Director of Public Prosecutions v Tiumalu

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0066

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
TERRENCE TIUMALU	Respondent

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JUDGES:	EMERTON P, PRIEST and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2024
DATE OF JUDGMENT:	5 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 192
JUDGMENT APPEALED FROM:	DPP v Tiumalu [2023] VSC 233 (Champion J)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Manslaughter – Unlawful and dangerous act – Deceased injured by slap and punches in course of an eviction – Respondent prevented deceased from obtaining medical treatment – Respondent concealed deceased’s remains – Unable to determine cause of death due to body’s state of decomposition – Plea of guilty – Sentenced to seven years and six months’ imprisonment – Whether sentence manifestly inadequate – Appeal allowed.

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Counsel
Appellant:		Mr B F Kissane KC with Mr E S Dober
Respondent:		Mr D A Dann KC with Mr S Tovey
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Emma Turnbull Lawyers

EMERTON P
PRIEST JA
MCLEISH JA:

Introduction

On or about 31 May 2021, the respondent, then aged 30 years,[1] mounted a serious physical assault on Brendon Farrell, aged 33, inflicting injuries from which Mr Farrell died at some point between 31 May and 9 June 2021. The respondent then set about disposing of Mr Farrell’s body.
[1]His date of birth is 25 May 1991.
Police arrested the respondent on 9 July 2021 and charged him with murder. Shortly after a committal hearing, however, the case resolved; so that, on 13 October 2022, the respondent pleaded guilty to Mr Farrell’s manslaughter before a judge in the Trial Division. Although, for reasons that will become clear, the precise time, place and mechanism of Mr Farrell’s death cannot be determined, by his plea to manslaughter the respondent admitted that he killed Mr Farrell ‘on or about’ 31 May 2021 by an unlawful and dangerous act (or acts).
Following a plea in mitigation, on 4 April 2023 the judge sentenced the respondent to seven years and six months’ imprisonment, with a non-parole period of five years.[2]
[2]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the respondent’s plea of guilty, he would have sentenced the respondent to 10 years’ imprisonment with a non-parole period of 7 years and 6 months.
By Notice of Appeal dated 27 April 2023, the Director of Public Prosecutions appeals against the sentence, contending that the sentence (including the non-parole period) is manifestly inadequate.[3]
[3]Counsel for the Director submitted that a separate ground — that the sentencing judge ‘erred in ruling that Verdins limbs 1 and 3 applied’ — should be treated as a ‘particular’ of manifest inadequacy.
In our view, the Director has made good the contention that the sentence is manifestly inadequate. For the reasons that follow, we would allow the appeal and resentence the respondent to nine years and six months’ imprisonment with a non-parole period of seven years.
Circumstances of the offending
Before turning to the issues in the appeal, it is necessary to outline the circumstances of the offending.
From June 2020, Mr Farrell lived in a bungalow in the rear of a property situated in Kidds Road, Doveton. His landlord, Richard Jackson, lived in the main residence at the front of the property.
In the lead-up to the killing, tension had developed between Jackson and Mr Farrell. As a result, Jackson decided to evict Mr Farrell from the bungalow. He sought the assistance of the respondent to do so. In turn, the respondent recruited an associate, Quinn Letzing, to assist with the eviction. Both the respondent and Letzing had experience working in the security industry. The respondent had also acted as a debt collector.
On 31 May 2021, Mr Farrell was in the bungalow with his former partner, Kristy Mayes. Somewhere around 11.00 am or midday, Mr Farrell woke up, left the bungalow and started walking toward the main residence to use the toilet. While in the rear yard, he encountered the respondent and Letzing. The respondent briefly spoke to Mr Farrell, before all three men entered the main residence.
Once inside, the respondent continued to speak with Mr Farrell in the living room. In the course of doing so, the respondent ‘snapped’ and slapped Mr Farrell to the face. The respondent then grabbed Mr Farrell by the scruff of the shirt, pulling him in a downward motion. Sitting on the couch, the respondent pulled Mr Farrell in close, held him by the legs and punched him twice to the head and face, causing Mr Farrell to bleed (either from the nose or the eyebrow).
Kristy Mayes, who was still in the bungalow, heard thud-like sounds and Mr Farrell screaming for help. Jackson then entered the bungalow, stating that he was looking for rare coins and prescription medication, ‘Ritalin’, that he believed Mr Farrell had stolen from him.
Letzing, who was uncomfortable with what was occurring in the residence, told the respondent he was leaving and asked for the respondent’s car keys. He then went to the bungalow and told Ms Mayes and Jackson that he was leaving. As he returned to the main house, Letzing saw the respondent sitting on the couch holding Mr Farrell, who appeared to be ‘dazed’. Letzing collected the keys to the respondent’s vehicle and left the premises, returning home.
After Letzing left, the respondent went to the bungalow and had a conversation with Jackson. He told Jackson that he had done some ‘re-decorating’ inside the house and there was blood everywhere. The respondent then pointed to his boots where Ms Mayes observed what she believed to be blood. In fear for her own safety, Ms Mayes collected her belongings and began to leave. The respondent said to her, ‘you’ve seen nothing here’. Ms Mayes then left the premises, never to see Mr Farrell again.
Between 12.00 and 12.30 pm, two individuals, Lisa Attard and her daughter, Shallon Chillcott, arrived at the Kidds Road property. Whilst in the main residence, they saw a male, Shane Pretty, mopping blood from around where Mr Farrell was curled up on the kitchen floor with his hands above his head, moaning.
Later that day, the respondent contacted Letzing and told him to return his car. Upon returning to the premises, Letzing observed the respondent carrying Mr Farrell — who appeared to be unconscious — in his arms. The respondent then placed Mr Farrell into the rear foot-well of his vehicle. Letzing entered the front passenger seat telling the respondent to drop him near his home, and the respondent drove away. During the trip, Letzing could hear Mr Farrell snoring very loudly and quivering intermittently.
