Brendan Neil v The Queen
[2019] VSCA 64
•25 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0047
| BRENDAN NEIL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST AP, BEACH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 March 2019 |
| DATE OF JUDGMENT: | 25 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 64 |
| JUDGMENT APPEALED FROM: | [2017] VSC 761R (Jane Dixon J) |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Murder – Sentence of 26 years with non-parole period of 22 years following plea of guilty – Co-accused sentenced to 24 years with non-parole period of 20 years following trial – Parity – Whether judge erred in application of parity principle – Whether non-parole period manifestly excessive – Not reasonably arguable that judge erred in application of parity principle – Not reasonably arguable that non-parole period manifestly excessive – Application for leave to appeal refused.
OPEN COURTS – Non-publication order – Whether non-publication order necessary to prevent prejudice to administration of justice – Whether non-publication order necessary to protect applicant’s safety – Non-publication order not necessary – Ancillary order varied – Open Courts Act 2013, ss 17 and 18 – Criminal Procedure Act 2009, s 325.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Lethbridges Barristers & Solicitors |
| For the Respondent | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST AP
BEACH JA
T FORREST JA:
For about four months leading up to 25 August 2015, the applicant and Simone Quinlan were in an intimate relationship. On that day (25 August), Ms Quinlan was savagely beaten by the applicant. She later died.
On 24 April 2017, following pre-trial legal argument, the applicant pleaded guilty in the Supreme Court to the murder of Ms Quinlan. On 15 May 2017, following a 10 day trial, the applicant’s co-accused, Wayne Marmo, was also convicted of Ms Quinlan’s murder.
On 14 December 2017, the trial judge sentenced the applicant to a term of imprisonment of 26 years, with a non-parole period of 22 years. At the same time, she sentenced Marmo to a term of imprisonment of 24 years, with a non-parole of 20 years.[1]
[1]DPP v Neil & Marmo [2017] VSC 761R (‘Reasons’).
The applicant now seeks leave to appeal against his sentence on the following grounds:
1.The judge erred in the application of the parity principle by imposing a greater sentence on [the applicant] than Marmo in circumstances where [the applicant] pleaded guilty and Marmo pleaded not guilty and where [the applicant] offered to give evidence against Marmo and by finding that Marmo played a ‘subordinate role’ in the offending (sic).
2.The non-parole period is manifestly excessive.
Circumstances of the offending
At the time of the murder, the applicant was 28 years of age and Ms Quinlan was 33. They had been involved in an intimate relationship for about four months. During the relationship, Ms Quinlan lived ‘on and off’ with the applicant in a house on a property owned by the applicant’s parents in Killarney Drive, Melton. Prior to moving in with the applicant, Ms Quinlan was homeless and had lost the custody of her two children. The relationship between Ms Quinlan and the applicant was a volatile one and, by the day of the murder, had soured.
In the period leading up to the murder, the applicant, Marmo and Ms Quinlan were heavy users of ice. On the day of her death, the applicant was particularly angry with Ms Quinlan because she had made a family violence complaint against him to police. The applicant believed that this complaint might have a negative impact on Family Court proceedings that he was engaged in regarding access to his children from a previous relationship.
The family violence complaint concerned two incidents of alleged violence by the applicant. The first incident related to events that occurred on 13 June 2015 when Ms Quinlan required medical treatment (suturing) for an injury to her head. The second incident related to events that occurred on 19 August 2015 when the applicant threw a rock through the front window of a house in which Ms Quinlan was taking refuge.
Police attended following the second incident, and Ms Quinlan made a statement about both incidents. She told police that the applicant had hit her on the head with a baseball bat on the occasion when she needed her head sutured, and she said that she was very scared of the applicant. Police obtained a family violence intervention order against the applicant, and invited him to attend for an interview on 20 August 2015. The applicant, however, did not attend.
