Brown v the Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0133

PETER BROWN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, PRIEST, KAYE, T FORREST and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 November 2019
DATE OF JUDGMENT:	10 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 286
JUDGMENT APPEALED FROM:	[2018] VSC 742 (Champion J)

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CRIMINAL LAW – Appeal – Sentence – Murder – Applicant sentenced to 30 years’ imprisonment with non-parole period of 24 years – Whether manifestly excessive – Very serious offending – Extreme violence towards victim – Premeditation – High moral culpability – Offending aggravated by post-offence conduct – Disposal of body – Subsequent attempt to steal deceased’s money – Early plea of guilty – No substantial criminal history – Standard sentence offence – Stern sentence but not manifestly excessive – Leave to appeal granted, appeal dismissed – Sentencing Act 1991 ss 5(2)(ab), (c), 5A, 5B.

CRIMINAL LAW – Sentencing – Standard sentence scheme – Obligation to take standard sentence into account – Standard sentence applicable to offence ‘in the middle of the range of seriousness’ – Whether judge obliged to classify subject offence in that range – Statutory preservation of instinctive synthesis – Provisions neither authorise nor require comparison with ‘mid-range’ offence – Assessment of objective seriousness unaffected – Obligation to give reasons – Requirement to relate sentence to standard sentence – Reasons provisions subordinate to sentencing provisions – Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 followed – Sentencing Act 1991 ss 5(2)(ab), (c), 5A, 5B considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F Gerry QC with Mr M D Phillips	C Marshall & Associates
For the Respondent	Mr C Boyce QC with Ms J Warren	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
PRIEST JA
KAYE JA
T FORREST JA
EMERTON JA:

Summary

In 2017, the Victorian Parliament legislated to establish what was described as a ‘standard sentence scheme’.[1] The new scheme replaced the ‘baseline sentencing’ provisions which this Court in 2015 had found were ‘incapable of being given any practical operation’.[2]
[1]Sentencing Amendment (Sentencing Standards) Act 2017.
[2]DPP v Walters (a pseudonym) (2015) 49 VR 356, 360 [9] (Maxwell P, Redlich, Tate, Whelan and Priest JJA).

As the then Attorney-General said in his second reading speech, the new legislation prescribes standard sentences for 12 serious crimes, including murder, rape and sexual offences involving children. The Minister explained the concept:

The standard sentence represents an offence at the mid-point of objective seriousness, and is calculated at 40 per cent of the maximum penalty. For example the standard sentence for rape is 10 years as it has a maximum penalty of 25 years. For offences with a maximum penalty of life imprisonment, an offence-specific approach has been adopted, with the standard sentence for murder being 25 years.[3]

[3]Victoria, Parliamentary Debates, Legislative Assembly, 25 May 2017, 1509 (Mr Martin Pakula, Attorney-General).

This is the first occasion on which the Court of Appeal has had to consider the standard sentence provisions. To facilitate that consideration, three appeals (including the present) were heard together concerning sentences imposed for standard sentence offences, being (respectively) murder, rape and sexual assault. The Court was greatly assisted by the submissions from counsel in all three appeals. In Part I of these reasons, we deal with the approach required by the new provisions. In Part II, we deal with the issues raised by this particular appeal.

For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:

·is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
·does not affect the established ‘instinctive synthesis’ approach to sentencing;
·does not require or permit ‘two-stage sentencing’; and
·does not otherwise affect the matters which the court may, or must, take into account in sentencing.

The only area of uncertainty concerns the judge’s assessment of the seriousness of the offence before the court (‘the subject offence’). The ‘standard sentence’ is defined as:

the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.[4]

The provisions then specify that those ‘objective factors’ are to be determined:
(a)without reference to matters personal to a particular offender or class of offenders; and
(b)wholly by reference to the nature of the offending.[5]

[4]Sentencing Act 1991 s 5A(1)(b) (‘Sentencing Act’).

[5]Ibid s 5A(3).

It is not in doubt that those specifications apply to the identification of the hypothetical ‘middle of the range’ offence. The question which was explored at the hearing of these appeals was whether the new scheme required (or permitted) the sentencing judge to assess the seriousness of the subject offence ‘taking into account only the objective factors’ as thus defined.

The submission of senior counsel for the Director was that, on their proper construction, the scheme provisions neither required nor permitted such an assessment. For the reasons set out in Part I, we would uphold that submission. In our opinion, the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of ‘objective factors’. Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence ‘in the middle of the range of seriousness’.

In our view, this conclusion is required by the language of the standard sentence provisions. It is also consistent with the express policy of the legislation, which is to preserve instinctive synthesis and prohibit ‘two-stage sentencing’. Finally, this construction of the provisions reflects their legislative history, based as they are on the analysis — and the language — in the unanimous judgment of the High Court in Muldrock v The Queen.[6]
[6](2011) 244 CLR 120 (‘Muldrock’).

The application for leave to appeal against sentence advances a single ground, namely, that the sentence imposed for murder — 30 years’ imprisonment, with a non-parole period of 24 years — is manifestly excessive. For the reasons set out in Part II, we would grant leave to appeal but dismiss the appeal.

I THE STANDARD SENTENCE SCHEME

It is necessary first to set out the provisions of the standard sentence scheme. The relevant provisions are as follows:

5A Standard sentence scheme
(1)If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—
(a) the offence is a standard sentence offence; and
(b)the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

(2)An offence of conspiracy to commit, incitement to commit or attempting to commit a standard sentence offence is itself not a standard sentence offence.
(3)For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined—
(a)without reference to matters personal to a particular offender or class of offenders; and
(b)wholly by reference to the nature of the offending.

5B Sentencing for a standard sentence offence
(1)This section applies in relation to sentencing an offender for a standard sentence offence unless—
(a)the offender was under the age of 18 at the time of the commission of the offence; or
(b)the offence is heard and determined summarily; or
(c)section 162 makes this section inapplicable because of when the offence is alleged to have been committed.

(2)In sentencing an offender for a standard sentence offence, a court—
(a)must take the standard sentence into account as one of the factors relevant to sentencing; and
(b)despite section 5(2)(b), must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

(3)Subsection (2)—
(a)does not limit the matters that a court is otherwise required or permitted to take into account in determining the appropriate sentence for a standard sentence offence; and
(b)is not intended to affect the approach to sentencing known as instinctive synthesis.

(4)A court that sentences an offender for a standard sentence offence must at the time of doing so state the reasons for—
(a)imposing that sentence; and
(b)any non-parole period fixed in accordance with section 11 as part of that sentence if that period is shorter than the period specified in section 11A(4)(a) , (b) or (c), as the case requires.

(5)As part of its reasons under subsection (4), a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.

As can be seen, s 5A is in effect a definition section. It gives content to the concepts of ‘standard sentence’ and ‘standard sentence offence’. Section 5B, by contrast, is the operative provision. It prescribes what the court must do when sentencing an offender for a standard sentence offence.

The starting point of the sentencing methodology is s 5B(2)(a), which obliges the court to

take the standard sentence into account as one of the factors relevant to sentencing.

By way of reinforcing that requirement, s 5(2) of the Act was amended to add ‘the standard sentence’ as a matter to which the sentencing court must have regard when imposing sentence.[7] (The other methodological provision is s 5B(2)(b), which provides that the only previous sentences to which the sentencing court may have regard are sentences imposed under the standard sentencing regime itself.)

[7]See Sentencing Act s 5(2)(ab).