Around 6.45 pm that evening, Mr Farrell’s mother, Valerie Hellyer, reported him missing to the police. As a result, at approximately 7.18 pm, police attended the Kidds Road property to conduct a welfare check on Mr Farrell. They spoke with Jackson, who falsely stated that he had not seen Mr Farrell since the previous day.
Between 31 May 2021 and 4 June 2021, the respondent contacted Letzing via a messaging application and said, ‘I’ve still got him’. Some days later, the respondent again contacted Mr Letzing and said, ‘the dude is gone’, meaning that Mr Farrell had died.
At some later point, the respondent drove Mr Farrell’s body to an address in Cyril Grove, Noble Park, where he wrapped it in blue carpet and placed it in a canoe in the rear yard.
On 3 June 2021, police executed a search warrant at the Kidds Road property. The premises was forensically analysed. Items located included the following:
•Using luminol testing, blood-stained shoe impressions oriented in a south-east direction facing away from the kitchen were located on the carpet near the entrance to the kitchen.
•Two cricket bats were found resting against each other, one ‘Aerial’ brand bat having visible blood staining.[4]
•Scissors were located in the kitchen sink.
•Blood swabs were obtained from the laundry sink.
•A wet ‘Oats’ mop was found.
[4]The prosecution did not allege the bats were used to assault Mr Farrell.
In the lead-up to 9 June 2021, the respondent and another male, Robert Haapakoski, were observed by another to be digging a grave at the Cyril Grove address.
On 11 June 2021, analysis of the remains of the blood that had been located at Kidds Road a little over a week earlier confirmed that the blood was from Mr Farrell.
A little over three weeks later, on 6 July 2021, police conducted an extensive search of dense park and grasslands around Cemetery Road and Cranbourne Racecourse. There was a large police presence which attracted a deal of media attention. No trace of Mr Farrell was found.
On 8 July 2021, police monitored telephone calls made between the respondent and his girlfriend. The telephone calls revealed the respondent telling his girlfriend (amongst other things) that: ‘some things that he had done had just come up on the news’; if he were to get caught, it ‘would be serious’; and it ‘was only a matter of time’.
On 9 July 2021, police executed search warrants at several locations. At the respondent’s address, they located and seized a pair of bloodstained boots,[5] mobile telephones and a shovel. On one of the mobile telephones, police discovered videos which showed the respondent digging a hole at the Cyril Grove address. There were also videos depicting the respondent standing over Mr Farrell, who was lying on the floor bloodied and motionless.
[5]The prosecution did not allege that the blood came to be on the boots as a result of the respondent kicking Mr Farrell.
Another search warrant was executed at the Cyril Grove address. Haapakoski indicated to police that Mr Farrell’s body was in a canoe in the rear yard. Police found two holes dug in the rear yard (as shown on one of the videos on the respondent’s mobile telephone), and also located Mr Farrell’s decomposed body wrapped in carpet in a white and blue coloured canoe.
Police arrested and interviewed the respondent, who made no comment to the allegations put to him.
At autopsy, due to the advanced decomposition of his body, Mr Farrell’s cause of death could not be ascertained. An examination of the body found, however, that the left and right nasal bones had separated from the frontal bone, and the right nasal bone was fragmented; whilst the nasal sill, the left and right orbits, the zygoma, and the nasal septum were intact.
The respondent’s personal circumstances and his mental health
Before turning to the submissions of the parties on the appeal, it is convenient to set out the respondent’s personal circumstances as reflected in the reasons for sentence.[6]
[6]DPP v Tiumalu [2023] VSC 233 (‘Reasons’).
As we have indicated, the respondent, of Samoan heritage, was aged 30 years when he killed Mr Farrell, and was aged 31 years when sentenced. When an infant, he was adopted by a cousin of his biological mother, who brought him to Australia when he was aged five years.
It appears that the respondent experienced an unstable childhood. He had a strict and religious father, who was absent for extended periods during his upbringing. The respondent completed his VCE studies in Queensland but had few friends and was socially isolated, reportedly self-harming until the age of 18. He engaged in binge drinking from the age of 17, and, from the age of 21, experimented with cocaine. For three years — from the age of 27 until his arrest in July 2021 — the respondent used methamphetamine. In the six months before his arrest, the respondent used methamphetamine on a daily basis and drank regularly.
A report by consultant psychologist, Mr Luke Armstrong, dated 31 January 2023, was tendered on the plea. In relation to the respondent’s psychological state, Mr Armstrong expressed the following opinions:
It is my view that [the respondent] displays very long term personality disturbances beginning in childhood and developing throughout adolescence and adulthood:
1.   From an early age [the respondent] would engage in frantic attempts to avoid real and or imagined abandonment within a context of periodic violence from his father, including an insecure attachment with his adoptive mother. [The respondent] associated his relationship with his father with a sense that he did not belong. He concealed his own emotional problems from his mother for fear that he would cause her distress and in turn the family would disown him (Criterion 1, Borderline Personality Disorder, BPD).
2.   [The respondent] presents with a very long term pattern of unstable interpersonal relationships. Whilst his relationship with his mother was somewhat protective, it was an unstable one nonetheless as he believed he was unworthy of her love. With exception of his current relationship, which he regards as protective, [the respondent] has struggled to maintain stable interpersonal relationships through his employment history and social experiences. A feature defining [the respondent’s] social interactions is a sense of social isolation, paranoia and resentment (Criterion 2, BPD).