Late on the evening of 25 August 2015, at the Killarney Drive premises, the applicant’s abuse of Ms Quinlan escalated. The applicant was shouting at her that she had ‘snitched or dobbed us all, dobbed him in, or dobbed us all in or something’. Marmo was at the premises, as were two other people, referred to by the trial judge as TS and DJ.
The applicant forced Ms Quinlan into the lounge room and proceeded to assault her in front of TS, DJ and Marmo. At Marmo’s trial, TS described the applicant’s actions:
He was still raging off his head about her snitching or something about a window being broken and a restraining order or something. He was hitting her and, um, he taped her head up and ripped it off, like, not, torturing her, tormenting her, in a rage.
The savagery of the applicant’s attack on Ms Quinlan progressed. The applicant’s attack involved kicking her to the head and body with such force that TS was able to hear the applicant’s boots connecting with Ms Quinlan’s head. TS’s evidence was that this happened ‘too many times to keep track, and she saw blood on the floor, near Ms Quinlan’s head’.[2]
[2]Ibid [34].
Later, when Ms Quinlan was either severely incapacitated or dead, the applicant and Marmo agreed that Marmo should ‘dispose of her’. Ms Quinlan was then wrapped up in a blanket or sheet and placed in the back of Marmo’s ute and driven away. Marmo dumped Ms Quinlan’s body down a mineshaft and then burnt her body using petrol. On the way to the mineshaft, he stopped the vehicle and shot Ms Quinlan five or six times in the head as she lay in the back of the ute.
Before Ms Quinlan was driven away by Marmo, the applicant suggested to Marmo, TS and DJ that they hand over their mobile phones, promising to buy them new ones. The applicant also announced that he was ‘going to the pub to put [himself] on CCTV’.[3]
[3]Ibid [42].
The following day (26 August 2015) the applicant decided to hire a floor sander to remove bloodstains from the floorboards caused by the assault on Ms Quinlan. Ultimately, the applicant obtained a floor sander from his father and the applicant and Marmo sanded back the floorboards to remove traces of blood.
Additionally, the applicant sent a series of text messages about Ms Quinlan to her mother and Ms Quinlan’s previous partner, Danny Fisher. In these messages, the applicant indicated that his relationship with Ms Quinlan was over and that he assumed that she had gone back to Mr Fisher. As the judge put it, the purpose of these messages was to avoid the applicant coming under suspicion over Ms Quinlan’s disappearance.[4]
[4]Ibid [47].
On 25 September 2015, Ms Quinlan’s remains were retrieved from the mineshaft. Post-mortem examination revealed a wound to the scalp and an associated fracture to the skull consistent with the infliction of blunt force trauma. There were five gunshot entrance wounds to the back of the head and a single wound to the left orbital plate, which may have been an entry or exit wound.
The gunshot injuries to the head were each sufficient to cause death. The partial incineration of Ms Quinlan’s body impeded there being any precision about the cause of death and about the likely effect of the blunt trauma to the head. The forensic evidence was that the blunt trauma to Ms Quinlan’s skull might have been sufficient to cause death, but not necessarily so.
The applicant was interviewed by police. He lied to police about his involvement in the death of Ms Quinlan, saying that Marmo was the one who attacked her. He also denied complicity in the decision to get rid of Ms Quinlan or dispose of her body. He said that Marmo drove off with Ms Quinlan rolled up in a sheet in the tray of Marmo’s ute and that he had not seen her since.
In his interview with the police, Marmo gave a false version about the events surrounding Ms Quinlan being taken from the Killarney Drive premises. He asserted that the applicant and DJ drove off in the utility while he left with TS in another car. He also denied complicity with the applicant in the assaults on Ms Quinlan at Killarney Drive.
Crown cases against the applicant and Marmo
The Crown case against the applicant was that he assaulted Ms Quinlan at Killarney Drive with the intention of causing really serious injury or death and he then entered into an agreement, arrangement or understanding with Marmo to dispose of Ms Quinlan, which necessarily involved killing her if she was not already dead.
