimes Act 1958, s 17. The maximum penalty is 15 years’ imprisonment.
He was sentenced on 23 April 2014 to be imprisoned for 12 years on the first charge; for nine (9) years on the second charge; and for five (5) years on the third charge. Five (5) years of the sentence on the second charge, and three (3) years of the sentence on the third charge, were ordered to be served cumulatively with each other and with the sentence on the first charge. The total effective sentence was thus 20 years’ imprisonment, upon which the judge fixed a non-parole period of 17 years.
Leave to appeal against sentence is sought on three grounds:
1. The individual sentences, the total effective sentence of 20 years, and the non-parole period of 17 years are manifestly excessive, having regard to the matters in mitigation of penalty.
2. The sentencing judge erred in failing to have regard to, or have sufficient regard to, the applicant’s mental state in assessing the gravity of his offending.
3. The sentencing judge failed to apply the principle of totality in cumulating 5 years and 3 years on the base sentence of count 1.
For the reasons that follow, I would grant leave to appeal, allow the appeal
and resentence the applicant.
Circumstances of the offences
At the time that the relevant offences were committed, the applicant, who was born 9 February 1980, was aged 33 years. He is now aged 34.
The applicant had lived for about two years at premises at 33 Miller Street, Casterton, with his mother, Dianne Hutchins, and his sister, Chantelle Hutchins. He and his family would often yell abuse at neighbours and passers-by. They sometimes filmed them using mobile telephones. The applicant was also accustomed to taunting and chasing children which, not unnaturally, caused friction with the children’s parents and other adults. It was this behaviour which earned the applicant and his family the sobriquet, ‘loonies’.
Around the time the applicant moved to Miller Street, he distributed an unsigned letter to nearby residents warning them that he had a violent temper which was difficult to control. He also claimed to be trained in weapons, and he warned people to leave him and his family alone.
The house at 33 Miller Street was diagonally opposite the back yard of the house where the McCombe family lived in Addison Street. The McCombe family comprised Raymond McCombe (who is the victim of the first charge of defensive homicide); his two daughters, Jessie and Laurie McCombe; his de facto wife, Janelle Lovell; Ms Lovell’s son from a previous relationship; and Mr McCombe’s and Ms Lovell’s two infant children.
The applicant’s and the McCombe family did not enjoy cordial relations. Indeed, the families were openly and mutually hostile and aggressive to each other. Jessie and Laurie McCombe complained that the applicant and his family had taunted them about their mother being dead (she having died seven years previously). The applicant often mocked Jessie McCombe, who would respond by abusing the applicant. These episodes sometimes culminated in the applicant chasing Jessie to her home. Jessie also claimed that the applicant would on occasions shine torches into the bathroom window, the front window, the back yard and the car at the McCombe home.
Members of both families often called police. Various intervention orders were in place and at the time of the offences. The parties had also been referred to the Dispute Settlement Centre.
A few weeks before the offences, in September 2011, the applicant contacted police. He claimed that Raymond McCombe was banging on his door asking him to come out. The applicant also claimed that Mr McCombe had toppled his mail box.
Also in the month of September 2011, the applicant threated to kill Jessie McCombe and three of her friends as they walked past his house. The four ran, but the applicant appeared in the back yard armed with a knife and threatened them.
On 4 October 2011, the applicant was at home with his mother and sister. Jessie McCombe was sitting on the roof of a shed at the McCombe property with a friend, Ryan Hixan. The applicant and his mother yelled abuse, which included, ‘We can tell where you came from’, and ‘Go root your mother’. Ryan Hixan responded by baring his buttocks. Jessie went to the applicant’s house, yelled at him not to say things about her mother. She then called police.
Leading Senior Constables Kelly and Lee went to the applicant’s house. They spoke to the applicant and his mother. They then went to the McCombe house and spoke with Raymond McCombe, Toby Lynch and Stephen Mark. Raymond McCombe told the police that the applicant had said to Jessie, ‘Why don’t you die like your mum?’. Toby Lynch said he had seen the applicant with a shotgun. Stephen Mark said he had seen the applicant with a ‘rifley’ kind of gun. Police told them to keep the peace and then left.