3.   [The respondent] presents with a profoundly unstable sense of self, and an identity defined by self loathing. [The respondent] also believes that he will be rejected and persecuted in every context of his life. He denies this to be the case in his current relationship. [The respondent] holds chronic fears for himself in prison, and alleges he is stood over regularly, despite his size (Criterion 3, BPD).
4.   [The respondent] presents with a 20 year pattern of self harm, specifically cutting and punching himself and walls (Criterion 5, BPD). Mrs Tiumalu lives in fear that her son will one day kill himself.
5.   [The respondent] presents with a chronic history of affect instability, attributable to a marked reactivity of mood. [The respondent] does not present with a stable mental state. There is evidence that he presents with a life long pattern of erratic mental state defined by irritability, anxiety and depressed or dysphoric mood (Criterion 6, BPD). Observations made during this assessment were consistent with psychological profiling using the MMPI-2, a standardised measure of psychological functioning.
6.   [The respondent] presents with a history of inappropriate, intense anger or difficulty controlling anger, leading to physical altercations. [The respondent] has experienced anger outbursts from childhood and these have continued intermittently throughout his life, although I note that [the respondent] has never previously come to the attention of the law for violence. [The respondent] reports he has sought to control his anger and evidence of no priors and no known work related incidents may corroborate this fact (Criterion 8, BPD).
7.   There is transient stress related paranoid ideation. [The respondent] maintains a view that with the exception of his mother, grandmother and partner, every aspect of his interpersonal life is defined by malevolent, significant others (Criterion 9, BPD).
[The respondent] fulfils the criterion for a Borderline Personality Disorder …
Further, Mr Armstrong expressed the view that the respondent
is a very complex case, he is of borderline to low average intelligence. He experienced what would be described in clinical terms as an extreme childhood, and one that proved to be very confusing and traumatic. Adding to this are the known complexities associated with traumatic adoption, specially many survivors of adoption struggle to assimilate their subsequent attachment experiences. [The respondent] experienced the added hardship of severe bullying at school. [The respondent’s] childhood and adolescence experience, coupled with the pattern of his interpersonal experiences and identity is consistent with a Borderline Personality Disorder. I would venture further to suggest that [the respondent] is a dual diagnosis client. Substances have been entwined with his personality disorder for many years. It is clear in my view that he has self medicated with alcohol and illicit substances for many years, at least from late adolescence. It is also my view that for at least a period of 3 years prior to the offending, [the respondent] was also suffering Alcoholism and fulfilled the necessary criterion for a Stimulant Use Disorder.
Mr Armstrong expressed the following conclusions relevant to the respondent’s offending:
In my opinion [the respondent’s] capacity to exercise appropriate judgement began to unravel when he was approached by Jackson the night before the offending. [The respondent] likened Jackson’s experience of alleged standover by the victim to his own lifelong experience of mistreatment and bullying. [The respondent] lost perspective and felt an overwhelming compulsion to step in and help Jackson.
Whilst [the respondent’s] capacity to exercise appropriate judgement to attend Jackson’s home was distorted by his own experience of lifelong bullying, his judgement was not impaired immediately prior to striking the victim. [The respondent] maintains he had no desire to use violence, however hoped the victim would comply, based on [the respondent’s] reputation and past interaction with the victim.^[[7]]
When the victim verbally retaliated, [the respondent] experienced a combination of distorted feelings: specifically he felt unsafe and threatened by the victim. He also felt humiliated, secondary to a belief he was being socially humiliated or put on show in front of witnesses. These triggers in turn activated an instinctual, yet disproportionately violent reaction, and [the respondent] concedes that he assaulted the victim. Whilst [the respondent’s] assaultive response was a disproportionate one, it was nonetheless a proportionate response when his background of familial violence; bullying; social humiliation and rejection is considered.
[The respondent] does not appear to have lost control of his violent potential throughout adulthood. For the most part his debt collection success was maintained on his past reputation and size only, not actual violence. It would appear that the alleged circumstances of offending were preceded with an inadvertent trigger from the victim, which activated memories of violent interactions preceded by rejection in childhood and adolescence. These flooding memories impaired [the respondent] to make calm and rational choices or to think clearly, which in turn activated a similarly disproportionate, violent response toward the victim.
The submissions on the plea
[7]The respondent told Mr Armstrong that he had previously ‘interacted’ with Mr Farrell over a $20 debt owed to Jackson. On that occasion, Mr Farrell had ‘complied’ and paid the money.
The defence submissions
On the plea, when dealing with the objective gravity of the respondent’s offending, counsel for the respondent submitted that the offending should be assessed as spontaneous, and that it should be concluded that there was no premeditation in the assault that resulted in Mr Farrell’s death. Counsel submitted that the respondent did not come armed to the proposed eviction, and there was no prior agreement with either Jackson or Letzing to assault Mr Farrell. The assault, counsel submitted, was spontaneous, in that it was constituted by one slap and two punches, was short in duration, and involved limited damage to Mr Farrell’s head and body. Although the respondent conceded that he had killed Mr Farrell by an unlawful and dangerous act, counsel submitted that, in the absence of premeditation or pre-planning, the respondent’s offending ought be considered to be less serious than other cases.[8] Counsel conceded, however, that the respondent’s post-offence conduct, which involved the keeping and disposal of Mr Farrell’s body, was an aggravating feature of the offending.
[8]Counsel for the respondent distinguished the features of the respondent’s offending from that in R v Hou [2010] VSCA 36 and XY v The Queen [2013] VSCA 261.