The case against Marmo was put on a narrower basis due to the Crown acknowledging that Ms Quinlan may not have still been alive when Marmo shot her. The issue for the jury in Marmo’s trial was focused on whether they could be satisfied beyond reasonable doubt that Marmo was complicit in the actions of the applicant at Killarney Drive. The Crown relied upon Marmo’s presence over the prolonged period of the attack on Ms Quinlan, and his actions of sawing off a rifle during the course of the attack, as well as what Marmo said to the applicant about having to get rid of Ms Quinlan, as showing his complicity in the applicant’s conduct. Marmo’s behaviour was said to have shown that he was involved in the murder by assisting and encouraging the applicant.
Reasons for sentence
The judge commenced her reasons for sentence with an overview of the case and a description of the circumstances of the offending.[5] She then described some of the forensic evidence, what was said by the applicant and Marmo at their respective police interviews, and the course taken by Marmo at his trial.[6]
[5]Ibid [1]–[51].
[6]Ibid [52]–[61].
Next, the judge dealt with the nature and gravity of the offending generally. In dealing with this topic the judge said that the ‘cruel and degrading nature’ of the attack at Killarney Drive was more strongly referable to the applicant, although it was also relevant to Marmo because it occurred at his encouragement.[7] The fact that Ms Quinlan ‘was being punished in response to a family violence complaint’ was also said to be an aggravating factor for the applicant; and the attitude that Ms Quinlan deserved punishment for ‘snitching’ to police was an aggravating factor for both the applicant and Marmo.[8] The agreement to ‘get rid of’ Ms Quinlan, and the dumping of her body down a mine shaft and setting it on fire, was also held to be an aggravating factor for both the applicant and Marmo.[9]
[7]Ibid [62].
[8]Ibid [64].
[9]Ibid [67].
The judge then referred to the roles of each offender, noting a submission made on behalf of Marmo that there were difficulties in achieving parity of sentence because of the separate and incompatible factual foundations of each case.[10] As the judge accepted, Marmo fell to be sentenced on the basis that there was a possibility that Ms Quinlan was dead before he shot her and thus that the shooting could not be proven to have caused her death. Marmo’s criminal responsibility, as the judge noted, hinged on the Crown establishing complicity in the applicant’s earlier conduct.[11]
[10]Ibid [69].
[11]Ibid.
The applicant, on the other hand, came to be sentenced on the basis that the judge could not conclude that he held the intent to kill, rather than an intent to cause really serious injury.[12] The judge, however, said:
I also do not accept that failure to be satisfied of intent to kill during the assaults at Killarney Drive is capable of mitigating sentence in the context of this case. Indeed it is not always the case that the distinction is treated as mitigating. In the present case, the focus on factual causation as a matter favourable to [the applicant] appears overstated. The prospect that Simone Quinlan may have been still alive when [the applicant] agreed that Marmo had to get rid of her, can hardly be seen as a matter in mitigation [for the applicant]. TS gave evidence that [the applicant] said to Marmo towards the end of the incident at Killarney Drive ‘that’s it, take it away’ or ‘get rid of it’.[13]
[12]Ibid [74].
[13]Ibid (citation omitted).
Ultimately the judge said that she was satisfied beyond reasonable doubt that the applicant was the dominant actor at Killarney Drive, regardless of where death actually occurred. Ms Quinlan was in a relationship with the applicant, and it was he who initiated the violence and who made her the target in his house that day.[14]
[14]Ibid [87].
In contrast to her conclusion that the applicant was the dominant actor, the judge said that she considered Marmo’s role to be ‘subordinate’ to the applicant’s in the attack on Ms Quinlan[15] — although both were, she said, equally to blame for the decision to ‘get rid of Ms Quinlan’, a decision which was made when Ms Quinlan ‘was in fact either very seriously injured or already dead’.[16]
[15]Ibid [88].