About half an hour later, Leading Senior Constables Kelly and Lee responded to a further call, this time from the applicant. In the call, the applicant claimed that six males were making threats at the front door of his house. Police arrived at about 8:38pm. They saw nobody in the street. The applicant told them, however, that Raymond McCombe and four other males had been at the front door making threats, while two other males stood at the corner of the street, also making threats.
Upon leaving the applicant’s premises, police saw Raymond McCombe, Toby Lynch and Stephen Mark, drinking around a bonfire in the backyard of the McCombe home. There were children present. Police looked around the general area a little more, then left at 9:10pm.
After police left, Jessie McCombe was in the backyard of her home with two friends, Brooke Pillar, aged 14 years, and Stacey Boutcher, aged 13 years. She was brooding about what the applicant had said about her mother. She took up a pole and said that she was going to go to the applicant’s house. Despite her father telling her not to, Jessie went over to the applicant’s house. She encountered the applicant’s sister, Chantelle, at whom she yelled abuse. The applicant’s sister stood on the porch filming her. Both Brooke Pillar and Stacey Boutcher had followed their friend. Jessie picked up a plastic bottle and threw it at the applicant’s sister, who laughed and went inside.
At about this time, the applicant and his mother were seated in a car in the driveway of their house. The applicant exited the car, ran at Jessie and grabbed her. Unsurprisingly, Jessie called for help from her father and screamed to be released.
Raymond McCombe, Toby Lynch and Stephen Mark ran to the applicant’s premises. Both Raymond McCombe and Toby Lynch went onto the front lawn. Raymond McCombe stood between the applicant and Jessie trying to calm things down. Stephen Mark told Jessie that she could not enter other people’s properties. He tried to walk her down the driveway.
The applicant and his mother then stood at the front driveway yelling at Jessie, Toby Lynch and Raymond McCombe. More than once the applicant and his mother jeered at Jessie, saying ‘Go kill yourself, like your mum’.
Janelle Lovell had by this time walked to the applicant’s house. She said to the applicant’s mother, ‘What’s your fucking problem yelling at kids?’. The applicant’s mother got into the car, and Janelle Lovell went to the car window and continued to recriminate. Jessie McCombe all the while continued to abuse the applicant and his family.
By this time there were nine people near the driveway and front of the house. It was an angry scene. The applicant went towards his backyard arguing with Raymond McCombe, Toby Lynch and Steven Mark. There was pushing and shoving.
Toby Lynch argued with the applicant in the backyard at the end of the driveway. The applicant took a knife and stabbed Toby Lynch once in the chest. Mr Lynch withdrew, saying he had been stabbed. He died from the stab wound early the next day in Geelong Hospital. The stabbing of Toby Lynch was the basis of charge 2, defensive homicide.
Steven Mark, who had not seen the knife, went over to the applicant. He tried to calm him down and move him away from the people yelling at him. Mr Mark said that he did not want to fight. The applicant pushed him, and then stabbed him. Mr Mark did not realise that he had been stabbed. He thought he had merely been punched. When he tried to return the ‘punch’, however, he found his energy was failing him. Mr Mark was seriously injured. He had, in fact, been stabbed three times — in the left shoulder, described as superficial; in the abdomen, described as a curvilinear laceration eight centimetres in length; and a two centimetre laceration to the left upper back with an associated haematoma seven centimetres in diameter. The stabbing of Steven Mark constituted charge 3, recklessly causing serious injury.
Around that time, Raymond McCombe was near the applicant in the backyard when the applicant’s mother drove a vehicle towards them, clipping Mr McCombe’s leg. The applicant, standing behind Mr McCombe, then stabbed him to the right side of his neck and shoulder area. Mr McCombe fell to the ground and the applicant continued to repeatedly stab him. In the course of this ferocious attack, the applicant cut Mr McCombe’s jeans some 40 centimetres from the waist done the left leg and inflicted a knife wound to his genitals. The hapless victim died from injuries to his head, chest and abdomen. An autopsy indicated that Raymond McCombe had sustained 34 stab wounds. The infliction of these fatal wounds formed the basis of charge 1, defensive homicide.