Subsection 5B(3) expresses the legislature’s clear intention that the obligation to take the standard sentence into account should not otherwise affect the exercise of the sentencing discretion. This intention is expressed in the form of two directives, both couched in negative terms. First, the requirement to ‘take … the standard sentence into account’ does not limit the matters which the court is otherwise required or permitted to take into account. Secondly, that requirement ‘is not intended to affect the approach to sentencing known as instinctive synthesis’.

This latter concept requires explanation. The term ‘instinctive synthesis’ was first coined by the Full Court of the Supreme Court of Victoria in 1975 in R v Williscroft.[8] In that case, Adam and Crockett JJ said:

ultimately every sentence imposed represents the sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process.[9]

[8][1975] VR 292.

[9]Ibid 300.

In 2005, in Markarian v The Queen,[10] the High Court plurality affirmed that this was the correct approach. The Court approved a statement by Gaudron, Gummow and Hayne JJ in Wong v The Queen[11] that:

the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which … balances many different and conflicting features.[12]

[10](2005) 228 CLR 357 (‘Markarian’).

[11](2001) 207 CLR 584 (‘Wong’).

[12]Markarian (2005) 228 CLR 357, 373–4 [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ), quoting Wong (2001) 207 CLR 584, 611 [74] (Gaudron, Gummow and Hayne JJ) (emphasis in original).

In his concurring judgment in Markarian, McHugh J said:

Critics of the instinctive synthesis method place too much emphasis on the ‘instinct’ and too little on the ‘synthesis’. The use of the word ‘synthesis’ in the context of sentencing identifies the very last part of the process. It recognises that, where a variety of considerations, often tending in opposing directions, operate in the context of a statutory maximum, there must finally be a quantification of the sentence to be imposed. There must be a synthesising of the relevant factors. In that process, greater and lesser weight will be allocated to some factors depending on their relevance to the person convicted and his or her crime. Ultimately, community and legal values are translated into a number of years, months and days. That process must involve an instinctive judgment.[13]

[13]Markarian (2005) 228 CLR 357, 387 [73].

In endorsing instinctive synthesis, the High Court rejected what is described as ‘two-stage’ sentencing, that is, a process in which a starting sentence or range of sentences is first determined — for example, by reference only to the objective gravity of the offending — and then adjusted up or down by reference to particular features of the case, including matters personal to the offender. Such an approach was held to be a departure from principle because ‘it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender’.[14]
[14]Ibid 373–4 [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ), quoting Wong (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ).

The Explanatory Memorandum for the standard sentence provisions included the following statement:

The standard sentence is not the starting point for sentencing, nor does it require two-stage sentencing. Rather, the standard sentence is intended to provide the courts with a legislative guidepost of objective offence seriousness that is compatible with the instinctive synthesis approach to sentencing, which has been affirmed as part of the common law in Victoria.[15]

[15]Explanatory Memorandum, Sentencing Amendment (Sentencing Standards) Bill 2017 6–7 (emphasis added).

The phrase ‘legislative guidepost’ does not appear in the standard sentence provisions themselves. It is taken from the decision of the High Court in Muldrock,[16] to which detailed reference is made below. In that case, the Court had to construe New South Wales provisions which established a ‘standard non-parole period’ scheme.[17] It was common ground in the present appeals that the standard sentence scheme was modelled on the NSW scheme as considered and interpreted by the High Court in Muldrock. So much is, in any event, apparent from the 2016 report of the Sentencing Advisory Council, on which the Victorian standard sentence scheme was based.[18]
[16](2011) 244 CLR 120, 132 [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[17]Crimes (Sentencing Procedure) Act 1999 (NSW) ss 54A–54D.
[18]Sentencing Advisory Council, Sentencing Guidance in Victoria (Report, June 2016) (‘SAC Report’).

We turn to consider the NSW scheme and the reasons in Muldrock.

The standard non-parole period scheme

Section 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provided:

For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.

Section 54B of that Act applied when a court was sentencing an offender to imprisonment for one of the offences in the Table. Subsection 54B(2) provided as follows:
When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

In R v Way,[19] the NSW Court of Criminal Appeal held that, for the purpose of s 54B(2), a reason for departing from the standard non-parole period would be that the subject offence fell outside ‘the middle of the range of objective seriousness’ for such offences. It followed, the Court of Criminal Appeal concluded, that the sentencing exercise required

a critical focus, not only upon the objective seriousness of the particular offence before the court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified.[20]

[19](2004) 60 NSWLR 168 (‘Way’).

[20]Ibid 185 [72] (Spigelman CJ, Wood CJ at CL and Simpson J).

In the Court’s view, the statute required the sentencing court to ask and answer the question: ‘[A]re there reasons for not imposing the standard non-parole period?’.[21] That question would be answered by considering:

(i)the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;
(ii)the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender …[22]

Considerations of either kind might provide a reason for departing from the standard non-parole period, the Court said.[23]

[21]Ibid 191 [117].

[22]Ibid 191 [118].

[23]Ibid 191 [120].

In Muldrock, the High Court held that Way had been wrongly decided. The relevant part of the Court’s unanimous judgment (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) should be set out in full, because of its relevance to the questions presently under consideration:

Section 54B(2) and (3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as ‘the non-parole period for an offence in the middle of the range of objective seriousness’. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.
Nothing in the [provisions] requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.
A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to ‘mak[ing] a record of its reasons for increasing or reducing the standard non-parole period’ is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences.[24]

[24]Muldrock (2011) 244 CLR 120, 132 [27]–[29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (citations omitted) (emphasis added).

These passages may be distilled into a number of propositions, as follows:

1. The standard non-parole period is a ‘legislative guidepost’, in the same way as the maximum sentence is.

2. In order for it to serve as a guidepost, meaningful content must be given to the legislature’s specification of the standard non-parole period as the non-parole period ‘for an offence in the middle of the range of objective seriousness’.

3. Giving meaningful content to that specification requires that ‘objective seriousness’ be assessed:

(a) ‘without reference to matters personal to a particular offender or class of offenders’; and

(b) ‘wholly by reference to the nature of the offending’.

4. The sentencing court is neither required nor permitted to assess whether the subject offence falls within ‘the middle of the range of objective seriousness’ by comparison with ‘an hypothesised offence answering that description’.

5. The requirement to give reasons for fixing a non-parole period above or below the standard non-parole period does not require the judge to ‘classify the objective seriousness of the offending’.

6. The judge must, however, identify all of the facts, matters and circumstances which bear on the conclusion reached as to the appropriate sentence.

In the High Court’s view, therefore, the standard non-parole period provisions required only one assessment of ‘objective seriousness’. That was the assessment which was necessary in order to give ‘meaningful content’ to the legislative description of the ‘hypothesised offence’ as an offence ‘in the middle of the range of objective seriousness’. It was that assessment, the Court said, which must be undertaken ‘without reference to matters personal to a particular offender or class of offenders’ and ‘wholly by reference to the nature of the offending’.

The Court made clear that the sentencing court was not required to assess the seriousness of the subject offence by comparison with the hypothesised offence of mid-range seriousness. To do so would be to embark on two-stage sentencing. That is, any attempt to assess the seriousness of the subject offence by comparison with the hypothesised mid-range offence would lead — implicitly if not explicitly — to consideration of the appropriate relativities between the non-parole period for the subject offence and the standard non-parole period.