[16]Ibid [89].
The judge then dealt with the personal circumstances of the applicant[17] and Marmo.[18]
[17]Ibid [91]–[114].
[18]Ibid [115]–[145].
The judge’s treatment of the personal circumstances of the applicant may be summarised as follows:
(1)The judge noted that the applicant was 31 years of age, having been 28 in 2015. The applicant’s early life was uneventful, leaving school at Year 11 to take up a four year carpentry apprenticeship. The judge described the applicant’s relationship with his former partner leading to the obtaining of a FVIO by her and her subsequent relocation with their children.
(2)The judge described what she said was the applicant’s good employment history until his lifestyle became focused on daily methylamphetamine use through 2014 and 2015.
(3)The judge noted that applicant had a fairly limited criminal history, being convicted and fined in 2012 for using a carriage service to harass a person; and also being sentenced in the County Court in June 2013 to six months’ imprisonment (three months of which were suspended for 18 months) for reckless conduct endangering life and failing to stop a motor vehicle.[19] Additionally, the judge observed that in April 2015, the applicant was placed on a 15 month community correction order (‘CCO’) in relation to an unlawful assault on his former de facto wife and the applicant’s breaching of the FVIO that had been made in her favour.[20]
(4)The judge referred to the support the applicant had from his family, who are law abiding members of the community, and also to personal references tendered on his behalf.[21]
(5)The judge observed that the applicant’s plea of guilty was a late plea made only after pre-trial rulings and in light of a strong Crown case. The judge said, however, that the utilitarian benefit for the community from a plea of guilty to a crime as serious as murder could not be overstated.[22] The judge also referred to an offer of assistance which was not accepted by the Crown because it was said to be of little value.[23] The judge concluded that this ‘belated offer’ should attract very little weight in mitigation for the reasons submitted by the Crown. Ultimately, however, she accepted that the offer of assistance was a factor that was deserving of a ‘modest degree of recognition’.[24]
(6)Considering all relevant matters, the judge accepted that there were reasonable prospects for the applicant’s rehabilitation at the end of the lengthy sentence she said she was bound to impose upon him.[25]
[19]Ibid [102].
[20]Ibid [103].
[21]Ibid [104]–[106].
[22]Ibid [107].
[23]Ibid [110].
[24]Ibid [111].
[25]Ibid [113].
The judge’s treatment of the personal circumstances of Marmo may be summarised as follows:
(1)The judge noted that Marmo was 26 years of age at the time of sentencing, and 23 at the time of offending. As such, she said that Marmo was significantly younger than the applicant. The judge observed that Marmo had ‘not been favoured with many opportunities in life’, although he did have the love and support of each of his parents and his older sister.[26] The judge noted that Marmo finished secondary schooling in Year 9 before attending a Koori program at a technical school in Year 10.[27]
(2)The judge described Marmo’s introduction to amphetamines ‘at about the age of 16’ and his abuse of alcohol and drugs since then.[28] The judge then described a work history that was more sporadic than the applicant’s work history. She then referred to there being a number of ‘on and off’ relationships in which Marmo had been involved, one of which had produced a child whom Marmo did not see.[29]
(3)The judge then described a criminal history that was more extensive than the applicant’s, although one that had not resulted in him previously being sentenced to a term of imprisonment. Like the applicant, at the time of the murder of Ms Quinlan, Marmo was on a CCO. Marmo’s CCO was imposed in May 2015 in relation to offending that included an unlawful assault on a former partner and firearm offences.[30]
(4)The judge referred to the various testimonials tendered on behalf of Marmo, and the evidence of a neuropsychologist, Ms Lofthouse. She noted that, like the applicant, Marmo had the continued support of his family — which she said would be vital to his rehabilitation. Additionally, she referred to the opinions of Ms Lofthouse, including that Marmo suffered from a mild to moderate intellectual dysfunction.[31]
(5)While the judge agreed with the Crown that Verdins[32] was not applicable to mitigate Marmo’s offending, her Honour said:
I accept that the Court should recognise in a more general sense the lifelong disadvantage [Marmo has] suffered and [his] low level of education and intelligence as contextually relevant to [the] assessment of [his] moral culpability.[33]
(6)Finally, the judge concluded that Marmo’s prospects for rehabilitation at the conclusion of a lengthy sentence were ‘reasonable’.[34]
[26]Ibid [115]–[116].