At 9:48pm the applicant’s sister called 000. She claimed that two males and two females were fighting in the backyard, and that Raymond McCombe was attacking her brother. The applicant got onto the telephone and told the operator that somebody had tried to murder him.
Neighbours also called 000, seeking the attendance of police and ambulance. Steven Mark walked to a neighbour’s house. He was given a towel to cover his injuries and the neighbours drove him to the Casterton Hospital. He was later transferred to the Hamilton Hospital and underwent emergency surgery.
Tobey Lynch walked up Miller Street and went to the front of the McComb’s house. He was also taken to the Casterton Hospital. It was ascertained that he had a six centimetre gash to his stomach. He underwent emergency treatment. It was deemed necessary to transfer him to the Royal Melbourne Hospital by Air Ambulance, but en route his condition deteriorated. The helicopter was diverted to the Geelong Hospital where he underwent emergency surgery. He died, however, at a little after 3:00am on 5 October 2011. An autopsy determined that the cause of death was a stab wound to the chest.
Leading Senior Constables Kelly and Lee again arrived at 33 Miller Street, this time at approximately 9:56pm. Janelle Lovell was distraught saying that Raymond McCombe had been stabbed. Leading Senior Constable Kelly could not locate Raymond McCombe in the backyard because of the long grass. He returned with Janelle Lovell and together they found Raymond McCombe lying in the grass. At 10:03pm, the ambulance arrived. Nothing could be done for Raymond McCombe. He was dead.
The applicant fled to South Australia with his mother and sister. He went to Mount Gambier hospital at 12:03am. Police attended. They recorded all subsequent conversations.
At the hospital, when being treated for injuries, the applicant told the doctor that he had been pinned to the ground by a few people and was struggling with them when he was hit by a car travelling at 60 kilometres per hour. He said that injuries to his head and face were caused by the car. An injury to his thumb had occurred after he heard two pistol shots. The applicant said that he may have deflected a bullet with his thumb. That injury was, however, inconsistent with a gunshot wound.
Mount Gambier police arrested the applicant. During a record of interview, the applicant asserted that Raymond McCombe and eight males had gone to his address and threatened him and his family. He claimed that they were armed with knives and bottles, and that a man called ‘Josh’ was armed with a handgun. The men started pushing him into the backyard. They said that they were going to stab the applicant and kill him. Josh said that he had come from Port Phillip Prison to kill him. The applicant told police that Josh menaced him with the gun. He said he had been pistol-whipped. The men lifted his shirt and pointed to where they were going to stab him. He was held to the ground, but managed to get up and punch and kick the men. The applicant told police that he kicked one of the men in the jaw and knocked him over backwards. Josh then pointed the gun at him and he heard two bangs. He was shot in the hands. His mother had seen the men pointing a gun at him and that that was why she drove the car at them. The applicant also told the police that Raymond McCombe had punched him and the men were trying to stab him. He said that he defended himself with hands and feet, and did not handle any weapons.
Later, at approximately 5:30am, the applicant was interviewed by police from the Victorian Homicide Squad. He repeated much the same version of events. He told the police that he was attacked by a number of men, including a bald-headed man called Josh who threatened him with a firearm and pistol-whipped him. Others produced steak knives. The applicant said he was chased around the yard, and the men grabbed him and held him down. As the men came at him, the applicant said he responded with roundhouse kicks. He did not have any weapons, and he did not use any weapons. Raymond McCombe had a bottle in his hand and tried to smash it over him. The applicant said that nothing he did could have killed Mr McCombe. He said that he did not kill anyone, and that he was the victim, he having been attacked. Raymond McCombe was, the applicant claimed, alive and standing when he left.
Subsequently, the applicant was charged with the murder of Raymond McCombe and of Toby Lynch, together with the attempted murder of Stephen Mark. On the first day of what was to be a trial, the prosecution accepted pleas of guilty to two charges of defensive homicide and one charge of recklessly causing serious injury.