Following the decision in Muldrock, the NSW provisions were amended, so that ss 54A(2) and 54B(2) now read:

[s 54A(2)] For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
[s 54B(2)] The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

We turn now to the legislative history of the standard sentence provisions.

The Sentencing Advisory Council’s recommendations

Introducing the legislation for the standard sentence scheme, the Attorney-General described it as ‘implement[ing] the government’s response to the Sentencing Advisory Council’s report on Sentencing Guidance in Victoria’.[25] As the Minister told Parliament, the government had requested the Council in November 2015 — following this Court’s decision on the baseline sentencing provisions — to provide advice on

the most effective legislative mechanism to provide sentencing guidance to the courts in a way that promotes consistency of approach in sentencing offenders and promotes public confidence in the criminal justice system.[26]

[25]Victoria, Parliamentary Debates, Legislative Assembly, 25 May 2017, 1509 (Mr Martin Pakula, Attorney-General).

[26]Ibid.

In its 2016 report, the Council recommended as follows:

If a new legislated guidepost is to be introduced, it should be in the form of a standard sentence scheme accompanied by the enhanced guideline judgment scheme recommended by the Sentencing Advisory Council.[27]

The standard sentence scheme ‘should represent a new guidepost to objective offence seriousness’, the Council said.[28] There should be no change to ‘the common law approach to sentencing represented by the ”instinctive” or “intuitive” synthesis’.[29] The Council therefore recommended that:
[T]he language of the New South Wales standard non-parole period scheme should be adopted, given that the New South Wales scheme was considered by the High Court in Muldrock to be compatible with the common law, and the sentencing legislation in New South Wales was clarified to accord with the High Court’s decision.
The Council therefore considers that the standard sentence should represent the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.[30]

[27]SAC Report xix. As to guideline judgments, see Sentencing Act s 6AC(1)(eb).

[28]SAC Report 167 [7.54].

[29]Ibid 167 [7.55].

[30]Ibid 167 [7.56]–[7.57].

The Council specifically adopted the notion of a ‘legislative guidepost’:

Consistent with the common law as stated in the High Court’s decision in Muldrock, the Council recommends that the standard sentence should represent a guidepost to offence seriousness. It should not be a starting point, nor perceived as a minimum. It should act as a yardstick to sentencing in the same manner as the maximum penalty, but instead of representing the worst example of offending by the worst offender, which relies on considering objective and subjective factors, the standard sentence should represent the middle of the range of objective offence seriousness only.[31]

[31]Ibid 168 [7.61].

Of particular relevance to the present question is the following recommendation:

In applying the standard sentence, a judge should not be required to distinguish the case before him or her from the hypothetical middle of the range offence or be required to justify why the sentence imposed bears any particular relativity to the standard sentencing range.
The standard sentence for an offence should be a matter to be taken into account by a court in determining the appropriate sentence, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence.[32]
[32]Ibid 168 [7.62]–[7.63].

The standard sentence provisions

As noted by the sentencing judge in the present case, the Victorian legislature in ss 5A(3)(a) and (b) directly adopted the language of the High Court in Muldrock.[33] (So much was common ground on the appeal.) As can be seen, the phrases which appear in those two subparagraphs are the phrases which the High Court used to define how ‘meaningful content’ was to be given to the hypothesised mid-range offence for which the standard non-parole period would be appropriate.
[33]R v Brown [2018] VSC 742, [64] (‘Reasons’).

The opening words of s 5A(3) — ‘For the purposes of subsection (1)(b)’ — confirm that the Victorian legislature incorporated those two phrases for the corresponding purpose under this scheme. That is, they were incorporated in order to ‘give content’ to the definition in s (1)(b) of the hypothesised ‘mid-range’ offence for which the standard sentence would be appropriate. As a matter of both language and structure, therefore, s 5A(3) is referable to — and only to — the definition of the standard sentence in s 5A(1)(b). That is, s 5A(3) explains how the phrase ‘objective factors affecting the relative seriousness of [an] offence’ in sub-s (1)(b) is to be understood and applied for the purposes of that subsection.

It follows that the ‘determination’ contemplated by s 5A(3) is a determination for the sole purpose of giving content to the hypothesised mid-range offence. There is nothing in s 5A(3), nor in s 5B(2), to suggest that the sentencing judge is required, or authorised, to make an assessment of the seriousness of the subject offence governed by the ‘objective factors’ definition in s 5A(3).

The judge is still required to assess the seriousness of the subject offence. Now, as before, the judge is required by s 5(2)(c) of the Act to have regard to ‘the nature and gravity of the offence’. That obligation is unaltered by the advent of the standard sentence scheme. And the assessment of offence seriousness is to be done as it has always been done, without reference to the strictures imposed by s 5A(3).

As will appear, this conclusion accords with the view taken by the New South Wales Court of Criminal Appeal in most, but not all, of its post-Muldrock decisions. In a series of decisions since 2012, that Court has held that the decision in Muldrock did not affect the obligation of a sentencing judge to make a ‘conventional assessment’ of offence seriousness.

Before examining those decisions, however, it is necessary to address the requirements of ss 5B(4) and (5) with respect to the giving of reasons. When sentencing for a standard sentence offence, the court must (under

s 5B(4)) state the reasons for imposing the particular sentence. Under s 5B(5), the court in giving its reasons

must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.

There was discussion in the course of argument about how the court could give any meaningful explanation of how the sentence imposed ‘relates to’ the standard sentence without reference to — at least — the relative seriousness of the subject offence as compared with the hypothesised mid-range offence.

Axiomatically, the standard sentence provisions must be read as a whole. As the High Court said in Project Blue Sky v Australian Broadcasting Authority:

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.[34]

[34](1998) 194 CLR 355, 381–2 [70] (McHugh, Gummow, Kirby and Hayne JJ) (emphasis added) (citations omitted).

In our opinion, the provisions dealing with the content of sentencing reasons must be viewed as subordinate to the provisions prescribing the approach to sentencing, and must therefore ‘give way’ in the event of conflict. A provision with respect to the content of sentencing reasons could not be taken to impose on a sentencing judge a requirement (ie to undertake an assessment of offence seriousness relative to the hypothesised mid-range offence) which is not imposed by the operative provisions prescribing the sentencing methodology.

For the reasons we have given, the sentencing methodology prescribed by these provisions neither requires nor permits the sentencing judge to classify the subject offence on a scale of seriousness referable to the hypothesised mid-range offence. That not being a step in the process of reasoning to a decision on the appropriate sentence, the requirement to give reasons for the decision — and to explain how the sentence ‘relates to’ the standard sentence — must be construed accordingly.

This conclusion also accords with the approach of the High Court in Muldrock. There, the provisions required the sentencing court to ‘make a record of its reasons for increasing or reducing the standard non-parole period’.[35] The High Court, having made clear that ‘two-stage’ sentencing was not permitted, held that the requirement to give reasons did not require the sentencing court ‘to classify the objective seriousness of the offending’. What was required, the Court said, was for the judge to

identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed.[36]

[35]Muldrock (2011) 244 CLR 120, 127 [13] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[36]Ibid 132 [29].

As discussed earlier, the standard sentence provisions are explicit, in a way the NSW provisions were not, about the intention to preserve instinctive synthesis and prohibit two-stage sentencing. The position is, to that extent, even clearer than it was in Muldrock, that a requirement to give reasons cannot be read as affecting the content of the sentencing methodology.