[27]Ibid [121].
[28]Ibid [122].
[29]Ibid [123]–[124].
[30]Ibid [125].
[31]Ibid [126]–[134].
[32]R v Verdins (2007) 16 VR 269.
[33]Reasons [136].
[34]Ibid [145].
Next, the judge dealt with the question of parity. Having regard to the terms of the applicant’s proposed ground 1, we set out in full what the judge said under this heading:
The court is required to ensure that any disparity in the sentence imposed on each of you is justified by reference to your roles in the offence, your prior criminal history and personal circumstances. In Kelly v R,[35] the court noted that despite the important notion of equal justice between offenders grounding the principle of parity, considerations of age, background, previous criminal history and general character of the offender, in addition to the part which he or she played in the commission of the offence, may reveal that other things are not equal.[36]
Often as in this case there are signposts pointing in different directions when assessing parity considerations. The Court of Appeal in Kumas v R[37] said:
Of course, parity operates as a check upon the overall sentencing process. The task of a judge in sentencing co-offenders is to discern real and substantial grounds for distinguishing between them. Any significant disparity should be capable of a rational explanation, but precise mathematical evaluations of debits and credits between offenders is not only impossible to achieve, but contrary to the methodology of intuitive synthesis.[38]
I have referred to my findings as to the roles played by each of you above. In considering parity of sentence I must also take into account differences in your background, prior history, future prospects, remorsefulness and the response to the charges.
In summarising these factors, I regard Brendan Neil’s role in the offending as more morally blameworthy, and I consider that his more extensive post offence conduct demonstrated a concerning absence of remorse prior to the entry of a plea of guilty. However, his acceptance of responsibility and expression of remorse is currently more advanced since entering his plea. Brendan Neil’s prospects for rehabilitation appear reasonable because of his proven abilities in the past, his limited antecedents and his behaviour in prison. Wayne Marmo on the other hand is younger and must be credited with the potential for personal growth that springs from youth.
Wayne Marmo’s comparative youth, low intelligence and less advantaged background, together with his subordinate role at Killarney Drive provide a basis for some disparity in sentencing. My findings as to overall moral blameworthiness relating to each of you have also influenced my findings about your prospects for rehabilitation.[39]
[35][2011] VSCA 10.
[36]Ibid [5], citing Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs CJ).
[37][2017] VSCA 287.
[38]Ibid [42].
[39]Reasons [146]–[150] (citations in original).
The judge then dealt with a number of sentencing decisions the parties had referred her to as comparable cases, and also to sentencing statistics to which counsel had made reference.[40]
[40]Ibid [151]–[156].
Next, the judge dealt with the victim impact statements that had been received by the Court, noting particularly the ‘enormous emotional toll’ on both of Ms Quinlan’s parents and the effects of her death upon those most closely affected by the applicant’s offending.[41]
[41]Ibid [157]–[161].
The judge concluded her sentencing remarks as follows:
In addition to the grief and suffering described by friends and relatives of Simone Quinlan, the impact of your crime is far wider. It touches the community as a whole when a young woman is horribly killed and her body callously disposed of. In this case, the suffering of friends and family was made worse by the period of uncertainty before learning of Simone Quinlan’s fate.
The court recognises that no sentence will seem adequate punishment in the minds of those who knew and loved Simone Quinlan. The court must impose just punishment that balances all of the factors required by law to be recognised in sentencing.