The applicant’s submissions
In my view, grounds 2 and 3 — which respectively claim a failure to give sufficient weight to the applicant’s mental state, and a failure to apply the principle of totality — are, in reality, ‘particulars’ of the claim of manifest excess contained in the first ground of appeal. I will treat them as such.
Counsel for the applicant argued that the sentence was manifestly excessive having regard to:
· the applicant’s psychiatric condition at the time of the offences and at the time of sentencing;
· the operation of each of the Verdins[3] principles (save for the sixth principle);
[3]R v Verdins (2007) 16 VR 269 (‘Verdins’).
· the circumstances in which the offences came to be committed — including the three victims coming on to the applicant’s property at night time, in the dark and in what was a ‘dynamic, fluid and highly charged event, alcohol and drugs having been consumed by two of the victims;[4] the offences not being premeditated; and the offences occurring spontaneously in a charged atmosphere and on the applicant’s property;
[4]Raymond McCombe had a blood alcohol reading of .16 per cent, cannabis in his blood, and methylamphetamine in his urine. Tobey Lynch had a blood alcohol reading of .05 per cent, cannabis in his blood and methylamphetamine in his system.
· the applicant’s pleas of guilty — the applicant having offered to plead to the current charges two weeks before the trial was due to commence, such offer not being accepted by the prosecution until the morning of the trial (the trial being expected to take at least four weeks);
· the applicant’s grossly dysfunctional upbringing;
· current sentencing practices;
· the applicant has only one relevant prior conviction, which he incurred some 10 years prior to the current offences;
· the circumstances in which the applicant has been incarcerated.
It was contended that the judge regarded the two instances of defensive homicide and the charge of recklessly causing serious injury as serious examples of serious offences. Counsel argued that, while the judge considered that there was a causal link between the applicant’s mental illness and his offending which lessened his moral culpability, she did not appear to have taken his mental illness into account, or given it sufficient weight, when assessing the gravity of his offending conduct.His ‘totally disproportionate’ response cannot, it was submitted, be looked at independently of his mental illness. The presence of his mental illness at the time of the offending provided the major explanation for what might otherwise appear to be a completely unreasonable belief in the necessity of his actions to defend himself and his family.
It was submitted that the sentence imposed is disproportionate to the totality of the offending. There was, so it was argued, significant interconnection between each of the offences: they arose out of the same dispute; they occurred within a matter of a minute or two at most; each victim was in the applicant’s backyard; each was in close proximity; and there was anger and hostility.
Although it was accepted that some cumulation was required given that there were three victims, it was contended that the total cumulation of eight years’ imprisonment on the base sentence — producing a total effective sentence of 20 year’s imprisonment — reflected a failure to apply the principle of totality. Having regard to the applicant’s psychiatric issues, and the circumstances in which each of the three offences occurred, it was submitted that more substantial concurrency was warranted.
Manifestly excessive sentence?
Following being taken into custody, the applicant was assessed as having an IQ of 77. The applicant enjoys dull intelligence, but is not intellectually disabled. He does, however, labour under serious mental illness, as a wealth of material before the sentencing judge demonstrated.
Dr Prashant Pandurangi, Senior Registrar of Forensic Psychiatry at the Victorian Institute of Forensic Mental Health (‘VIFMH’), in a report dated 16 April 2012, expressed the view that the applicant ‘appears to suffer from a paranoid psychotic illness, which has previously been untreated’. Although the exact nature of the applicant’s illness was difficult to determine, ‘it is likely that he suffers from paranoid schizophrenia or a delusional disorder’. At the time of the report, the applicant presented with ‘ongoing psychotic symptoms’ which required inpatient treatment.
A Forensicare[5] report, prepared by Dr Meera Aurora and Ms Terri Robertson, dated 10 August 2012, following the applicant’s admission to Thomas Embling Hospital,[6] noted that the applicant ‘displayed little insight into his mental illness’. It was reported that the applicant’s ‘positive psychotic symptoms, which have been causally related to past violence, remain active and entrenched’, and the applicant ‘poses a moderate risk of violent offending’.
[5]The Victorian Institute of Forensic Mental Health is a statutory body established under s 117B of the Mental Health Act 1986, carrying out its statutory functions as Forensicare.