It follows, as senior counsel for the Director submitted, that the reasons given by the judge in the present case satisfy the statutory requirement. His Honour said:

The sentence I impose is higher than the standard sentence for the offence of murder, which is 25 years’ imprisonment. Having identified and considered what I consider to be the relevant factors in assessing the sentence, including my assessment as to the very serious nature of the offending and the offender’s high degree of culpability, against his plea of guilty and display of remorse, I have formed the conclusion that this is appropriate.[37]
[37]Reasons [140].

The New South Wales decisions

In the years since the decision in Muldrock, the New South Wales Court of Criminal Appeal has had to deal on a number of occasions with grounds of appeal alleging ‘Muldrock error’.[38] These decisions are not directly in point, as the standard non-parole period scheme differs in important respects from the standard sentence scheme. They are, nevertheless, instructive as to the implications of the decision in Muldrock.
[38]See, eg, Abdul v The Queen [2013] NSWCCA 247, [18]–[19] (Hoeben CJ at CL, Johnson and Bellew JJ); Kentwell v The Queen [2013] NSWCCA 266, [8] (Bellew J).

One of the first decisions was Zreika v The Queen.[39] In that case, the Court rejected the contention of error, holding that the sentencing judge had used the standard non-parole period as a ‘reference point’ and a ‘useful guide’, not as a ‘starting point’.[40] As to the assessment of offence seriousness, Johnson J (with McClellan CJ at CL and Rothman J agreed) said:

The High Court [in Muldrock] did not suggest that a conventional assessment of objective offending, according to a scale of seriousness, was to be avoided.
The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to the appropriate sentence in all the circumstances of the case. Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender.
The judgment of the High Court in Muldrock v The Queen has left somewhat opaque the meaning of the term ‘objective seriousness’. Nevertheless, as subsequent decisions of this Court have stated, it remains part of a sentencing judge’s function to consider the objective gravity of the subject crime and the moral culpability of the offender.[41]

[39][2012] NSWCCA 44.

[40]Ibid [43] (Johnson J).

[41]Ibid [45]–[47] (citations omitted) (emphasis added).

The decision in Zreika was subsequently followed in Aldous v The Queen.[42] Later in the same year, the Court of Criminal Appeal decided McLaren v the Queen.[43] McCallum J (with whom McClellan CJ at CL and Bellew J agreed) began by noting the High Court’s rejection of the conclusion in Way that the sentencing judge was required
[42][2012] NSWCCA 153, [31]–[33] (Davies J).
[43][2012] NSWCCA 284 (‘McLaren’).

to assess the objective seriousness of the offence at hand by comparing it with the putative offence in the middle of the range of objective seriousness.[44]

Her Honour continued:
The appellant contends that [the sentencing judge’s] conclusion may now be seen to have entailed error in that the decision in Muldrock renders impermissible any consideration of the applicant’s state of mind in assessing the objective seriousness of the offence at hand.
In my view, that submission misconceives the effect of the decision in Muldrock. The phrase ‘objective seriousness’ in Muldrock at [27] … refers specifically to the definition in s 54A(2) of the Act as to what a ‘standard non-parole period’ denotes. That is the ‘concept’ referred to in the previous sentence of that paragraph. The point there made by the High Court, as I would understand it, is that there is no sense in attempting to place the offence at hand (with all its features, including matters personal to the offender where relevant to an assessment of the nature of the offending) at a point along a purely hypothetical range which, of its nature, is ignorant of those matters.
The decision in Muldrock does not, however, derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the ‘objective seriousness’ of the offence perhaps contributes to the misconception. I do not understand the High Court to have suggested in Muldrock that a sentencing judge cannot have regard to an offender's mental state when undertaking that task (as an aspect of his or her instinctive synthesis of all of the factors relevant to sentencing).[45]

[44]Ibid [24].

[45]Ibid [27]–[29].

This analysis was subsequently endorsed and applied by the Court of Criminal Appeal in Elturk v The Queen.[46] More recently, in Sharma v The Queen, complaint was made about a conclusion of the sentencing judge that the offences in question were ‘serious offences of their type’.[47] The complaint was rejected. R A Hulme J (with whom Beazley P and Walton J agreed) said:

It was after making reference to these matters … that the sentencing judge stated her conclusion that the offences … were ‘serious offences of their type’. There is no requirement for a sentencing judge to rank the objective seriousness of the offences on a scale; rather, the requirement is that a judge ‘identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed’. The High Court merely requires that there be such an assessment of objective seriousness and this is what her Honour did.[48]

[46][2014] NSWCCA 61, [34] (Beazley P). See also Martin v The Queen [2015] NSWCCA 6, [53] (Price J).

[47][2017] NSWCCA 85, [7] (‘Sharma’).

[48]Ibid [63] (citation omitted).

What was said in Sharma was this year applied by the Court of Criminal Appeal in McDowall v The Queen,[49] where the question was whether the judge had sufficiently assessed the seriousness of the offending. It was common ground that the assessment of objective seriousness was ‘an integral part of the sentencing process’.[50] The Court was satisfied that the judge had made a sufficient assessment. Adamson J (with whom Hoeben CJ at CL and Schmidt J agreed) said:

The requirement to give reasons for an assessment of objective seriousness cannot be satisfied by the use of words such as ‘mid-range’ or ‘high’ or ‘low’, without more, although these words may often be used in the context of an evaluative description of the offending conduct which fulfils the requirements enunciated in Muldrock v The Queen. What is required is that the judge ‘identify fully the facts, matters and circumstances’ which bear on the sentence imposed, including those which go to objective seriousness.
In the passage extracted above, the sentencing judge described the offence and its effect on the victims in evaluative terms which fulfilled the requirement to assess objective seriousness. As a matter of substance, the sentencing judge did identify the facts … matters and circumstances … for the sentence imposed for this offence by reference to matters germane to objective seriousness.[51]

[49][2019] NSWCCA 29 (‘McDowall’).

[50]Ibid [32] (Adamson J).

[51]Ibid [36]–[37] (emphasis in original).

In our respectful opinion, these decisions define clearly — and accurately — what was required of a sentencing judge under the NSW scheme following Muldrock. That is, Muldrock did not alter the pre-existing obligation of the sentencing judge to assess offence seriousness. That task was to continue to be performed in the conventional fashion, as part of the instinctive synthesis. What was not, however, to be undertaken was an assessment which adopted the scale of seriousness specified by the legislation for determining the hypothetical offence of mid-range seriousness. As McCallum J said in McLaren:

there is no sense in attempting to place the offence at hand (with all its features, including matters personal to the offender where relevant to an assessment of the nature of the offending) at a point along a purely hypothetical range which, of its nature, is ignorant of those matters.[52]

[52][2012] NSWCCA 284, [28].

It must be acknowledged that there have been other decisions of the Court of Criminal Appeal which appear to take a different view. In Williams v The Queen, Price J (with whom Allsop P and SG Campbell J agreed) began by adopting what had been said in Zreika, about assessment of offence seriousness having traditionally been ‘an essential element of the sentencing process’.[53] His Honour’s later comments, however, appear to assume that this assessment was to be governed by the Muldrock strictures. Thus, his Honour said:

The objective seriousness of an offence is to be determined wholly by reference to the ‘nature of the offending’. I do not think that the nature of the offending is to be confined to the ingredients of the crime, but may be taken to mean the fundamental qualities of the offence. In my view, where provocation is established such that it is a mitigating factor under s 21A(3)(c) Crimes (Sentencing Procedure) Act, it is a fundamental quality of the offending which may reduce its objective seriousness. It seems to me, that in those circumstances, there cannot be a realistic assessment of the objective seriousness of the offence unless the provocation is taken into account. The absence of provocation is not a factor of aggravation and does not increase the objective seriousness of the offence.
Notwithstanding this discussion, I am far from certain that, after Muldrock, whether proven provocation is taken into account in assessing the objective seriousness of the offence or as a matter personal to a particular offender, that there will be any practical impact upon the ultimate sentence.[54]

[53][2012] NSWCCA 172, [35], quoting Zreika [2012] NSWCCA 44, [46].