Based on Mr Armstrong’s report, counsel for the respondent submitted that the ‘heavy combination of a mental disorder and borderline personality disorder is a significant mental condition, but with heavy illicit drug use’, so that the respondent would be entitled to a ‘moderated’ or ‘mild’ application of limbs one and three of Verdins.[9]
[9]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Although it was conceded that the respondent’s expressions of remorse were ‘delayed’ — given that he had dug graves with the intention of burying Mr Farrell’s body — counsel for the respondent submitted that the respondent had accepted full responsibility for his actions and shown genuine remorse. Counsel also submitted that the respondent’s plea of guilty was early, having been entered immediately after the contested committal hearing.
Finally, counsel for the respondent relied on the principle of parsimony, and the principles to be derived from Worboyes.[10]
[10]Worboyes v The Queen (2021) 96 MVR 344 (‘Worboyes’).
The prosecution submissions
The prosecutor submitted that the objective gravity of the respondent’s offending ought to be considered to be ‘particularly grave’. She submitted that the disproportionate and violent response of the respondent, in circumstances where there was no evidence to suggest that Mr Farrell had been a threat to him, elevated its objective gravity.
In relation to the respondent’s moral culpability, the prosecutor submitted that it ought be considered high, particularly in light of his post-offence conduct, and absence of remorse, insight and empathy. Although it was accepted that the respondent’s plea of guilty was entered soon after the contested committal hearing, the prosecutor submitted that his expressions of remorse came ‘late to the party’, and that his attempts to shirk responsibility for his actions when speaking to Mr Armstrong, ‘should temper the remorse’.
With respect to the respondent’s mental condition, the prosecutor submitted that ‘any borderline personality disorder and nexus to the offending is really intrinsically linked with his drug and alcohol abuse and it’s very hard to separate them and find a nexus between the borderline personality disorder absent those substance use disorders’. Indeed, so the prosecutor submitted, ‘there is no clear nexus between the borderline personality disorder and the offending in this case’. Thus, ‘if there’s any moderation it should be modest’.
Finally, the prosecutor submitted that the respondent’s prospects of rehabilitation are ‘guarded’, being dependent on his abstinence from drugs and alcohol. Community protection was therefore a relevant feature of the sentencing exercise.
Reasons for sentence
The sentencing judge observed that ‘the circumstances of the offence of manslaughter can vary widely, and accordingly it can be difficult to identify current sentencing practices for such offending’.[11]
[11]Reasons [59].
In assessing the nature and gravity of the offending, the judge accepted that the respondent’s ‘unlawful and dangerous acts in assaulting Mr Farrell were limited in scope compared to some more aggravated instances of this crime’. The judge noted, based on the agreed facts, that the slap and the two punches led to Mr Farrell’s death.[12]
[12]Ibid [60].
Further, the judge assessed the respondent’s offending ‘as being at the mid-range for offending of this kind’. The respondent ‘did not use a weapon‘; ‘the assault was not sustained but was over relatively quickly’; and there was no indication that he intended to assault Mr Farrell before he entered the house. Moreover, the judge accepted that the assault occurred when the respondent lost his temper, ‘in the spur of the moment’, and that the assault was ‘spontaneous and not pre-planned’.[13]
[13]Ibid [61]–[62].
As to moral culpability, the judge considered that, although there was no evidence to suggest that the respondent intended to assault Mr Farrell when he went to evict him from the bungalow, the respondent’s post-offence conduct was of particular importance to the assessment of his level of moral culpability. He identified several factors ‘of significance in aggravating [the respondent’s] moral culpability:[14]
It is of significance to the assessment of your level of moral culpability that you did not seek medical help for Mr Farrell after you had assaulted him. The evidence establishes that although he was injured, he was still alive for a period following the assault. You could have made sure he received medical treatment and given him a chance of survival with the simple act of dropping him at a hospital. However, you doubtless understood that his survival would have inevitably identified you as the person who attacked him. Your failure to ensure help for him led to his death. Your actions were reprehensible and deserve condemnation. In my opinion, this circumstance heightens the level of your culpability.