[6]Thomas Embling Hospital is a secure mental health hospital operated by Forensicare.
The applicant was admitted to Thomas Embling Hospital on 31 October 2011 and discharged on 22 August 2012. In a Discharge Summary, Dr Daniel Cremin, Psychiatric Registrar, and Dr Prashant Pandurangi, Consultant Psychiatrist, recorded that on admission, the applicant’s thought form was ‘over inclusive and circumstantial with strong persecutory themes and bizarre delusions and claims of telepathic powers’. The final diagnosis on discharge was, ‘Schizophrenia — paranoid type’.
Dr Lester Walton, Consultant psychiatrist, provided two reports, dated respectively 3 November 2012 and 11 June 2013. In the latter report, he expressed the opinion that ‘while it could not be described as unequivocal evidence, there is a very strong suggestion that [the applicant] was suffering from psychotic symptoms at least as far back as 2009’. Importantly, Dr Walton expressed the view: ‘Given that he was observed to be acutely psychotic so soon after the alleged offending, I believe that it is a safe conclusion that he was in the grips of similar symptoms at the material time and that it is also probable that he does have a defence of mental impairment available on the second leg of the test.’ Having discussed the possibility that the applicant’s mother and sister suffered psychotic illness, Dr Walton said of the applicant that ‘there is no sensible doubt about the fact that he is properly diagnosed as suffering from actual schizophrenia himself’.
In a report prepared for the Office of Public Prosecutions, dated 13 September 2013, Dr Remy Glowinski, a Consultant Psychiatrist with Forensicare, thought it ‘possible’ that the applicant ‘is suffering from a delusional disorder’; but that the applicant ‘very likely had an established severe personality disorder well before the index incident, with significant antisocial and paranoid elements’.
Dr Mark Ryan, Consultant Psychiatrist with Forensicare, in a report to the sentencing judge dated 10 January 2014, expressed the opinion that the applicant ‘has a paranoid psychotic illness characterised by persistent persecutory delusions’. The most likely provisional diagnosis ‘is one of delusional disorder’, which was ‘undiagnosed and untreated at the time of the offences’.
In thorough reasons for sentence, the sentencing judge observed that although medical opinion differed as to the appropriate label to be given to the applicant’s disturbed mental state, all — save for Dr Glowinski — accepted that it was likely the applicant was suffering from a mental illness at the time of the offending. Her Honour accepted that there was a causal link between the applicant’s offending and his mental illness, such that Verdins principles were applicable in reducing the applicant’s moral culpability. The judge observed that the applicant’s ‘mental illness impaired [his] ability to exercise appropriate judgment and [his] ability to make calm and rational choices or to think clearly, and given Dr Walton’s opinion, may well have impaired [his] ability to appreciate the wrongfulness of [his] conduct’.
By pleading guilty to two charges of defensive homicide, the applicant acknowledged that he intended to kill or to cause really serious injury to the two victims. The judge thought that the applicant acted in the ‘genuine belief’ that ‘it was necessary to do what [he] did to defend [himself] from the infliction of death or really serious injury’, although he did not have reasonable grounds for that belief.
An examination of her Honour’s reasons for sentence demonstrates that the sentencing judge referred to all relevant factors bearing on the applicant’s mental condition and its effect on the sentences to be imposed. Her Honour was of the view that Verdins principles were engaged, so that the applicant’s moral culpability was reduced. Thus, given that the judge said that she had regard to relevant matters, the applicant is driven to contend that, by reference to the individual sentences passed and the orders for cumulation as between the individual sentences, the judge must in some way have afforded the applicant’s mental condition (and the associated diminution of his moral culpability) too little weight.