[54]Williams v The Queen [2012] NSWCCA 172, [42]–[43].

In R v AA, Beech-Jones J (with whom Leeming JA and R A Hulme J agreed) said:

In relation to the age of AA, the Crown referred to the statement in [Muldrock at [27]] to the effect that, at least when considering offences to which a standard non-parole period applies, the ‘objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders’. Instead, the objective seriousness is ‘to be determined wholly by reference to the nature of the offending’ ... Muldrock also distinguished between an assessment of the ‘objective seriousness’ of an offence and an assessment of the offender’s ‘moral culpability’ for the offence (see Muldrock at [54]). An assessment of the latter can, and should, take into account matters personal to an offender such as his or her impaired intellectual functioning (see McLaren v R[2012] NSWCCA 284 at [29] per McCallum J, McClellan CJ at CL and Bellew J agreeing (‘McLaren’); Elturk v R[2014] NSWCCA 61 at [33] to [34] per Beazley P). An assessment of moral culpability can also extend to an offender’s relative youth (see KT v R[2008] NSWCCA 51 at [22] to [25] per McClellan CJ at CL) although there are limits to its mitigating effect (JH v R[2017] NSWCCA 22 at [128]).[55]

[55][2017] NSWCCA 84, [54].

For the reasons given earlier, we consider that the approach adopted in Zreika, McLaren, Sharma and McDowall accords with the reasoning in Muldrock and is therefore to be preferred.

Conclusion

Judges sentencing for standard sentence offences should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability. The obligations imposed by s 5B(2)(a) (to take the standard sentence into account) and by s 5(2)(ab) (to have regard to the standard sentence) are indistinguishable from the obligation imposed by s 5(2)(a) to have regard to the maximum sentence.[56] They are all ‘legislative guideposts’.
[56]R v AB(No 2) (2008) 18 VR 391, 405 [45] (Warren CJ, Maxwell P and Redlich JA).

That the process may involve an element of comparison would seem to follow from what the High Court said in Markarian about the function of the maximum penalty:

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for [the sentencing judge] here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.[57]

[57]Markarian (2005) 228 CLR 357, 372 [31] (emphasis added) (citations omitted).

Just as judges have always had in mind a notion of ‘the worst possible case’, so they must now have in mind a notion of an offence ‘in the middle of the range of seriousness’. At the same time, the utility of such a comparison is lessened in the case of the standard sentence. There are two reasons for this. The first is the narrowness of the definition of ‘objective factors’ which, as McCallum J pointed out in McLaren, is ‘ignorant of’ a range of matters which the judge will need to take into account in assessing the nature and gravity of the subject offending.[58] The second is the inevitable imprecision of the notion of a hypothesised mid-range offence. As Basten JA said in Carlton v The Queen:

As a practical matter, it must be accepted that the middle of a range of seriousness is not a precise point, nor is there any paradigm by which it can be identified. This follows almost inevitably from the scope and variety of circumstances which can be relevant to considering seriousness.[59]

II THE SENTENCE APPEAL

[58]McLaren [2012] NSWCCA 284, [28].

[59][2008] NSWCCA 244, [90].

The applicant pleaded guilty to the murder of Simone Fraser at Rockbank on 9 March 2018. After a plea that was presented on his behalf, he was sentenced to imprisonment for a term of 30 years, with a fixed non-parole period of 24 years.[60] The applicant seeks leave to appeal the sentence on the ground that it is manifestly excessive.
[60]Reasons [136]–[137].

At the time of her death, Simone Fraser was 57 years of age. She was then a widow, her second husband having passed away in 2009. The applicant met Mrs Fraser in January 2017. They had a casual relationship that of short duration. In the meantime, in April 2017, Mrs Fraser received approximately $350,000 from the estate of her late husband. Until then her income had consisted of a disability support pension. The payout from her husband’s estate significantly improved her quality of life.

Subsequently, in early October 2017, the applicant met a 25 year old female, Ms Tiwo, online. She was living overseas in the Philippines. The applicant and Ms Tiwo maintained constant online communication in the months that followed. Their online relationship escalated to constant video calls at any hour of the day, on any day of the week. In the course of those communications, the applicant rapidly became infatuated with her, although he had never met her in person. He became intensely obsessed with Ms Tiwo, to the extent that he neglected his own personal wellbeing.

During that time the applicant commenced to send money to Ms Tiwo in the Philippines. The applicant was in receipt of Transport Accident Commission payments as a result of having suffered a serious motor vehicle accident in 2016. He transferred almost all of those payments to Ms Tiwo. He also borrowed money from his previous employer. At one stage, he removed $14,000 from the account of his father, who was then gravely ill, and remitted it to Ms Tiwo.

In February 2018, the applicant also borrowed money from Mrs Fraser, with whom he had resumed contact. He told her that he needed the money urgently and promised to repay it to her. In response, Mrs Fraser loaned the applicant a total of $3800, which she gave to him in a series of payments. The applicant duly sent those funds to Ms Tiwo. After a period of time, Mrs Fraser commenced to request the applicant to repay the money to her. The applicant repeatedly gave her a series of excuses as to why he could not repay her, and promised that he would do so in the future. On a number of occasions, he attended banks and automatic teller machines with her, but he invariably came up with an excuse as to why the funds were not available.

On 6 March 2018, the applicant went to Mrs Fraser’s home, where they had a meal together, and discussed repayment of the funds to her. They arranged to meet again on 9 March. The applicant’s banking records reveal that between 2 March and 9 March 2018, his account had a credit balance of $0.64. Plainly, he did not have the financial means to repay the debt he owed to Mrs Fraser.

On 8 March, the applicant and Mrs Fraser exchanged a series of text messages regarding the outstanding debt. The applicant assured her that he would have the funds to repay her on the next day.

On the morning of 9 March 2018, there were a series of further text messages between the applicant and Mrs Fraser. In the course of those messages, the applicant again confirmed that he would repay the money to her that day.

Mrs Fraser attended the applicant’s home on that day at approximately 11.00 am. Shortly after her arrival, an argument ensued between them concerning the debt owed by the applicant to Mrs Fraser. In the course of that argument, the applicant lashed out at Mrs Fraser, hitting her numerous times to the head with a brick. The applicant then ran inside his house, obtained a plastic bag and duct tape, returned, and put the plastic bag over Mrs Fraser’s head. He secured the bag with the duct tape in an effort to prevent her from breathing. As he could still hear Mrs Fraser making noises, he struck her on the head with a golf club with such force that the head of the club snapped off. At that point Mrs Fraser ceased to make any noises.

The applicant then dragged Mrs Fraser’s lifeless body by her legs into the garage. He reversed her vehicle to the garage door, and put her body into the boot. He then returned to the house, and attempted to clean the blood off himself and his surroundings. He also attempted to clean the blood from around the room and from the outside bricks.