In sentencing the pair of you, denunciation of your conduct is an important consideration. I must impose a sentence which gives weight to protection of the community and deters others from crimes of this nature. The family violence background to the crime requires the imposition of a sentence that deters others from disregarding the legal protections available to protect women from domestic abuse.
The lifestyle the pair of you were engaged in at the time of the offending raises the need for some consideration of specific deterrence, although this factor requires less weight than the other purposes of sentencing in light of the lengthy sentences to be imposed.
I have taken into account all the purposes of sentencing in fixing the head sentence and non-parole period, including general and specific deterrence, denunciation protection of the community, just punishment and rehabilitation. I must also impose sentences which are proportionate to the nature and gravity of your crime, and that takes into account the principle of parsimony.
In respect of you Brendan Neil, your prospects for rehabilitation are reasonable as long as you learn to manage your emotions and continue to remain abstinent from drugs. However, it must also be acknowledged that it was your behaviour that precipitated the attack on Simone Quinlan against a background of family violence.
Wayne Marmo, your relative youthfulness at the time of the offending is a factor relevant to your prospects for rehabilitation even though your past lifestyle suggests that rehabilitation will be challenging for you.
In arriving at a just sentence I have endeavoured to weigh all the matters put by your counsel and by the Crown in respect of each of you individually, including your role in the commission of the crime and matters personal to each of you.[42]
[42]Ibid [162]–[169] (citations omitted).
Parties’ submissions
In support of his complaint that the judge erred in the application of the parity principle, the applicant relied upon the following matters:
(1) The applicant pleaded guilty; Marmo did not. This was submitted to be the major difference between them and ‘constitutes the source of the error of principle in this case’.
(2)After entering a plea of guilty, the applicant indicated an intention to offer assistance in the prosecution of Marmo by giving evidence in his trial. The fact that the prosecution declined the offer of assistance did not mean that the offer of assistance had no mitigating force.
(3)Although the case of murder against the applicant was put on a ‘wider basis’ than that against Marmo, the applicant’s actual participation should be assessed as being equal to that of Marmo and the idea that Marmo played a ‘subordinate role’ to the applicant should not be accepted.
(4)While there were some material differences between the applicant and Marmo, there was nothing that would justify a disparate sentence in favour of Marmo.
(5)The applicant’s prospects of rehabilitation were ‘far superior’ to Marmo’s. Although the applicant was five years older than Marmo, his criminal history was more limited and he had a sound employment history. The applicant had also pleaded guilty and the judge found that his acceptance of responsibility and expression of remorse ‘is currently more advanced since entering his plea’.[43] Such a finding could not be made in respect of Marmo.
[43]Ibid [149].
Under proposed ground 2, the applicant contended that the non-parole period of 22 years was 85 per cent of the head sentence, and that this ‘manifests error on its face’. While the applicant conceded that there was no standard non-parole period for any term of imprisonment, he submitted:
But when the sentencing judge’s finding of fact includes the positive finding that [the applicant’s] ‘prospects for rehabilitation appear reasonable because of his proven abilities in the past, his limited antecedents and his behaviour in prison,’[44] the fixing of such a high non-parole period is incongruous and excessive.
[44]Ibid.
The respondent submitted that the applicant’s complaint of error in the application of the parity principle was not reasonably arguable. The matters relied upon by the applicant in support of his contention that the principle of parity has been infringed were submitted to be ‘only the barest summary of the differences and the sentencing judge’s findings’. When examined more closely, and all of the circumstances are taken into account, it could not be contended that there was any error in the application of the parity principle.
In relation to proposed ground 2, the respondent again contended that the applicant’s complaint was not reasonably arguable. Her Honour gave detailed reasons as to why she imposed the sentence that she did. There was no error made by the judge, and the sentence was, in all the circumstances, reasonably open.
Ground 1: was there a parity error?