The sentencing judge noted that counsel for the prosecution ‘conceded that the principles of R v Verdins apply in this case’, and that the applicant’s ‘moral culpability for [his] crimes is reduced by reason of [his] mental illness’, although it was submitted nonetheless that the offending, particularly with respect to Raymond McCombe, ‘is particularly grave and sits in the worst category of instances of defensive homicide’. In this Court, counsel for the respondent did not resile from the position that was maintained before the sentencing judge. Although he acknowledged that the sentence was ‘stern’, and at the ‘outside’ of the available range (which I took to mean at the upper limit of the range), counsel nevertheless submitted that the sentence remained within the range available in the sound exercise of discretion. He argued that it was important to have regard to the need for general and specific deterrence, denunciation, community protection and the ‘guarded’ prospects of the applicant’s rehabilitation.
In order to try and illustrate that the sentences passed — both for defensive homicide and recklessly causing serious injury — did not accord with current sentencing practices, and were outside the range of those properly open, counsel for the applicant provided two tables of ‘comparative’ sentencing cases. Save as a very general indication of the available range, however, I did not find resort to so-called comparative cases of much assistance in making a judgment as to whether the sentences imposed in this case are within the range for these particular manifestations of the offences of defensive homicide and recklessly causing serious injury. That is, of course, not a criticism of counsel, whose industry is praiseworthy. But the circumstances of these offences had unique features which, axiomatically, needed to be reflected in the sentences imposed.
That said, apart from the sentence imposed on charge 1, the highest individual sentence ever passed for defensive homicide was in Middendorp.[7] In that case, following a contested trial for the stabbing murder of his de facto wife — he had stabbed her four times — the applicant was convicted of defensive homicide, and was sentenced to be imprisoned for 12 years with a non-parole period of eight years. Upon an application for leave to appeal, the Court (Redlich and Mandie JJA, and Whelan AJA) rejected a submission that the sentence was manifestly excessive. That sentence was, however, imposed after a trial, and was imposed upon an individual unafflicted by the serious mental condition prevailing in the present applicant.
[7]Middendorp v The Queen (2012) 35 VR 193.
The circumstances of the offences under consideration — particularly the repeated stabbing and mutilation of Mr McCombe — were horrific. It is undeniable that the applicant’s offending has, and will continue to have, a profound effect upon the families and friends of the deceased victims, and upon Steven Mark. The judge’s recitation of their victim impact statements, and the effects of the applicant’s crimes upon them, makes for harrowing reading.
The overwhelming preponderance of evidence demonstrates, however, that the applicant was mentally ill when he committed the offences. Indeed, it was undoubtedly the existence of his serious psychiatric condition which prompted the prosecution to accept pleas to defensive homicide, rather than to continue to seek convictions for murder. Allied to that consideration, as counsel for the applicant pointed out, based on Dr Walton’s opinion the applicant probably had a defence of mental impairment open to him. The pleas of guilty must therefore be seen not only as having utilitarian value, but also as demonstrating some remorse. Further, the applicant’s mental condition also dictated that general and specific deterrence needed to be moderated, as did the need for denunciation and just punishment.
Balancing all of the foregoing factors, I have concluded that the individual sentences passed on the two charges of defensive homicide, the total effective sentence and non-parole period are manifestly excessive. Although the sentencing judge referred to all relevant factors, the sentences imposed indicate that in some fashion her discretion has miscarried. I would not, however, disturb the sentence on charge 3 which, although stern, is in my view within range.
Accordingly, I would grant the application for leave to appeal, allow the appeal and resentence the applicant. I would fashion orders according to the table which follows, so as to produce a total effective sentence of 17 years and six months’ imprisonment, upon which I would fix a non-parole period of 14 years. It will be seen that I contemplate that five years of the sentence on charge 2, and two years and
six months’ of the sentence on charge 3, be served cumulatively with each other and with the sentence on charge 1. Cumulation of that order is required to ensure that the victim in each case on charge 2 and charge 3 is not relegated to the status of a ‘meaningless statistic’.[8]
[8]R v Scott (2003) 141 A Crim R 323, 336 [25].
Charge
Offence
Sentence
Cumulation
1
Defensive homicide
10 years
Base
2
Defensive homicide
8 years
5 years
3 Recklessly causing serious injury 5 years 2 years and 6 months Total effective sentence
17 years and six months’ imprisonment
Non-parole period
14 years’ imprisonment
KYROU JA:
I agree with Priest JA.
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