Another factor of significance in aggravating your culpability is that you attempted to cover up the assault on your victim, and the fact he had died. After some considerable time following your assault on Mr Farrell, and after he had died, his body was taken to the backyard of a house where you intended to bury him. You began digging a grave. It can only be inferred that by taking these steps you intended to continue to cover up your crime, the consequence being that your intention was to evade responsibility for what you had done. Equally as significant was that by covering up your crime, you must have known that Mr Farrell’s family and friends would never know what happened to him, nor be able to at least have some degree of comfort by having the return of his remains. You wanted to make his body disappear. In this regard, your actions were cruel, lacked humanity and must be condemned and denounced as utterly unacceptable. …
[14]Ibid [64]–[65].
The judge concluded that there should be a ‘modest application’ of Verdins principles 1 and 3[15] in the respondent’s case:[16]
In assessing your level of moral culpability, I conclude that that your level of culpability is significant. However, in making that assessment I indicate that I accept the evidence provided by Mr Armstrong, as noted above, as to your suffering from BPD and Stimulant Use Disorder. I am prepared to accept that these factors impaired you to some extent from making calm and rational choices and from thinking clearly about not only your actions at the time you assaulted Mr Farrell, but also the circumstances that occurred following the assault. As a result I will extend to the sentence that will be imposed a modest application of principles one and three as expressed in the case of Verdins.
[15]They are (see Verdins, 276 [32]):
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
…
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
[16]Reasons [67].
Moreover, the judge took into account ‘the principle of parsimony’. He also took into account ‘to some extent’ the principle set out in the case of Worboyes, which ‘allows for a plea of guilty entered during the currency of the pandemic to be worthy of greater weight in mitigation than a similar plea entered at a time when the pandemic was not impacting the community and the courts’.[17]
[17]Ibid [68]. See also [78].
Turning to the principles of general deterrence, denunciation and just punishment, the judge noted that the violence perpetrated by the respondent was completely unjustified, was committed on a person who was unknown to him, and involved a forceful attack on his head. The judge stated that such violence employed by the respondent ‘must be generally deterred in the community and denounced as utterly unacceptable.’ As to specific deterrence and protection of the community, the judge noted that the respondent had no previous criminal history or previous significant antisocial behaviour involving violence. The judge found the respondent to be genuinely remorseful, although was ‘troubled by [the respondent’s] failure to seek assistance for Mr Farrell’ and the fact that he took steps to cover up his crime. Further, the judge accepted that the respondent had taken some formative steps to address his drug and alcohol abuse, and that he had a supportive family. The judge took into account the ‘compromised level of [the respondent’s] mental functioning which contributed to [his] failure to think clearly about the circumstances’; and found that the respondent’s prospects of rehabilitation were ‘reasonable, and open.’[18]
[18]Ibid [72]–[75].
With respect to the respondent’s plea of guilty, the judge once more noted that the respondent did not have a previous criminal history. Despite the fact that his remorse had come ‘late in the piece’, the judge concluded that the respondent appeared to be ashamed of his conduct, and that it was of importance that the respondent had reached that position. Although the judge found that aspects of specific deterrence and protection of the community were relevant, the judge stated that it was ‘not required to be given undue weight in the sentencing calculus’.[19]
[19]Ibid [76]–[78].
The judge accepted the conclusion of Mr Armstrong that the respondent would likely live in fear for his safety in the prison setting, and that due to his personality factors and compromises to his mental functioning, there is a risk that the serving of a sentence of imprisonment would be burdensome and particularly arduous. And the judge acknowledged that there would be a risk that the respondent’s mental health may deteriorate whilst in custody, unless he received mental health treatment.[20]
[20]Ibid [79].
Finally, with an eye on current sentencing practises, the judge ‘had regard to a number of previous sentences passed in cases of manslaughter’[21] and noted that ‘the circumstances of manslaughter can vary widely which makes it difficult to establish a useful comparative pattern with respect to the sentence that must be passed on [the respondent]’.[22]
[21]The cases were: Philp v The Queen [2017] VSCA 320; Mitchell v The Queen [2018] VSCA 158.
[22]Reasons [80]–[81].