The principles governing parity are well established,[45] and were most recently summarised by this Court in Wood v The Queen.[46] In Hilder v The Queen,[47] Maxwell ACJ identified ‘the true nature of the question which must be addressed when the ground of parity is advanced’ as being ‘whether it was reasonably open to the judge in the circumstances of the case to differentiate — or fail to differentiate — between the co-offenders in the way that he or she did’.[48] His Honour went on to say that there was a ‘close analogy with the stringency of the test of manifest excess’, and then said that, for a parity ground to succeed, ‘it must be shown that the conclusion as to sentence differentials was not reasonably open’.[49]
[45]See Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462.
[46][2019] VSCA 39 [76]–[79] (‘Wood’).
[47][2011] VSCA 192 (‘Hilder’).
[48]Ibid [37].
[49]Ibid [38]; Collins v The Queen [2015] VSCA 106 [23].
In his oral submissions, counsel for the applicant concentrated upon what he said was the judge’s failure to give proper weight to the applicant’s plea of guilty. This fact alone was said to require the applicant to have been sentenced to a sentence that was significantly lower than Marmo’s sentence. The parity error made by the judge was said to be all the more egregious when one considered the other matters relied upon by the applicant, which we have summarised above at [35].
We commence our analysis with the applicant’s complaint that the judge was wrong to treat Marmo as having played a ‘subordinate role’. In fact, the judge found that Marmo’s role was only subordinate in the attack on Ms Quinlan.[50] Her Honour then said it was ‘an indication of [Marmo’s] subordinate role that [he] took on the job of disposing of Simone Quinlan after what had happened at Killarney Drive’.[51] The judge, however, concluded that both the applicant and Marmo were ‘equally to blame for the decision to get rid of Simone Quinlan’.[52]
[50]Reasons [88].
[51]Ibid.
[52]Ibid [89].
We see nothing wrong with the judge’s conclusions in relation to the respective roles of the applicant and Marmo. They were conclusions reached after a careful consideration of the evidence, and they were conclusions that were plainly open. Indeed, we think they were correct. There can be no doubt that it was the conduct of the applicant that was at the heart of this horrific offending. But for the applicant’s anger with, and treatment of, Ms Quinlan, the offending and her ultimate death would not have occurred.
We are similarly unpersuaded that the applicant’s late plea of guilty, in the circumstances of this case, required the judge to impose some lesser sentence than the sentence she imposed on Marmo. We have set out in full the judge’s reasons on the parity issue. Those reasons are persuasive, and show that her Honour carefully analysed all of the competing and countervailing matters. As was said by Maxwell ACJ in Hilder:
Where a judge has carefully considered all of the relevant sentencing considerations applicable to the respective co-offenders, a ground of parity will rarely succeed. In those circumstances it will be necessary for an appellant to show that, despite the sentencing task having been carefully and consciously carried out, nevertheless, the conclusion as to differentiation is so obviously wrong that this Court is constrained to conclude that the sentencing discretion miscarried as a matter of law.[53]
[53][2011] VSCA 192 [39]. See also Wood [2019] VSCA 39 [79].
In argument, counsel for the applicant submitted that the proper application of parity principles in this case was ‘difficult’ because of the different factual bases upon which the applicant and Marmo fell to be sentenced. It may be accepted that the different factual bases upon which they each fell to be sentenced made the sentencing judge’s task more difficult than usual. That said, however, we see no error in her Honour’s analysis or in the outcomes that she ultimately imposed. For the reasons she gave, and in particular at Reasons [149]–[150],[54] the judge was correct to differentiate the cases of the applicant and Marmo in the way she did when she imposed sentence.
[54]See [31] above.
Proposed ground 1 must be rejected.
Ground 2: was the non-parole period manifestly excessive?
There is no substance in the applicant’s complaint that the non-parole period was manifestly excessive. The fact that the non-parole period was almost 85 per cent of the head sentence does not bespeak any error in this case. As has been said many times before, the higher the head sentence (particularly with sentences that exceed 20 years) the higher the percentage of the head sentence the non-parole period will likely be, and the more often it will be in excess of 80 per cent.[55]
[55]See, eg, Romero v The Queen (2011) 32 VR 486, 493–4 [25]–[26].