The applicant then took a bag, some clothes and his dog, and drove the vehicle, containing Mrs Fraser’s body, from the premises. As he passed through Diggers Rest, he discarded Mrs Fraser’s mobile telephone by throwing it out the window.

At 11:49 am, the applicant registered Mrs Fraser’s credit cards with an international remittance company, and shortly after he registered them with a second company. He unsuccessfully tried to transfer money overseas to Ms Tiwo from Mrs Fraser’s account. He even went to the extent of contacting one of the remittance companies to inquire about the delay.

The applicant continued to drive up the Hume Highway. Finally, he arrived at the Murray Valley Regional Park. There he sat drinking and smoking, while waiting for darkness to descend. In the early hours of 10 March, he removed Mrs Fraser’s body from the boot of the vehicle, and left it near a tree, approximately 20 meters south west of the entry point to the park.

The applicant then commenced to drive back to Melbourne. At 6:37 am, he used Mrs Fraser’s credit cards to purchase some items in Yarrawonga. Subsequently, he made further stops while on the way home, purchasing fuel from a petrol station, and a hose from Bunnings, again using Mrs Fraser’s credit cards.

After arriving back in Melbourne, the applicant parked Mrs Fraser’s vehicle at the home of a friend in Rockbank, who he knew was away for the weekend. The applicant remained at that address for the long weekend, sleeping in a caravan at the rear of the premises.

In the meantime, Mrs Fraser’s daughter had reported to the police that her mother was missing. After commencing investigations, the police identified the applicant as a suspect in Mrs Fraser’s disappearance. On 13 March, the applicant attended Watergardens Shopping Centre in Sydenham. There he entered the Australia Post shop and transferred a sum of $200 to Ms Tiwo using Mrs Fraser’s funds. He made a video call to Ms Tiwo telling her that he ‘did something bad’. He then remained sitting in the vehicle in the shopping centre car park for one and a half hours. While he was there, he was arrested by police.

After his arrest, the applicant initially denied any knowledge of the disappearance of Mrs Fraser. However, he then made admissions to killing her and disposing of her body in Mulwala. In a recorded interview that followed, he told the police that Mrs Fraser had lent him a substantial amount of money, that on 9 March she had come to his place to collect the money, that a heated argument occurred, and that Mrs Fraser went for a brick that was in the backyard. The applicant said that he grabbed a brick and hit her three or four times with it. He then got a plastic bag and duct tape and put it over her head, because she was still making noises. He said he hit her again with the golf club and she stopped making noises.

With the aid of Google maps, the applicant identified to the police the location of Mrs Fraser’s body. At 3:30 pm on the same day, New South Wales police located her body at the point described by the applicant.

An autopsy was conducted on the body of Mrs Fraser. She was found to have four individual skull fractures, and to have suffered multiple scalp lacerations and bruises. The pathologist was unable to determine the cause of her death, because of the state of decomposition of her body. She expressed the opinion that if Mrs Fraser was alive at the time that the plastic bag was put over her head, that may have compromised her ability to breath, causing asphyxia and death. It was also possible that she had suffered a head injury which either caused her death or contributed to it.

The applicant was charged with murder and remanded in custody on 13 March 2018. On 4 July 2018, at a committal mention hearing, he was committed to the Supreme Court by way of a straight hand-up brief. On 13 August 2018, the applicant made a plea offer, and the matter resolved. On 16 August 2018, on arraignment, he pleaded guilty to murder.

The plea

At the time of sentence, the applicant was 58 years of age. He had a limited education. Having left school during year 9, he commenced work as a glazier. During the years that followed, he continued to work in that occupation, with the exception of a period in his early 20s when he was employed by a newspaper as a machinist.

When he was in his early 20s, the applicant commenced a relationship with a woman who was 10 years older than he, and who was a mother of four children. After a few years, the family moved to Queensland. When the relationship ended 10 years later, the applicant returned to Victoria. He then entered into a relationship with a woman, who was also a single mother with four children. That relationship lasted for approximately 14 years. During that period, the applicant and his partner purchased their own home, and commenced their own business, Geelong Showers & Screens. That business was ultimately sold. Subsequently, the applicant and his partner became estranged and their relationship terminated.

In the years that followed, the applicant became somewhat itinerant. Ultimately, in 2011, he relocated to the Melton area, and he commenced living at a caravan park in Rockbank. It was during that period that he met and had a short relationship with Mrs Fraser.

The applicant had a number of previous convictions, but most of them had been incurred more than 30 years ago, and they were for relatively minor matters. In January 2018, he was convicted by the Sunshine Magistrates’ Court on one charge of recklessly causing injury, and sentenced to eight months’ imprisonment. In the context of the present case, that previous conviction is of limited moment. The sentencing judge did not refer to it in his reasons.

In July 2018, the applicant was interviewed by Dr Adam Deacon, a consultant psychiatrist, at the request of his solicitors. The principal focus of Dr Deacon’s report was on the issue whether the applicant was fit to plead and stand trial. Dr Deacon concluded that the applicant’s presentation was not characteristic of a defined mental illness, although he appeared to have anxiety symptoms with secondary depressive symptoms. He noted that there was no prospect of a mental impairment defence, and that the applicant was fit to plead and stand trial. Dr Deacon described the circumstances which led to the offending in the following terms:

Mr Brown became intensely and unusually infatuated with a younger Phillipino woman. He fantasized that she would become his life partner. His desire for a relationship led him to becoming obsessively preoccupied to the extent that his psychosocial functioning altered. He neglected his physical wellbeing resulting in him feeling tired, anergic and moody. His mood state varied. He felt content at the prospect of forming a relationship with the Phillipino woman. He also felt frustrated and angry given he was exhausting his finances. He was insecure, anxious and uncertain whether the Phillipino woman matched his desire for a relationship. There is no evidence that his mental profile fits within the domain of a psychotic process. His mental health likely declined, but the offence appears to have been incidental and primarily unrelated. His capacity to self-regulate and compose himself was likely to have been compromised given his declining mental health status.

It was not suggested, on the plea, that that evidence was a sufficient basis for mitigation of the applicant’s sentence in accordance with any of the propositions stated in R v Verdins.[61]
[61](2007) 16 VR 269.

On the plea, counsel for the applicant acknowledged that the circumstances of the offending were serious. However, he submitted, the offending was spontaneous, and was not motivated by greed. Rather, it was a result of the applicant’s extraordinarily obsessive infatuation with the Philippino woman. In mitigation, counsel relied on a number of matters subsequent to the offending, including: the applicant’s early plea of guilty; the candid admissions made by the applicant in the course of his interview by the police, including the disclosure of matters of which the police would not otherwise have known; the applicant’s expression of remorse in the course of the interview; and the applicant’s cooperation in identifying to the police the location where he had left Mrs Fraser’s body.

Assessing offence seriousness

At the hearing before his Honour, Victoria Legal Aid submitted that the Muldrock analysis should apply to sentencing for a standard sentence offence. According to the written submission:

There is no requirement that the Court compare the instant offence with a hypothetical offence to which the standard sentence would apply. That is because, at least in part, the standard sentence is a construct that is incapable of meaningful comparison with an actual sentence that incorporates, as it must, a broad range of considerations beyond those that form part of the standard sentence.
To develop this submission further:
a.The ‘middle of the range of seriousness’ is a concept incapable of precise definition. To attempt to do so in order to serve as a point of comparison would be to distract from the importance of individualised justice as the central function of the sentencing process; and
b.Courts routinely give meaning and effect to the concept that the maximum penalty is an expression of worst case offending without necessarily having to conceptualise the precise circumstances of a ‘worst case’. As the standard sentence is but an additional guidepost, no different approach in its consideration is required.