Appellant’s submissions on the appeal

Counsel for the Director maintained the submission that there was no established causal nexus linking the respondent’s suggested borderline personality disorder to his offending; but submitted that if Verdins principles were engaged, they should only have resulted in a modest amelioration of sentence. The sentence imposed suggests that they were given too much weight.
The Director’s counsel submitted that the respondent’s assault was wholly disproportionate to any actions by Mr Farrell. Moreover, a significant matter in aggravation was that the respondent took custody of Mr Farrell for days, thereby denying him medical attention. Thereafter, the respondent took steps to cover his tracks, subjecting Mr Farrell’s remains to undignified treatment. Notwithstanding that the judge made appropriately strong comments deprecating the respondent’s conduct, the sentence imposed does not reflect the extent of the respondent’s moral culpability. Even taking into account the mitigating factors such as the plea of guilty, absence of prior criminal history and supposed remorse (which, on any view, was late-coming), a much higher sentence was called for.
Care should be taken, counsel submitted, in considering previous sentences for manslaughter for the purposes of determining current sentencing practices, given the increased penalty.[23] A very substantial sentence was to be expected. But while it was necessary to moderate the sentence to account for mitigating factors, the weighing has miscarried to such an extent as to produce a manifestly inadequate head sentence.
[23]By s 5 of the Crimes Act 1958, the penalty for manslaughter is 25 years’ imprisonment. The penalty was increased from 20 years’ imprisonment by the Crimes Amendment (Manslaughter and Related Offences) Act 2020, with effect from 1 July 2020.

Respondent’s submissions on the appeal

Counsel for the respondent submitted that, in the context where the prosecutor on the plea had submitted that there should be some ‘moderation’ of Verdins principles, the judge can hardly be criticised for applying limbs 1 and 3 of Verdins. Given the unchallenged background and diagnosis set out in Mr Armstrong’s report and the nature of the offending, the judge’s finding that the respondent’s ability to make calm and rational choices was impaired, was a finding that was reasonably open.
In his sentencing remarks, counsel submitted, the judge referred to the aggravating features of the offending, and to the principles of general deterrence, denunciation, just punishment, specific deterrence and community protection. The judge also took account of the plea of guilty — entered at the first reasonable opportunity when the effects of the pandemic were still being felt — and the associated utilitarian benefit and ‘genuine remorse’. Counsel submitted that the judge also had regard to the respondent’s lack of prior criminal history, and the respondent’s disadvantaged background (which could have attracted Bugmy[24] considerations, albeit such considerations were not urged upon the judge). Significantly, counsel submitted, the respondent had made efforts to rehabilitate in custody, and the judge assessed his prospects of rehabilitation as reasonable. And importantly, the judge assessed the offending as being ‘mid-range’ — being limited in scope, unpremeditated and unsophisticated — properly assessing the extent of the respondent’s moral culpability.
[24]Bugmy v The Queen (2013) 249 CLR 571.
The respondent’s counsel submitted that, in the end, and having regard to the stringency of the test to be applied, it cannot be said that the sentence imposed on the respondent has been demonstrated to be wholly outside the permissible range of sentences reasonably open to the sentencing judge. As a result, the appeal should be dismissed.
In the alternative, counsel submitted, the appeal should be dismissed in the exercise of discretion, since the prosecutor should have given the judge more assistance with comparable cases[25] which the prosecutor had submitted were on ‘all fours’, when they were not.
[25]The prosecutor provided the judge with Mitchell v The Queen [2018] VSCA 158 (a sentence of 10 years’ imprisonment, with seven years and six months non-parole) and Phillips v The Queen [2017] VSCA 320 (a sentence of nine years’ imprisonment, with six years non-parole).
Counsel was also permitted to tender a bundle of documents relevant to the resentencing exercise, in the event that the Court ultimately concluded that the Director’s appeal against sentence should be allowed.[26] The bundle contained the results of eight urine screening tests between 29 March 2023 and 8 February 2024, showing that the respondent had been free of a range of illicit drugs whilst in custody; together with 23 certificates (and similar), demonstrating that the respondent had completed a number of educational programs during his time in custody.
[26]See Kentwell v The Queen (2014) 252 CLR 601.