When one considers all of the circumstances of the applicant’s offending together with the matters he relied upon in mitigation, it is not reasonably arguable that the non-parole period was manifestly excessive. Moreover, contrary to the applicant’s submissions, the non-parole period’s relationship to the head sentence in this case does not ‘manifest error’. Similarly, and again contrary to the applicant’s submissions, the judge’s conclusions that the applicant’s prospects for rehabilitation ‘appear reasonable’ did not require some lower non-parole period to be fixed.
Proposed ground 2 must be rejected.
Non-publication (suppression) orders
On 28 April 2017, pursuant to s 17 of the Open Courts Act 2013, the judge prohibited the publication of any information relating to the offer of assistance by the applicant to the Crown in Marmo’s prosecution. The order was expressed to expire on the conclusion of proceedings against Marmo and the applicant in the Trial Division or two years from the date of the order, whichever occurred earlier. Additionally, the order was expressed to be made on the ground that it was necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that could not be prevented by other reasonably available means,[56] and also on the ground that it was necessary to protect the applicant’s safety.[57]
[56]See s 18(1)(a) of the Open Courts Act.
[57]See s 18(1)(c) of the Open Courts Act.
On 14 December 2017, the judge varied the non-publication order so that it would expire five years from the date of sentence (14 December 2017) ‘unless otherwise varied, revoked or amended’.
The non-publication order, and the order varying it, were made by the judge prior to this Court’s delivery of reasons for judgment in AB v CD & EF.[58] In AB, this Court observed that s 17 of the Open Courts Act empowers a court to make a non-publication order of the kind made by the judge only if the order is ‘necessary’ to effect one of the purposes set out in the Act (in this case, s 18(1)); and that the word ‘necessary’ imposes a high standard of satisfaction — one that is not met by merely establishing that it would be reasonable or convenient.[59]
[58][2019] VSCA 28 (‘AB’).
[59]Ibid [68]. See also Chaarani v DPP (Cth) [2018] VSCA 299 [41] (‘Chaarani’).
In the present case, Marmo has known since at least 2017 that the applicant made an offer to assist the Crown in its prosecution of him. That fact has not been confidential or capable of being suppressed by a court since that time. Because of the applicant’s offer to assist, as the judge observed, the applicant has been placed in protection.[60] It is the protection regime applicable to the applicant that protects him from retaliation or harm that might be occasioned to him as a result of his offer to the prosecuting authorities to assist in the prosecution of Marmo.
[60]Indeed, as the judge observed, the applicant was ‘placed in the protection stream’ before offering to assist the Crown.
Having reviewed the material for ourselves, we are not persuaded that it is ‘necessary’ either to prevent any risk of prejudice to the proper administration of justice or to protect the safety of the applicant to make or maintain the current non-publication order. Indeed, the administration of justice dictates, contrary to the maintenance of the current non-publication orders, that there be no restriction on the publication of this Court’s reasons for refusing the applicant leave to appeal, nor the judge’s reasons for imposing the sentences she imposed on the applicant and Marmo.[61]
[61]Cf Chaarani [2018] VSCA 299 [41]. See further, AB [2019] VSCA 28.
Section 325 of the Criminal Procedure Act 2009 permits this Court to set aside or vary an ‘ancillary order’[62] made by the judge below if this Court is satisfied that it is in the interests of justice to do so. For the reasons just given, we are so satisfied. In the circumstances, however, it is sufficient to vary the judge’s non-publication order so as to provide that it will expire upon the delivery of these reasons, and we will so order.
[62]‘Ancillary order’ is defined in s 325(1) to mean ‘an order (other than the order that is the subject of the appeal) made by the originating court in the proceeding’.
Conclusion
The application for leave to appeal against sentence will be refused.
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