In the first part of his sentencing reasons, the judge appeared to accept this submission, saying:

The direct adoption of the High Court’s language strongly suggests that, in this respect, the Victorian standard sentence provisions should be interpreted consistently with the approach taken in Muldrock.
The assessment required by ss 5A(1)(b) and 5A(3) of the Act is directed at giving meaning to the standard sentence. It does not, as has been clearly established, require or permit the Court to engage in a ‘two-step approach’, involving an initial ’classification’ of the offending at issue by reference to whether it falls in the middle range of objective seriousness.[62]

[62]Reasons [83]–[84].

Subsequently, however, his Honour concluded that he needed to assess the (relative) seriousness of the subject offence by reference to the definition of ‘objective factors’ in s 5A(3). He said:

It is to be observed that the ‘nature and gravity of the offence’ is a further sentencing factor pursuant to s 5(2)(c) of the Act. The assessment of the objective gravity of an offence is essential to the sentencing process in Victoria. This task will continue to be undertaken in non-standard sentence cases. To do so is to follow the guidance provided in Muldrock that the Court fully identify the ‘facts, matters and circumstances’ that bear upon the determination of the appropriate sentence. However, the standard sentence scheme viewed as a whole indicates that when sentencing for a standard sentence offence, the court must follow the requirements of ss 5A(1)(b) and 5A(3) when making an assessment of the seriousness of the offence in issue.[63]

[63]Ibid [87] (citations omitted) (emphasis added).

After referring to some of the New South Wales decisions, his Honour expressed the view that the phrase ‘objective factors affecting the relative seriousness of an offence’ (in s 5A(1)(b)) was wide enough to encompass

matters such as the mental illness of an offender, the motivation for carrying out the offending, provocation and aspects of duress, [which] are examples of factors that can have a relevant causal connection to the offending, such that they are fundamental qualities of the offence. Such matters, by their fundamental nature, in my opinion, can be relevant to the assessment of the objective seriousness of the offence.[64]

[64]Ibid [97].

His Honour proceeded to assess the seriousness of the applicant’s offending, concluding as follows:

The significant aspects of your offending that go to an assessment of its nature and objective seriousness can be summarised as follows:
·     You killed Ms Fraser with extreme violence, and she was defenceless;
·     Your attack with a house brick was unexpected;
·     You used four different weapons to kill her: the brick, bag, tape, and golf club;
·     You inflicted major destructive injuries to the head, and then suffocated her;
·     You intended to kill her, and the attack was persistent;
·     You inflicted multiple blows;
·     Before your last blow, you paused from your violent activity, which gave you the opportunity to pause and reflect on what you had done to that point. During the pause you could have sought help for your victim, but you did not;
·     Having paused, you returned to make sure she was dead, covering her head with a bag and tightly winding it with duct-tape;
·     You struck her again with the golf club while she was still alive;
·     You put her body in the boot of her car, and drove her away to a remote location;
·     At no stage did you make an effort to help her, and you treated her body with a complete lack of regard; and
·     After you had killed her, you used her credit cards in an attempt to take money from her accounts to satisfy your own needs.
Your actions were without pity, and you took Mrs Fraser’s life in a deliberate way. There is little, if anything, in the nature or the fundamental qualities of your offending that reduces its objective seriousness.
The prosecution submitted that taking into account only the objective factors, your offending fell above the mid-range of seriousness. On your behalf, it was acknowledged that no submission could be advanced that you were subject to any impaired mental functioning. Your counsel conceded that it could not be asserted [that] your mental condition is a relevant factor in determining the objective seriousness of the offending.
I accept the submissions of the prosecution. Taking into account all these factors, I assess your offending as a very serious example of the offence of murder, above the middle of the range of seriousness. [65]

[65]Ibid [102]–[105].

It follows from what we have said in Part I of these reasons that, in expressing his conclusion in the language of s 5A(1)(b) (‘taking into account only the objective factors’), his Honour went beyond what was required by the standard sentence provisions. No evaluation of the applicant’s offending by reference to ‘the mid-range of seriousness’, or by reference only to ‘objective factors’, was called for.

There is no suggestion, however, that this misapprehension affected his Honour’s assessment of the seriousness of this offending. Senior counsel for the applicant disavowed any ground of specific error. That concession was properly made, in our view. As can be seen from the extract set out above, his Honour took into account all of the matters which would be relevant on a conventional assessment of offence seriousness.

His Honour then proceeded, in the usual way, to assess the applicant’s moral culpability for the offending. He considered that it was not appropriate to describe the killing as being motivated by greed. Rather, the applicant’s actions had been driven by his obsession with Ms Tiwo. His offending was to be understood as arising from the overwhelming obsession that he had developed with her, and his inability to repay the debt that he owed Mrs Fraser. The judge concluded:

You were frustrated to the point where anger overwhelmed you regarding the pressure to repay your debts, in the context of your obsession. Despite this, your actions need to be assessed in light of your apparently normal mental condition at the time of offending. These factors may go some way to explain the violence of your outburst, but in no way excuse it.[66]

[66]Ibid [116].

The judge accepted that the applicant had pleaded guilty at an early stage, which was of significant utilitarian benefit to the criminal justice system, and in particular to the victim’s family and friends. His Honour also accepted that the applicant had apologised for his conduct during the interview, and that his expression of regret and remorse in the interview was genuine. His Honour also took into account that in the period after the applicant had killed Mrs Fraser and disposed of her body, he contemplated committing suicide, and that he appeared to have taken some preliminary steps toward that end, by purchasing a length of hose for that purpose. That conduct reflected an acceptance by the applicant of the enormity of what he had done.[67]
[67]Ibid [117]–[121].

The judge considered that general deterrence and denunciation were important factors in sentencing the applicant.[68] He found that the applicant’s prospects of rehabilitation were reasonable, so that there was no significant need for specific deterrence. Nor did the judge regard protection of the community to be a significant consideration, in light of the fact that the applicant would be elderly on his release from custody.[69]
[68]Ibid [123].
[69]Ibid [129]–[130].

In conclusion, the judge stated that the applicant’s offending was extremely serious, and his actions were callous and brutal. The applicant’s action in disposing of Mrs Fraser’s body in an open environment was ‘despicable’, and by this action and his use of her credit cards he aggravated the seriousness of his offending.[70]
[70]Ibid [132]–[133].

Application for leave to appeal – submissions

Counsel for the applicant accepted that the attack by the applicant on Mrs Fraser was brutal. However, the attack was not pre-planned, it could not be characterised as family violence, it was not sexually motivated, and it was not committed in company. Rather, the applicant’s conduct was driven by the subjective pressure he felt as a consequence of his obsessive behaviour directed to his online girlfriend in the Philippines. It was submitted that each of those factors is relevant in assessing the objective gravity of the offence, and the applicant’s moral culpability for it.

Counsel further pointed to a number of mitigating factors, upon which the applicant was entitled to rely. The applicant had made full admissions, which involved disclosing information which was not otherwise known to the police, and which was not capable of being independently ascertained by the police. The applicant had disclosed the location of the victim’s body to the police so that it could be readily recovered. In addition, the judge accepted that the applicant had demonstrated genuine remorse. He had pleaded guilty at the earliest opportunity, which was associated with his expression of remorse, his acceptance of responsibility, and his willingness to facilitate the course of justice. The plea was of utilitarian benefit. In addition, the applicant had reasonable prospects of rehabilitation. It was contended that those matters, taken in combination, entitled the applicant to a substantial reduction in sentence, that was not adequately reflected in the sentence imposed on him.