Discussion

As we have indicated, we are of the view that the sentence imposed on the respondent is manifestly inadequate.
In Weybury, it was said that[27]
a conclusion that a sentence is manifestly inadequate does not depend upon attribution of identified specific error in the sentencing judge’s reasoning. Manifest inadequacy is a conclusion. Inadequacy is, or is not, plainly apparent. A sentence is, or is not, unreasonable or plainly unjust.[28] Perhaps more often than not, a conclusion of manifest inadequacy does not admit of elaboration save to state the respect in which the sentence is inadequate, such inadequacy resulting because the wrong kind of sentence was imposed, or because the sentence imposed is manifestly too short. The members of the appellate court will weigh for themselves all relevant features of the respondent and the offending — including those that aggravate and those that mitigate — and intuitively synthesise each factor bearing on the exercise of the sentencing discretion. In so doing the court must balance the often incommensurable factors bearing on the exercise of the sentencing discretion, those factors frequently pulling in different directions.[29] Ultimately, appellate intervention on the ground of manifest inadequacy is not warranted unless, having regard to all of the relevant sentencing factors — including the degree to which the impugned sentence differs from sentences that have been imposed in cases which are truly comparable — the appellate court is ‘driven to conclude that there must have been some misapplication of principle’.[30]
[27]DPP v Weybury (2018) 84 MVR 153, 169 [5] (Priest JA, in dissent as to result). See DPP v Ristevski [2019] VSCA 287, [1] (Ferguson CJ and Whelan JA), [62] (Priest JA) (‘Ristevski’).
[28]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[29]See Elias v The Queen (2013) 248 CLR 483, 494 [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ); DPP v Dalgliesh (2017) 262 CLR 428, 433 [4] (Kiefel CJ, Bell and Keane JJ); 452 [79] (Gageler and Gordon JJ).
[30]See R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); Dalgliesh, 447 [59] (Kiefel CJ, Bell and Keane JJ). See also DPP v Zhuang (2015) 250 A Crim R 282, [39]–[49]; DPP v McInnes [2017] VSCA 374, [75].
It may be true that the respondent’s assault on Mr Farrell was not protracted and ‘limited in scope compared to some more aggravated instances of this crime’, but it cannot be overlooked that at least one of the blows with which the respondent struck Mr Farrell was, from the standpoint of a reasonable person, an act carrying with it an appreciable risk of serious injury to the deceased.[31]
[31]Wilson v The Queen (1992) 174 CLR 313, 332–3 (Mason CJ, Toohey, Gaudron and McHugh JJ); R v Lavender (2005) 222 CLR 67, 75 [17], 86 [53] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Moreover, in the aftermath of his assault upon the hapless Mr Farrell, the respondent treated his victim with appalling callousness. He could not have failed to realise that Mr Farrell was seriously injured. There was so much blood from Mr Farrell’s injuries, that it had to be mopped up. Further, Mr Farrell was observed at different times closely connected to the respondent’s assault upon him to be dazed, and curled up moaning on the kitchen floor. Indeed, by the time Mr Letzing returned the respondent’s car keys, Mr Farrell was unconscious in the respondent’s arms, and was bundled unceremoniously into the rear footwell of the car where he snored loudly and quivered intermittently. It must have been glaringly apparent that Mr Farrell was in need of immediate, urgent medical attention. The respondent, however, did nothing, and let Mr Farrell waste away in his debilitated state until ultimately he died. To have kept Mr Farrell isolated in his desperate state, so as to deny him any prospect of medical treatment, was a very serious aggravating feature of the respondent’s offending. As the sentencing judge aptly observed, the respondent’s actions were reprehensible.

During the period that he left Mr Farrell to languish, it could not be said that the respondent was racked with remorse. Nor could it be concluded that any remorse was detectable when the respondent wrapped Mr Farrell’s remains in a blanket and put them in a canoe to decompose in the suburban backyard where he had dug a grave. Although the judge — perhaps, benevolently — found remorse, self-evidently it emerged very late. The weight to be attributed to it was therefore somewhat diminished (albeit not wholly extinguished). As we have indicated, the manner in which the respondent treated Mr Farrell in life after his assault upon him was a very significant feature of aggravation of his crime. The manner in which the respondent dealt with Mr Farrell in death was also a very serious aggravating feature, exhibiting an absence of remorse. No doubt, the respondent’s attempts to conceal his crime also significantly exacerbated the anguish of Mr Farrell’s loved ones.
In Ristevski — a case in which a man killed his wife and disposed of her body — it was made clear that the disposal of a victim’s body after an unlawful killing is per se a significant feature of aggravation. Thus, it was observed that[32]
the respondent’s disposal of his wife’s body was a significant feature aggravating of his offending, and was emblematic of his complete lack of remorse. Thus in England, Brooking JA (with whom Batt and Chernov JJA agreed) said (albeit in the context of murder):[33]
The mere act of dumping the body after a murder has been viewed as an aggravating circumstance. So in R v Von Einem (1985) 38 SASR 207 King CJ, with whom Jacobs and Olsson JJ agreed, mentioned the dumping of the body in a remote spot as part of his ‘recital of essential facts’, which at 218 he described as amply justifying the sentencing judge’s view that the crime was of unique seriousness. In R v Lowe [1997] 2 VR 465 a very short time after the killing, the body of the murdered child was wedged into a storm-water drain, where it was found three months later. The Court of Appeal, at 490, referred to the prisoner’s heartless concealment of the child’s body, and it is to be noted, having regard to what I shall say later about remorse, that the hiding of the body was plainly regarded as not limited in its significance to the light which it threw on remorse. For the court, having referred to the hiding of the body and other matters, went on to mention as a distinct matter the prisoner’s signal and singular lack of remorse.
Not only does the dumping and concealment of the deceased’s body per se constitute a significant aggravating feature of the respondent’s offending, it also demonstrates that the respondent is not afflicted by any pangs of remorse. Thus, one can detect in the respondent no apparent sorrow or regret for what he has done, or any desire to atone for the harm he has caused and to redeem himself. Of course, the absence of remorse does not aggravate the respondent’s offending, but it represents the absence of a feature which often significantly mitigates sentence.
[32]Ristevski, [73]–[74] (Priest JA, Ferguson CJ and Whelan JA agreeing). See also Mocenigo v The Queen [2013] VSCA 231, [86] (Priest JA, Buchanan and Neave JJA agreeing).
[33]England [1999] 2 VR 258, 266 [27].
There were mitigating features. Among them were: the plea of guilty (having utilitarian value, showing some remorse and having added weight being entered when the effects of the pandemic were being felt); the late-coming remorse; a lack of prior convictions; a troubled early life; reasonable prospects of rehabilitation; and Verdins considerations.
As to the last of those factors, the judge said he ‘imposed a modest application of principles one and three as expressed in the case of Verdins’; that is, the judge was prepared to accept that the respondent’s Borderline Personality Disorder and Stimulant Use Disorder ‘impaired [the respondent] to some extent from making calm and rational choices and from thinking clearly about not only [his] actions at the time [he] assaulted Mr Farrell, but also the circumstances that occurred following the assault’. Hence, the judge accepted that to some extent those conditions reduced the respondent’s moral culpability for the offending, thereby having an effect on considerations of just punishment and denunciation, and moderating the application of the principle of general deterrence.
In our view, the judge was somewhat charitable to have found that, based on Mr Armstrong’s report, limbs 1 and 3 of Verdins had application, even if that application was ‘modest’. It should not be forgotten, however, that notwithstanding that he found that Verdins had some (modest) application, the judge nonetheless concluded that the level of the respondent’s moral culpability was ‘significant’.
As earlier mentioned, the judge assessed the respondent’s offending ‘as being at the mid-range for offending of this kind’. In Lee, a case of manslaughter involving a single punch to the head of the victim causing non-survivable brain injury, the prosecution had submitted that the offence of manslaughter in that case was also in the mid-range of seriousness for the offence. With respect to that submission, the Court said:[34]
In the course of the plea hearing, the prosecution submitted that the applicant’s offence fell into the ‘mid-range’ of seriousness for the crime of manslaughter. And in this Court, counsel for the applicant initially contended that the applicant’s offending fell toward the bottom end of the scale of seriousness for the crime of manslaughter. But as was recently observed by Maxwell P and Hargrave JA in Weybury (albeit in the context of the offence of dangerous driving causing death):
… it is in our opinion not helpful to debate whether, on the spectrum of cases from least to most serious, the offending in this case falls within a particular category such as ‘mid-range’ or ‘bottom of the high-range’ or other like classifications. Such an approach carries the risk that it will attract reference to current sentencing practices for offences which have previously been categorised in a particular range, whatever the circumstances of the offending and the mitigating circumstances. Such an approach may lead to sentencing judges unconsciously limiting their instinctive synthesis of a particular case by sentences in other cases classified within a particular range, rather than considering the individual facts of comparable cases.
In our opinion, it is best to avoid categorising cases as falling within a particular ‘range’ and, instead, for sentencing judges to have regard to relevantly comparable, and current, cases as ‘yardsticks’. This approach involves considering where a case fits on the spectrum of offending, and is the preferable way for sentencing judges to have regard to current sentencing practices as a factor in the instinctive synthesis.
In that case, Priest JA also said:
Beyond saying that the maximum penalty must be reserved for cases in the ‘worst category’, and that a sentencing judge in every case is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category (properly so called), in my view, attempts to shoehorn particular cases into categories of seriousness such as ‘upper’, ‘middle’ or ‘lower’, or to characterise moral culpability as ‘high’ (or ‘very high’), ‘middle range’ or ‘low’, are often calculated to obscure the essential nature of the sentencing task.
[34]Lee v The Queen [2018] VSCA 343, [31]–[32] (Ferguson CJ, Priest and Beach JJA) (‘Lee’).
The respondent’s offence did not fall into the worst category, but neither was it an example of the least serious instances of the offence of manslaughter. It was, as we have said, attended with very serious aspects of aggravation, and limited circumstances of mitigation. Synthesising for ourselves all of the relevant matters that were before the sentencing judge, we consider the conclusion to be inescapable that the sentence imposed by the judge is outside the range of those open to him in the proper exercise of discretion, and reveals error in point of principle. The judge must have given too little weight to the features of aggravation, or too much weight to the features going in mitigation. In our view, therefore, the Director’s appeal must be allowed; the sentence first imposed set aside; and another, more severe, sentence imposed. We should add that, so far as we can see, there is no occasion to apply the ‘residual discretion’.
As part of the resentencing exercise, we have endeavoured to take into account all of the matters that were before the trial judge, together with the documents tendered on the hearing of the appeal. We make it clear that the urine test results, and the certificates (and similar) showing the respondent’s successful completion of programs, have led us to be a little more sanguine than we otherwise would have been about the respondent’s prospects of rehabilitation, and have persuaded us that a lesser sentence than we would otherwise have thought appropriate had they not been before the Court should be imposed.
In all the circumstances, we will sentence the respondent to nine years and six months’ imprisonment, and will impose a non-parole period of seven years, that period being the minimum term of the sentence that we consider justice requires the respondent to serve before being eligible for conditional release.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the respondent’s plea of guilty, we would have imposed a sentence of 12 years’ imprisonment, with a non-parole period of 10 years.

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[2024] VSCA 192

5 September 2024