Counsel acknowledged that, pursuant to s 5B(2)(b) of the Sentencing Act, the judge was precluded from having regard to sentencing practices for murder that pre-dated the introduction of the standard sentencing provisions. Nevertheless, she contended, it is instructive for this Court to consider those sentencing practices, in order to gain an appreciation of the effect that the application, by the sentencing judge, of the standard sentencing provisions had on the sentence imposed on the applicant. For that purpose, counsel referred to the sentences imposed in Neil v The Queen,[71] Hill v The Queen,[72] Terdputham v The Queen,[73] Director of Public Prosecutions v Cooper[74] and Director of Public Prosecutions v Arthur.[75] It was submitted that the application of the standard sentence provisions could not account for the significantly longer sentence imposed on the applicant as compared with the sentences that were imposed in each of those cases. In particular, it was submitted, there was nothing in the standard sentence provisions that required the judge to impose a sentence on the applicant that represented such a substantial increment in sentencing practice, when all other sentencing principles, including the maximum penalty, remain the same. Accordingly, it was submitted that the sentence imposed on the applicant was manifestly excessive.
[71][2019] VSCA 64.
[72][2018] VSCA 190.
[73][2017] VSCA 123.
[74][2018] VSCA 21.
[75][2018] VSCA 37.

In response, counsel for the respondent referred to the serious nature of the offending, the attendant circumstances that aggravated its objective gravity, and the applicant’s moral culpability for it. Mrs Fraser had extended kindness and generosity to the applicant. On the other hand, the applicant, by his actions, clearly intended to kill her. His method of killing Mrs Fraser was somewhat prolonged and persistent. His subsequent conduct, in abandoning the deceased’s body in a remote location, was callous, as was his conduct in accessing the deceased’s financial accounts for his own benefit. Although the applicant ultimately made full admissions, he did not turn himself into the authorities, and he initially denied his involvement in the death of Mrs Fraser. His disclosure of the location of Mrs Fraser’s body served to ameliorate his callousness in initially disposing of it, but did not negate the effect of it. It was also noted that the applicant has a previous criminal history involving acts of violence.

Counsel for the respondent further submitted that counsel for the applicant could not refer to, or rely on, sentences that revealed current sentencing practices that were in place before the inception of the standard sentencing regime. Further, and in any event, the parties accepted, before the sentencing judge, that the standard sentencing scheme might result in an increase in the sentences imposed for offences for which a standard sentence is prescribed. Thus, it is not surprising if, in this case, the sentence imposed on the applicant is longer than might have been the case before the commencement of that scheme.

Ground of application for leave to appeal against sentence — analysis and conclusion

In order to succeed, on the ground that the sentence was manifestly excessive, the applicant must demonstrate that the sentence was wholly outside the range of sentencing options available to the judge. As such, the applicant must establish that the sentence was so excessive as to demonstrate error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error has been identified in his Honour’s reasons for sentence.[76]
[76]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; DPP v Macarthur [2019] VSCA 71, [58].

As the judge observed, there were a number of serious aspects of the applicant’s offending. He killed Mrs Fraser with an extreme degree of violence, in circumstances in which she was defenceless. Without any proper cause, he brutally attacked her with a brick which, of itself, was a dangerous weapon. The applicant clearly had a physical advantage over his victim, who was quite diminutive, being 149 centimetres in height. She was vulnerable and very much at his mercy throughout his attack. Using the brick, the applicant struck a number of blows to Mrs Fraser’s head, which were of sufficient force to result in multiple fractures of the skull. Throughout the attack his intention was to kill Mrs Fraser.

The applicant’s actions, after he had incapacitated her — in going into his home, obtaining a plastic bag and duct tape, returning to his victim, placing the bag over her head, and securing it with duct tape — were unspeakably callous and cruel. His intention of suffocating his incapacitated victim, in that way, demonstrated his total disregard for her suffering. Even if the blows that he inflicted on his victim with the brick were the result of an explosion of rage, his actions in fetching the bag and duct tape from inside the house, returning and securing them over Mrs Fraser’s face, were calculated and, at least to an extent, premeditated. Not content with achieving his ends in that way, he then, while she was utterly defenceless, struck her a vicious blow with the golf club, causing it to break.

The actions of the applicant, after he had killed Mrs Fraser, materially aggravated the gravity of his offending, and his moral culpability for it. Having placed his victim’s body in the boot of the vehicle, and driven en route to where he would dispose of it, he sought to use her credit cards to remit funds to the young female in the Philippines, with whom he was obsessively besotted. He then continued his journey, unceremoniously dumping Mrs Fraser’s body in a remote location. Having taken her life from her, he showed her no respect in the period after her death.

In those circumstances, as we have discussed, the judge was well justified in characterising the applicant’s offending as a very serious example of the offence of murder. The applicant’s moral culpability for the offending was substantial, and little could be said in mitigation of it. While the offending was not found to be premeditated, nevertheless the applicant, being a man of mature years, had no excuse for the explosive outburst of rage which precipitated his homicidal attack on Mrs Fraser.

In the sentencing synthesis, the judge was required to take into account, as a ‘guidepost’, the standard sentence for the offence prescribed by s 3(2)(b) of the Crimes Act. As we have noted, that standard sentence was but one factor which was required to be taken into account in the sentencing synthesis. Nevertheless, it was a relevant factor.

The applicant was entitled to the benefit of the mitigating factors found by the judge, including his early plea of guilty, his significant admissions to the police, not only as to his offending, but as to the circumstances of it, and his cooperation with the police in locating Mrs Fraser’s body. As we have mentioned, the applicant did not have a substantial criminal history, and he had been gainfully employed during most of his working life. However, those mitigating factors, while relevant, needed to be viewed in the context of, and weighed against, the very serious nature of the applicant’s offending.

Taking into account those mitigating circumstances, and in particular the applicant’s early plea of guilty, it might be fairly considered that the sentence of 30 years’ imprisonment, imposed on the applicant, was stern. However, in light of the serious nature of the offending, the applicant’s moral culpability for it, and the circumstances which aggravated his offending, we are not persuaded that that sentence was wholly outside the range of sentences available to the judge.

In the circumstances of the case, it may be that, as contended on behalf of the applicant, the sentence imposed on the applicant exceeded a sentence that would have accorded with current sentencing practices that were in place before the introduction of the standard sentencing regime. However, assuming that that premise might be well founded, it does not produce the conclusion that the sentence is, for some reason, manifestly excessive.

Rather, the determination of that question must ultimately depend upon an analysis of the circumstances of the offending, taking into account all the relevant sentencing principles. As we have said, one factor to be taken into account is that 25 years’ imprisonment is the standard sentence prescribed for an offence of murder that falls objectively within the ‘middle of the range’ of such an offence. A second relevant factor is that, in accordance with s 5B(2)(b) of the Sentencing Act, the judge was precluded from taking into account sentencing practices that predated the introduction of the standard sentencing regime.

For those reasons, although we would grant leave to appeal, we would dismiss the appeal.

Citations

Brown v The Queen [2019] VSCA 286

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[2019] VSCA 286

10 December 2019